Jagaroo v. Davis

Filing 5

MEMORANDUM OPINION AND ORDER denying 3 APPLICATION to Proceed In Forma Pauperis, dismissing without prejudice 1 Petition for Writ of Habeas Corpus. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

United States District Court
Southern District of Texas

ENTERED
March 08, 2018

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

RAMCHAND JAGAROO,
TDCJ #1245495,
Petitioner,
V.

LORIE DAVIS, Director,
Texas Department of Criminal
Justice - Correctional
Institutions Division,
Respondent.

1

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David J. Bradley, Clerk

CIVIL ACTION NO. H-18-0685

MEMORANDUM OPINION AND ORDER

State inmate Ramchand Jagaroo (TDCJ #1245495), also known as
Ramchan Jagroo ("Petitioner"), has filed a Petition for a Writ of
Habeas Corpus By a Person in State Custody

("Petition")

(Docket

Entry No. 1), challenging a state court conviction that was entered
against him in 2004.
with Rule

4

of

After reviewing the pleadings in accordance

the Rules

Governing Section 2254

Cases

in the

United States District Courts, the court will dismiss this case for
the reasons explained below.

1

The petitioner lists the "State of Texas" as the respondent.
Because he is in state custody of the Texas Department of Criminal
Justice - Correctional Institutions Division, Director Lorie Davis
is substituted as the proper respondent under Rule 2(a) of the
Rules Governing Section 2254 Cases in the United States District
Courts.

I.
On June 25,

2004,

Background

Petitioner was convicted of intoxicated

manslaughter with a vehicle in Harris County Cause No.
The

232nd

District

Court

of

Harris

Petitioner to life imprisonment. 3

County,

Texas,

961564. 2
sentenced

The conviction was affirmed on

direct appeal, see Jagaroo v. State, 180 S.W.3d 793

(Tex. App. -

Houston [14th Dist.] 2005), and the Texas Court of Criminal Appeals
refused his petition for discretionary review in 2006.
On February 26, 2018, Petitioner executed the pending Petition
for a federal writ of habeas corpus. 4
is

entitled

to

relief

for

the

Petitioner contends that he

following

reasons:

( 1)

he

is

actually innocent because his blood was drawn without a warrant in
violation of the Fourth Amendment; (2) the trial court violated his
rights by admitting evidence of a blood sample taken without his
consent; (3) he was denied effective assistance of counsel when his
defense attorney failed to raise an issue about his competency to
stand trial; and (4) his conviction violates due process and equal
protection because

these

claims

are

based on newly discovered

evidence that could not have been presented previously. 5
When asked in the form Petition whether he had previously
filed any other federal

habeas petition to challenge the

2

Petition, Docket Entry No. 1, p. 2.

3

Id. at 2.

4

Id. at 10.

5

Id. at 6-7.
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same

conviction, Petitioner checked the box "no" and indicated that he
had

not

filed

any

other

habeas

proceedings. 6

Court

records

confirm, however, that Petitioner has filed more than one previous
federal habeas corpus petition challenging the same conviction.
Jagroo v. Thaler, Civil No. H-09-1300

In

(S.D. Tex. Aug. 11, 2009),

this court granted the respondent's motion for summary judgment and
dismissed the federal habeas corpus action filed by Petitioner with
prejudice.

Fifth

The

v.

denied

Thaler,

No.

a

certificate

10-20574

(5th

of

appealability.

See

March 1,

Petitioner filed another federal habeas action,

2011)

Jagroo

Circuit

which was dismissed as an unauthorized successive petition.
Jagroo v. Thaler, Civil No. H-17-902

II.

Cir.

See

(S.D. Tex. April 3, 2017).

Discussion

This case is governed by the Anti-Terrorism and Effective
Death Penalty Act (the "AEDPA"), codified as amended at 28 U.S.C.
§

2244(b), which imposes restrictions on the filing of "second or

successive" applications for habeas relief.

Before a second or

successive application permitted by this section may be filed in
the district court the applicant must move in the appropriate court
of appeals for an order authorizing the district court to consider
the application.

See 28 U.S.C.

