Opinion
EP-05-CA-373-DB.
September 14, 2006
ORDER ADOPTING REPORT AND RECOMMENDATION
Before the Court is Plaintiff Bruce Kirk's ("Kirk") pro se "Civil Rights Complaint" ("Complaint") [Docket No. 4], brought pursuant to 42 U.S.C. § 1983 ("section 1983"), and filed on November 7, 2005. Kirk's scattergun Complaint challenges, among other things, the validity of his original convictions for indecency with a child and sexual assault, the constitutionality of the Texas Sex Offender Registration Program ("TSORP"), the legality of his subsequent conviction for failing to register as a sex offender, and the validity of the procedures employed by Defendant in establishing the conditions of his mandatory supervision.
On August 24, 2006, the United States Magistrate Judge to whom the Court referred this matter, pursuant to 28 U.S.C. § 636(b)(1)(B), issued a Report and Recommendation ("Report") [Docket No. 25]. In his Report, the Magistrate Judge concluded that despite Kirk's artful pleading, the resolution of the issues in his favor would necessarily imply the unlawfulness of his present custody. Relying on the doctrine of Heck v. Humphry, the Magistrate Judge concluded Kirk could not pursue his claims via section 1983. For the reasons which are discussed in the Report and which are herein incorporated by reference, the Magistrate Judge recommended that the Court dismiss the Complaint without prejudice.
Pursuant to 28 U.S.C. § 636(b)(1)(B), a district court may, on its own motion, refer a pending matter to a United States Magistrate Judge for Report and Recommendation ("Report"). 28 U.S.C. § 636(b)(1)(B). The non-prevailing party may contest the Report by filing written objections within ten days of being served with a copy of the Report. Id. The objections must specifically identify those findings or recommendations which the losing party wishes the district court to consider. Id. A district court need not consider frivolous, conclusive, or general objections. See Battle v. United States Parole Comm'n, 834 F.2d 419 (5th Cir. 1987). A district court must then make a de novo determination of those portions of the report or specified proposed findings or recommendations to which the party objects; and it may accept, reject, or modify the Report, in whole or in part. 28 U.S.C. § 636(b)(1). A party's failure to file written objections to the Report within ten days shall bar that party from de novo review by a district court. Id.
512 U.S. 477, 485-87 (1994) (holding the ancient principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments applies to section 1983 damage actions which necessarily require plaintiffs to prove the unlawfulness of their convictions or confinement).
The District Clerk received and filed "Plaintiff's Objections to the Magistrate Judge's Report and Recommendation" ("Objections") [Docket No. 26] on September 7, 2006. Pursuant to the prisoner mailbox rule, the Court considers Kirk's Objections "filed" on the date Kirk deposited his papers in the prison's mailing system. Here, Kirk certifies that he placed his Objections in his institution's mailing system on August 31, 2006. The Court accordingly finds that Kirk's Objections to the Report are timely.
Cf. Spotville v. Cain, 149 F.3d 374, 376 (5th Cir. 1998) (stating that, for purpose of determining the timeliness of a prisoner's filings under the Antiterrorism and Effective Death Penalty Act of 1996, a habeas corpus petition is deemed "filed" as of the date the prisoner places his petition in the prison mailing system); Casanova v. Dubois, 304 F.3d 75, 79-80 (1st Cir. 2002) (holding that, in an action pursuant to 42 U.S.C. § 1983, the filing date for purposes of assessing compliance with the statute of limitations is the date on which the prisoner commits his mail to the custody of prison authorities).
A party who files timely written objections to a magistrate judge's report and recommendation is normally entitled to a de novo review of those portions of the record relating his specific objections. The objections, however, must specifically identify those findings or recommendations which the losing party wishes the district court to consider. A district court need not consider frivolous, conclusive, or general objections.
