Demar v. Lumpkin

• Court: District Court, S.D. Texas
• Decided: October 1, 2020
• Docket: 4:20-cv-03309
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION HORACE DEMAR, A/K/A HORRACE § DEMAR, § § Petitioner, § § CIVIL ACTION H-20-3309 v. § § BOBBY LUMPKIN, § § Respondent. § ORDER OF DISMISSAL Horace Demar, a state inmate proceeding pro se and impliedly seeking leave to proceed in forma pauperis, filed this habeas petition. He renews his long-rejected claim1 that he is entitled to certain evidence unlawfully suppressed some thirty years ago in his 1991 trial for attempted capital murder of a police officer. As judicial relief, he “seeks access to Brady materials in the State’s possession or control.” Petitioner provides no identification of this purportedly withheld evidence other than as “Brady materials.” Petitioner expressly denies he is challenging his underlying conviction, and no court has held that the State violated Brady in petitioner’s 1991 trial. Granting relief in this case would necessarily require a judicial determination that the State withheld evidence in violation of Brady during petitioner’s criminal prosecution. That is, the Court cannot order 1Petitioner raised his Brady claim in Demar v. Johnson, C.A. No. H-00-3356 (S.D. Tex.), which was dismissed as barred by limitations in May 2001. He sought production of the “Brady materials” in an unsuccessful federal mandamus proceeding. Demar v. Ogg, C. A. No. H-19-3639 (S.D. Tex. 2019). Petitioner has also unsuccessfully pursued production of the materials in State v. Demar, Cause No. 589874 in the 176th District Court of Harris County, Texas. the State to produce “Brady materials” without expressly or impliedly finding that the State violated Brady. Thus, contrary to petitioner’s contention, the instant pleading challenges the validity of his 1991 conviction by claiming the State violated Brady. Petitioner’s Brady claim was dismissed by this Court in 2001 as barred by the AEDPA

one-year limitation. Demar v. Johnson, C.A. No. H-00-3356 (S.D. Tex. 2001). His pending Brady claim against the State in this case must be dismissed as “a claim presented in a second or successive habeas corpus application under Section 2254 that was presented in a prior application.” 28 U.S.C. § 2244(b)(1).? This case is DISMISSED WITH PREJUDICE pursuant to section 2244(b)(1). Any and all pending motions are DENIED AS MOOT. A certificate of appealability is DENIED. Signed at Houston, Texas, on October |, 2020

J\ . ZS Gray HNUiller Senior United States District Judge

*Petitioner also challenges the constitutionality of Texas Government Code § 552.028, the Texas Open Records Act, because it allows state agencies to refuse requests for documents from prisoners. Although it does not raise a cognizable federal habeas claim, petitioner’s argument is foreclosed by Wright v. Curry, 122 F. App’x 724, 725, 2004 WL 2977437, *1 (Sth Cir. 2004) (upholding section 552.028 as constitutional).