United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
MCBRYDE UNITED STATES DISTRICT JUDGE '
a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 filed by petitioner, Walton John Alexander, a
state prisoner confined in the Correctional Institutions
Division of the Texas Department of Criminal Justice (TDCJ),
against Lorie Davis, director of TDCJ, respondent. After
having considered the pleadings, state court records, and
relief sought by petitioner, the court has concluded that the
petition should be summarily dismissed as an unauthorized
successive petition. No service has issued upon respondent.
Factual and Procedural History
August 1997 petitioner was convicted in Erath County, Texas,
Case No. 10295, of indecency with a child and sentenced to 75
years' confinement. Petitioner has filed two prior federal
habeas petitions in this court challenging the same
conviction and/or sentence. Pet., Alexander v. Quarterman,
No. 4:07-CV-678- Y, ECF No. 1; Pet., Alexander v. Davis, No.
three grounds for relief, petitioner raises the following
■ His 75-year sentence is void and illegal as it
exceeds the maximum allowed by state statute;
■The trial court erred by considering the sentence
enhancement evidence prior to entry of his plea to the
enhancement allegations; and
■ He was denied effective assistance of trial counsel
who failed to present plea offers and to be cognizant of
current state statutes and case law.
(Pet. 5-6, ECF No. 1.)
Nature of Suit
filed this habeas petition on a form § 2241 petition.
Petitioner asserts that § 2241 is the proper vehicle for
raising his claims because he is challenging the execution of
his sentence, and not the validity of the sentence itself.
(Pet., Prayer, ECF No. 1.) Assuming, without deciding, that a
§ 2241 is properly used by a person in state-custody to
attack the manner in which a state sentence is being carried
out, rather than the validity of the sentence, petitioner
clearly challenges the validity of his conviction and 75-year
sentence. See United States v. Tubwell, 37 F.3d 175,
177 (1994) (construing a § 2255 motion as a § 2241
petitioner because the petitioner challenged the manner in
which his sentence was being executed rather than the
validity of his conviction or sentence); Jimenez v.
Director, No. 9-.08-CV-214, 2009 WL 152714, at *2
(E.D.Tex. Jan. 21, 2009) (citing cases). Cf. In re
Wright, 826 F.3d 774, 778 (4th Cir. 2 016) (providing
that the "majority view is that § 2241 habeas
petitions from convicted state prisoners challenging the
execution of a sentence are governed by § 2254" and
concluding that "regardless of how they are styled,
federal habeas petitions of prisoners who are in custody
pursuant to the judgment of a State court' should be
treated as 'applications under section 2254' for
purposes of § 2244(b), even if they challenge execution
of a state sentence") (citing cases). A state prisoner
may not use the general provisions found in 28 U.S.C. §
2241 to circumvent restrictions applicable to § 2254
actions. See 28 U.S.C. § 2254(a); Tolliver v.
Dobre, 211 F.3d 876, 877 (5th Cir. 2000) (addressing a
petitioner's attempt to circumvent the restriction on
filing successive motions under 28 U.S.C. § 2255);
Williams v. O'Brien, No. 4:06-CV-834-Y, 2007 WL
60487, at *1 (N.D.Tex. Jan. 5, 2007) . Section 2254
specifically governs any-constitutional challenge to a state
prisoner's state conviction or sentence. Thus, the
instant petition is properly characterized as a petition
under § 2254.
so found, 28 U.S.C. § 2244(b) requires dismissal of a
second or successive § 2254 petition filed by, or on
behalf of, a state prisoner unless specified conditions are
met. 28 U.S.C. § 2244(b)(1)-(2). A petition is
successive when it raises a claim or claims challenging the
petitioner's conviction or sentence that were or could
have been raised in an earlier petition or otherwise
constitutes an abuse of the writ. See Crone v.
Cockrell,324 F.3d 833, 837 (5th Cir. 2003); In re
Cain,137 F.3d 234, 235 (5th Cir. 1998). Before a