McGrath v. Farrell et al

Filing 32

MEMORANDUM ORDER adopting 24 Report and Recommendation. Ordered that the above-styled civil action is dismissed with prejudice to the claims being asserted again until the Heck conditions are met - in other words, until such time as McGrath can show that his conviction has been overturned, expunged by executive order, declared invalid in a state collateral proceeding, or called into question through the issuance of a federal writ of habeas corpus. Ordered that any and all motions which may be pending in this action are hereby denied. Signed by Judge Ron Clark on 3/6/2017. (bjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
MATTHEW McGRATH #1852772

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v.

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JUDGE TRENTIN FARRELL, ET AL.

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CIVIL ACTION NO. 6:15cv812

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff Matthew McGrath, proceeding pro se, filed this civil rights lawsuit under 42
U.S.C. §1983 complaining of alleged violations of his constitutional rights. This Court ordered that
the case be referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3)
and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United
States Magistrate Judges. McGrath’s amended complaint names as Defendants Judge Eddie
Northcutt, Rains County district attorney Robert Vititow, and defense attorney Roland Ferguson.
I. Background
McGrath complained that Judge Northcutt aided and abetted in obstructing justice by
allowing criminal prosecutions to commence in his court without appropriate records of county
jurisdiction procedures or confirmation that legal counsel had attached. He claims Judge Northcutt
aided and abetted court officials in performing official misconduct and violated McGrath’s right to
equal protection by denying a request to obtain disclosure used by opposing counsel.
Next, McGrath contends that District Attorney Vititow obstructed justice, displayed official
misconduct, and committed fraud by filing a “true bill” even after a request was made to the Rains
County Prosecutor’s Office under the Freedom of Information Act. McGrath states that Vititow
refused to “unveil a non-sealed disclosure of information relevant to the convicting court’s trial
record as well as due process and due course of law under our constitution amendment [sic] along
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with the State’s own constitution as to Article 1.03 Chapters 2, 15, 16, 19, and 20 of the T.C.C.P.
[Texas Code of Criminal Procedure]. In [sic] further violates Plaintiff’s 5th, 6th, and 14th
Amendment.”
McGrath asserts that his defense attorney Roland Ferguson gave or allowed false information
with malice and refused to disclose probable cause elements in judicial proceedings. He claims
Ferguson violated his constitutional rights by obstructing justice, committing perjury, and failed to
challenge the composition of the grand jury. Although Ferguson is a private individual, McGrath
asserts that the attorney was a willful participant with the state prosecutor to obtain a plea bargain
and conviction of the charge alleged.
Although McGrath stated that he was aware of judicial and prosecutorial immunity, he
argued these did not apply because he “can show by testimony and proof of record that the immunity
is overcome by the grand jury procedures and selections are out of judge’s liability. It’s non-judicial
because it’s before district court retains power, and though it’s judicial in nature, it’s taken in
complete absence of all jurisdiction.” He goes on to state that he overcomes prosecutorial immunity
because “his approach to administrative or investigative acts which is required by the grand jury and
its panel to extensively perform before indict [sic].” McGrath cites Burns v. Reed, 500 U.S. 478,
493, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991), in which the Supreme Court held that a prosecutor
had absolute immunity for an appearance in court in support of an application for a search warrant
and the presentation of evidence during that appearance was protected by absolute immunity, but
the act of giving legal advice to the police was not protected by absolute immunity.
McGrath argued that his conviction is fraudulent and obtained without due course of law.
He asked that he be returned to his county of conviction while a federal investigation is conducted
of the grand jury procedures in Rains County.
II. The Report of the Magistrate Judge
After review of the pleadings, the Magistrate Judge issued a Report stating that in order to
recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused
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by actions which would render a conviction or sentence invalid, a plaintiff under 42 U.S.C. §1983
must prove that the conviction or sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by an authorized state tribunal, or called into question by a federal
court’s issuance of a writ of habeas corpus. Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct.
2364, 129 L.Ed.2d 383 (1994); Clarke v. Stalder, 154 F.3d 186, 189 (5th Cir. 1998) (en banc). The
Magistrate Judge determined that McGrath’s claims implicated the validity of his conviction and
recommended that the lawsuit be dismissed with prejudice to the claims being asserted again until
McGrath met the Heck prerequisites.
McGrath argued in his amended complaint that a Heck bar does not apply because he “filed
this claim before final disposition on his state habeas corpus along with in his direct appeal, the
Court of Appeals showed the 1st prong of Strickland was proven but the second wasn’t. This shows
an invalidation on direct appeal.”1 The Magistrate Judge observed that when McGrath appealed his
conviction, the state appellate court held that counsel erroneously advised McGrath to waive his
right to a jury trial on punishment, thus satisfying the first prong of Strickland, but that McGrath
failed to show prejudice and thus did not satisfy the second prong. As a result, the judgment of
conviction was affirmed. McGrath v. State, slip op. no. 12-13-00128-CR, 2014 WL 1677914
(Tex.App.-Tyler, April 23, 2014, pet. ref’d). McGrath’s state habeas application was denied by the
Texas Court of Criminal Appeals without written order on the findings of the trial court without a
hearing. Ex Parte McGrath, no. WR-83,765-01 (Tex.Crim.App., March 2, 2016). A second state
habeas application was dismissed as successive on June 1, 2016. However, because McGrath’s
conviction was upheld on direct appeal and his applications for state habeas corpus relief were
denied, the Magistrate Judge rejected McGrath’s assertion that Heck did not apply.

