Johnson v. Angelina County D.A. Office et al
Filing
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MEMORANDUM OPINION AND ORDER ADOPTING 13 REPORT AND RECOMMENDATIONS. Signed by District Judge Ron Clark on 8/25/19. (ljw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
RICHARD JAMES JOHNSON
§
VS.
§
ANGELINA COUNTY D.A. OFFICE, et al.,
§
CIVIL ACTION NO. 9:18-CV-162
MEMORANDUM OPINION AND ORDER OVERRULING OBJECTIONS
AND ADOPTING REPORT AND RECOMMENDATION
Plaintiff, Richard James Johnson, an inmate confined at the Allred Unit with the Texas
Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, filed this civil
rights action pursuant to 42 U.S.C. § 1983 against defendants Angelina County D.A. Office,
Angelina County D.A., Court of Criminal Appeals, Texas Bar Association, and the Angelina County
Defense Attorney Winfred III.
The Court referred this matter to the Honorable Zack Hawthorn, United States Magistrate
Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this Court.
The Magistrate Judge recommends this action be dismissed as frivolous and for failure to state a
claim.
The Court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such order, along with the records, and pleadings. Plaintiff filed
objections to the Report and Recommendation of United States Magistrate Judge. This requires a
de novo review of the objections in relation to the pleadings and applicable law. See FED. R. CIV.
P. 72(b).
Plaintiff objects that the Magistrate Judge did not consider all his claims. A review of the
complaint, however, reveals that although plaintiff lists several defendants, his only complaint was
as follows: “[t]he defendants are denying myself and two other offenders access at our trial transcript
records, and information that is of a liberty interest.” Original Complaint, pg. 4 (docket entry no.
1). Under the brief description section for each defendant, plaintiff merely alleges “due process
violation, liberty interest” or just “liberty interest.” Based on the foregoing, the Magistrate Judge
did not err in construing plaintiff’s claims.
In his Objections, plaintiff adds the following claims:
1.
Defendant Texas Bar Association:
They hold information about their member John Ross Kaye, that
would help the petitioner show and prove that his trial counsel at the
time John Ross Kaye, had Alzhtimers [sic] during trial and was
ineffective because of a mental defect rendering petitioner’s trial
constitutionally infirm.
2.
Defendant Winfred Simons III:
This defendant possess [sic] information, facts and proof that an all
white jury was illegally empanaled [sic]. By banning and taking
blacks off the jury only because they were black rendering conviction
constitutionally infirm.
3.
Defendant Alberto Charanza-Angelina County D.A.:
This defendant holds information that would prove that the waivor
[sic] of jury trial in a burglary conviction was forged rendering
conviction constitutionally infirm.
4.
Defendant Court of Criminal Appeals:
This defendant holds information that would show whether under state
law and Court of Criminal Appeals rules if (1) ineffective-assistanceof-trial-counsel claims must be raised in an initial-review collateral
proceeding. (2) Whether ineffective assistance of an initial-review
collateral proceeding on an ineffective assistance-at-trial claim may
provide cause for a procedural default in a court of criminal appeals
habeas proceeding. (3) Whether it’s ubiquitous “Denied Without
Written Order” gave petitioner a constitutionally sound due process
review during petitioner’s claims. (4) This defendant holds fact that
will allow petitioner to bring forth claims of contrary to law rulings.
Objections, pgs. 1-2 (docket entry no.14). Plaintiff then states these allegations will allow him to
gather facts to seek permission from the Fifth Circuit Court of Appeals to file a successive habeas
petition. Plaintiff argues this § 1983 civil rights action is not barred by Heck v. Humphrey, 512 U.S.
477 (1993) as the testimony and records he seeks will not automatically “spell speedier release.” Id.
To the extent plaintiff is still seeking a free copy of his trial transcript, plaintiff has yet to
demonstrate he cannot pay for the trial transcript. In fact, in his Objections, plaintiff states Angelina
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County refused to “sale” [sic] them to him. Regardless, plaintiff has not demonstrated a need for the
trial transcript in proving his claims. Plaintiff does not need the trial transcript to seek permission
from the Fifth Circuit Court of Appeals to file a successive habeas petition. Furthermore, and
contrary to plaintiff’s belief, his claims as outlined above are barred by Heck. Any § “1983 claim
which attacks the unconstitutionality of a conviction (or imprisonment, as the case may be) does not
accrue until that conviction (or sentence) has been “reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determination or called into
question by a federal court’s issuance of a writ of habeas corpus.” Wells v. Bonner, 45 F.3d 90, 94
(5th Cir. 1995) (quoting Heck v Humphrey, 512 U.S. at 2372)). Success in this action would
necessarily demonstrate the invalidity of plaintiff’s confinement. Wilkinson v. Dotson, 544 U.S. 74
(2005). As plaintiff’s § 1983 claims are barred in this suit, plaintiff has not demonstrated a need for
the trial transcript in prosecuting this action.
ORDER
Accordingly, plaintiff’s objections are OVERRULED. The findings of fact and conclusions
of law of the Magistrate Judge are correct, and the report of the Magistrate Judge is ADOPTED.
A Final Judgment will be entered in accordance with the recommendations of the Magistrate Judge.
So Ordered and Signed
Aug 25, 2019
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