United States District Court, E.D. Texas, Texarkana Division
ZACK ELDRED JR.
SHERIFF JAMES PRINCE, ET AL.
ORDER ADOPTING REPORT AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE AND ENTERING FINAL
W. SCHROEDER III UNITED STATES DISTRICT JUDGE.
Plaintiff Zack Eldred Jr., proceeding pro se, filed
this civil rights lawsuit under 42 U.S.C. §1983
complaining of alleged violations of his constitutional
rights. This Court referred the case to the United States
Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and
(3) and the Amended Order for the Adoption of Local Rules for
the Assignment of Duties to United States Magistrate Judges.
The named Defendants are Bowie County Sheriff James Prince,
District Attorney Jerry Rochelle, defense attorney Jeff
Harrelson, appellate counsel Kristian Young, and District
Judge Bobby Lockhart.
The Plaintiff's Claims
was convicted of continuous sexual abuse of a child in cause
no. 11F0762-102, receiving a sentence of life in prison. This
conviction was affirmed by the Sixth Judicial District Court
of Appeals on March 5, 2014. Eldred v. State, 431
S.W.3d 177, 190 (Tex.App.-Texarkana 2014). Plaintiff filed a
state habeas application contending his appellate counsel
failed to inform him of the affirmance of his conviction.
This habeas application was granted and Plaintiff was
permitted to file an out of time petition for discretionary
review. Plaintiff's petition for discretionary review was
denied on August 24, 2016.
federal civil rights complaint, Plaintiff asserts that by law
a complete affidavit and jurat must be presented to the grand
jury before any grand jury proceedings are undertaken. Docket
No. 1. These affidavits must be signed by a magistrate,
district attorney, and police official.
to Plaintiff, the indictment in his case, cause no.
11F0762-102, is void, faulty, defective, illegal, and
unconstitutional because the Defendants failed to submit a
complete affidavit and jurat to the grand jury. Docket No. 1.
He claims his sentence, judgment, and conviction are illegal
because they are based on the void indictment, in violation
of his constitutional rights. Id. He asks for
immediate release from prison, the setting aside of his
sentence, judgment, and conviction, and monetary damages in
the amount of $6, 000, 000. Id.
also filed two motions for summary judgment, arguing the
Defendants cannot produce a viable copy of the complaint,
affidavit and jurat and there is no valid sentence, judgment
or conviction because there was no valid affidavit, complaint
or jurat, and thus no valid grand jury proceeding. Docket
Nos. 3, 10. He asserts this renders the indictment void and
the trial court could have never acquired jurisdiction.
Docket No. 3.
The Report of the Magistrate Judge
review of the pleadings, the Magistrate Judge issued a Report
stating in order to recover damages for allegedly
unconstitutional conviction or imprisonment, or for other
harm caused by actions which would render a conviction or
sentence invalid, a plaintiff under 42 U.S.C. §1983 must
prove the conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid by an
authorized state tribunal, or called into question by a
federal court's issuance of a writ of habeas corpus.
Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct.
2364, 129 L.Ed.2d 383 (1994); Clarke v. Stalder, 154
F.3d 186, 189 (5th Cir. 1998) (en banc). Because a
judgment in Plaintiff's favor would necessarily call into
question the validity of his conviction for continuous
aggravated sexual assault of a minor, the Magistrate Judge
determined Plaintiff must show this conviction has been
overturned, expunged, or otherwise set aside before he can
proceed in a civil rights lawsuit. Docket No. 13.
Magistrate Judge further stated Plaintiff's complaint
cannot be construed as a habeas corpus application because
Plaintiff has not exhausted his state remedies. Brown v.
Anderson, civil action no. 3:16cv220, 2016 U.S. Dist.
LEXIS 70586, 2016 WL 3079801 (S.D.Miss., May 31, 2016)
(declining to construe a civil rights lawsuit as a habeas
corpus action because the plaintiff had not exhausted his
state remedies), citing Sam v. Louisiana, 409
F.App'x 758, 2011 U.S. App. LEXIS 2019, 2011 WL 310377
(5th Cir., January 31, 2011).
objections to the Report, Plaintiff argues his conviction
cannot be set aside, expunged, or otherwise overturned
because there is no complaint, affidavit, or jurat on file in
state court. Docket No. 16. He asserts he has exhausted his
state remedies by filing a motion in state court under
Article 39.14 of the Texas Code of Criminal Procedure.
Id. In response to this motion, the court clerk sent
him copies of all of the documents on file in his case, but
there was no complaint, affidavit, or jurat.
states he then filed a “fundamental error of the court
writ, ” but the state district court refused to answer
He contends this should automatically overturn his conviction
because there is no complaint, affidavit, or jurat on file
and the state district court never acquired jurisdiction.
requesting this Court to order the state district court to
answer his “fundamental error of the Court writ,
” Plaintiff argues he has exhausted state remedies by
writing to the State Bar of Texas asking for a copy of the
CAAP form, which he states is a client assistance form sent
to his defense counsel Jeff Harrelson so Harrelson would send
Plaintiff a copy of the complaint, affidavit, and jurat in
the case. Docket No. 17. He states ...