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In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the
Supreme Court held that to establish a claim of ineffective assistance of counsel, a habeas corpus
petitioner must show that his counsel’s performance was deficient and that he was actually
prejudiced as a result.
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III. McGrath’s Objections
After summarizing his claims, McGrath argues that there are no records of grand jury
proceedings to show what process was ever done, and that he has requested to examine “any and all
statements of any and all witnesses before a grand jury along with the minutes as well which
indicted him/them, and all documents, photographs, and other tangible items, exhibits to the grand
jury.” He cites Federal Rule of Criminal Procedure 6(a)(1), relating to grand juries in federal
criminal prosecutions, and maintains that a defendant may challenge a grand jury on the ground that
the jurors were not legally qualified or were improperly selected. He contends that grand juries must
be made up of a fair cross-section of the population.
Next, McGrath asserts that prosecutors are obligated to refrain from certain improper conduct
while bringing and presenting the government’s case, including deceiving the grand jurors about the
quality of hearsay testimony, stating that the defendant is “a real hoodlum,” accusing the defendant
of crimes not investigated by the grand jury, and allowing government agents to make false and
misleading statements. He complains that the judge arbitrarily empaneled a grand jury and then
acted as an investigator during the grand jury proceeding.
McGrath states that he sought a declaratory judgment and a preliminary and permanent
injunction ordering the defendants to stop all orders executed upon him and a return to the
jurisdiction where the prosecution commenced while a full-scale investigation is performed on the
county’s records, as well as compensatory and punitive damages plus court costs.
McGrath contends that the alleged violation occurred before any judgment of conviction or
challenge to the grand jury proceedings, which would not necessarily imply the invalidity of his
conviction or shorten the duration of his confinement. He argues that judges are not immune from
injunctive relief and that judicial immunity does not extend to ministerial or administrative actions.
McGrath alleges that courts will not reverse convictions or dismiss indictments post-conviction for
violations of grand jury procedures, but acknowledges that he has filed a petition seeking federal
habeas corpus relief concerning his conviction.
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McGrath further maintains that prosecutors can abuse their special relationship with the
grand jury and states that grand juries are “an appendage of the Court,” powerless themselves to
compel the testimony of witnesses. He discusses the standards for release of grand jury testimony
and contends that it is improper for a government attorney to act as both prosecutor and witness as
to material facts before the grand jury. He states that a prosecutor’s misconduct in attempting to
discover whether a boot print found at the scene of the crime was left by the defendant was an
investigatory, administrative function for which the prosecutor was entitled only to qualified
immunity and that a prosecutor’s calling the grand jury to consider allegedly false evidence
produced by their investigative work did not retroactively transform that work from administrative
to prosecutorial. McGrath concludes by again stating that his lawsuit does not challenge the
judgment and sentence, rendering Heck inapplicable. Alternatively, he asks that the complaint not
be dismissed but be stayed until his federal habeas corpus petition is resolved.
IV. Discussion
The Fifth Circuit has held that an equal protection challenge to the selection of the grand jury
can be grounds for federal habeas corpus relief. Woodfox v. Cain, 772 F.3d 358, 363 (5th Cir. 2014),
cert. denied, 136 U.S. 38, 193 L.Ed.2d 26 (2015). Under Texas law, a challenge to an indictment
based upon the claim that it was not returned by a lawfully chosen or empaneled grand jury takes
the form of an exception to the form of the indictment. Tex. Code Crim. Pro. §27.09. McGrath
complains that his attorney, Roland Ferguson, failed to challenge the grand jury and “was a willful
participant with the state prosecutor to obtain a plea bargain and conviction,” which is in effect a
claim of ineffective assistance of counsel. Were McGrath to prove that the grand jury which
indicted him was unlawfully empaneled, the judge and the prosecutor committed misconduct, and
his attorney rendered constitutionally ineffective assistance by failing to object and working with
the prosecutor to get McGrath convicted, the validity of his conviction and sentence would be called
into doubt. See Perez v. United States, 481 F.App’x 203, 2012 WL 2938060 (5th Cir., July 19,
2012) (state prisoner’s allegation that his indictment was obtained by fraud is barred by Heck). The
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Magistrate Judge correctly concluded that McGrath’s claims are likewise barred by Heck. As such,
the complaint should be dismissed. See DeLeon v. City of Corpus Christi, 488 F.3d 649, 657 (5th
Cir. 2007) (stating that “a preferred order in Heck cases decrees ‘Plaintiff’s claims are dismissed
with prejudice to their being asserted again until the Heck conditions are met.’”) McGrath’s
objections are without merit.
IV. Conclusion
The Court has conducted a careful de novo review of those portions of the Magistrate Judge’s
proposed findings and recommendations to which the Plaintiff objected. See 28 U.S.C. §636(b)(1)
(District Judge shall “make a de novo determination of those portions of the Report or specified
proposed findings or recommendations to which objection is made.”) Upon such de novo review,
the Court has determined that the Report of the Magistrate Judge is correct and the Plaintiff’s
objections are without merit. It is accordingly
ORDERED that the Plaintiff’s objections are overruled and the Report of the Magistrate
Judge (docket no. 24) is ADOPTED as the opinion of the District Court. It is further
ORDERED that the above-styled civil action is DISMISSED WITH PREJUDICE to the
claims being asserted again until the Heck conditions are met - in other words, until such time as
McGrath can show that his conviction has been overturned, expunged by executive order, declared
invalid in a state collateral proceeding, or called into question through the issuance of a federal writ
of habeas corpus. It is further
ORDERED that any and all motions which may be pending in this action are hereby
DENIED.

So ORDERED and SIGNED this 6 day of March, 2017.

___________________________________
Ron Clark, United States District Judge

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