28 U.S.C. § 636(b)(1)(B); see Morin v. Moore, 309 F.3d 316, 320 (2002) (stating that failure to file written objections to magistrate judge's report within ten days of service mandates plain-error review on appeal); United States v. Kallestad, 236 F.3d 225, 227 (5th Cir. 2000) ("[a] party who fails to file written objections to a magistrate judge's proposed findings and recommendations waives the objection, and on appeal we will review the issue for plain error only."); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc) ("[a] party who fails to file written objections timely to the findings of fact and conclusions of law in a magistrate's report and recommendation shall be barred from appealing the factual findings and legal conclusions adopted by the district court except in cases of plain error.").
Battle, 834 F.2d at 421.
In his Complaint, Kirk alleges among other things that his original convictions for indecency with a child and sexual assault are void because his conduct was not a criminal at the time it occurred. He further claims Defendant applied the TSORP to him retroactively, which violated his due process rights and contravened the Ex Post Facto and Double Jeopardy Clauses of the United States Constitution. He seeks a declaration that his convictions are void and an order enjoining the TSORP's enforcement. In his Objections, Kirk now asserts the Magistrate Judge erred in finding that he sought to overturn his convictions. Yet, relying on the holding in Creekmore v. Attorney General of Texas, Kirk still asks the Court to enjoin Defendant from subjecting him to the requirements of the TSORP. Kirk explains he merely wants Defendant to apply the laws in effect at the time of his first conviction, and specifically enforce the terms of his original plea agreement.
341 F. Supp. 2d 648, 670, 671 (E.D. Tex. 2004) (holding that applying the TSORP to a soldier convicted of several sexual offenses under the Uniform Code of Military Justice without a hearing deprived the soldier of procedural due process).
Although Kirk characterizes his most recent submission as an objection to the Magistrate Judge's Report, it is clear upon review that Kirk has done nothing more than merely repackage his original claims and re-urge several of his original arguments against Defendant. He is thus not entitled to a de novo review. In an abundance of caution, the Court has nonetheless conducted a de novo review of the record and pleadings in this cause and specifically addressed Kirk's ex post facto and due process claims.
Id.
I. BACKGROUND
The following facts are undisputed. On April 4, 1988, Kirk pleaded guilty pursuant to a plea agreement to two counts of indecency with a child and two counts of sexual assault in the 43rd Judicial District Court of Parker County, Texas. Kirk received 20-year concurrent sentences of confinement with the Texas Department of Criminal Justice ("TDCJ") for each count.
In 1991, while Kirk served time for his Parker County convictions, the State of Texas enacted the TSORP. The TSORP resulted from federal statutes establishing a national policy favoring the creation of sex offender registries and community notification procedures, and encouraging individual states to enact sex offender registration laws. The TSORP's original version applied to convictions for indecency with children and sexual assaults occurring after September 1, 1991. In 1997, the Texas Legislature expanded the class to include all individuals who had a "reportable conviction or adjudication" after September 1, 1970, and who continued to be under some form of state supervision. Failure to register under the TSORP thereafter subjected Kirk to a conviction for a state jail felony, felony of the third degree, or felony of the second degree, depending on the frequency of registration required.
TEX. REV. CIV. STAT. ANN. art. 6252-13c.1 (Vernon Supp. 1992).
Creekmore, 341 F. Supp. 2d at 653.
TEX. REV. CIV. STAT. ANN. art. 6252-13c.1, § 8 (Vernon Supp. 1992).
TEX. CODE CRIM. PROC. art. 62.11 (Vernon Supp. 1998).
TEX. CODE CRIM. PROC. art. 62.102 (Vernon Supp. 1998).
TDCJ released Kirk to mandatory supervision on March 12, 2001. Due to the nature of his convictions, authorities placed Kirk on intensive supervision with electronic monitoring and required him to register as a sex offender pursuant to the TSORP's requirements. Kirk failed to register and absconded on June 11, 2001. On August 5, 2001, authorities arrested him for violating the conditions of his mandatory release. The Texas Board of Pardons and Paroles ("Board") subsequently revoked Kirk's mandatory supervision on August 30, 2001. On May 10, 2004, pursuant to a plea agreement, Kirk pleaded guilty to failing to register as a sex offender. A Jefferson County court sentenced him to two year's imprisonment for the TSORP violation. The Board again released Kirk on mandatory supervision on March 2, 2005, placed him on intensive supervision with an electronic monitor, sent him to a halfway house in El Paso, and required him to register as a sex offender pursuant to the TSORP's requirements.
