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Case 5:17-cv-00012-RWS-CMC Document 19 Filed 09/14/17 Page 1 of 5 PageID #: 88
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE EASTERN DISTRICT OF TEXAS
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`TEXARKANA DIVISION
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`ZACK ELDRED JR.
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`v.
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`SHERIFF JAMES PRINCE, ET AL.
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`

`

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`CIVIL ACTION NO. 5:17-cv-12
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`ORDER ADOPTING REPORT AND RECOMMENDATION
`OF THE UNITED STATES MAGISTRATE JUDGE
`AND ENTERING FINAL JUDGMENT
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`The Plaintiff Zack Eldred Jr., proceeding pro se, filed this civil rights lawsuit under 42
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`U.S.C. §1983 complaining of alleged violations of his constitutional rights. This Court referred the
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`case to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the
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`Amended Order for the Adoption of Local Rules for the Assignment of Duties to United
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`States Magistrate Judges. The named Defendants are Bowie County Sheriff James Prince, District
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`Attorney Jerry Rochelle, defense attorney Jeff Harrelson, appellate counsel Kristian Young, and
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`District Judge Bobby Lockhart.
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`I. The Plaintiff’s Claims
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`Plaintiff was convicted of continuous sexual abuse of a child in cause no. 11F0762-102,
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`receiving a sentence of life in prison. This conviction was affirmed by the Sixth Judicial District
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`Court of Appeals on March 5, 2014. Eldred v. State, 431 S.W.3d 177, 190 (Tex.App.-Texarkana
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`2014). Plaintiff filed a state habeas application contending his appellate counsel failed to inform
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`him of the affirmance of his conviction. This habeas application was granted and Plaintiff was
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`permitted to file an out of time petition for discretionary review. Plaintiff’s petition for discretionary
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`review was denied on August 24, 2016.
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`

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`Case 5:17-cv-00012-RWS-CMC Document 19 Filed 09/14/17 Page 2 of 5 PageID #: 89
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`In his federal civil rights complaint, Plaintiff asserts that by law a complete affidavit and
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`jurat must be presented to the grand jury before any grand jury proceedings are undertaken.
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`Docket No. 1. These affidavits must be signed by a magistrate, district attorney, and police
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`official.
`According to Plaintiff, the indictment in his case, cause no. 11F0762-102, is void, faulty,
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`defective, illegal, and unconstitutional because the Defendants failed to submit a complete
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`affidavit and jurat to the grand jury. Docket No. 1. He claims his sentence, judgment, and
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`conviction are illegal because they are based on the void indictment, in violation of his
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`constitutional rights. Id. He asks for immediate release from prison, the setting aside of his
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`sentence, judgment, and conviction, and monetary damages in the amount of $6,000,000. Id.
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`Plaintiff also filed two motions for summary judgment, arguing the Defendants cannot
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`produce a viable copy of the complaint, affidavit and jurat and there is no valid sentence,
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`judgment or conviction because there was no valid affidavit, complaint or jurat, and thus no valid
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`grand jury proceeding. Docket Nos. 3, 10. He asserts this renders the indictment void and the trial
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`court could have never acquired jurisdiction. Docket No. 3.
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`II.
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`The Report of the Magistrate Judge
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`After review of the pleadings, the Magistrate Judge issued a Report stating in order to
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`recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused
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`by actions which would render a conviction or sentence invalid, a plaintiff under 42 U.S.C. §1983
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`must prove the conviction or sentence has been reversed on direct appeal, expunged by executive
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`order, declared invalid by an authorized state tribunal, or called into question by a federal court’s
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`issuance of a writ of habeas corpus. Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129
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`L.Ed.2d 383 (1994); Clarke v. Stalder, 154 F.3d 186, 189 (5th Cir. 1998) (en banc). Because a
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`judgment in Plaintiff’s favor would necessarily call into question the validity of his conviction for
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`continuous aggravated sexual assault of a minor, the Magistrate Judge determined Plaintiff must
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`show this conviction has been overturned, expunged, or otherwise set aside before he can
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`proceed in a civil rights lawsuit. Docket No. 13.
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`Page 2 of 5
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`

