IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

KELLY COLE IRONS, §

§

Petitioner, §

§

v. § 2:04-CV-0291

§

COUNTY JAIL, §

Hall County, Texas, §

§

Respondent. §

REPORT AND RECOMMENDATION TO DISMISS

PETITION FOR A WRIT OF HABEAS CORPUS

On November 1, 2004, petitioner KELLY COLE IRONS, filed with this Court a petition

for writ of habeas corpus wherein he appears to allege a violation of his speedy trial rights

related to a pending case out of the 100th Judicial District Court of Hall County, Texas for the

offense of burglary of a habitation.

This Court is unable to determine from petitioner IRON’s habeas application exactly

which conviction, if any, he is attempting to challenge, nor can the Court determine the grounds

upon which petitioner claims he is being held unlawfully. On November 30, 2004, petitioner

filed a supplement to his original brief wherein petitioner stated, 

A. That petitioner has been in custody (jail) for a period exceeding 180 days

with no action taken to resolve the charges filed against petitioner;

B. That petitioner was appointed an attorney to wit Earl Griffin. Petitioner

has to this date never seen or talked to this attorney; and

C. That petitioner has never been on docket call in the above styled case.

 

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Since Loren was decided, the Texas Court of Criminal Appeals, as a result of an amendment to Article V, Section 5 of

the Texas Constitution, has jurisdiction to issue writs of mandamus. 

HAB54\R&R\IRONS.DSMSPEEDY:3 Page 2 of 3

It does not appear petitioner is attempting to challenge a conviction or a disciplinary case

pursuant to § 2254, but that he seeks pre-trial relief by way of requesting the State of Texas to

pursue the pending criminal charge against him. However, his pleadings clearly reflect that

petitioner has made no attempt to exhaust his state court remedies as is required. See Loren v.

State of Texas, 440 F.2d 1182, 1183 (5th Cir. 1971)(“When one has been denied a speedy trial in

the Texas trial courts his proper remedy by way of mandamus or other peremptory writ lies with

the Texas Supreme Court....Appellant has not exhausted his state remedies by proceeding in the

Texas Supreme Court. This is his next step if he is to continue to seek a speedy trial, and it is a

condition precedent to Appellant's effective search for relief in the federal courts.”)(internal cites

omitted).1

 Petitioner has not exhausted his state court remedies related to any speedy trial claim

so as to entitle him to federal habeas relief. 

RECOMMENDATION

It is the RECOMMENDATION of the United States Magistrate Judge to the United

States District Judge that the Application for Writ of Habeas Corpus filed by petitioner KELLY

COLE IRONS be DISMISSED for failure to exhaust his state court remedies.

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a file-marked copy of this Report and

Recommendation to petitioner and to counsel of record for respondent by the most efficient

 

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means available.

IT IS SO RECOMMENDED. 

ENTERED this 28th day of September 2005.

 _______________________________

 CLINTON E. AVERITTE

 UNITED STATES MAGISTRATE JUDGE

* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions and recommendation. In

the event a party wishes to object, they are hereby NOTIFIED that the deadline for filing

objections is eleven (11) days from the date of filing as indicated by the file mark on the first

page of this recommendation. Service is complete upon mailing, Fed. R. Civ. P. 5(b), and the

parties are allowed a 3-day service by mail extension, Fed. R. Civ. P. 6(e). Therefore, any

objections must be filed on or before the fourteenth (14th) day after this recommendation is

filed. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b); R. 4(a)(1) of Miscellaneous Order No. 6, as

authorized by Local Rule 3.1, Local Rules of the United States District Courts for the Northern

District of Texas. 

Any such objections shall be made in a written pleading entitled “Objections to the

Report and Recommendation.” Objecting parties shall file the written objections with the United

States District Clerk and serve a copy of such objections on all other parties. A party’s failure to

timely file written objections to the proposed findings, conclusions, and recommendation

contained in this report shall bar an aggrieved party, except upon grounds of plain error, from

attacking on appeal the unobjected-to proposed factual findings, legal conclusions, and

recommendation set forth by the Magistrate Judge in this report and accepted by the district

court. See Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996);

Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988).

 

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