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)

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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 § § § § § § § § § § § § § 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. -2- 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. -3- 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 -5- 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 -6-

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