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Chalmers v. Gavin

United States District Court, N.D. Texas, Dallas Division
Feb 21, 2002
3:01-CV-528-H (N.D. Tex. Feb. 21, 2002)

Opinion

3:01-CV-528-H

February 21, 2002


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 filed on April 12, 2001, 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 pursuant to 42 U.S.C. § 1983.

Parties: Plaintiff Lonnie Charles Chalmers resides in Dallas, Texas. Defendants are David Gavin, an employee of the Texas Department of Public Safety, Crime Record Service, and L.C. Carter, a Dallas Police officer. The court has issued process in this case.

Statement of Case: Plaintiff, a sex offender, alleges that Defendants violated the Constitution's proscription of Ex post facto laws by applying to him the 1997 amendments to the Texas Sex Offender Registration Program, which were enacted after he committed the crime of sexual assault on December 12, 1995. (Complaint at 4). Specifically he contends that the 1997 amendments have increased his punishment as follows:

(1) by requiring him to register for life on the rolls for Texas sex offenders, whereas the law in effect on December 12, 1995, did not contain such provision;
(2) by allowing the display of information for public access that was previously exempted under the law in effect on December 12, 1995;
(3) by causing him to be subjected to a felony offense for violation of the sex offender registration program, while the law in effect in 1995 made the punishment a misdemeanor; and
(4) by defining the offense that Plaintiff committed in 1995 as a violent sexual offense, while the law in effect in 1995 made no such indication.

(Complaint at 5). Plaintiff requests $250,000 in damages and an injunction ordering Defendants to "correct [their] actions." (Complaint at 8).

On September 27, 1996, Plaintiff pled guilty to the offense of sexual assault in Criminal District Court No. 3, Dallas County, Texas, Cause No. F96-75174-J. (Complaint at 6 and Plaintiff's Supplemental brief filed on August 24, 2001, at 1). The court sentenced him to ten years imprisonment in the Texas Department of Criminal Justice, Institutional Division, but suspended imposition of the prison sentence and placed him on probation with community supervision for a term of five years and a fine of $1,000. (Complaint at 6). At the time of his conviction, Plaintiff was notified that as of October 10, 1996, he had a duty to register as a sex offender under Texas Civil Statutes art. 6252-13c.1. (Complaint at 6 and Exh. 1). On March 31, 2000, the trial court granted Plaintiff early release from community supervision pursuant to Texas Code of Criminal Procedure art. 42.12 § 20 (West 1996). (Complaint at 6). The order discharging Plaintiff from community supervision read in part as follows:

The indictment or information is dismissed, and the defendant is released from all penalties and disabilities resulting from the offense or crime of which the defendant has been convicted, except as provided in Article 42.12, section 20, Texas Code of Criminal Procedure.

(Exh. E to Plaintiff's Supplemental Brief filed on August 24, 2001) (emphasis added).

Prior to being discharged from community supervision, Plaintiff filed a federal habeas corpus petition pursuant to 28 U.S.C. § 2254.Chalmers v. Goethals, 3:99cv1641-M (N.D. Tex., Dallas Div.). He alleged that his counsel provided ineffective assistance and his guilty plea was involuntary. On August 28, 2000, the district court denied the petition on the merits.

Plaintiff has filed a prior civil rights action in this court. See Chalmers v. Carter, 3:00cv936-P (N.D. Tex., Dallas Div.). In that action, Plaintiff challenged the requirement that he register as a sex offender and contended that he was entitled to the benefits of Texas Code of Criminal Procedure art. 42.12, § 20. He named as Defendants L.C. Carter, the same Dallas Police officer named in this action, and Pam Tanner, a deputy clerk in the Office of the District Clerk for Dallas County, Texas. On January 16, 2001, Magistrate Judge Jane Boyle recommended that the District Court abstain from exercising federal jurisdiction over this action so that Plaintiff could purse his claims in state court. On January 23, 2001, the District Court adopted the recommendation of the magistrate judge and dismissed Plaintiff's complaint without prejudice to his raising any remaining federal claim, if desired, in a federal forum after the Texas courts had been given an opportunity to address the state law issues raised. Chalmers did not appeal the judgment.

Thereafter Plaintiff filed an application for writ of habeas corpus pursuant to Tex. Code Crim. Proc. art. 11.22. (See Exh. A to Plaintiff's Objection to Defendants' motions to dismiss, filed on May 10, 2001). On June 27, 2001, the Texas Court of Criminal Appeals denied without written order his motion for leave to file an application for writ of habeas corpus. (See Exh. A to Plaintiff's Supplemental Brief, filed on August 24, 2001).