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`Case 5:17-cv-00012-RWS-CMC Document 19 Filed 09/14/17 Page 3 of 5 PageID #: 90
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`The Magistrate Judge further stated Plaintiff’s complaint cannot be construed as a habeas
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`corpus application because Plaintiff has not exhausted his state remedies. Brown v. Anderson, civil
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`action no. 3:16cv220, 2016 U.S. Dist. LEXIS 70586, 2016 WL 3079801 (S.D.Miss., May 31, 2016)
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`(declining to construe a civil rights lawsuit as a habeas corpus action because the plaintiff had not
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`exhausted his state remedies), citing Sam v. Louisiana, 409 F.App’x 758, 2011 U.S. App. LEXIS
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`2019, 2011 WL 310377 (5th Cir., January 31, 2011).
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`III. Plaintiff’s Objections
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`In his objections to the Report, Plaintiff argues his conviction cannot be set aside,
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`expunged, or otherwise overturned because there is no complaint, affidavit, or jurat on file in
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`state court. Docket No. 16. He asserts he has exhausted his state remedies by filing a motion in
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`state court under Article 39.14 of the Texas Code of Criminal Procedure. Id. In response to this
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`motion, the court clerk sent him copies of all of the documents on file in his case, but there was
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`no complaint, affidavit, or jurat.
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`Plaintiff states he then filed a “fundamental error of the court writ,” but the state district court
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`refused to answer it.1 He contends this should automatically overturn his conviction because there
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`is no complaint, affidavit, or jurat on file and the state district court never acquired jurisdiction.
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`After requesting this Court to order the state district court to answer his “fundamental error
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`of the Court writ,” Plaintiff argues he has exhausted state remedies by writing to the State Bar of
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`Texas asking for a copy of the CAAP form, which he states is a client assistance form sent to his
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`defense counsel Jeff Harrelson so Harrelson would send Plaintiff a copy of the complaint,
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`affidavit, and jurat in the case. Docket No. 17. He states he is suing the Defendants only in their
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`individual capacities, which Plaintiff asserts will overcome any claim of immunity.
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`IV. Discussion
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`Plaintiff’s conviction remains in effect and he is still in confinement under that conviction.
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`His civil rights lawsuit, if resolved in his favor, would call the validity of this conviction into
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`1Research has located no cases in Texas or any other United States jurisdiction referring to
`such a writ.
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`Page 3 of 5
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`

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`Case 5:17-cv-00012-RWS-CMC Document 19 Filed 09/14/17 Page 4 of 5 PageID #: 91
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`question. The Magistrate Judge correctly determined Plaintiff must show his conviction has been
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`overturned, expunged, or otherwise set aside in order to maintain a civil rights lawsuit challenging
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`the validity of his conviction. Heck, 512 U.S. at 487.
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`Although Plaintiff argues the trial court lacked jurisdiction and his conviction is therefore
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`void, the Heck rule nonetheless applies. See Bernegger v. Grimmett, 562 F.App’x 219, 2014 WL
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`1389004 (5th Cir., April 10, 2014) (Heck applied even where plaintiff argued fraud on the court
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`rendered his conviction void). His contention that his conviction cannot be overturned or set aside
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`because there is no complaint, affidavit, or jurat is without merit. See generally Houston v. State,
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`556 S.W.2d 345, 347 (Tex.Crim.App. 1977) (in the absence of jurisdiction, a conviction is a nullity).
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`The Court lacks jurisdiction to order the state district court to answer Plaintiff’s pleadings.
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`See Moye v. Clerk, DeKalb County Superior Court, 474 F.2d 1275, 1275-76 (5th Cir.
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`1973). Moreover, Plaintiff’s assertion he has exhausted his state remedies lacks merit because
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`Plaintiff fails to show his claims have been presented to and ruled upon by the Texas Court of
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`Criminal Appeals. See Kittleson v. Dretke, 426 F.3d 306, 315 (5th Cir. 2005). The Magistrate
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`Judge correctly determined Plaintiff’s lawsuit could not be construed as a habeas corpus
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`application. Plaintiff’s objections are without merit.
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`V. Conclusion
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`The Court has conducted a careful de novo review of those portions of the Magistrate Judge’s
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`proposed findings and recommendations to which the Plaintiff objected. See 28 U.S.C. §636(b)(1)
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`(District Judge shall “make a de novo determination of those portions of the Report or specified
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`proposed findings or recommendations to which objection is made.”) Upon such de novo review,
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`the Court has determined the Report of the Magistrate Judge is correct and the Plaintiff’s objections
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`are without merit. It is accordingly
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`ORDERED that the Plaintiff’s objections are overruled and the Report of the Magistrate
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`Judge (Docket No. 13) is ADOPTED as the opinion of the District Court. It is further
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`Page 4 of 5
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`

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`Case 5:17-cv-00012-RWS-CMC Document 19 Filed 09/14/17 Page 5 of 5 PageID #: 92
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`ORDERED that the above-styled civil action is DISMISSED WITH PREJUDICE to the
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`claims being asserted again until such time as Plaintiff can show his conviction has been overturned,
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`expunged by executive order, declared invalid in a state collateral proceeding, or called into question
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`through the issuance of a federal writ of habeas corpus. It is further
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`ORDERED that any and all motions which may be pending in this action are hereby
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`DENIED.
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`Page 5 of 5
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`.
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`
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`____________________________________
`ROBERT W. SCHROEDER III
`UNITED STATES DISTRICT JUDGE
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`SIGNED this 14th day of September, 2017.
`
`

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