Santelises v. Governor of State of TX ( 2023 )

Case: 23-40113 Document: 00516927029 Page: 1 Date Filed: 10/11/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
October 11, 2023
No. 23-40113
Summary Calendar Lyle W. Cayce
Clerk
____________
Cesar Santelises,
Plaintiff—Appellant,
versus
Governor of State of Texas,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:22-CV-97
______________________________
Before King, Haynes, and Graves, Circuit Judges.
Per Curiam:*
Cesar Santelises, Texas prisoner # 01923094, appeals the district
court’s dismissal as frivolous and for failure to state a claim, pursuant to 28
U.S.C. § 1915A, of his civil action challenging the constitutionality of Texas
Penal Code § 22.02. He has also filed a motion for judicial notice reiterating
his briefed arguments.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 23-40113
Even where a prisoner is not proceeding in forma pauperis, his civil
complaint seeking redress from a governmental entity or its officer or
employee must be dismissed during screening if it is frivolous, malicious, or
fails to state a claim. § 1915A(a)-(b)(1); see Shakouri v. Davis, 923 F.3d 407,
410 (5th Cir. 2019). We review de novo a dismissal by a district court as
either frivolous or for failure to state a claim under § 1915A(b)(1). See
Shakouri, 923 F.3d at 411; Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005).
In 2014, Santelises was sentenced to 50 years in prison following his
guilty plea conviction for aggravated assault with a deadly weapon causing
serious bodily injury in a family or dating relationship, in violation of § 22.02.
As in the district court, Santelises argues that two different subsections of
§ 22.02 impose two different punishments for exactly the same offense and,
therefore, his statute of conviction violates his constitutional rights under the
Equal Protection Clause and the Ex Post Facto Clause. He specifically
asserts that under § 22.02(a)(1)(b), an aggravated assault causing serious
bodily injury to another, including a spouse, was classified as a second-degree
felony; however, he complains that § 22.02(b)(1) improperly enhanced the
offense to a first-degree felony if a deadly weapon is used. According to
Santelises, the two sections imposed different punishments for the same
crime because causing serious bodily injury necessarily implies the use of a
deadly weapon, and a spouse is considered a family member.
Santelises misinterprets the statute. There is no § 22.02(a)(1)(b),
and, according to the plain language of the statute, aggravated assault occurs
when a person commits an assault and causes serious bodily injury to another,
including one’s spouse, or when one uses or displays a deadly weapon while
committing an assault. § 22.02(a)(1), (2). Despite Santelises’s assertion, the
statute expressly contemplates that one can cause serious bodily injury
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without using a deadly weapon.1 Section 22.02(b)(1) provides that an aggra-
vated assault, including an offense against a spouse, is a second-degree fel-
ony, except in specific circumstances. As relevant here, an aggravated assault
becomes a first-degree felony when one both uses a deadly weapon and causes
serious bodily injury to a person in a familial relationship, including a spouse.
§ 22.02(b)(1). Santelises’s claims are rooted in a faulty interpretation of the
statute, lack an arguable basis in law, and fail to state a claim. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009); Berry v. Brady, 192 F.3d 504, 507 (5th Cir.
1999).
Moreover, because he has failed to adequately brief the issue, San-
telises has abandoned any challenge to the district court’s conclusion that he
failed to raise a viable ex post facto claim. See Coleman v. Lincoln Par. Det.
Ctr., 858 F.3d 307, 309 (5th Cir. 2017); Yohey v. Collins, 985 F.2d 222, 224-
25 (5th Cir. 1993). And there is no merit to Santelises’s argument, raised for
the first time on appeal, that the district court erred in not certifying his ques-
tion about the constitutionality of § 22.02 to the Attorney General of Texas,
pursuant to 28 U.S.C. § 2403(b). Even if it is assumed that this new conten-
tion is properly before this court, § 2403(b) is not applicable here because the
statute applies to federal suits that question the constitutionality of a state
statute but do not name the state or its agency, officer, or employee as a party.
Additionally, in dismissing Santelises’s complaint, the district court
also concluded that his claims were barred by Heck v. Humphrey, 512 U.S.
477, 486-87 (1994). Santelises’s argument that Heck is distinguishable
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1
It is clear that someone could use their physical body force and injure or even kill
another person with only that force (e.g., throwing the victim down on the concrete where
they hit their head). On the other side, someone could use a deadly weapon and not
seriously injure the victim, such as shooting at but missing the victim.
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because Heck was seeking damages and he (Santelises) was merely asking the
district court to resolve a question with regard to his statute of conviction is
without merit. Courts have expanded Heck to bar declaratory and injunctive
relief, in addition to money damages. See, e.g., Wilkinson v. Dotson, 544 U.S.
74, 81-82 (2005); Clarke v. Stalder, 154 F.3d 186, 190-91 (5th Cir. 1998) (en
banc). Also, Santelises’s prayer for relief suggests that he is seeking a
reduction in his sentence. Accordingly, a successful outcome to his challenge
to the constitutionality of Texas’s aggravated assault statute would imply the
invalidity of his conviction or sentence for aggravated assault, and his
challenge is barred by Heck. See Heck, 512 U.S. at 486-87.
Finally, since Santelises had previously filed an unsuccessful 28
U.S.C. § 2254 application challenging his 2014 conviction, the district court
declined to construe his filing as an unauthorized successive application. In
his brief, Santelises alternatively requests authorization to file a successive
§ 2254 application raising his instant claims. This court may authorize the
filing of a successive § 2254 application only if the applicant makes a prima
facie showing that his claims satisfy the requirements of 28 U.S.C. § 2244(b).
§ 2244(b)(3)(C); In re Davis, 121 F.3d 952, 953 (5th Cir. 1997). With respect
to new claims, § 2244(b)(2) requires that the prisoner demonstrate that
either: (1) his claims rely on a new rule of constitutional law that was made
retroactive to cases on collateral review by the Supreme Court that was
previously unavailable; or (2) the factual predicate for the claims could
not have been discovered previously through due diligence, and the
underlying facts, if proven, would establish by clear and convincing evidence
that, but for constitutional error, no reasonable trier of fact would have found
the applicant guilty of the underlying offense. § 2244(b)(2). To the extent
that Santelises seeks authorization to file a successive § 2254 application, he
has not made the required showing.
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In light of the foregoing, the district court’s dismissal order is
AFFIRMED and Santelises’s motion for judicial notice is DENIED.
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