§

2244 (b) (3) (A).

To the extent

that the pending Petition qualifies as a successive writ, the court

6

Id. at 8

~

22.
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has no jurisdiction to consider it absent prior authorization from
the Fifth Circuit.
The

Fifth

Circuit

has

recognized

that

"a

prisoner's

application is not second or successive simply because it follows
an earlier federal petition."
Cir.

1998).

In re Cain, 137 F.3d 234, 235 (5th

A subsequent application is "second or successive"

when it (1) "raises a claim challenging the petitioner's conviction
or sentence
petition"

that was

or

( 2)

or could have been raised in an earlier

"otherwise constitutes an abuse of the writ."

Id.; see also United States v. Orozco-Ramirez,
(5th

Cir.

2000).

Although

Petitioner

211 F.3d 862, 867

claims

to

have

"newly

discovered evidence" of his actual innocence, he presents no such
evidence with his Petition. 7

Contrary to Petitioner's contention

that his claims could not have been presented previously, the facts
asserted in the Petition appear to have been available since before
his conviction was entered in 2004.

Because his claims could have

been raised previously, the pending Petition meets the second-orsuccessive criteria.
The issue of whether a habeas corpus petition is successive
may be raised by the district court sua sponte.
Johnson, 104 F.3d 694, 697
Petition

is

successive,

(5th Cir. 1997).
Petitioner

is

See Rodriguez v.

Because the pending
required

to

seek

authorization from the Fifth Circuit before this court can consider

7

See Petition, Docket Entry No. 1, pp. 6-7.
-4-

it.

See 28 U.S.C.

U.S.C.

§

2244 (b) (3) (A).

§

"Indeed, the purpose of [28

2244(b)] was to eliminate the need for the district courts

to repeatedly consider challenges to the same conviction unless an
appellate panel first found that those challenges had some merit."
United States v.
In re Cain,

Key,

205 F.3d 773,

137 F. 3d 234,

235

774

(5th Cir.

(5th Cir.

1998)).

2000)

(citing

Absent such

authorization this court lacks jurisdiction over the Petition.
at

775.

Because

authorization,

Petitioner

has

not

presented

the

Id.

requisite

the Petition will be dismissed as an unauthorized

successive writ.
III.

Certificate of Appealability

Rule 11 of the Rules Governing Section 2254 Cases requires a
district court to issue or deny a certificate of appealability when
entering a

final

order that

is

adverse

to

the petitioner.

A

certificate of appealability will not issue unless the petitioner
makes

"a substantial showing of the denial of a

right,"

28 U.S.C.

demonstrate

"that

§

2253(c) (2),

reasonable
of

the

constitutional

which requires a petitioner to

jurists

would

constitutional

find

claims

the

court's

assessment

wrong."

Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004)

Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000)).

district

debatable

or

(quoting

Where denial of

relief is based on procedural grounds, the petitioner must show not
only that "jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional
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right," but also that they "would find it debatable whether the
district court was correct in its procedural ruling."

Slack, 120

s. Ct. at 1604.
A district court may deny a

certificate of appealability,

sua sponte, without requiring further briefing or argument.

See

Alexander v.

For

reasons

set

Johnson,

211 F.3d 895,

forth above,

this

898

(5th Cir.

court concludes

that

2000).

jurists of

reason would not debate whether any procedural ruling in this case
was correct or whether the petitioner states a valid claim for
relief.

Therefore, a certificate of appealability will not issue.
IV.

Conclusion and Order

Accordingly, the court ORDERS as follows:
1.

The Petition for a Writ of Habeas Corpus By a
Person in State Custody filed by Ramchand Jagaroo
(Docket
Entry
No.
1)
is
DISMISSED
without
prejudice.

2.

The petitioner's Application to Proceed In Forma
Pauperis (Docket Entry No. 2) is DENIED.

3.

A certificate of appealability is DENIED.

The Clerk shall provide a copy of this Memorandum Opinion and
Order to the petitioner.
SIGNED at Houston, Texas, on this the 8th day of March, 2018.

SIM LAKE
UNITED STATES DISTRICT JUDGE
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