Opinion
CIVIL ACTION NO. H-21-2422
2021-09-17
Rick Allen RHOADES, Plaintiff, v. Hon. Ana MARTINEZ, Defendant.
David R. Dow, Jeffrey R. Newberry, University of Houston Law Center, Houston, TX, for Plaintiff.
David R. Dow, Jeffrey R. Newberry, University of Houston Law Center, Houston, TX, for Plaintiff.
MEMORANDUM AND ORDER
DAVID HITTNER, United States District Judge
In 1992, a Texas jury convicted Rick Allen Rhoades of capital murder. Rhoades received a death sentence for his crime. The State of Texas has set Rhoades’ execution for September 28, 2021.
Rhoades filed this lawsuit on July 28, 2021. (Docket Entry No. 1). Rhoades sues the Honorable Ana Martinez, the presiding judge of the 179th District Court of Harris County, in her official capacity. Rhoades’ complaint alleges constitutional violations regarding access to material about the jurors who served at his trial.
Judge Martinez has moved to dismiss this case. (Docket Entry No. 6). For the reasons discussed below, the Court GRANTS Judge Martinez's motion to dismiss. I. Background
Less than twenty-four hours after his release from prison, Rhoades killed Charles and Bradley Allen on September 13, 1991. Rhoades later confessed that, rather than traveling to his assigned half-way house, he took a bus to Houston. That same day, Rhoades met, fought with, and stabbed the two brothers. Rhoades then fled after stealing clothing and money. The police arrested Rhoades a month later as he left the scene of a school burglary.
In 1992, the State of Texas tried Rhoades in the 179th District Court of Harris County. A jury convicted Rhoades of capital murder and sentenced him to death.
A. Rhoades’ Prior State and Federal Litigation
The instant lawsuit arises from Rhoades’ belief that the prosecution violated Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), by exercising peremptory strikes in a discriminatory manner. This is not the first time that Rhoades has raised similar arguments. Rhoades first raised a Batson claim in his direct appeal nearly twenty-five years ago. See Rhoades v. State , 934 S.W.2d 113, 123 (Tex. Crim. App. 1996). Both the federal district court, Rhoades v. Stephens , No. 4:14-cv-03152, 2016 WL 8943327 (S.D. Tex. July 20, 2016), and the Fifth Circuit, Rhoades v. Davis , 914 F.3d 357 (5th Cir. 2019), subsequently addressed Batson claims on habeas review.
Rhoades’ recent litigation arises from his argument that the Fifth Circuit analysis was deficient because it did not involve a sufficient comparative juror analysis. In Miller-El v. Dretke , 545 U.S. 231, 241, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005), the Supreme Court allowed for a comparison between prospective jurors the prosecution struck and those it kept. Id. ("More powerful than these bare statistics, however, are side-by-side comparisons of some black venire panelists who were struck and white panelists allowed to serve ...."). A comparative juror analysis "comes into play in the final stage of the Batson inquiry for determining whether a prosecutor used a peremptory strike in a racially discriminatory manner." Chamberlin v. Fisher , 855 F.3d 657, 663–64 (5th Cir. 2017).
On federal habeas review, Rhoades raised a Batson claim based on the State's peremptory strikes against two prospective jurors. The Fifth Circuit engaged in a comparative juror analysis when considering Rhoades’ Batson claim, but with some limitations. See Rhoades , 914 F.3d at 382. The Fifth Circuit recognized: "both parties acknowledge that the record on appeal is incomplete. We do not have a racial breakdown of the entire venire." Id. at 381. The record indicated that the State had used peremptory strikes against two African-American prospective jurors. Id. The record, however, did not specify the race of one of the jurors who had served at trial. Id. (observing that "the race of the final seated juror is not clear from the record").
The Fifth Circuit denied Rhoades’ Batson claim. The Fifth Circuit found that one stricken juror was not "subjected to disparate questioning" and that "Rhoades offer[ed] no sincere challenge to most of the prosecutor's stated race-neutral reasons ...." Rhoades , 914 F.3d at 382. The Fifth Circuit compared the second stricken juror with several jurors who served and found no evidence of discrimination. See id.
