Filed: May 08, 1995
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 95-50068 Summary Calendar _ DERRYL LEE BUCKINGHAM, Plaintiff-Appellant, VERSUS STATE OF TEXAS and ATTORNEY GENERAL OF TEXAS, Defendants-Appellees. _ Appeal from the United States District Court for the Western District of Texas (94-CV-631) _ (May 25, 1995) Before SMITH, EMILIO M. GARZA, and PARKER, Circuit Judges. PER CURIAM:* Derryl Buckingham appeals the dismissal, as frivolous under 28 U.S.C. § 1915(d), of his state prisoner's
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 95-50068 Summary Calendar _ DERRYL LEE BUCKINGHAM, Plaintiff-Appellant, VERSUS STATE OF TEXAS and ATTORNEY GENERAL OF TEXAS, Defendants-Appellees. _ Appeal from the United States District Court for the Western District of Texas (94-CV-631) _ (May 25, 1995) Before SMITH, EMILIO M. GARZA, and PARKER, Circuit Judges. PER CURIAM:* Derryl Buckingham appeals the dismissal, as frivolous under 28 U.S.C. § 1915(d), of his state prisoner's c..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 95-50068
Summary Calendar
_______________
DERRYL LEE BUCKINGHAM,
Plaintiff-Appellant,
VERSUS
STATE OF TEXAS
and
ATTORNEY GENERAL OF TEXAS,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Western District of Texas
(94-CV-631)
_________________________
(May 25, 1995)
Before SMITH, EMILIO M. GARZA, and PARKER, Circuit Judges.
PER CURIAM:*
Derryl Buckingham appeals the dismissal, as frivolous under
28 U.S.C. § 1915(d), of his state prisoner's civil rights suit
brought pursuant to 42 U.S.C. § 1983. We modify the judgment and
affirm it as modified.
*
Local Rule 47.5.1 provides: "The publication of opinions that have no
precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens on
the legal profession." Pursuant to that rule, the court has determined that this
opinion should not be published.
I.
Buckingham sued the State of Texas and its attorney general,
styling his action as a § 1983 action with habeas relief, raising
the same allegations that he had previously raised in his earlier
federal habeas corpus action, which he admitted had been dismissed
for failure to exhaust state remedies. Buckingham stated that the
assistant attorney general had admitted that Buckingham's allega-
tions about the illegality of his conviction in his federal writ
were true. Buckingham requested both monetary damages and
immediate release from imprisonment.
The magistrate judge issued a "show cause" order, construing
Buckingham's complaint as a petition for federal habeas relief
because of the request for release from imprisonment, and noted
that Buckingham previously had been sanctioned $50 by the Eastern
District of Texas for filing frivolous suits and that the clerk of
that court had ordered Buckingham not to file any new cases until
the $50 had been paid. The magistrate judge also noted that the
chief judge of the Western District of Texas had issued an order
that the judges of the district observe and enforce sanctions
imposed by other United States district courts against a Texas
state prisoner who files a new civil action in the Western
District, unless the prisoner established a change of circumstances
or demonstrated that enforcing the previously imposed sanctions
would be unjust. The magistrate judge also found that Buckingham's
complaint was frivolous and ordered him to show cause why his
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complaint should not be dismissed.
Buckingham responded by contesting the legality of the
sanction imposed by the Eastern District and by stating that the
court would be an accomplice if it upheld the sanction. Buckingham
also admitted that his § 1983 action was of a habeas nature and
that his requested relief should be granted because the attorney
general had admitted Buckingham's allegations of wrongdoing.
The magistrate judge reported that the sanctions imposed by
the Eastern District were permissible and that Buckingham had not
demonstrated that they were unjust. The magistrate judge also
construed Buckingham's suit as a petition for federal habeas relief
and stated that Buckingham had not asserted whether he had
exhausted his state remedies regarding his issues in the present
action. The magistrate judge recommended dismissing Buckingham's
complaint as frivolous and further recommended sanctioning
Buckingham in the amount of $100, with a warning that any future
filing be with permission of a federal judge, and that any future
frivolous filings would result in additional sanctions.
Over Buckingham's objections, the district court adopted the
magistrate judge's report and recommendation, dismissed
Buckingham's complaint pursuant to § 1915(d), and imposed a
sanction of $100. The court also noted, as a basis, that
Buckingham had failed to comply with the sanctions of the Eastern
District. The court further ordered that the failure to either pay
the monetary sanctions or to seek permission from the court would
be cause for striking any future pleadings. The court specifically
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noted that Buckingham's complaint was "patently frivolous" and was
an "obvious attempt to circumvent the sanctions imposed upon him
for similar activities" in the Eastern District.
II.
Liberally construed, Buckingham's brief asserts that the
district court abused its discretion in dismissing his complaint as
frivolous. A complaint filed in forma pauperis may be dismissed as
frivolous pursuant to § 1915(d) if it has no arguable basis in law
or fact. Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993). We
review a § 1915(d) dismissal for abuse of discretion.
Id.
A § 1983 action is the appropriate remedy for recovering
damages for mistreatment or illegal administrative procedures.
Richardson v. Fleming,
651 F.2d 366, 372 (5th Cir. 1981). The writ
of habeas corpus is the appropriate federal remedy for a state
prisoner challenging the fact of confinement. Preiser v.
