IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

 DALLAS DIVISION

BILLY FREDERICK ALLEN, # 366613, )

Plaintiff, )

)

v. ) 3:05-CV-0526-R

)

HONORABLE JOHN NELMS, et al., )

Defendants. )

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the court in

implementation thereof, this case has been referred to the United States Magistrate Judge. The

findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his

signature thereto, are as follows:

FINDINGS AND CONCLUSIONS:

Type of Case: This is a civil rights complaint brought by a state inmate pursuant to 42

U.S.C. § 1983. 

Parties: Plaintiff is presently incarcerated at the Ramsey I Unit of the Texas Department

of Criminal Justice – Correctional Institutions Division (TDCJ-CID) in Rosharon, Texas.

Defendants are State District Court Judge John Nelms, and Appointed Magistrate Judge Fred C.

McDaniel. The magistrate judge has not issued process in this case. 

Statement of Case: The complaint challenges Judge Nelms’ practice of referring state

habeas applications, under art. 11.07, Tex. C. Crim. P., to Defendant McDaniel for fact finding

and for preparation of findings, conclusions and recommendation for the district judge’s

 

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1 Plaintiff’s last two state habeas applications, Nos. WR-4,121-08 and -09, are

presently pending before the Texas Court of Criminal Appeals. See Texas Court of Criminal

Appeals Official Web site, http://www/cca/courts.state.tx.us/opinions/case.asp?

FilingID=232263 and 232264.

2

signature. Plaintiff alleges that the routine referral of his art. 11.07 applications to Defendant

McDaniel during the last six years violated his procedural and substantive due process rights. 

He requests declaratory relief.1

Findings and Conclusions: Although Plaintiff paid the $250.00 filing fee, his complaint

is subject to preliminary screening pursuant to 28 U.S.C. § 1915A. See Martin v. Scott, 156 F.3d

578 (5th Cir. 1998) (the statutory screening provision under § 1915A applies to all prisoners’

actions against governmental entities, officers and employees, regardless of whether the prisoner

is proceeding in forma pauperis). Section 1915A provides in pertinent part that:

The court shall review . . . as soon as practicable after docketing, a complaint in a

civil action in which a prisoner seeks redress from a governmental entity or

officer or employee of a governmental entity [and] [o]n review, the court shall

identify cognizable claims or dismiss the complaint, or any portion of the

complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim

upon which relief may be granted; or (2) seeks monetary relief from a defendant

who is immune from such relief.

28 U.S.C. § 1915A(a) and (b) (emphasis added).

Section 1915A(b) provides for sua sponte dismissal if the Court finds that the complaint

is “frivolous” or that it “fails to state a claim upon which relief may be granted.” A complaint is

frivolous, if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S.

319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989). A complaint fails to state a claim

upon which relief may be granted when it appears beyond doubt that the plaintiff can prove no

set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S.

41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).

 

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3

Section 1983 provides a cause of action for individuals who have been “depriv[ed] of any

rights, privileges or immunities secured by the Constitution and laws” of the United States by a

person or entity acting under color of state law. 42 U.S.C. § 1983.

The conduct of which Allen complains relates to collateral proceedings which he has

initiated in a Texas state court attacking a state imposed criminal conviction. However, neither

the United States Constitute nor federal statutes require a state to provide an avenue for collateral

attacks on state convictions. This fact is clearly recognized in 28 U.S.C. § 2254(b)(1) (B)(i)

which relieves a state inmate from seeking relief in the state court (“the exhaustion

requirement”) when no State corrective process exists. Therefore, the procedures followed by

Judge Nelms in the disposition of Allen’s art. 11.07 applications are not matters which are

cognizable in a federal court action. Moreover, in the context of § 2254 petition it is well settled

that “infirmities in state habeas corpus proceedings do not constitute grounds for relief in federal

court.” Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir. 1999) (quoting Hallmark v. Johnson,

118 F.3d 1073, 1080 (5th Cir.1997)) (internal quotation marks omitted); Nichols v. Scott, 69

F.3d 1255, 1275 (5th Cir.1995); Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir.1992);

Millard v. Lynaugh, 810 F.2d 1403, 1410 (5th Cir.1987); see also Vail v. Procunier, 747 F.2d

277, 277 (5th Cir.1984); Tijerina v. Estelle, 692 F.2d 3, 6 n. 2 (5th Cir. 1982). This is because

"an attack on the state habeas proceeding is an attack on a proceeding collateral to the detention

and not the detention itself." Rudd v. Johnson, 256 F.3d 317, 320 (5th Cir.2001).

RECOMMENDATION:

For the foregoing reasons, it is recommended that Plaintiff’s complaint be dismissed

pursuant to 28 U.S.C. § 1915A(b)(1). 

 

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4

A copy of this recommendation will be mailed to Plaintiff Billy Frederick Allen,

#366613, TDCJ, Ramsey Unit, 1100 FM 655, Rosharon, Texas 77583.

Signed this20th day of June, 2005.

____________________________________

WM. F. SANDERSON

UNITED STATES MAGISTRATE JUDGE

NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that

you must file your written objections within ten days after being served with a copy of this

recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir.

1996) (en banc), a party's failure to file written objections to these proposed findings of fact and

conclusions of law within such ten-day period may bar a de novo determination by the district

judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds

of plain error, from attacking on appeal the unobjected to proposed findings of fact and

conclusions of law accepted by the district court.

 

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