United States District Court, E.D. Texas, Sherman Division
ORDER OF DISMISSAL
L. MAZZANT, UNITED STATES DISTRICT JUDGE
above-entitled and numbered civil action was referred to
United States Magistrate Judge Christine A. Nowak. The Report
and Recommendation of the Magistrate Judge, which contains
proposed findings of fact and recommendations for the
disposition of such action, has been presented for
consideration. Petitioner filed documents entitled,
“Applicant's Answer to State's Response”
(Dkt. #11), and “Response to State's
Response” (Dkt. #13) after the Court issued the Report.
Therefore, in the interest of justice, the Court construes
both documents (Dkt. ##11, 13) as objections to the Report.
After conducting a de novo review of the construed
objections, the Court concludes they are without merit.
appears to argue the Magistrate Judge erred in construing
Respondent's motion to dismiss as an answer to
Petitioner's petition (Dkt. #13, pp. 1-2).
“[D]istrict courts have the inherent authority to
manage their dockets . . . with a view toward the efficient
and expedient resolution of cases.” Dietz v.
Bouldin, 136 S.Ct. 1885, 1892 (2016); see also
Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997).
Rule 5 of the Rules Governing Section 2254 Cases in the
United States District Courts (Rule 5) identifies the
requirements for a respondent's answer. As required by
Rule 5(a), Respondent filed its pleading in response to the
Magistrate Judge's order to respond. Furthermore, in the
response, Respondent addressed allegations in
Petitioner's Section 2254 Petition, as well as issues of
procedural bar and statute of limitations, as required by
Rule 5(b). Thus, the Magistrate Judge properly construed
Respondent's pleading as a response to Petitioner's
petition. See 4:17-cv-218, Dkt. #19; 4:15-cv-707,
Dkt. #23; and 4:08-cv-09, Dkt. #8.
also argues the Magistrate Judge erred in construing his
habeas petition as a petition under 28 U.S.C. § 2254,
rather than 28 U.S.C. § 2241, as originally filed (Dkt.
#11, pp. 1-3; Dkt. #13, pp. 2-4). A review of the record shows
Petitioner's habeas petition asserts (1) the trial court
issued an illegal and unlawful sentence beyond the statutory
maximum, (2) the trial court's sua sponte
cumulation order violated the ex post facto clause and
Petitioner's right to due process, and (3) Petitioner is
actually innocent of count two of the indictment (Dkt. #1,
pp. 6-7). Because Petitioner's federal habeas petition
attacks the constitutional validity of his conviction and
sentence, the Magistrate Judge properly determined the
petition is governed by Section 2254. See Hartfield v.
Osborne, 808 F.3d 1066, 1072 (5th Cir. 2015) (stating if
a petitioner's claim “is properly characterized as
an attack on the ‘validity of his conviction and
sentence, ' [the petition] ‘must ... be brought
under § 2254.'”).
also appears to argue the instant petition is not a
successive petition because the Court dismissed his prior
Section 2254 petition without prejudice (Dkt. #11, p. 1).
This is factually incorrect. A review of the docket in Cause
No. 4:06-cv-168 demonstrates the Court dismissed
Petitioner's prior petition with prejudice. (See
Dkt. ##13, 14, in Cause No. 4:06-cv-168).
Petitioner re-argues claims raised in his Section 2254
Petition (e.g., actual innocence and sentencing errors), as
well as raises new substantive arguments (e.g., ineffective
assistance of counsel) in his objections (Dkt. #11, pp 4-12).
The Report, however, properly finds Petitioner's petition
is a successive petition, and thus, the Court does not have
subject matter jurisdiction to consider the petition unless
Petitioner receives permission from the Fifth Circuit to file
a successive petition. 28 U.S.C. § 2244(3)(A).
Petitioner has not shown he has permission from the Fifth
Circuit to file the present petition. It is therefore
the petition for a writ of habeas corpus (Dkt. #1) is
DENIED and the case is
DISMISSED without prejudice. A certificate
of appealability is DENIED. It is further
all motions by either party not previously ruled on are
In support of his objection, Petitioner
cites to Nicholas v. Symmes, 533 U.S. 678 (2001). An
extensive search failed to reveal a Supreme Court case styled
as such. The Supreme Court case cited as 533 U.S. 678 (2001)
is styled Zadvydas v. Davis and concerns
reasonableness limitations to the post-removal-period
detention statute for resident aliens. Additionally, without
providing a case name, Petitioner cites to 533 F.3d 647
(8th Cir. 2009), for the proposition that
“§ 2241 petitions are primarily open to prisoners
challenging an unlawful and illegal condition of
confinement.” However, this out-of-circuit ...