B. Recent State Court Proceedings
On January 21, 2021, the Harris County District Attorney's Office indicated that it would ask the trial court to set an execution date. (Docket Entry No. 1 at 9). Rhoades then began trying to get access to the juror cards and some of the jury questionnaires from his 1992 trial. Rhoades wanted material "to do a more thorough comparative analysis than it has been possible [to do] in the past." (Docket Entry No. 1, Exh. 1 at 8).
The State apparently informed Rhoades that it was in possession of some jury-selection material. The State turned over the jury material to the trial court for in camera review. (Docket Entry No. 1, Exh. 1 at 10). The State, however, indicated that it would only divulge the material pursuant to a motion filed under article 35.29 of the Texas Code of Criminal Procedure.
Article 35.29 authorizes the release of certain juror information to a party in the trial only after a showing of good cause:
(a) Except as provided by Subsections (b) and (c), information collected by the court or by a prosecuting attorney during the jury selection process about a person who serves as a juror, including the juror's home address, home telephone number, social security number, driver's license number, and other personal information, is confidential and may not be disclosed by the court, the prosecuting attorney, the defense counsel, or any court personnel.
(b) On application by a party in the trial, or on application by a bona fide member of the news media acting in such capacity, to the court for the disclosure of information described by Subsection (a), the court shall, on a showing of good cause, permit disclosure of the information sought.
(c) The defense counsel may disclose information described by Subsection (a) to successor counsel representing the same defendant in a proceeding under Article 11.071 without application to the court or a showing of good cause.
Tex. Code Crim. Pro. art. 35.29.
On March 10, 2021, Rhoades filed a post-conviction motion under article 35.29 with the 179th District Court of Harris County, Judge Ana Martinez presiding. State v. Rhoades , No. 0612408 (179th Dist. Ct., Harris County, Tex.). To complete the comparative juror analysis he has already advanced on federal habeas review, Rhoades needs to know the racial identity of one juror. Rhoades told the state court that he knew "the racial makeup of 11 of the 12 jurors but not of the twelfth one." (Docket Entry No. 1, Exh. 1 at 6). The prosecutor assured the state court that the remaining Batson material did not divulge the race of the one juror. (Docket Entry No. 1, Exh. 1 at 7).
The record to date does not contain a copy of Rhoades’ article 35.29 motion. The record before the Court does not disclose what other efforts Rhoades has made to obtain the needed information. Rhoades may be able to obtain the needed material outside article 35.29(b) ’s disclosure provision. The statute allows "successor counsel representing the same defendant" to obtain the information from prior attorneys. One of the dissents from the Court of Criminal Appeals’ decision counseled that Rhoades "could, and should, try to obtain the information he seeks from his former trial counsel ...." In re Rhoades , 2021 WL 2964454, at * 1 (Tex. Crim. App. 2021) (Yeary, J., dissenting). Rhoades does not provide any information about why the statute's guidance on seeking prior counsel's files is inadequate to preserve his rights. The Court also observes that Rhoades has not indicated that he is unaware of the identity of the one juror whose race he does not know, meaning that he could likely obtain the desired information about race through investigative means.
In a comparative juror analysis, "the questionnaires of the ... non-selected jurors would have had no value to [an inmate], as comparative juror analysis calls for a comparison of the stricken juror to those jurors who were seated, not those who did not serve." Riley v. Covello , 2021 WL 2265895, at *7 (E.D. Cal. 2021) ; see also Miller-El v. Dretke , 545 U.S. 231, 241, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) (comparing stricken African-American juror with "otherwise-similar nonblack" jurors who were "permitted to serve").
Notwithstanding the narrow focus of what he still needs, Rhoades broadly requested that the State turn over all jury cards and questionnaires, some of which apparently contained notations amounting to attorney work product. Rhoades apparently hoped that the trial prosecutors had made notations that would support a renewed and broadened Batson claim. (Docket Entry No. 1, Exh. 1 at 7-8).
