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Bogus v. Davis

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

June 6, 2019

BRETT DAVID BOGUS, TDCJ #2023182, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice - Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER

          SIM LAKE UNITED STATES DISTRICT JUDGE

         State inmate Brett David Bogus (TDCJ #2023182) has filed a Petition for a Writ of Habeas Corpus by a Person in State Custody ("Petition") (Docket Entry No. 18), challenging a theft conviction from Harris County, Texas. After considering all of the pleadings as required by Rule 4 of the Rules Governing Section 2254 Cases, the court will dismiss this action without prejudice for the reasons explained below.

         I . Background

          On August 28, 2015, Bogus was convicted upon his guilty plea to charges of theft in an amount over $200, 000.00 in Harris County Cause No. 1433472.[1] As a result of that plea he was sentenced to 20 years' imprisonment by the 176th District Court for Harris County, Texas.[2] That conviction was affirmed on direct appeal in an unpublished opinion and the Texas Court of Criminal Appeals refused his petition for discretionary review on March 7, 2018. See Bogus v. State of Texas, No. 14-15-00832-CR, 2017 WL 1366674 (Tex. App. - Houston [14th Dist.] April 13, 2017, pet. ref'd) (concluding that the appeal was "wholly frivolous and without merit").

         In a federal habeas Petition that was deposited in the prison mailing system for filing with this court on May 20, 2019, [3] Bogus contends that he is entitled to relief from his conviction for the following reasons:

(1) his indictment was based on "intentionally misrepresented material facts" that were fabricated by the complainant;
(2) the trial court lacked jurisdiction because of errors that affected his "substantial rights";
(3) his conviction violated the prohibition against Double Jeopardy because he was charged with the same conduct in a related case;
(4) the prosecutor engaged in misconduct by pursuing a conviction in bad faith based on suppressed evidence, improper remarks, perjured testimony, and misrepresented facts that falsely induced his guilty plea in violation of the Due Process and Equal Protection Clauses;
(5) the trial court engaged in judicial misconduct by allowing a constructive amendment of the charges based on ex parte communication and a conflict of interest with defense counsel;
(6) he was denied effective assistance of counsel when his attorney failed to challenge the "criminality of [the] State's indictment" and because his appellate attorney filed an Anders brief;
(7) there was a conspiracy to obtain his conviction with intent to commit fraud between the complainant, the prosecutor, and defense counsel;
(8) there was insufficient evidence to support his conviction beyond a ...

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