In this case both Defendants have filed motions to dismiss the complaint. They contend that Plaintiff is seeking to litigate issues previously decided against him in Cause No. 3:00cv936-P, hence the present action is barred by res judicata. In addition to res judicata, Defendant Carter argues that the complaint fails to raise a claim upon which relief could be granted, that he is entitled to qualified immunity, and that the complaint should be dismissed for insufficient service of process. Plaintiff has filed an objection to Defendants' motions.

On July 31, 2001, the court ordered the parties to file supplemental briefs in light of the recent Fifth Circuit opinion in Moore v. Correctional Center, 253 F.3d 870 (5th Cir. 2001), cert. denied, ___ U.S. ___, 122 S.Ct. 492 (2001). In his supplemental brief, filed on August 24, 2001, Plaintiff seeks to dismiss his ex post facto claim contending that it is moot in light of Moore. (Plaintiff's supplemental brief at 14). He requests, however, leave to amend the complaint to raise the claims previously alleged in Cause No. 3:00cv936-P. (Id.). The Defendants have each filed supplemental briefs addressing the applicability of Moore. Neither Defendant has objected to Plaintiff's request to amend the complaint. Findings and Conclusions: In the interest of judicial economy, the court should grant Plaintiff's request to dismiss his ex post facto claim as moot and to amend the complaint to raise the claims previously alleged in Cause No. 3:00cv936-P. Before proceeding to the merits of the claims raised in 3:00cv936-P, the magistrate judge first addresses Defendants' motions to dismiss the complaint on res judicata grounds.

On August 3, 2001, Plaintiff filed an additional motion for leave to amend the complaint to allege the issues raised in Cause No. 3:00cv936-P. That motion remains pending along with Plaintiff's prior motion to amend the complaint to correct a clerical error, filed on April 23, 2001. Also pending at this time are the following motions: (1) Plaintiff's motion for leave to file "judicial notice of adjudicative facts", filed on March 22, 2001, (2) Plaintiff's motion for injunctive relief, filed on March 22, 2001, and (3) Plaintiff's motion for a temporary restraining order filed on April 3, 2001. For the reasons stated in the instant recommendation, the motions are moot.

Whether Plaintiff's complaint relies on the Ex Post Facto Clause or the Due Process Clause as alleged in 3:00cv936-P, it is not barred by res judicata. The judgment in Cause No. 3:00cv936 was not a final judgment on the merits and, thus, has no res judicata effect. See United States v. Shanbaum, 10 F.3d 305, 310 (5th Cir. 1994). The district court explicitly dismissed Cause No. 3:00cv936-P without prejudice to Plaintiff refiling his complaint after the Texas courts had been given an opportunity to address the state law issues raised in the complaint. A "dismissal . . . without prejudice" is a dismissal that does not "operat[e] as an adjudication upon the merits" and, thus, does not have a res judicata effect. Cooter Gell v. Hartmarx Corp., 496 U.S. 384, 396 (1990). See also American Heritage Life Insurance Co. v. Heritage Life Insurance Co., 494 F.2d 3, 9 (5th Cir. 1974) (dismissal without prejudice is not a final judgment on the merits and has no res judicata effect). Therefore, Plaintiff's claims are not precluded on the basis of res judicata and Defendants' motions to dismiss the complaint on this ground should be denied.

Next the magistrate judge addresses Plaintiff's claims on the merits. The court has permitted Plaintiff to proceed in forma pauperis. His complaint is, thus, subject to screening under 28 U.S.C. § 1915(e)(2)(B). which imposes a screening responsibility on the district court. Section 1915(e)(2)(B) reads in pertinent part as follows:

Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . (B) the action or appeal — (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.

Section 1915(e)(2)(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 (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 (1957).

To obtain relief under 42 U.S.C. § 1983, a plaintiff must prove two elements: (1) a deprivation of a right secured by the Constitution and laws of the United States, and (2) a deprivation of that right by a defendant acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

Plaintiff cannot allege any federal constitutional violations by the Defendants named in the complaint. Plaintiff was convicted of sexual assault of a child on September 27, 1996. The sex offender registration statute in effect at the time of Plaintiff's conviction, Texas Revised Civil Statute art. 6252-13c.1, defined a "reportable conviction or adjudication" as a conviction for sexual assault. See Tex. Rev. Civ. Stat. art. 6252-13c.1, § 1(5), redesignated as Tex. Code Crim. Proc. Ann Art. 62.01(5)(A) (Vernon Supp. 2002). Therefore, the law in effect at the time of Plaintiff's conviction required him to register as a sex offender.

