Herod v. Court of Criminal Appeals of Texas

• Court: District Court, S.D. Texas
• Decided: May 20, 2022
• Docket: 4:22-cv-01589
• Status: Unknown

Opinion

□ Southern District of Texas ENTERED IN THE UNITED STATES DISTRICT COURT May 23, 2022 FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk HOUSTON DIVISION DONALD WAYNE HEROD, § § Plaintiff; «§ § Civil Action No. H-22-1589 Vv. § § TEXAS COURT OF CRIMINAL § APPEALS, et al., § § Defendants. §

ORDER OF DISMISSAL Plaintiff, a state prisoner proceeding pro se and impliedly seeking leave to proceed in forma pauperis, filed a “Petition for Review Under Bona Fide and Coram Nobis Under Non Obstante Verdicto, Inter Alia.” The pleading was docketed as a complaint brought under 42 U.S.C. § 1983. The complaint references plaintiffs various state and federal court cases and appeals regarding his 2008 Harris County conviction and fifty-year sentence for felony driving while intoxicated. Plaintiffnames as defendants the U.S. District Court for the Southern District of Texas, the Texas Court of Criminal Appeals, and the Fifth Circuit Court of Appeals. Plaintiff appears to seek monetary compensation and release from prison based on allegedly unlawful actions taken by various state and federal courts.' Although the pleading’s caption

'Plaintiff filed this same pleading in the Fifth Circuit Court of Appeals on May 19, 2022. Although the pleading was docketed, plaintiff was advised that no action would be taken because “we are unable to determine the relief sought.” Herod v. Powell, No. 20-40162 (5th Cir.).

and content suggest it was intended for filing as an original proceeding in the United States Supreme Court, tt must be given the benefit of liberal construction afforded all pro se litigants. To the extent the pleading can be construed as a civil complaint brought under section 1983, the Court notes that plaintiff is a three-strikes prisoner who is barred under 28 U.S.C. § 1915(g) from proceeding in forma pauperis. See Herod v. Powell, No. 20-40162 (Sth Cir. May 3, 2021) (listing plaintiffs prior strikes). Plaintiff does not allege, much less demonstrate, that he was in imminent danger of serious physical injury at the time he filed the instant lawsuit, and he may not proceed in forma pauperis. Plaintiff has not paid the $402.00 filing fee for this action, and the case must be dismissed under section 1915(g). Because plaintiff seeks release from prison as well as monetary compensation, his claims might sound in habeas. However, plaintiff cannot pursue habeas relief directly against the judicial entities named in this action, nor does this Court have jurisdiction to review actions taken by the Fifth Circuit Court of Appeals. Consequently, the Court declines to construe plaintiff's lawsuit as one brought under 28 U.S.C. §§ 2241 or 2254. The Court further declines to construe the pleading as a petition for writ of error coram nobis, as plaintiff remains in custody and the Court lacks jurisdiction. See Sinclair v. State of Louisiana, 679 F.2d 513,.514 (Sth Cir. 1982) (per curiam) (“It is well settled that the writ of error coram nobis is not available in federal court to attack state criminal judgments.”); Blake

v. Florida, 395 F.2d 758, 759 (5th Cir. 1968) (per curiam) (concluding writ of coram nobis must be filed with the convicting court). For the above reasons, this lawsuit is DISMISSED WITHOUT PREJUDICE. All pending motions are DENIED. Signed at Houston, Texas, on this the Ae ‘day of May, 2022.

er eter KEITH P. ELLISON UNITED STATES DISTRICT JUDGE