Jagaroo v. Davis
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
March 08, 2018
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
LORIE DAVIS, Director,
Texas Department of Criminal
Justice - Correctional
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
Entry No. 1), challenging a state court conviction that was entered
against him in 2004.
After reviewing the pleadings in accordance
Governing Section 2254
United States District Courts, the court will dismiss this case for
the reasons explained below.
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
On June 25,
Petitioner was convicted of intoxicated
manslaughter with a vehicle in Harris County Cause No.
Petitioner to life imprisonment. 3
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
Petitioner contends that he
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
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
Petition, Docket Entry No. 1, p. 2.
Id. at 2.
Id. at 10.
Id. at 6-7.
conviction, Petitioner checked the box "no" and indicated that he
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
(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
Petitioner filed another federal habeas action,
which was dismissed as an unauthorized successive petition.
Jagroo v. Thaler, Civil No. H-17-902
(S.D. Tex. April 3, 2017).
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
See 28 U.S.C.
2244 (b) (3) (A).
To the extent
that the pending Petition qualifies as a successive writ, the court
Id. at 8
has no jurisdiction to consider it absent prior authorization from
the Fifth Circuit.
application is not second or successive simply because it follows
an earlier federal petition."
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 could have been raised in an earlier
"otherwise constitutes an abuse of the writ."
Id.; see also United States v. Orozco-Ramirez,
211 F.3d 862, 867
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
(5th Cir. 1997).
See Rodriguez v.
Because the pending
authorization from the Fifth Circuit before this court can consider
See Petition, Docket Entry No. 1, pp. 6-7.
See 28 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,
205 F.3d 773,
137 F. 3d 234,
authorization this court lacks jurisdiction over the Petition.
the Petition will be dismissed as an unauthorized
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
certificate of appealability will not issue unless the petitioner
"a substantial showing of the denial of a
which requires a petitioner to
Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004)
Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000)).
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
right," but also that they "would find it debatable whether the
district court was correct in its procedural ruling."
s. Ct. at 1604.
A district court may deny a
certificate of appealability,
sua sponte, without requiring further briefing or argument.
211 F.3d 895,
reason would not debate whether any procedural ruling in this case
was correct or whether the petitioner states a valid claim for
Therefore, a certificate of appealability will not issue.
Conclusion and Order
Accordingly, the court ORDERS as follows:
The Petition for a Writ of Habeas Corpus By a
Person in State Custody filed by Ramchand Jagaroo
The petitioner's Application to Proceed In Forma
Pauperis (Docket Entry No. 2) is DENIED.
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.
UNITED STATES DISTRICT JUDGE
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