In this action, Plaintiff argues that the indictment was dismissed and he was discharged from "all penalties and disabilities" when he completed his probation and, therefore, he no longer has a "reportable conviction," which requires registration as a sex offender. Article 6252-13c.1 required a person who had been convicted or had received deferred adjudication for a listed offense to register as a sex offender. See Tex. Rev. Civ. Stat. Art. 6252-13c.1, § 1.5, redesignated as Tex. Code Crim. Proc. art. 62.02(a) (Vernon Supp. 2002). The statute did not create an exception for individuals who have successfully completed their probation.

The overall design of the sex offender registration provisions is regulatory, not punitive. Dean v. State, 60 S.W.3d 217, 221-25 (Tex.App.-Houston 2001, no pet.); Rodriguez v. State, 45 S.W.3d 685, 689 (Tex.App.-Fort Worth, 2001), pet. granted (Oct. 10, 2001). The provisions evidence a clear intent to monitor the whereabouts of the offender and do not manifest an intent to punish. Registration does no more than apprise law enforcement officials of certain basic information about an offender living in the area. It places no restraint on the offender's movements and the information required to be divulged in registering is not burdensome.

The majority of federal courts confronted with attacks on the validity of sex-offender registration statutes have concluded that they pass constitutional muster. Examples of federal decisions follow: Cutshall v. Sundquist, 193 F.3d 466 (6th Cir. 1999), cert. denied, 529 U.S. 1053 (2000) (Tennessee Sex Offender Registration and Monitoring Act did not violate ex post facto clause); Russell v. Gregoire, 124 F.3d 1079 (9th Cir. 1997) (statute showed regulatory, not punitive, effect, so no violation of ex post facto clause); Doe v. Pataki, 120 F.3d 1263 (2d Cir. 1997) (neither registration nor notification provisions under the New York act inflicted punishment under ex post facto clause); E.B. v. Vemiero, 119 F.3d 1077 (3d Cir. 1997) (notification under New Jersey Registration and Community Notification Laws did not constitute punishment for purposes of ex post facto and double jeopardy clauses);Artway v. Attorney General, 81 F.3d 1235 (3d Cir. 1996) (challenge to notification aspects of New Jersey law not ripe, but registration requirements do not violate ex post facto clause); Roe v. Farwell, 999 F. Supp. 174 (D. Mass. 1998) (registration requirements of Massachusetts law do not violate the ex post facto clause, however, unlimited public access provisions are too broad to be constitutional);Lanni v. Engler, 994 F. Supp. 849 (E.D. Mich. 1998) (purpose of law to protect public, not to punish offenders, so not an ex post facto law).

The Fifth Circuit Court of Appeals recently addressed whether the Louisiana community notification provision inflicted "punishment" within the meaning of the ex post facto clause. Moore v. Avoyelles Correctional Center, 253 F.3d 870 (5th Cir. 2001). It held that it did not, despite some punitive effect on offenders. Id. at 872-73.

The absence of any restraint on a sex offender's movement and any penal effect imposed by the registration requirement renders the Texas registration requirement readily distinguishable from case law which addresses subsequent prosecutions predicated on the fact of a prior conviction. See. e.g. United States v. Fix, 264 F.3d 532 (5th Cir. 2001); Cuellar v. State, 40 S.W.3d 724 (Tex.App.-San Antonio 2001), affd, ___ S.W.3d ___, 2002 WL 217832 (Tex.Crim.App. Feb. 13, 2002).

In Fix and Cuellar, the courts held that where a prior felony conviction — a necessary element of a subsequent felony charge — had been set aside in its entirety, a defendant could not be found guilty of the subsequent criminal offense.

As noted above, the registration statute in effect at the time of Chalmer's conviction, i.e., art 6252-1 3c.1, required registration by a person who had a "reportable conviction or adjudication." Although the Court of Criminal Appeals declined to interpret this phrase after a judge of this court dismissed his prior federal lawsuit, see p. 3, supra, under the plain meaning of the term "reportable conviction" it is clear that Chalmer's conviction in No. F96-75174-J was a reportable conviction. Not only did he plead guilty to this sexual assault charge, but a judge of this court previously found his conviction to be invulnerable to collateral attack. See Chalmers v. Goethals, supra, at n. 1. An interpretation of "reportable conviction" consistent with Plaintiff's argument would defeat the legislation intent of the orderly non-punitive registration of persons who have been convicted of sexual offenses.

Therefore, the magistrate judge finds that even though Plaintiff successfully completed his probation and his indictment was dismissed, he is required to register as a sex offender based on the fact that he was convicted of sexual assault — a "reportable conviction."