Texas law provides that "a parole panel shall order the release of an inmate who is not on parole to mandatory supervision when the actual calendar time the inmate has served plus any accrued good conduct time equals the term to which the inmate was sentenced." TEX. GOV'T CODE § 508.147 (Vernon Supp. 2005). Thus, it appears Kirk may have named the wrong defendant in this action.
TEX. CODE CRIM. PROC. art. 62.051 (Vernon Supp. 2001).
II. LEGAL STANDARDS
A. Section 1983 and Habeas Corpus Claims
To establish a cause of action under section 1983, a plaintiff must show that the defendant, while acting under the color of state law, violated a right secured by the Constitution and laws of the United States. A section 1983 action is thus an appropriate remedy for obtaining relief from illegal administrative procedures. On the other hand, a writ of habeas corpus is the appropriate federal remedy for a state prisoner challenging the fact of confinement. State prisoners must use a writ of habeas corpus, not section 1983, when they seek to invalidate the duration of their confinement through an injunction or a judicial determination that implies the unlawfulness of the State's custody.
West v. Atkins, 487 U.S. 42, 48 (1988).
Cook v. Texas Dep't of Crim. Justice Transitional Planning Dep't, 37 F.3d 166, 168 (5th Cir. 1994).
Preiser v. Rodriquez, 411 U.S. 475, 484 (1973).
Wilkinson v. Dotson, 544 U.S. 74, 81 (2005).
B. Ex Post Facto
An ex post facto law punishes as a crime an act previously committed which was innocent when done; changes the punishment and inflicts a greater punishment than the law attached to a criminal offense when committed; or deprives a person charged with a crime of any defense available at the time the act was committed. In determining if a law violates the Ex Post Facto Clause, the Court must first examine two elements: (1) whether the statute at issue was retroactively applied to a defendant in a criminal action; and (2) whether the statute increased that defendant's punishment.
Collins v. Youngblood, 497 U.S. 37, 42-44 (1990).
Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 504-05 (1995).
Because the facts show the State retroactively applied the TSORP to Kirk, the Court need only determine whether the law is punitive. Determining if a statute is punitive involves two further issues: (1) whether the state legislature intended the statute to be punitive; and (2) if the Court finds that the statute was non-punitive in intent, whether the statute' ancillary punitive effects override its civil purpose. "Whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction. A court must first ask whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other." A reviewing court must afford a high level of deference to the state legislature's stated aims in passing the statute.
The question in each case where unpleasant consequences are brought to bear upon an individual for prior conduct, is whether the legislative aim was to punish that individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation . . ."
De Veau v. Braisted, 363 U.S. 144, 160 (1960).
Smith v. Doe, 538 U.S. 84, 92 (2003).
United States v. Ursery, 518 U.S. 267, 288 (1996).
Hudson v. United States, 522 U.S. 93, 99 (1997) (citations and internal quotation marks omitted). Although Hudson involved a claim under the Double Jeopardy Clause, the thrust of the opinion was the proper procedure for evaluating whether sanctions are civil or criminal in nature.
Id. at 101 (cautioning that courts must consider effects of a statute "in relation to the statute on its face" and that "only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty")
De Veau v. Braisted, 363 U.S. 144, 160 (1960).