Judge Martinez considered Rhoades’ motion in at least three hearings. In a March 17, 2021 hearing, Rhoades argued that he needed the jury material to establish the race of trial jurors. The State countered that the remaining material did not specify the race of jurors. (Docket Entry No. 1, Ex. 1 at 8-9). Rhoades acknowledged that the information he requested did not specifically ask jurors to identify their race. (Docket Entry No. 1, Ex. 1 at 10). Rhoades, however, wished to examine the jury material because "the cards can reveal information about race" particularly when "the district attorney ha[s] made notes on the juror cards." (Docket Entry No. 1, Ex. 1 at 10).
While the record contains the transcripts of two hearings, the discussion in those hearing suggests that other proceedings occurred in state court for which the parties have not provided transcriptions. (Docket Entry No. 1, Exh. 1 at 3) ("So we left it last week, attorneys, where the defense had filed motion for release of confidential juror information. The Court agreed to review the motion and take it under advisement and review some of the records.").
Judge Martinez gave several reasons for refusing to turn over the jury material. First, Judge Martinez did not "see any legal reason why the defendant will get these records" given the comparative juror analysis performed by the Fifth Circuit. (Docket Entry No. 1, Exh. 1 at 4). Second, Judge Martinez expressed concern that the jury questionaries and cards contained notations made by the prosecutors that could constitute attorney work product. (Docket Entry No. 1, Exh. 1 at 5). Judge Martinez also observed that "the comparative analysis is not a requirement for the State Court anyway ...." (Docket Entry No. 1 at 14). Finally, Judge Martinez explained "at this point I struggle with jurisdiction and I believe this is not properly brought before the Court, so I'm not going to take on your motion at this moment." (Docket Entry No. 1 at 16).
Rhoades apparently filed a motion for Judge Martinez "to reconsider [the] March 17th, 2021 [decision] regarding the juror cards and the questionnaires." (Docket Entry No. 1, Exh. 2 at 3). In a hearing on March 26, 2021, Judge Martinez reiterated: "It is the Court's ruling that the Court does not have jurisdiction to make that determination on that matter and it is the Court's ruling today that the Court does not have jurisdiction to reconsider such request." (Docket Entry No. 1, Exh. 2 at 4). In that same hearing, Judge Martinez also entered an order setting Rhoades’ execution for September 28, 2021.
Rhoades sought leave to file a writ of mandamus against Judge Martinez in the Texas Court of Criminal Appeals. Mandamus is available when the movant "has no adequate remedy at law" and "compel[s] ... a ministerial act, not involving a discretionary or judicial decision." In re Meza , 611 S.W.3d 383, 388 (Tex. Crim. App. 2020). Over four dissenting justices, the Court of Criminal Appeals summarily denied Rhoades leave to file a mandamus on July 14, 2021. In re Rhoades , 2021 WL 2964454, at *1 (Tex. Crim. App. 2021). The Court of Criminal Appeals’ order did not specify whether mandamus was unavailable because an adequate remedy remained at law for Rhoades, whether Rhoades requested relief that was not a ministerial act, or whether the appellate court agreed that Judge Martinez did not have jurisdiction to rule on his motion.
II. Rhoades’ Complaint
Rhoades filed the instant lawsuit pursuant to 42 U.S.C. § 1983. Rhoades sues Judge Martinez in her official capacity. Rhoades argues that Judge Martinez's "actions have violated Rhoades’ rights under the Due Process and Equal Protection clauses with the consequence he has been deprived of a full and fair opportunity to develop his claim pursuant to Batson v. Kentucky. " (Docket Entry No. 1 at 14). Rhoades also argues that "Judge Martinez violated [his] right to due process and equal protection by denying him what he is due under article 35.29 and what other similarly situated individuals have received: a decision on whether he demonstrated good cause for the disclosure of juror information." (Docket Entry No. 1 at 17). In essence Rhoades argues that he "has only asked this Court to find he is entitled to a ruling on the merits of the motion he filed in state court (i.e., a determination on whether he has demonstrated good cause) ...." (Docket Entry No. 7 at 3).
As relief, Rhoades asks this Court to issue a declaratory judgment that "Rhoades is entitled to a decision on whether he has demonstrated good cause for access to the juror information" and that "Rhoades is entitled to access materials essential to determining whether his rights under Batson were violated at his trial." (Docket Entry No 1 at 21).
