Erasmo Santa, Jr. v. Maria Herr ( 2018 )

Case: 18-50226 Document: 00514767384 Page: 1 Date Filed: 12/19/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-50226 FILED
December 19, 2018
Lyle W. Cayce
ERASMO SANTA, JR., Clerk
Plaintiff-Appellant
v.
MARIA T. HERR, Bexar County Judge; SUSAN D. REED, Ex. District
Attorney; KEVIN WILLIS, Assistant States Attorney; KEVIN O’CONNELL,
Assistant States Attorney; EDWARD F. SHAUGHNESSY, III, Trial Appointed
Attorney; JULIE B. POLLOCK, Appeal Appointed Attorney; MARY BETH
WELSH, Assistant States Attorney,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:17-CV-1160
Before SMITH, HIGGINSON, and DUNCAN, Circuit Judges.
PER CURIAM: *
Erasmo Santa, Jr., Texas prisoner # 1602845, is currently serving a
sentence of imprisonment that was imposed due to his jury trial conviction of
murder. He moves for leave to proceed in forma pauperis (IFP) in his appeal
of the district court’s dismissal of his civil action, in which he named as
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 18-50226 Document: 00514767384 Page: 2 Date Filed: 12/19/2018
defendants the state trial judge, his trial counsel, his appellate counsel, the
district attorney, and several assistant prosecutors. Santa’s IFP motion is a
challenge to the district court’s certification that his appeal is not taken in good
faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Santa’s civil complaint raised allegations that the defendants violated
his due process rights in connection with his trial and his direct appeal in
numerous respects. He claimed, inter alia, that prosecutors improperly altered
his indictment, that they withheld evidence, and that they deceived the jury
into believing that he had committed a murder. He claimed that a prosecutor
made misleading and false statements in her brief to the state appellate court.
Santa claimed that his trial counsel and his appellate counsel provided
ineffective assistance. Santa also claimed that the trial judge violated his
rights by allowing him to be prosecuted based on an illegal indictment. The
district court dismissed Santa’s civil action with prejudice pursuant to 28
U.S.C. § 1915(e)(2)(B)(i)-(iii) and 28 U.S.C. § 1915A(b)(1)-(2) based on a
determination that Santa failed to state a non-frivolous claim and that Santa
was seeking monetary relief against immune defendants.
In his IFP filings in this court, Santa questions whether it was
appropriate for the district court to have denied his request to proceed IFP on
appeal after the district court had granted him leave to proceed IFP in his civil
action. Santa also presents arguments that challenge the validity of his
murder conviction. He contends that he struggled with the victim in self-
defense and that the injuries he inflicted on the victim were not the cause of
death. Santa claims that that his rights were violated when he was not allowed
to proceed pro se in his direct appeal. He argues that state actors are engaging
in a “cover up” in his case to conceal their violations of his rights during his
criminal case.
Case: 18-50226 Document: 00514767384 Page: 3 Date Filed: 12/19/2018
Santa has not shown that he will present a nonfrivolous issue on appeal.
See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, we deny
his motion for leave to proceed IFP and dismiss the appeal as frivolous. See
Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2. We also deny Santa’s motion
for the appointment of counsel.
The dismissal of the instant appeal as frivolous counts as a strike under
28 U.S.C. § 1915(g), as does the district court’s dismissal of the civil action. See
Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Santa has
accrued two strikes, and he is hereby warned that if accumulates three strikes
under § 1915(g) he will be barred from proceeding IFP in any civil action or
appeal filed while he is incarcerated or detained in any facility unless he is
under imminent danger of serious physical injury. See § 1915(g).
IFP MOTION DENIED; MOTION FOR THE APPOINTMENT OF
COUNSEL DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTION
WARNING ISSUED.