To evaluate whether the statute's effects are criminally punitive, courts generally look to the factors set forth by the Supreme Court in Kennedy v. Mendoza-Martinez (" Kennedy factors"). Courts consider: (1) whether the sanction involves an affirmative disability or restraint; (2) whether the statute's effects have traditionally been regarded as a punishment; (3) whether the effects arise only on a finding of scienter; (4) whether the statute's operation will promote the traditional aims of punishment-retribution and deterrence; (5) whether the behavior to which the statute applies is already a crime; (6) whether the statute may rationally be connected to an alternative purpose; and (7) whether the sanction appears excessive in relation to the alternative purpose assigned.
372 U.S. 144, 169 (1963).
Id. at 168-69.
C. Due Process
The Fourteenth Amendment provides in part: "[the] State [shall not] deprive any person of life, liberty, or property, without due process of law." Courts examine procedural due process questions in two steps: (1) whether the State has interfered with an existing liberty or property interest; and (2) whether the procedures attendant upon that deprivation were constitutionally sufficient. The types of interests which constitute "liberty" and "property" for Fourteenth Amendment purposes are not unlimited; the interest must rise to more than "an abstract need or desire," and must be based on more than "a unilateral hope." Rather, an individual claiming a protected interest must have a legitimate claim of entitlement to it. Protected liberty interests "may arise from two sources — the Due Process Clause itself and the laws of the States."
U.S. CONST. amend. XIV, § 1.
Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 571 (1972).
Hewitt v. Helms, 459 U.S. 460, 472 (1983)
Roth, 408 U.S. at 577.
Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 465 (1981).
Hewitt, 459 U.S. at 466.
Id.
III. DISCUSSION
A. Ex Post Facto
Kirk asserts that requiring him to comply with the 1997 amendments to the TSORP subjects him to greater, or different, punishment than that attached to his offenses at the time he committed them, thereby violating the Ex Post Facto Clause. The Fort Worth Court of Appeals, in addressing due process and equal protection challenges to the original TSORP, noted that the Legislature enacted the law not to punish individuals but to promote public safety. "[T]he legislature's goal . . . was to advance public safety objectives by facilitating law enforcement's monitoring of sex offenders and by alerting members of the public who may be in an especially vulnerable situation to take appropriate precautions which could deter or prevent further crimes." Admittedly, neither the text of the 1997 amendments nor the related bill analysis provides an explicit statement of the amendments' purpose. But since Kirk cites no evidence of a punitive intent on the part of the Texas Legislature with respect to the 1997 amendments, and the original TSORP was clearly non-punitive, the Court presumes that the Legislature's intent remained civil and remedial, and not criminal or punitive. Further, the Texas Court of Criminal Appeals throughly weighed all the Kennedy factors with regard to the 1997 amendments, and reasonably concluded that the amendments' effects were not so punitive as to transform the statute into a criminal sanction.
In re M.A.H., 20 S.W.3d 860, 863 (Tex.App.-Fort Worth 2000, no pet.).
Id.
Rodriguez v. State, 93 S.W.3d 60, 69 (Tex.Crim.App. 2002).
I.N.S. v. Chadha, 462 U.S. 919, 944 (1983) (explaining that in addressing constitutional challenges to a statute, the courts presume the statute is valid).
Rodriguez v. State, 93 S.W.3d 60, 69 — 80 (Tex.Crim.App. 2002).
Further, in Smith v. Doe, convicted sex offenders brought an action under section 1983 challenging the constitutionality of the Alaska Sex Offender Registration Act ("ASORA") as a violation of the Ex Post Facto Clause. The Supreme Court held that the ASORA was non-punitive, and therefore its retroactive application did not violate the Ex Post Facto Clause.
538 U.S. 84, 90-91 (2003).
Id. at 100-106.
Finally, in Riech v. Cockrell the Fifth Circuit Court of Appeals considered a 28 U.S.C. § 2254 petition challenging the TSORP's retroactive application. The Court held that the statute "was not intended to be punitive and serves important nonpunitive goals." Thus, the Court reasoned, the TSORP did not violate the Ex Post Facto Clause.
321 F.3d 487, 488 (5th Cir. 2003) (per curiam) (upholding the requirement that a parolee participate in a sex offender counseling program), cert. denied, 538 U.S. 1038 (2003).