III. Analysis
Judge Martinez has filed a motion to dismiss that raises three arguments: "(1) Judge Martinez is entitled to sovereign immunity; (2) this Court should abstain from exercising jurisdiction over this suit; and (3) Rhoades is time barred from bringing his claims." (Docket Entry No. 6 at 1). Judge Martinez moves for dismissal under Rule 12(b)(1) and (b)(6) of the Federal Rule of Civil Procedure.
A. Sovereign Immunity
Judge Martinez moves for dismissal under Federal Rule of Civil Procedure 12(b)(1) based on sovereign immunity. Federal courts possess limited jurisdiction. Howery v Allstate Insurance Co. , 243 F.3d 912, 916 (5th Cir. 2001). Dismissal is appropriate "when the court lacks the statutory or constitutional power to adjudicate the claim." In re FEMA Trailer Formaldehyde Products Liability Litigation (Mississippi Plaintiffs) , 668 F.3d 281, 286 (5th Cir. 2012). Under Rule 12(b)(1), a party may challenge by motion the subject-matter jurisdiction of the court to entertain a claim. A motion to dismiss under Rule 12(b)(1) is properly granted when the plaintiff lacks standing or when the claims alleged are barred by immunity. See High v. Karbhari , 774 F. App'x 180, 182 (5th Cir. 2019). "For a 12(b)(1) motion, the general burden is on the party asserting jurisdiction." Dickson v. United States , 11 F.4th 308, 312 (5th Cir. 2021).
Judge Martinez also argues that she is entitled to judicial immunity. Absolute immunity generally protects judges from suits while acting in performance of their judicial duties. See Nixon v. Fitzgerald , 457 U.S. 731, 745–46, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982). However, "judicial immunity does not bar claims for injunctive or declaratory relief in § 1983 actions." Norman v. Texas Court of Criminal Appeals , 582 F. App'x 430, 431 (5th Cir. 2014) ; see also Holloway v. Walker , 765 F.2d 517, 525 (5th Cir. 1985) ("Judicial immunity does not extend to suits for equitable and declaratory relief under section 1983."). Rhoades seeks declaratory relief, making judicial immunity unavailable.
1. Eleventh Amendment Immunity
Judge Martinez moves for dismissal based on sovereign immunity. "Eleventh Amendment sovereign immunity bars private suits against nonconsenting states in federal court" and "prohibits suits against state officials or agencies that are effectively suits against a state." City of Austin v. Paxton , 943 F.3d 993, 997 (5th Cir. 2019). Texas criminal "district judges ... are undeniably elected state officials" for purposes of state sovereign immunity. Clark v. Tarrant Cnty. , 798 F.2d 736, 744 (5th Cir. 1986) ; see also Bowling v. Roach , 816 F. App'x 901, 903 (5th Cir. 2020). As a state official, Judge Martinez is entitled to sovereign immunity for any section 1983 claim against her in her official capacity.
2. No Exception Under Ex Parte Young
Rhoades does not oppose Judge Martinez's entitlement to sovereign immunity. Rhoades, however, argues that he can show an exception to sovereign immunity under Ex parte Young , 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Ex parte Young permits a lawsuit against state officials in their official capacities to proceed if the plaintiff meets a three-factor test. "Such a suit must: (1) be brought against state officers acting in their official capacities; (2) seek prospective relief that will redress ongoing conduct; and (3) allege a violation of federal law." Tex. Ent. Ass'n, Inc. v. Hegar , 10 F.4th 495, 507 (5th Cir. 2021) ; see also Bowling, 816 F. App'x at 903.
Rhoades meets the first Ex parte Young factor because Judge Martinez is a state officer who acted in her official capacity. Rhoades’ briefing provides contradictory perspectives on the second factor—whether he seeks relief that redresses ongoing conduct. See Saltz v. Tenn. Dep't of Emp't Sec. , 976 F.2d 966, 968 (5th Cir. 1992) (observing that "the relief sought must be declaratory or injunctive in nature and prospective in effect"). On one hand, Rhoades argues that his case involves an ongoing violation of his rights because Judge Martinez did not rule on the merits of his article 35.29 motion. On the other, Rhoades admits that "[t]here is no ongoing state judicial proceeding involving whether Rhoades is entitled to a decision on his motion requesting access to juror information." (Docket Entry No. 7 at 6).
