Sierra v. Farrell et al

Filing 28

ORDER. Action is DISMISSED without prejudice for failure to state a claim upon which relief can be granted. The Court further DIRECTS the Clerk to close the case. (Signed by Judge Hilda G Tagle) Parties notified.(mserpa, 2)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
CORY SIERRA,

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Plaintiff,
VS.
TRENTIN D FARRELL, et al,
Defendants.

December 30, 2016
David J. Bradley, Clerk

CIVIL NO. 2:15-CV-459

ORDER
Plaintiff Cory Sierra (“Sierra”), a Texas inmate appearing pro se and in forma
pauperis, has filed this civil action for deprivation of rights pursuant to 42 U.S.C. §
1983. Sierra names four Defendants: (1) Judge Joel B. Johnson, District Judge of
the 156th Judicial District Court, San Patricio County, Texas; (2) Michael Hess,
Assistant District Attorney for San Patricio County, Texas; (3) Hector Del Toro
(“Del Toro”), Sierra’s trial counsel; and (4) Ruben R. Lerma, Jr. (“Lerma”), Sierra’s
first criminal defense lawyer. (D.E. 23).
Sierra is serving a life sentence for three counts of aggravated sexual assault
of a child entered on December 8, 2005 in Cause No. S-05-3072CR, in the 36th
Judicial District Court, San Patricio County, Texas.1 In this action, Sierra alleges
that the Defendants each aided and abetted the others in denying Sierra his
constitutional rights. Sierra alleges the following in support of this contention:
1. The state trial judge did not allow discovery of DNA evidence or allow a
hearing on Sierra’s request for DNA testing.
2. The state trial judge erred by allowing an expert witness for the prosecution
to testify Sierra transmitted the H.I.V. virus to a juvenile victim.
3. Sierra was not allowed to challenge the array of the grand jury.

See Sierra v. State, No. 13–05–769–CR, 2007 WL 2265170 (Tex. App.--Corpus
Christi Aug. 9, 2007, no pet.) (mem. op., not designated for publication).
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4. The state prosecutor allowed witnesses to testify falsely.
5. The state prosecutor and defense attorney withheld DNA evidence from the
trial and gave the jury the false impression there was no DNA evidence.
6. The state prosecutor withheld evidence from the jury, including video
recordings of statements by the victims.
7. The state prosecutor presented medical evidence that unfairly prejudiced
Sierra.
8. Sierra’s defense attorney (Del Toro) failed to object to certain inadmissible
evidence.
9. Sierra’s defense attorney (Del Toro) failed to call a defense expert at trial.
10. Sierra’s defense attorney (Del Toro) failed to use DNA evidence at trial.
11. Sierra’s defense attorney (Del Toro) failed to file a motion for witnesses’
grand jury testimony.
12. Sierra’s first lawyer (Lerma) was ineffective during pretrial preparation of
the case by failing to challenge the grand jury array and failing to advise
Sierra of his right to testify before the grand jury.
See D.E. 24 (summarizing the allegations of Sierra’s amended complaint, D.E. 23).
The Court has before it Sierra’s original complaint (D.E. 2), the Memorandum
and Recommendations (“M&R”) of the Magistrate Judge to whom this case was
referred (D.E. 15), Sierra’s amended complaint (D.E. 23), the Magistrate Judge’s
Supplemental M&R (D.E. 24), and Sierra’s objections to the M&R and
Supplemental M&R (D.E. 27). The Court reviews objected-to portions of a
Magistrate Judge’s proposed findings and recommendations de novo. 28 U.S.C. §
636(b)(1) (“A judge of the court shall make a de novo determination of those portions
of the report or specified proposed findings and recommendations to which objection
is made.”).
Here, the Magistrate Judge recommended that Sierra’s case be dismissed for
failure to state a claim and/or as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B)
and 1915A(b), and further, that this action be counted as a “strike” for purposes of
28 U.S.C. § 1915(g). The Magistrate Judge’s reasons were: (1) Sierra’s action is
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barred by the doctrine enunciated by the Supreme Court in Heck v. Humphrey, 512
U.S. 477, 486-87 (1994) (the Magistrate Judge notes that if Sierra were to prevail in
this civil rights action, it would necessarily undermine or imply the invalidity of his
conviction), and (2) Sierra’s criminal defense lawyers are not state actors for the
purposes of 42 U.S.C. § 1983 liability. See D.E. 24 at 5-7.
In Heck v. Humphrey, the Supreme Court clarified that habeas corpus is the
exclusive remedy for a state prisoner who challenges the fact or duration of his
confinement and seeks immediate or speedier release. Heck, 512 U.S. at 481. The
Court held that to recover damages under 42 U.S.C. § 1983, a plaintiff must prove
that conviction or sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by state tribunal authorized to make such
determination, or called into question by federal court’s issuance of writ of habeas
corpus, 28 U.S.C. § 2254. Id. at 486-87. “Thus, when a state prisoner seeks damages
in a § 1983 suit, the district court must consider whether a judgment in favor of the
plaintiff would necessarily imply the invalidity of his conviction or sentence; if it
would, the complaint must be dismissed unless the plaintiff can demonstrate that
the conviction or sentence has already been invalidated.” Id. at 487.
Sierra objected to the M&R on several grounds. Sierra indicates that he is not
“challenging his conviction or confinement according to the Heck standard,” but
rather is questioning the method of conduct used at Plaintiffs’ trial to convince the
jury to take away his life, liberty, or property without due process of law. (See D.E.
27 at 1). Sierra claims actual innocence. (See id.). Sierra alleges instances of
prosecutorial misconduct (D.E. 27 at 2-4); ineffective assistance of counsel (Sierra
alleges that Del Toro “acted with the State to conspire against Plaintiff to deprive
him of his rights to secure his conviction by refusing to bring in the DNA results to
contradict the State’s expert witness”) (D.E. 27 at 5-7); that the state court did not
comply with the Sixth Amendment of the Constitution because it failed to appoint
effective counsel (D.E. 27 at 8-9); and that Judge Johnson improperly failed to hold
a hearing regarding DNA results. (D.E. 27 at 9). Sierra also argues that § 1983 may

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cover private attorneys if they are authorized to exercise state authority. D.E. 27 at
10.
Having reviewed Sierra’s amended complaint, the Supplemental M&R, and
Sierra’s objections, this Court finds that the Heck doctrine applies to the instant
action. Sierra has not shown that his conviction or sentence has been reversed on
direct appeal, expunged by executive order, declared invalid by state tribunal
authorized to make such determination, or called into question by federal court’s
issuance of writ of habeas corpus, 28 U.S.C. § 2254. See Heck, 512 U.S. at 486-87. As
such, Sierra’s claims are not cognizable under 42 U.S.C. § 1983. See id. at 481.
The Court declines to count the instant action as a strike for purposes of 28
U.S.C. § 1915(g).
Accordingly, it is hereby ORDERED that this action be DISMISSED
without prejudice for failure to state a claim upon which relief can be granted. The
Court further DIRECTS the Clerk to close the case.
SIGNED this 30th day of December, 2016.
___________________________________
Hilda Tagle
Senior United States District Judge

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