Id.
Given the case law holding that the TSORP and similar measures do not violate the Ex Post Facto Clause, the Court finds that Kirk's ex post facto challenge fails as a matter of law.
B. Due Process
Having disposed of Kirk's ex post facto challenge, the Court now turns to his claim that the TSORP violates his Fourteenth Amendment right to due process of law. In Connecticut Dep't of Public Safety v. Doe, a purportedly non-dangerous sex offender challenged provisions of Connecticut's sex offender registry law as violative of the Fourteenth Amendment's Due Process Clause. The Supreme Court held that even if the law's public notification provisions deprived sex offenders of a liberty interest, the Due Process Clause did not entitle offenders to a hearing to determine whether they were currently dangerous before the State included them in a publicly disseminated sex offender registry. According to the Court, procedural due process requirements are met for people convicted of reportable offenses under the Connecticut's sex offender registry law through their original trials which resulted in their convictions. The Fifth Circuit Court of Appeals reached the same conclusion with regard to the TSORP.
538 U.S. 1, 4 2003).
Id. at 6-8.
Id. at 7.
Coleman v. Dretke, 395 F.3d 216, 225 (5th Cir. 2004) (holding that the TSORP violates procedural and substantive notions of due process to impose sex offender restrictions, without notice and an opportunity to be heard, upon individuals who have not, in fact, been convicted of a sex offense, but notes that procedural due process requirements are met through original trials resulting in convictions).
Here, there is no dispute that Kirk stands convicted of indecency with a child and sexual assault by a Texas court in accordance with Texas law. His misconduct occurred after September 1, 1970, and appellate courts have never overturned his convictions. Therefore, the Court finds that Kirk's due process challenge fails as a matter of law.
IV. CONCLUSION
The Court concludes that the intent of the TSORP and its 1997 amendments was not punitive, and the TSORP serves important non-punitive goals. Its retroactive application does not, therefore, violate the Ex Post Facto Clause. Further, it is undisputed that Kirk has been convicted of indecency with a child and sexual assault. The State therefore gave Kirk the process due him before subjecting him to the requirements of the TSORP.
Riech, 321 F.3d at 488.
Connecticut Dep't Pub. Safety, 538 U.S. at 7.
The Court concludes that there is no legal justification for the Court to order Defendant to apply the pre-TSORP laws in effect at the time of Kirk's convictions for indecency with a child and sexual assault, or to require the specific performance of the terms of Kirk's original plea agreement. In fact, granting Kirk the relief he seeks based on his ex post facto and due process claims would imply the invalidity of his conviction for failing to register as a sex offender. Since granting such relief would spell a speedier release from his mandatory supervision, Kirk's challenges lie at "the core of habeas corpus." A state prisoner's section 1983 action is barred if success in that action would necessarily demonstrate the invalidity of his confinement or its duration. Thus, Kirk may not obtain such relief via section 1983.
See Pack v. Yusuff, 218 F.3d 448, 454 n. 5 (5th Cir. 2000) ("Usually, `custody' signifies incarceration or supervised release, but in general it encompasses most restrictions on liberty resulting from a criminal conviction."), citing Jones v. Cunningham, 371 U.S. 236, 241-43 (1963) (holding that parole meets custody requirement).
Preiser, 411 U.S. at 484.
Id.
Wilkinson, 544 U.S. at 81.
In sum, after a de novo examination of the record in this cause, the Court determines that the Magistrate Judge's proposed findings of fact and conclusions of law are correct and that the Court should adopt his recommendation in its entirety. Accordingly, the Court enters the following orders:
1. The Court hereby ADOPTS and APPROVES the Report and Recommendation filed by the United States Magistrate Judge on August 24, 2006.
2. Plaintiff Bruce Kirk's accompanying Civil Rights Complaint is DISMISSED WITHOUT PREJUDICE.
3. All pending motions in this cause, if any, are DENIED AS MOOT.