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McCann v. State

United States District Court, S.D. Texas, Galveston Division

June 27, 2017

MICHAEL A. MCCANN, Petitioner,



         The petitioner, Michael A. McCann, has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 to challenge a conviction for failure to identify by giving false or fictitious information to a police officer (Dkt. 1). After reviewing all of the pleadings and the applicable law under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, the Court concludes that this case must be DISMISSED for the reasons set forth below.

         I. BACKGROUND

         A Brazoria County jury convicted McCann of providing a false date of birth to a police officer during a traffic stop, which constituted a violation of Section 38.02(b) of the Texas Penal Code. See Brazoria County Criminal Case Number 209154. McCann was sentenced to a 180-day term in county jail, probated for one year. The Fourteenth Court of Appeals of Texas affirmed his conviction, and the Texas Court of Criminal Appeals refused discretionary review. See McCann v. State, No. 14-15-01069-CR, 2016 WL 2970147 (Tex. App.-Houston [14th Dist.] May 19, 2016, pet. ref d); see also Texas Court of Criminal Appeals Case Number PD-0857-16. McCann did not file a state habeas petition.

         In his federal habeas petition and his additional briefing, McCann argues that Section 38.02 unconstitutionally infringes on his First Amendment right to freely exercise his religion because it defines "date of birth" as the date on which a baby was delivered, not the date on which it was conceived (Dkt. 1 at p. 5; Dkt. 3 at pp. 4-5). McCann also argues that the State should not have been allowed to initiate its prosecution six months after the traffic stop and that the state trial court lacked jurisdiction over him (Dkt. 1 at pp. 7-8).


         The federal writ of habeas corpus is an extraordinary remedy which shall not extend to any prisoner unless he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §§ 2241(c)(3) & 2254(a); Brecht v. Abrahamson, 507 U.S. 619, 633-34 (1993) (explaining that "the writ of habeas corpus has historically been regarded as an extraordinary remedy, a bulwark against convictions that violate fundamental fairness"). If a petitioner has not exhausted the remedies available in the state courts, the court reviewing the federal habeas petition may still deny the federal habeas claims on their merits. 28 U.S.C. § 2254(b)(2).


         McCann's first claim is based on the First Amendment's Free Exercise Clause. McCann believes that "life (birth) begins at the 'conception stage' not on the 'delivery date[, ]'" which, according to him, requires him to define his date of birth as the date on which he was conceived and not the date on which he was delivered (Dkt. 3 at pp. 4-5). As a result, the argument continues, compulsory compliance with Section 38.02(b) of the Texas Penal Code violates McCann's free-exercise rights because the State of Texas "refus[es] to accept the conception day as the date of birth and demand[s] the delivery day as [the] date of birth" (Dkt. 3 at p. 5) (emphasis removed). This claim fails.

         McCann cannot avail himself of either the federal Religious Freedom Restoration Act ("RFRA"), which only applies to the federal government, or the federal Religious Land Use and Institutionalized Persons Act ("RLUIPA"), which applies to the states but (as the title makes clear) only in the areas of land use regulation and the religious exercise of institutionalized persons. See Opulent Life Church v. City of Holly Springs, Miss., 697 F.3d 279, 289-90 (5th Cir. 2012). Since the heightened standards of those statutes do not apply, the appropriate standard by which to evaluate McCann's free-exercise claim is articulated in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). See Cornerstone Christian Schools v. Univ. Inter scholastic League, 563 F.3d 127, 135 & n. 6 (5th Cir. 2009) ("[T]he holding of [Smith] remains valid as to state and municipal actions."). Under Smith, "[t]he government does not impermissibly regulate religious belief . . . when it promulgates a neutral, generally applicable law or rule that happens to result in an incidental burden on the free exercise of a particular religious practice or belief." Cornerstone, 563 F.3d at 135. "Moreover, the First Amendment does not require the Government itself to behave in ways that the individual believes will further his or her spiritual development or that of his or her family." Id. (quotations marks omitted; emphasis in original).

         As relevant to McCann's case, Section 38.02 prohibits any lawfully detained person from intentionally giving the detaining officer a false name, false residence address, or false date of birth.[1] See Tex. Penal Code § 38.02(b). The provision under which McCann was prosecuted only applies in the context of lawful detentions, only criminalizes intentional misrepresentations, and makes no reference whatsoever to religious belief. Perhaps most crucially, no one is excepted from its scope-its one narrow exception is not even really an exception. See Tex. Penal Code § 38.02(e) (specifying that minors who lie about their age to buy alcohol may be prosecuted under either Section 38.02 or the Texas Alcoholic Beverage Code, but not both). In short, although McCann may disagree with how it defines "date of birth, " Section 38.02 is a neutral, generally applicable statutory enactment that shows no sign of being rooted in religious animus.[2] Cf. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.520, 531-46 (1993) ("Despite the city's proffered interest in preventing cruelty to animals, the ordinances are drafted with care to forbid few killings but those occasioned by religious sacrifice."). It does nothing more than require McCann, who remains free to express his belief that his date of conception is his real "date of birth, " to disclose his date of delivery to a police officer who has lawfully detained him so that his age can be calculated and his identity verified-the same requirements it imposes on every other person in Texas.[3] See, e.g., Miller v. Reed, 176 F.3d 1202, 1206-07 (9th Cir. 1999) (holding that the plaintiffs free-exercise rights were not violated by a state law conditioning the issuance of a driver's license on the disclosure of the applicant's social security number even though disclosure of the number violated the plaintiffs religious beliefs) ("[The law] is rationally related to California's legitimate interests in locating the whereabouts of errant parents for purposes of carrying out child support programs, collecting tax obligations, and collecting amounts overdue and unpaid for fines, penalties, assessments, bail, and vehicle parking penalties."). McCann's free-exercise allegations do not show that he was prosecuted in violation of the Constitution or laws or treaties of the United States or that his conviction violated fundamental fairness. To the contrary, Smith specifically states that "[t]he government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development." Smith, 494 U.S. at 885 (quotation marks omitted).

         IV. DELAY

         McCann's second claim is premised on the fact that he was prosecuted more than six months after the traffic stop. According to McCann, his violation of Section 38.02 was not immediately discovered. Rather, "[approximately six months after the original stop a third party alleged that [McCann] had provided false information [to the officer]" (Dkt. 1 at p. 7). It is McCann's position that the State should not have been allowed to "resurrect" his crime six months after it happened (Dkt. 1 at p. 7).

         This claim fails as well. The statute of limitations for misdemeanor offenses in Texas is two years, and a violation of Section 38.02 is a misdemeanor. See Tex. Penal Code § 38.02(c); Tex. Code Crim. Proc. § 12.02. "[W]here an indictment is returned within the statute of limitations, preindictment delay does not violate due process unless that delay, in addition to prejudicing the accused, was intentionally brought about by the government for the purpose of gaining some tactical advantage over the accused in the contemplated prosecution or for some other bad faith purpose." United States v. Crouch, 84 F.3d 1497, 1523 (5th Cir. 1996) (en banc), cert, denied,519 U.S. 1076 (1997). "To demonstrate prejudice, the defendant must offer more than mere speculation of lost witnesses, faded memories or misplaced documents; he must ...

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