In addition to contending that he does not have a "reportable conviction," Plaintiff contends that the 1999 amendment to Texas Code of Criminal Procedure art. 42.12, § 20 (which made § 20 inapplicable to those who must register as sex offenders), clearly demonstrate that the trial judge's order of March 31, 2000, which dismissed the indictment and released him from all penalties and disabilities, also discharged him from the obligation to register. Prior to the 1999 amendments, art. 42.12, § 20, provided in relevant part as follows:

(a) At any time, after the defendant has satisfactorily completed one-third of the original community supervision period or two years of community supervision, whichever is less, the period of community supervision may be reduced or terminated by the judge. Upon satisfactory fulfilment of the conditions of community supervision, and the expiration of the period of community supervision, the judge by order duly entered, shall amend or modify the original sentence imposed, if necessary, to conform to the community supervision period and shall discharge the defendant. If the judge discharges the defendant under this section, the judge may set aside the verdict or permit the defendant to withdraw his plea, and shall dismiss the accusation, complaint, information or indictment against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been conviction or to which he has pleaded guilty, except that:
(1) proof of the conviction or plea of guilty shall be made known to the judge should the defendant again be convicted of any criminal offense; and
(2) if the defendant is an applicant for a license or is a licensee under Chapter 42, Human Resources Code, the Texas Department of Human Services may consider the fact that the defendant previously has received community supervision under this article in issuing, renewing, denying or revoking a license under that chapter.
(b)This section does not apply to a defendant convicted of an offense under Sections 49.04-49.08, Penal Code, or a defendant convicted of an offense punishable as a state jail felony.

In 1999, the Texas Legislature amended subsection "b" above, to make § 20 of art. 42.12, inapplicable to a defendant "convicted of an offense for which on conviction registration as a sex offender is required under Chapter 62, as added by Chapter 668, Acts of the 75th Legislature, Regular Session, 1997."

The 1999 amendments are not applicable in this case. Section 5(c) of the Act amending art. 42.12 in 1999 provides:

The change in law made by this section applies only to a defendant who receives deferred adjudication for an offense or is convicted of an offense on or after the effective date of this Act, regardless of whether the offense for which the defendant received deferred adjudication or is convicted is committed before, on, or after the effective date of this Act. A defendant receiving deferred adjudication for or conviction of an offense before the effective date of this Act is covered by the law in effect when the defendant received deferred adjudication or was convicted and the former law is continued in effect for that purpose.

Tex. Code Crim. Proc. Ann. art. 42.12, § 20 historical and statutory notes (West 2001) (emphasis added). Therefore, the trial judge relied on the pre-amended version of § 20 in dismissing the indictment and discharging Plaintiff from all further penalties.

Plaintiff argues that, had the pre-1999 version of the statute not permitted a judge to release individuals from the registration requirements, then there would have been no need to amend the statute. While it may be argued that the 1999 amendments clarified the prior provisions of § 20, the amendments do not expand the scope of the term "reportable conviction" and, therefore, the magistrate judge does not find Plaintiff's argument persuasive.

Because Plaintiff is properly required to register as a sex offender, his civil rights claims are meritless. The complaint should be dismissed for failure to state a claim upon which relief can be granted.

RECOMMENDATION:

For the foregoing reasons, it is recommended that Plaintiff's request to dismiss his ex post facto claim as moot and to amend the complaint to assert the claims alleged in Cause No. 3:00cv936-P (raised for the first time in Plaintiff's Supplemental brief filed on August 24, 2001), be granted.

It is further recommended that Plaintiff's motion to amend the complaint to correct a clerical error, filed on April 23, 2001, Plaintiff's motion for leave to file "judicial notice of adjudicative facts", filed on March 22, 2001, Plaintiff's motion for injunctive relief, filed on March 22, 2001, and Plaintiff's motion for a temporary restraining order filed on April 3, 2001, be denied as moot.

It is further recommended that Defendants' motion to dismiss the complaint on the basis of res judicata be denied, and that Plaintiff's complaint be dismissed with prejudice for failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

A copy of this recommendation will be mailed to Plaintiff and counsel for Defendants.


Summaries of

Chalmers v. Gavin

United States District Court, N.D. Texas, Dallas Division
Feb 21, 2002
3:01-CV-528-H (N.D. Tex. Feb. 21, 2002)
Case details for

Chalmers v. Gavin

Case Details

Full title:LONNIE CHARLES CHALMERS, Plaintiff, v. DAVID GAVIN, et al., Defendants

Court:United States District Court, N.D. Texas, Dallas Division

Date published: Feb 21, 2002

Citations

3:01-CV-528-H (N.D. Tex. Feb. 21, 2002)