Rodriguez,
411 U.S. 475, 484 (1973); see also Deters v. Collins,
985 F.2d 789, 792-96 (5th Cir. 1993). To determine which remedy a
prisoner should pursue, we look beyond the relief sought to
determine whether the claim, if proved, would factually undermine
or conflict with the state court conviction.
Richardson, 651 F.2d
at 373.
In order to recover damages for an allegedly unconstitutional
imprisonment, a § 1983 plaintiff must prove that his conviction or
sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by an authorized state tribunal, or called
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into question by a federal court's issuance of a writ of habeas
corpus under 28 U.S.C. § 2254. See Heck v. Humphrey, 114 S. Ct.
2364, 2372 (1994). Otherwise, such a claim is not cognizable under
§ 1983 and must be dismissed.
Buckingham states on appeal that habeas relief is part of his
§ 1983 action and that he is suing for unconditional release in
addition to monetary damages. He further contends that his
complaint alleged constitutional violations that would cast doubt
on his conviction. He continues to assert that the assistant
attorney general, in answering Buckingham's previous petition for
federal habeas relief, admitted Buckingham's allegations of
wrongdoing.
If Buckingham's complaint is construed as a § 1983 action
stemming from an unconstitutional imprisonment, his claims are not
cognizable, as he has failed to demonstrate that his conviction has
been set aside or otherwise called into question. See Heck, id.
Although Buckingham alleges that the assistant attorney general, in
the state's response to the state and federal habeas writs,
admitted Buckingham's factual allegations of the unconstitutional
violations surrounding his conviction, Buckingham's assertion is
incorrect. By Buckingham's own admission, the assistant attorney
general responded with rote language that every allegation of fact
was denied, except those that were supported by the record. This
language could not have constituted an admission of the invalidity
of Buckingham's conviction. This fact is further demonstrated by
Buckingham's concession that he was denied both state and federal
5
relief. Therefore, Buckingham cannot seek damages under § 1983 as
he cannot demonstrate that his conviction has been invalidated,
reversed, or otherwise called into question.
Additionally, Buckingham cannot appropriately seek federal
habeas relief. He asserts in his complaint that his confession was
coerced and obtained through unkept promises by the state, that he
received ineffective assistance of counsel, that his counsel had a
conflict of interest, and that his indictment was defective.
Buckingham admits, however, that his previous federal habeas
petition, which also raised the conflict-of-interest issue, was
dismissed pursuant to the state's motion to dismiss for
Buckingham's failure to exhaust his state remedies regarding the
conflict-of-interest claim.
In general, before a state prisoner may seek federal habeas
relief, he must exhaust available state remedies. See 28 U.S.C.
§ 2254(b). The exhaustion requirement reflects federal-state
comity concerns. Picard v. Connor, 404 U.S. 270, 275 (1971).
Exhaustion normally requires only that the federal claim was fairly
presented to the highest court of the state, either on direct
review or in a post-conviction attack. Carter v. Estelle,
677 F.2d
427, 443 (5th Cir. 1982), cert. denied,
460 U.S. 1056 (1983).
For a claim to be exhausted, the state court must have been
apprised of the facts and the legal theory upon which the
petitioner bases his assertion. Burns v. Estelle, 695 F.2d 847,
849 (5th Cir. 1983). "It is well settled that a habeas petition
must be dismissed if any issue has not been exhausted in the state
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courts." Thomas v. Collins, 919 F.2d 333, 334 (5th Cir. 1990),
cert. denied,
501 U.S. 1235 (1991). "If the petitioner did not
fairly present the substance of his claims to the state
courts . . ., the petition must be dismissed . . . so that the
state court may have a fair opportunity to determine" the claims.
Dispensa v. Lynaugh,
847 F.2d 211, 217-18 (5th Cir. 1988).
Buckingham has made no attempt, either in the district court
or on appeal, to demonstrate that all of his claims were fairly
presented to the state courts. The implicit conclusion, gleaned
from Buckingham's previous admission that his earlier federal
habeas action was dismissed for failure to exhaust, is that he has
failed to exhaust his state remedies for all of his issues in his
current action.
The district court did not abuse its discretion, but the
dismissal is hereby modified to be a dismissal without prejudice.
If the action is construed as a petition for federal habeas relief,
a dismissal with prejudice would effectively be a dismissal on the
merits, which in this case would be inappropriate, as the district
court did not reach the merits of Buckingham's issues, but instead
noted that Buckingham had failed to exhaust his state remedies.
III.
Buckingham also appears to assert that the district court's
sanction of $100 was illegal. Buckingham contends that his claims
were supported by the record.
By signing his complaint, Buckingham certified that, after a
7
reasonable inquiry, to the best of his knowledge, information, and
belief, the matters contained in his complaint were well-grounded
in fact and warranted by existing law. FED. R. CIV. P. 11. Abuse
of discretion is the standard of review for whether a rule 11
violation occurred and for the nature of the sanction imposed.
Thomas v. Capital Security Servs., 836 F.2d 866, 872 (5th Cir.
1988) (en banc). Considering Buckingham's obvious attempt to
escape the sanctions imposed by the Eastern District, the district
court did not abuse its discretion in imposing a sanction of $100.
Buckingham is hereby warned that if he continues to file
frivolous appeals, he may be subject to sanctions in this court.
The judgment of dismissal is MODIFIED to be a dismissal without
prejudice; as so modified, the judgment is AFFIRMED. All pending
motions are DENIED.
AFFIRMED.
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