IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ELIGAH DARNELL, JR., §

§

Petitioner, §

§

VS. § NO. 4:04-CV-910-A

§

DEE ANDERSON, SHERIFF, §

TARRANT COUNTY, TEXAS §

§

Respondent. §

MEMORANDUM OPINION

and

ORDER

Came on for consideration the above-captioned action wherein

Eligah Darnell, Jr. ("Darnell") is petitioner and Dee Anderson is

respondent. This is a petition for writ of habeas corpus filed

on December 13, 2004, pursuant to 28 U.S.C. § 2254. On July

25, 2005, the United States Magistrate Judge issued his proposed

findings, conclusions, and recommendation, and ordered that the

parties file objections, if any, by August 15, 2005. On July 29,

2005, Darnell filed written objections; he filed additional

objections on August 10 and 11, 2005. Respondent did not file

objections. 

In accordance with 28 U.S.C. § 636(b)(1) and Rule 72 of the

Federal Rules of Civil Procedure, the court makes a de novo

determination of those portions of the proposed findings or

recommendations to which specific objection is made. United

States v. Raddatz, 447 U.S. 667 (1980). The court is not

addressing any nonspecific objections or any frivolous or

 

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 The Texas Code of Criminal Procedure provides that a defendant convicted of a sexually

violent offense has a lifetime duty to register as a sex offender. Tex. Code Crim. Proc. Art.

62.12(a)(1). Indecency with a child by sexual contact constitutes a sexually violent offense. Id. at

62.01(6)(A). Therefore, Texas law imposed upon Darnell a lifetime registration requirement. See

Rodriguez v. Texas, 93 S.W.3d 60, 77 (Tex. Crim. App. 2002).

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conclusory objections. Battle v. United States Parole Comm'n,

834 F.2d 419, 421 (5th Cir. 1987).

I.

Background

In his petition, Darnell states that:

On March 29, 1989, Darnell pleaded guilty to a felony count

of indecency with a child. Darnell served a 9 year prison term,

and was released on parole. On February 19, 2004, Darnell was

arrested for failure to register as a sex offender.1 Subsequent

to this arrest, Darnell's parole was revoked, and he placed into

the custody of the Tarrant County Sheriff's Dept. On May 11,

2004, Darnell filed a writ of habeas corpus in state court. 

On August, 12, 2004, during the pendency of that state writ,

but before the filing of this petition, Darnell's sentence for

the 1989 conviction was discharged. Darnell is now charged by

indictment for failure to register as a sex offender, and is

awaiting trial in Tarrant County, Texas.

II.

Darnell's Petition

On December 13, 2005, Darnell filed this petition alleging

four grounds for relief: (1) improper revocation of parole; (2)

improper loss of time credits; (3) futility in resort to state

 

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processes; and (4) inordinate delay in state processes. The

magistrate judge recommended that grounds one and two of

Darnell's petition be dismissed for lack of subject matter

jurisdiction, and that grounds three and four be dismissed as

moot. Specifically, the magistrate judge found that when Darnell

filed this petition he was not "in custody" for the purposes of

28 U.S.C. § 2254, because the sentence for his 1989 conviction

for indecency with a child was discharged on August 12, 2004. 

In a telephone conference dated August 25, 2005, Darnell

acknowledge to the court that the conviction upon which grounds

one and two of his petition were based had been discharged prior

to the filing of this petition. However, Darnell argued that he

would have timely filed his federal petition had he not been

forced to exhaust his state remedies first. For the forgoing

reasons, the court must reject Darnell's argument. 

III.

Analysis

Both the Supreme Court and the Fifth Circuit have

consistently "held that a movant is not 'in custody' under a

conviction for the purposes of § 2254 relief where the sentence

imposed for that conviction has fully expired." United States v.

Esogubue, 357 F.3d 532, 534 (5th Cir. 2004) (discussing Maleng c.

Cook, 490 U.S. 488, 490-91 (1989)). The determination of whether

a § 2254 petitioner is "in custody" is made at the time the

petition is filed. See Carafas v. LaValle, 391 U.S. 234, 238

(1968). Simply put, Darnell does not meet the statutory "in

 

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custody" requirement because he is no longer, and was not at the

time he filed this petition, in custody pursuant to the 1989

conviction, and neither is he presently in custody pursuant to

another conviction that is positively and demonstrably related to

the 1989 conviction he attacks. See Escobedo v. Estelle, 655

F.2d 613, 616-17 (5th Cir. 1981). 

In addition, Darnell's argument that the procedural

requirement that he first exhaust his state remedies somehow

impaired his federal right is baseless. In Spencer v. Kemna the

Supreme Court held that a habeas petition based upon the

revocation of parole becomes moot once the entire term of

imprisonment underlying the parole revocation is completed. 523

U.S. 1 (1998). Even assuming Darnell had properly filed his

petition prior the completion of the 1989 sentence, the petition

would now be moot because "the reincarceration that he incurred

as a result of [the parole revocation] is now over and cannot be

undone." Id. at 8. Simply put, the fact that Darnell was

required to first appeal to state processes in no way impaired

his rights because the principle grounds for his petition--an

improper revocation of parole--would not have allowed this court

to maintain jurisdiction past the date upon which the conviction

was discharged. 

 

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VI.

ORDER

After reviewing Darnell's objections, the magistrate

judge's proposed findings, and applicable authority, the court

concludes that the all of the grounds for Darnell's relevant

objections are adequately addressed in the magistrate judge's

proposed findings. Therefore,

The court accepts the proposed findings, conclusions and

recommendation of the magistrate judge and ORDERS that the

petition in this action be, and is hereby, denied.

SIGNED August 26 , 2005.

 /s/ John McBryde 

JOHN McBRYDE

United States District Judge

 

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