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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LUIS BENJAMIN LOPEZ, §

 Petitioner, §

§

v. § No. 3:22-cv-00883-X (BT)

§

DIRECTOR, TDCJ-CID, et 

al.,

§

§

 Respondents. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Petitioner Luis Benjamin Lopez, a Texas prisoner, filed a pro se 

petition for a writ of habeas corpus under 28 U.S.C. § 2254. The District Court 

referred the matter to the undersigned United States Magistrate Judge. For 

the following reasons, the District Court should DISMISS his petition. 

I.

Lopez initiated this action by filing the form for a prisoner civil rights 

lawsuit (ECF No. 3) and submitting numerous documents from a state DWI 

case. He named as defendants the State of Texas; Felicia Pietre, District 

Clerk; and Andrew Chatham, a court-appointed attorney; and he sought an 

injunction to “over turn” his six-year term of probation, to quash the 

enhancement, compensation for pain and suffering, punitive damages, and a 

“grand jury trial.” The Court construed this initial filing as a petition for a writ 

of habeas corpus under § 2254. (ECF No. 5.) See 28 U.S.C. § 2254(b)(1) (the 

statute refers to “[a]n application for a writ of habeas corpus on behalf of a 

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person in custody pursuant to the judgment of a State court[.]”). Because the 

Court recharacterized Lopez’s initial pro se filing, it provided him with the 

appropriate warnings under Castro v. United States, 540 U.S. 375 (2003). 

See Hopes v. Davis, 761 F. App’x 307, 309 n.1 (5th Cir. 2019) (“Most court of 

appeals that have considered the question have concluded Castro’s logic 

regarding § 2255 motions extends to habeas petitions under § 2254.”). The 

Court gave Lopez an opportunity to either withdraw or amend his petition 

using the standard § 2254 form so that it included all the claims he wished to 

pursue with respect to his state conviction and/or sentence. 

Thereafter, Lopez filed an amended petition containing one ground 

for relief. (ECF No. 7.) Because the petition included only minimal facts in 

support of his claim, the Court issued an Order and Notice of Deficiency, 

directing Lopez to file a second amended petition with factually supported 

claims. The Court warned Lopez that if he failed to provide specific, 

substantive facts with respect to each claim, his claims may be dismissed. 

Lopez subsequently filed a second amended petition. (ECF No. 11.) 

But his petition again lacked the requisite facts to support each claim. 

Accordingly, the Court issued a second Order and Notice of Deficiency (ECF 

No. 15) again warning Lopez that his claims were factually insufficient. 

Lopez later filed his third amended petition (ECF No. 18) raising one general 

habeas claim and one general civil claim, but again failing to include any 

supporting facts. 

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II.

Under Rule 4 of the Rules Governing Section 2254 Cases, a court 

should conduct a preliminary review of a petition to determine “[i]f it plainly 

appears from the petition and any attached exhibits that the petitioner is not 

entitled to relief.” Rule 4 of the Rules Governing Section 2254 Cases (2254 

Rules). To avoid summary dismissal, a petition must contain factual 

allegations pointing to a “real possibility of constitutional error.” Id. at Rule 

4, advisory committee note (quoting Aubut v. State of Maine, 431 F.2d 688, 

689 (1st Cir. 1970)). Under Rule 4, a court reviews the pleadings and exhibits 

before it to determine whether any right to relief is implicated. If not, the 

court must dismiss the petition.

III. 

Lopez appears to struggle with the English language, and his third 

amended petition—the operative petition—is difficult to follow. As best the 

Court understands his petition, he seems to be arguing that his attorney, 

Andrew Chatham, provided ineffective assistance of counsel. For example, 

Lopez states, “claim further consideration of the ineffective-assistance-ofcounsel. Violation of the statuets [sic] of limitation, forged my signature on a 

court of plea, deliberante [sic] indifference.” 3d Am. Pet. 6 (ECF No. 18). He 

further states that Chatham was removed from practicing law in Texas for 

three years. Id. 

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To succeed on a claim of ineffective assistance of counsel, a petitioner 

must show “counsel's representation fell below an objective standard of 

reasonableness,” with reasonableness judged under professional norms 

prevailing at the time counsel rendered assistance. Strickland v. 