Rhoades is not currently engaged in any state court litigation asking for disclosure of Batson material. Despite Rhoades’ characterization of his relief as declaratory and prospective, Judge Martinez is correct that "Rhoades makes clear that he believes his constitutional rights were violated by Judge Martinez when she previously declined to exercise jurisdiction over his Article 35.29 Motion. This singular past action does not suffice to demonstrate an ongoing violation of Rhoades’ civil rights." (Docket Entry No. 6 at 6). Despite asking for declaratory relief, Rhoades’ lawsuit alleges a past violation of his alleged federal rights. See McSmith v. Engelhardt , 2006 WL 3478162, at *3 (E.D. La. Nov. 28, 2006) ("Neither damages, injunctive nor declaratory relief is available to be used as a vehicle for disgruntled litigants to reverse adverse judgments."). Because Rhoades’ request for declaratory relief is retroactive in nature, he has not met the second Ex parte Young factor.
Finally, Rhoades has not made a strong showing that he can meet the third factor. Rhoades’ complaint depends on showing that he has a constitutional right to the post-conviction disclosure of information necessary to support a comparative juror analysis, and most particularly a right given effect under article 35.29. Rhoades has not cited any Supreme Court or the Fifth Circuit law creating an absolute right to disclosure of material for a comparative juror analysis, particularly when state law otherwise precludes disclosure of that material. But see Boyd v. Newland , 467 F.3d 1139, 1150 (9th Cir. 2006) (finding a due process "right to have access to the tools which would enable them to develop their plausible Batson claims through comparative juror analysis"). Rhoades, in essence, asks this Court to find in the first instance that such a right exists, and then find that the state court is violating that right. In the absence of a "a colorable constitutional claim," Rhoades cannot meet the third Ex parte Young factor. Hall v. Tex. Comm'n on L. Enf't , 685 F. App'x 337, 341 (5th Cir. 2017).
The Fifth Circuit has not disapproved of finding that some material developed during jury selection, even if relevant under Batson , may be shielded by concerns such as the attorney work privilege doctrine, suggesting that no absolute constitutional right exists to access material relating to a Batson claim. See Broadnax v. Lumpkin , 987 F.3d 400, 407 (5th Cir. 2021).
This case is subject to dismissal because Judge Martinez is entitled to sovereign immunity.
B. Rooker-Feldman
Judge Martinez alternatively moves for dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure because this Court lacks jurisdiction under the Rooker- Feldman doctrine. A court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Gines v. D.R. Horton, Inc. , 699 F.3d 812, 816 (5th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).
Under the Rooker- Feldman doctrine, federal district courts lack jurisdiction to entertain collateral attacks on state court judgments. Ingalls v. Erlewine (In re Erlewine ), 349 F.3d 205, 209 (5th Cir. 2003) ; Davis v. Bayless , 70 F.3d 367, 375–76 (5th Cir. 1995) ; Liedtke v. State Bar of Tex. , 18 F.3d 315, 317 (5th Cir. 1994). The Rooker- Feldman doctrine thus deprives federal courts of subject matter jurisdiction in "cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments." Exxon Mobil Corp. v. Saudi Basic Indus. Corp. , 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). Thus, a federal court does not have subject matter jurisdiction over " ‘challenges to state-court decisions in particular cases arising out of judicial proceedings,’ " even in cases in which the challenges " ‘allege that the state court's action was unconstitutional.’ " Musslewhite v. State Bar of Tex. , 32 F.3d 942, 946 (5th Cir. 1994) (citing D.C. Ct. App. v. Feldman , 460 U.S. 462, 486, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983) ).
