Acosta Hernandez v. Broholm

Filing 12

MEMORANDUM OPINION AND ORDER. Acosta-Hernandez's complaint is dismissed for failing to state a claim upon which relief can be granted. All pending motions are denied as moot 2 , 9 . This dismissal counts as a strike for purposes of 28 U.S.C. § 1915(g). An order of dismissal is separately entered. Email sent to Manager of Three Strikes List. (Signed by Judge Lee H Rosenthal) Parties notified. Acosta-Hernandez's address confirmed per TDCJ website. (gmh4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CARLOS ACOSTA HERNANDEZ,
(TDCJ # 2470651),
Plaintiff,
vs.
TANYA BROHOLM,
Defendant.

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August 29, 2024
Nathan Ochsner, Clerk

CIVIL ACTION NO. H-24-2742

MEMORANDUM OPINION AND ORDER
Representing himself, Carlos Acosta-Hernandez, (TDCJ # 02470651), filed a prisoner’s
civil rights complaint under 42 U.S.C. § 1983. (Docket Entry No. 1). He alleges that his appointed
defense counsel, Tanya Broholm, provided ineffective assistance during his state-court criminal
proceedings by coercing him to enter a plea agreement. (Id. at 3). He asks this court to set aside
his plea agreement and remand his case to the state courts for further proceedings. (Id. at 4).
Because Acosta-Hernandez is a prisoner seeking relief under § 1983, the court must review his
complaint and dismiss the action if the court determines that it is frivolous, malicious, fails to state
a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune
from such relief. See 42 U.S.C. § 1997e(c). Having conducted this required review, the court
dismisses this action. The reasons are explained below.
I.

Background
Publicly available records show that Acosta-Hernandez is serving a 16-year prison

sentence on a conviction for sexual assault in Harris County Cause Number 1750247. See Search
Our Records, www.hcdistrictclerk.com (visited Aug. 28, 2024). His judgment of conviction was

entered on October 3, 2023. Id. Acosta-Hernandez did not appeal his judgment and sentence, and
he has not filed a state application for a writ of habeas corpus. Id.; see also Case Search,
https://txcourts.gov (visited Aug. 28, 2024).
On July 22, 2024, Acosta-Hernandez filed his § 1983 complaint in this court. (Docket
Entry No. 1). He sues his appointed state-court defense counsel, alleging that she provided
ineffective assistance by “lying to get me to sign a plea deal.” (Id. at 3). He alleges that counsel
tricked him into signing a plea deal for prison time when he believed he was signing “to go home.”
(Id. at 4). He asks the court to reduce his prison time and remand his case to the state court for
“resolution.” (Id.).
II.

Discussion
Courts construe pleadings filed by self-represented litigants under a less stringent standard

of review than those filed by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per
curiam). As part of this less-stringent review, courts consider the substance of the relief sought,
rather than the label attached to the pleading, when determining whether a request for relief is
proper. See Hernandez v. Thaler, 630 F.3d 420, 426-27 (5th Cir. 2011) (per curiam).
Acosta-Hernandez’s complaint attacks the validity of his state-court judgment of
conviction and asks this court to set it aside. This relief is not available in a civil-rights action.
See Calderon v. Ashmus, 523 U.S. 740, 747 (1998); Preiser v. Rodriguez, 411 U.S. 475, 489
(1973). The proper way to attack the validity of a state-court judgment of conviction is through a
habeas corpus petition filed under 28 U.S.C. § 2254. See Calderon, 523 U.S. at 747; Preiser, 411
U.S. at 489. Acosta-Hernandez’s complaint seeks relief that is not available through a civil-rights
action, and so it fails to state a claim upon which relief can be granted.

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In some instances, the court will recharacterize an action that seeks improper relief when
the relief sought is available through a different type of action. The court declines to recharacterize
Acosta-Hernandez’s civil-rights complaint as a habeas corpus petition for two reasons.
First, publicly available records show that Acosta-Hernandez has not yet exhausted his
state-court remedies. Before seeking habeas corpus relief from a state-court conviction in federal
court, the petitioner must fairly present the substance of his claims to the state courts. See Vasquez
v. Hillery, 474 U.S. 254, 258 (1986); Johnson v. Cain, 712 F.3d 227, 231 (5th Cir. 2013). The
petitioner must pursue his claims to the state’s highest court through every available procedure
and in a procedurally proper manner. See Baldwin v. Reese, 541 U.S. 27, 29 (2004); Busby v
Dretke, 359 F.3d 708, 723 (5th Cir 2004). In Texas, this requires a petitioner to pursue all of his
claims “through one complete cycle of either state direct appeal or post-conviction collateral
proceedings” before filing a federal habeas corpus petition. Busby, 359 F.3d at 723.
Publicly available records show that Acosta-Hernandez has not raised his claim of
ineffective assistance of counsel in the state courts, either in a direct appeal or in post-conviction
collateral proceedings. If this court were to recharacterize Acosta-Hernandez’s complaint as a
habeas corpus petition, that petition would be dismissed for lack of exhaustion. The court declines
to recharacterize Acosta-Hernandez’s complaint as a federal habeas petition because doing so at
this point would be futile.
Second, recharacterizing Acosta-Hernandez’s complaint as a habeas petition has
consequences that Acosta-Hernandez may not wish to incur. If the court recharacterizes AcostaHernandez’s complaint as a habeas petition, he could be prohibited from raising additional
challenges to his judgment of conviction in the future. See 28 U.S.C. § 2244 (prohibiting the filing
of a “second or successive motion” unless certain procedural steps are taken and certain
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prerequisites are met). In addition, he would be required to obtain permission from the Fifth
Circuit before filing a second petition.

See 28 U.S.C. § 2244(b)(3)(A).

Because Acosta-

Hernandez’s state-court judgment of conviction was entered relatively recently and because it is
not clear that he intended to pursue federal habeas relief at this time, the court declines to
recharacterize his civil-rights complaint as a habeas petition.
III.

Conclusion
Acosta-Hernandez’s civil-rights complaint, (Docket Entry No. 1), is dismissed for failing

to state a claim upon which relief can be granted. All pending motions, including Hernandez’s
motions to proceed without prepaying the filing fee, (Docket Entry Nos. 2, 9), are denied as moot.
This dismissal counts as a strike for purposes of 28 U.S.C. § 1915(g). An order of dismissal is
separately entered.
The Clerk of Court will send a copy of this Memorandum Opinion and Order to the ThreeStrikes List Manager at the following email: [e-mail].
SIGNED on August 28, 2024, at Houston, Texas.

_______________________________________
Lee H. Rosenthal
United States District Judge

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