Washington, 466 U.S. 668, 688 (1984). The standard requires the reviewing 

court to give great deference to counsel's performance, strongly presuming 

counsel exercised reasonable professional judgment. Id. at 689. The right to 

counsel does not require errorless counsel; instead, a criminal defendant is 

entitled to reasonably effective assistance. Murray v. Maggio, 736 F.2d 279, 

281-82 (5th Cir. 1984); Boyd v. Estelle, 661 F.2d 388, 389 (5th Cir. 1981).

Additionally, a petitioner “must show that there is a reasonable 

probability that, but for counsel's unprofessional errors, the result of the 

proceeding would have been different. A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” Strickland, 

466 U.S. at 694. The petitioner must “affirmatively prove,” not just allege, 

prejudice. Id. at 693. If he fails to prove prejudice, the court need not address 

the question of counsel's performance. Id. at 697. Merely presenting 

“conclusory allegations” of deficient performance or prejudice is insufficient 

to meet the Strickland test. Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 

2000).

The Court issued two Orders and Notices of Deficiency in this case. 

(ECF Nos. 9, 15.) In each, the Court advised Lopez that his claims were legally 

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insufficient because they lacked the necessary facts to support his claims. In 

total, Lopez filed four petitions, and each of those petitions is legally 

insufficient because it is not factually supported. See (ECF Nos. 3, 7, 11, 18). 

The operative petition, Lopez’s third amended petition, has been liberally 

construed, but it consists of bare bones phrases and statements. See Erickson 

v. Pardus, 551 U.S. 89, 94 (2007) (pro se pleadings are “to be liberally 

construed.”). In addition, Lopez has not stated coherent, logical thoughts that 

can be followed. Thus, Lopez has failed to demonstrate that his attorney, 

Chatham, acted deficiently, or that he suffered prejudice therefrom. See

Strickland, 466 U.S. at 688. Lopez fails to state a claim for ineffective 

assistance of counsel under Strickland, and this case should be dismissed. 

IV. 

Lopez includes other claims that suggest he intends to bring a civil 

rights action under 42 U.S.C. § 1983. Specifically, he argues that the Irving 

Police Department acted in an “abuse of power, manipulated documents. 

Assaulate [sic] by Police to My person while inrestraits [sic] breaking my jaw 

also no medical attention.” 3d Am. Pet. 6 (ECF No. 18). 

“[N]either habeas nor civil rights relief can be had absent the 

allegation by a plaintiff that he or she has been deprived of some right 

secured to him or her by the United States Constitution or the laws of the 

United States.” Hilliard v. Bd. Of Pardons and Paroles, 759 F.2d 1190, 1192 

(5th Cir. 1985) (quoting Irving v. Thigpen, 732 F.2d 1215, 1216 (5th Cir. 

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1984)). When a favorable determination of the prisoner's claims would not 

automatically entitle him to accelerated release, the suit should be analyzed 

as a civil rights claim. Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995). Here, 

Lopez’s civil rights claims will be severed from his § 2254 habeas action. 

V. 

The Court recommends that Lopez’s petition be DISMISSED. 

Additionally, the Court SEVERS Lopez’s civil claims from this habeas 

action filed under § 2254 and directs the Clerk of Court to open a new civil 

rights case (nature of suit 550) for the now-severed claims and file a copy of 

this order in that case. The new case should be assigned to the same District 

Judge and Magistrate Judge as this habeas case. Finally, all future pleadings 

related to the severed civil rights matter should be filed in the new case.

SO RECOMMENDED. 

Signed October 24, 2022.

______________________________

REBECCA RUTHERFORD

UNITED STATES MAGISTRATE JUDGE

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation shall be served on all 

parties in the manner provided by law. Any party who objects to any part of 

this report and recommendation must file specific written objections within 

14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. 

P. 72(b). In order to be specific, an objection must identify the specific 

finding or recommendation to which objection is made, state the basis for 

the objection, and specify the place in the magistrate judge's report and 

recommendation where the disputed determination is found. An objection 

that merely incorporates by reference or refers to the briefing before the 

magistrate judge is not specific. Failure to file specific written objections will 

bar the aggrieved party from appealing the factual findings and legal 

conclusions of the magistrate judge that are accepted or adopted by the 

district court, except upon grounds of plain error. See Douglass v. United 

Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).

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