Rupert v. Johnson, Civil Action No. SA-98-CA-31-OG.

CourtUnited States District Courts. 5th Circuit. Western District of Texas
Writing for the CourtOrlando L. Garcia
Citation79 F.Supp.2d 680
PartiesPrentis RUPERT, TDCJ No. 639061, Plaintiff, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Defendant.
Docket NumberCivil Action No. SA-98-CA-31-OG.
Decision Date08 July 1999
79 F.Supp.2d 680
Prentis RUPERT, TDCJ No. 639061, Plaintiff,
v.
Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Defendant.
Civil Action No. SA-98-CA-31-OG.
United States District Court, W.D. Texas, San Antonio Division.
July 8, 1999.

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Prentis Rupert, Livingston, TX, pro se.

Frances R. Johnson, Office of Attorney General, Edward L. Marshall, Assistant Attorney General, Austin, TX, for Respondent.

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ORDER ACCEPTING MAGISTRATE JUDGE'S RECOMMENDATION

ORLANDO L. GARCIA, District Judge.


On this date came on to be considered the Memorandum and Recommendation of the United States Magistrate Judge, filed in the above-styled and numbered cause on April 19, 1999.

According to the records of the Court, the Plaintiff was granted an extension of time to and including July 5, 1999 to file written objections to the Memorandum and Recommendation. No objections to the Memorandum and Recommendation have been filed.

Because no party has objected to the Magistrate Judge's Memorandum and Recommendation, the Court need not conduct a de novo review. See 28 U.S.C. § 636(b)(1) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings and recommendations to which objection is made."). The Court has reviewed the Memorandum and Recommendation and finds it to be neither clearly erroneous nor contrary to law. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.1989). Accordingly,

IT IS ORDERED THAT the Memorandum and Recommendation of the United States Magistrate Judge filed in this cause on April 19, 1999 be and is ACCEPTED pursuant to 28 U.S.C. § 636(b)(1) such that Petitioner's federal habeas corpus petition, filed February 17, 1998, is DENIED; and

IT IS FURTHER ORDERED THAT Respondent's motion to substitute counsel, filed December 21, 1998, is GRANTED.

SECOND MEMORANDUM AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

NOWAK, United States Magistrate Judge.

Pursuant to an informal referral of the above-styled and numbered cause to the undersigned United States Magistrate Judge on January 14, 1998, and consistent with the authority vested in United States Magistrates under the provisions of Title 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 1(d) and (e) of the Local Rules for the Assignment of Duties to United States Magistrates, Appendix C to the Local Court Rules for the Western District of Texas, effective January 1, 1994, the following report is submitted for your review and consideration.

I. Jurisdiction

Jurisdiction is noted pursuant to Title 28 U.S.C. Section 2254.

II. Statement of the Case

A. Factual Background

A Bexar County grand jury indicted petitioner Prentis Rupert in cause no. 89-CR-4869-A on charges of aggravated robbery and robbery with bodily injury. On January 4, 1990, the state trial court deferred adjudication of guilt and, based on petitioner's guilty plea to robbery with bodily injury, sentenced Rupert to ten years deferred-adjudication probation. On November 30, 1992, the trial court issued an Order adjudicating guilt and sentenced petitioner to serve an eight-year term of imprisonment. Petitioner filed no direct appeal from that conviction or sentence.

On August 5, 1992, a Bexar County grand jury indicted petitioner in cause no. 92-CR-4920 on a charge of retaliation, i.e., threatening to kill the complainant who had reported the occurrence of a crime.1

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On November 30, 1992, petitioner entered a guilty plea to that charge.2 On December 1, 1992, the state trial court imposed an eight-year term of imprisonment, to run concurrently with petitioner's 8-year sentence in cause no. 89-CR-4869-A.3 Petitioner did not appeal from that conviction or sentence either.

