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Perez v. United States

United States District Court, S.D. Texas, Corpus Christi Division

May 13, 2019

STEVEN REYNALDO PEREZ, Petitioner,
v.
UNITED STATES OF AMERICA, et al, Respondents.

          ORDER

          Hilda Tagle Senior United States District Judge

         The Court is in receipt of the Magistrate Judge's Memorandum and Recommendation (“M&R”), Dkt. No. 14, and Petitioner's Objections to the M&R, Dkt. No. 16. For the reasons below, the Court ADOPTS IN PART and DECLINES TO ADOPT IN PART the M&R.

         I. Background

         Petitioner Steven Reynaldo Perez (“Perez”) is an inmate in the Texas Department of Criminal Justice-Correctional Institutions Division (“TDCJ-CID”) and is currently incarcerated at the Connally Unit in Karnes County, Texas. Because Petitioner has a history of filing petitions seeking habeas relief, a brief summary follows.

         In 2003, Petitioner pleaded guilty to one count of knowingly and intentionally possessing with intent to distribute approximately 124.5 grams of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). In 2004, Petitioner was sentenced by Senior United States District Judge Janis Graham Jack to 27 months in the custody of the United States Bureau of Prisons (“BOP”) to be followed by a three-year term of supervised release. No. 2:03-cr-278, Dkt. Nos. 8, 15. After serving his time in custody, Petitioner was released on supervision.

         In 2008, Petitioner was convicted in Nueces County of murder and sentenced to 60 years in prison and a $10, 000 fine. See No. 2:10-cv-297, Dkt. No. 4-13 at 3. Petitioner was found to have violated the terms of his supervised release after his state murder conviction, in addition to several other term violations, and was sentenced by Judge Jack to 24 months in the custody of the BOP, to be served consecutive to any state sentences. No. 2:03-cr-278, Dkt. Nos. 25, 36. In 2010, an Order of Recusal was issued, and the criminal case was reassigned to Senior United States District Judge John Rainey. No. 2:03-cr-278, Dkt. No. 69.

         Consequently, Petitioner has filed numerous cases challenging his convictions and sentences.[1] In 2011, Judge Rainey dismissed Petitioner's 28 U.S.C. § 2254 motion challenging his 2008 state murder conviction, which was later affirmed by the United States Court of Appeals for the Fifth Circuit. No. 2:10-cv-297, Dkt. Nos. 58, 77. Further, in 2011, Judge Rainey dismissed Petitioner's 28 U.S.C. § 2255 motion challenging his 2008 supervised-released violation and sentence, which was later affirmed by the Fifth Circuit. No. 2:03-cr-278, Dkt. Nos. 75, 87; see also No. 2:10-cv-107, Dkt. No. 8. Immediately before filing the instant action, Petitioner sought authorization from the Fifth Circuit to file a successive § 2255 motion. Dkt. No. 1-1. To the extent Petitioner sought to challenge his original 2004 conviction, the Fifth Circuit denied the motion as unnecessary because he had “not previously challenged that judgment in a § 2255 proceeding.” Id. at 1. To the extent Petitioner sought to challenge his 2008 supervised-release violation and sentence, the Fifth Circuit denied the motion because he had not made the requisite showing required under § 2255. Id. at 1-2.

         Proceeding pro se, Petitioner filed the instant petition pursuant to 28 U.S.C. § 2241 on June 14, 2018. Dkt. No. 1. Because it was unclear what relief Petitioner was seeking, the Magistrate Judge ordered Petitioner to complete and return the standard § 2241 pro se petition form by August 6, 2018. Dkt. No. 7. On July 27, 2018, Petitioner filed objections to the Magistrate Judge's Order, asserting that he should not be required to use the § 2241 form because “Petitioner is challenging the validity of a federal judgment of conviction and sentence. . . . Therefore, this form is not proper.” Dkt. No. 9 at 2. After his objections were overruled, on September 5, 2018, Petitioner filed an amended petition using the standard § 2241 form, making his allegations clear to the Court. Dkt. Nos. 10, 13.

         On September 17, 2018, the Magistrate Judge published the M&R, construing the amended petition as a § 2255 motion challenging his original 2004 conviction and sentence received in No. 2:03-cr-278. Dkt. No. 14. On September 27, 2018, the Petitioner filed his objections to the M&R.

         On September 28, 2018, Petitioner filed a separate § 2255 motion challenging the same 2004 conviction and sentence. See No. 2:18-cv-320, Dkt. No. 1.

         II. Legal Standard

         The Court adopts the Magistrate Judge's description of applicable law:

A writ of habeas corpus pursuant to 28 U.S.C. § 2241 is the appropriate vehicle in which “a sentenced prisoner attacks the manner in which a sentence is carried out or the prison authorities' determination of its duration.” See Pack v. Yusuff, 218 F.3d 448, 451 (internal citations omitted); Moorehead v. Chandler, 540 Fed. App'x. 458, 458 (5th Cir. 2013); United States v. Gabor, 905 F.2d 76, 77-78 n.2 (5th Cir. 1990); United States v. Garcia-Gutierrez, 835 F.2d 585, 586 (5th Cir. 1998) (claims for sentence credit to federal sentences are properly brought pursuant to § 2241).
In contrast, a § 2255 motion provides the primary means of collateral attack on a federal sentence. Pack, 218 F.3d at 451. Relief under § 2255 is warranted for errors cognizable on collateral review that occurred at or prior to sentencing. Id. A § 2255 motion must be filed in the sentencing court. Id.; Eckles v. Chandler, 574 Fed. App'x. 446, 446 (5th Cir. 2014). A ยง 2241 petition that seeks to challenge the validity of a federal sentence must either be dismissed or ...

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