A federal court does have subject matter jurisdiction over general constitutional attacks which do not require review of a final state court judgment in a particular case. Id. However, even a general constitutional attack cannot properly be heard in federal court if it is "inextricably intertwined" with a state court judgment. Id. ; In re Erlewine , 349 F.3d at 209 ; Liedtke , 18 F.3d at 318 (quoting Eitel v. Holland , 798 F.2d 815 (5th Cir. 1986) ). As the Supreme Court explained in Feldman , claims presented to a federal district court are inextricably intertwined with a state court's judgment when "the District Court is in essence being called upon to review the state court decision. This the District Court may not do." 460 U.S. at 482 n. 16, 103 S.Ct. 1303. Simply, unsuccessful state court litigants " ‘may not obtain review of state court actions by filing complaints about those actions in lower federal courts cast in the form of civil rights suits.’ " Turner v. Cade , 354 F. App'x 108, 111 (5th Cir. 2009) (quoting Hale v. Harney , 786 F.2d 688, 690-91 (5th Cir. 1986) ).
If adjudication of a claim in federal court would require the court to determine that a state court judgment was erroneously entered or was void, the claim is inextricably intertwined with the merits of the state court judgment. Jordahl v. Democratic Party of Va. , 122 F.3d 192, 202 (4th Cir. 1997). "[T]he fundamental and appropriate question to ask is whether the injury alleged by the federal plaintiff resulted from the state court judgment itself or is distinct from that judgment." Garry v. Geils , 82 F.3d 1362, 1365 (7th Cir. 1996).
Although Rhoades makes his claims in a civil-rights complaint, his arguments are intertwined with state court issues. See Reed v. Terrell , 759 F.2d 472, 473 (5th Cir. 1985) ("It is a well-settled principle that a plaintiff may not seek a reversal in federal court of a state court judgment simply by casting his complaint in the form of a civil rights action."). Rhoades sued because he wants a declaratory judgement that he had "a right to a ruling on his state court motion." (Docket Entry No. 7 at 4). Judge Martinez, however, actually ruled and found she had no jurisdiction to reach the merits.
Rhoades’ whole lawsuit—from his selection of Judge Martinez as a defendant to his argument that she should have ruled on his motion—operates under the presumption that Judge Martinez possessed jurisdiction to rule. The Court must respect Judge Martinez's interpretation of state law in deciding that she could not decide the merits of his motion. See Smith v. Marvin , 846 F. App'x 259, 261 (5th Cir. 2021) (finding that section 1983 is only available when a "plaintiff s[eeks] relief against a defendant who caused an injury that a court c[an] redress"); Garcia v. City of McAllen , 853 F. App'x 918, 921 n.2 (5th Cir. 2021) (stating that federal courts respect the "general interest in having matters of state law resolved by state courts.").
Rhoades says that he only "asks this Court to find that the manner in which his state-created right to seek access to confidential juror information was made available to him did not satisfy the Due Process or Equal Protection Clauses." (Docket Entry No. 7 at 10). Only a state judge of competent jurisdiction could make that information available to him. Rhoades’ lawsuit necessarily acts as a challenge to Judge Martinez's jurisdictional decision. Because "it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law," this Court has no authority to overturn Judge Martinez's holding that she lacked jurisdiction. Pennhurst v. State Sch. and Hosp. v. Halderman , 465 U.S. 89, 106, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) ; see also Norman v. Tex. Crim. App. , 582 F. App'x 430, 431 (5th Cir. 2014) (stating that an inmate's "disagreement with the state courts’ interpretation of state law is not cognizable under § 1983"). At its core, Rhoades’ complaint alleges "[j]udicial errors committed in state courts" and those errors "are for correction in the state court systems ...; such errors are no business of ours." Hale , 786 F.2d at 691. Accordingly, the Rooker- Feldman doctrine bars the pending section 1983 case because it is inextricably intertwined with the underlying state court decision.
C. Other Arguments
Judge Martinez also moves for dismissal under Rule 12(b)(6) based on Younger v. Harris , 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) and the statute of limitations which governs this claim. Because of other rulings in this case, the Court does not reach Judge Martinez's remaining arguments. IV. Conclusion
For the reasons discussed above, the Court GRANTS Judge Martinez's motion to dismiss. The Court will dismiss this case by separate order.