On May 8, 1995, petitioner filed cause no. SA-95-CA-413, a federal habeas corpus petition pursuant to Title 28 U.S.C. Section, in which he collaterally challenged only his robbery conviction and argued that (1) his conviction was obtained in part by the use of a coerced confession, more specifically he alleges that he was threatened with a charge of statutory rape unless he entered his guilty plea, (2) his court-appointed defense counsel rendered ineffective assistance because he was inexperienced in criminal law, and (3) a prosecution witness testified falsely at petitioner's trial regarding the date of an alleged assault offense involving petitioner. On July 10, 1995, respondent filed a motion to dismiss petitioner's federal habeas corpus petition in cause no. SA-95-CA-413, arguing that petitioner had never appealed his conviction or sought state habeas relief and, therefore, had failed to exhaust available state remedies. Petitioner filed no response thereto. In a Memorandum and Recommendation issued August 10, 1995, the undersigned Magistrate Judge recommended that petitioner's federal habeas corpus petition be dismissed for failure to exhaust state remedies. Petitioner filed no objections thereto and, in an Order and Judgment issued August 29, 1996, District Judge Prado accepted that recommendation and dismissed petitioner's federal habeas corpus petition without prejudice for failure to exhaust state remedies. Petitioner filed no appeal from that dismissal.

On June 3, 1996, petitioner filed a state habeas corpus application collaterally attacking his retaliation conviction in cause no. 92-CR-4920 in which he argued that (1) his trial counsel rendered ineffective assistance in connection with petitioner's guilty plea and sentence by (a) failing to conduct an independent investigation of the case against petitioner, (b) failing to interview petitioner's unidentified alibi witness, (c) failing to explain the charge against petitioner, more specifically, failing to explain the essential elements of the offense of retaliation, (d) failing to confer with the petitioner regarding potential witnesses and the petitioner's background, (e) failing to review the prosecution's file, and (f) advising petitioner to plead guilty and (2) his guilty plea was involuntary and unknowing because his trial counsel (a) withheld from petitioner the terms of the plea agreement offered by the prosecution, (b) erroneously advised petitioner regarding the essential elements of the charge, and (c) coercing petitioner to enter a guilty plea by threatening petitioner that other charges would be brought against him unless he entered a guilty plea.4 In an Order issued June 21, 1996, the state trial court directed petitioner's former trial counsel to file an affidavit responding to petitioner's allegations.5 Said counsel did so on July 3, 1996.6 In an Order issued August 1, 1996, the state trial court concluded that petitioner's allegations of an involuntary guilty plea were refuted by his attorney's affidavit and petitioner's plea documents, concluded that petitioner had not alleged any specific facts showing what additional exculpatory evidence investigation

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by his trial counsel would have disclosed, and recommended denial of petitioner's state habeas corpus application.7 On November 28, 1996, the Texas Court of Criminal Appeals denied petitioner's first state habeas corpus application without written order.8

On May 29, 1997, petitioner filed what the Texas Court of Criminal Appeal has designated his third state habeas corpus application challenging not his retaliation conviction but, rather, an unidentified state prison disciplinary proceeding that culminated in petitioner's loss of good conduct time credits.9 In an Order issued August 4, 1997, the state trial court concluded that petitioner's claims could have been raised in his prior state habeas corpus proceeding and recommended dismissal of petitioner's claims under state writ-abuse principles.10 The Texas Court of Criminal Appeals dismissed petitioner's third state habeas corpus application pursuant to the new Texas writ-abuse statute on September 24, 1997.11

On June 27, 1997, petitioner filed what the Texas Court of Criminal Appeals has designated as his second state habeas corpus application challenging his retaliation conviction, in which the petitioner argued that his trial counsel had rendered ineffective assistance in connection with petitioner's guilty plea and sentencing by not being adequately trained in criminal law, not having petitioner's best interests at heart, seeking a plea bargain, misleading petitioner regarding the benefits of parole rather than probation, erroneously advising petitioner regarding the nature of his plea agreement, failing to object to erroneous information in the victim impact statement, and failing to object to the absence of any evidence to support petitioner's guilty plea.12 In an Order issued July 11, 1997, the state trial court recommended that petitioner's second state habeas corpus application be dismissed pursuant to state writ-abuse principles.13 On August 13, 1997, the Texas Court of Criminal Appeals dismissed pursuant to the Texas writ-abuse statute.14

Meanwhile, on February 4, 1997, petitioner filed cause no. SA-97-CA-134-OG in this Court, a federal habeas corpus action in which he challenged both his aggravated robbery conviction as well as his retaliation conviction. On December 29, 1997, the District Court dismissed that federal habeas corpus petition without prejudice for failure to exhaust available state remedies regarding petitioner's robbery conviction.

