Reger v. Walker ( 2009 )


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  •           IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    February 26, 2009
    No. 08-10083
    Summary Calendar               Charles R. Fulbruge III
    Clerk
    RUSSELL JAY REGER
    Petitioner-Appellant
    v.
    JAMES K WALKER; OUIDA STEVENS; HONORABLE ROGER JEFFREY
    WALKER; HONORABLE CLYDE R ASHWORTH; HONORABLE KELLY G
    MOORE; ANTHONY G BROCATO; TARRANT COUNTY TEXAS
    Respondents-Appellees
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 4:07-MC-33
    Before REAVLEY, WIENER, and PRADO, Circuit Judges.
    PER CURIAM:*
    Russell Jay Reger, Texas prisoner # 747783, appeals the denial of his F ED.
    R. C IV. P. 27 petition to perpetuate testimony so that he may challenge the
    legality of his murder conviction. We review the denial of that petition for an
    abuse of discretion. Petition of Price, 
    723 F.2d 1193
    , 1194 (5th Cir. 1983).
    *
    Pursuant to 5 TH C IR. 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    should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
    No. 08-10083
    At the time Reger filed his petition, Rule 27 provided in pertinent part
    that the petition must “show. . . that the petitioner expects to be a party to an
    action cognizable in a court of the United States.” F ED. R. C IV. P. 27 (2007).
    Rule 27 necessarily requires that the anticipated action be cognizable only in a
    federal court. See Dresser Indus. Inc. v. United States, 
    596 F.2d 1231
    , 1238 (5th
    Cir. 1979). Reger, however, has not made the required showing.
    Reger contends that his trial judge was unqualified to preside over his
    murder trial because the judge had not yet taken the oath of office, thereby
    rendering Reger’s judgment of conviction invalid. Reger contends that this claim
    raises federal constitutional issues and is cognizable on 
    28 U.S.C. § 2254
     and 
    42 U.S.C. § 1983
     review. Reger, who has already unsuccessfully sought § 2254
    relief, concedes that he has not exhausted this claim in state court.
    Consequently, should he try to raise that claim in a second § 2254 proceeding,
    it would either be held procedurally barred, see Nobles v. Johnson, 
    127 F.3d 409
    ,
    423 (5th Cir. 1997), or dismissed as successive. See 
    28 U.S.C. § 2244
    (b)(2)(A),
    (B), (b)(3)(A).   His claim, whether for damages, declaratory judgment, or
    injunctive relief, is similarly not cognizable in a § 1983 action because it implies
    the invalidity of his conviction, and he has not shown his conviction to have been
    overturned or otherwise declared invalid. See Heck v. Humphrey, 
    512 U.S. 477
    ,
    486 (1994); see also Edwards v. Balisok, 
    520 U.S. 641
    , 648 (1997); Kutzner v.
    Montgomery County, 
    303 F.3d 339
    , 340-41 (5th Cir. 2002).
    AFFIRMED.
    2
    

Document Info

Docket Number: 08-10083

Judges: Reavley, Wiener, Prado

Filed Date: 2/26/2009

Precedential Status: Non-Precedential

Modified Date: 3/1/2024