On July 25, 1997, petitioner filed his fourth state habeas corpus application, in which he challenged his robbery conviction in state cause no. 89-CR-4869A and argued that the state trial court had erroneously placed him on probation in violation of applicable state law and, therefore, the revocation of same was invalid. In an Order issued October 2, 1997, the state trial court found that petitioner had, in fact, been placed on...

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6 practice notes
  • Hines v. Louisiana, No. Civ. 97-2618.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • February 18, 2000
    ...denied, 525 U.S. 952, 119 S.Ct. 383, 142 L.Ed.2d 316 (1998); United States v. Lewis, 786 F.2d 1278 (5th Cir.1986); Rupert v. Johnson, 79 F.Supp.2d 680, 698-99 (W.D.Tex.1999); Adanandus, 947 F.Supp. at 1038 n. 53. The Fifth Circuit has emphasized that "complaints of uncalled witnesses are no......
  • Anderson v. Middlebrooks, CIVIL ACTION NO. 3:20-CV-00680-TSL-RPM
    • United States
    • U.S. District Court — Southern District of Mississippi
    • June 24, 2021
    ...v. Johnson, 161 F.3d 941, 943 n.1 (5th Cir. 1998); DeJesus v. Bradt, 174 F. Supp. 3d 777, 781 n.1 (W.D.N.Y. 2016); Rupert v. Johnson, 79 F. Supp. 2d 680, 688 n.16 (W.D. Tex. 1999). 3. It is well-established that Rule 6(a) of the Federal Rules of Civil Procedure applies to the Section 2244(d......
  • United States v. Branton, CRIMINAL ACTION NO. 14-0050-01
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • May 13, 2016
    ...open court, a petitioner must present the court with "independent indicia of the likely merit of his allegations," Rupert v. Johnson, 79 F. Supp.2d 680, 704 (5th Cir. 1999), such as specific factual allegations supported by the affidavit of a reliable third party. Davis v. Butler, 825 F.2d ......
  • Linares-Andrade v. United States, EP-11-CV-544-PRM
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • March 28, 2012
    ...open court, a petitioner must present the court with "independent indicia of the likely merit of his allegations," Rupert v. Johnson, 79 F. Supp. 2d 680, 704 (W.D. Tex. 1999), such as specific factual allegations supported by the affidavit of a reliable third party. Davis v.Page 12Butler, 8......
  • Request a trial to view additional results
6 cases
  • Hines v. Louisiana, No. Civ. 97-2618.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • February 18, 2000
    ...denied, 525 U.S. 952, 119 S.Ct. 383, 142 L.Ed.2d 316 (1998); United States v. Lewis, 786 F.2d 1278 (5th Cir.1986); Rupert v. Johnson, 79 F.Supp.2d 680, 698-99 (W.D.Tex.1999); Adanandus, 947 F.Supp. at 1038 n. 53. The Fifth Circuit has emphasized that "complaints of uncalled witnesses are no......
  • Anderson v. Middlebrooks, CIVIL ACTION NO. 3:20-CV-00680-TSL-RPM
    • United States
    • U.S. District Court — Southern District of Mississippi
    • June 24, 2021
    ...v. Johnson, 161 F.3d 941, 943 n.1 (5th Cir. 1998); DeJesus v. Bradt, 174 F. Supp. 3d 777, 781 n.1 (W.D.N.Y. 2016); Rupert v. Johnson, 79 F. Supp. 2d 680, 688 n.16 (W.D. Tex. 1999). 3. It is well-established that Rule 6(a) of the Federal Rules of Civil Procedure applies to the Section 2244(d......
  • United States v. Branton, CRIMINAL ACTION NO. 14-0050-01
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • May 13, 2016
    ...open court, a petitioner must present the court with "independent indicia of the likely merit of his allegations," Rupert v. Johnson, 79 F. Supp.2d 680, 704 (5th Cir. 1999), such as specific factual allegations supported by the affidavit of a reliable third party. Davis v. Butler, 825 F.2d ......
  • Linares-Andrade v. United States, EP-11-CV-544-PRM
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • March 28, 2012
    ...open court, a petitioner must present the court with "independent indicia of the likely merit of his allegations," Rupert v. Johnson, 79 F. Supp. 2d 680, 704 (W.D. Tex. 1999), such as specific factual allegations supported by the affidavit of a reliable third party. Davis v.Page 12Butler, 8......
  • Request a trial to view additional results

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