United States District Court, S.D. Texas, Corpus Christi Division
Tagle Senior United States District Judge
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.
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.
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.
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.
Petitioner has filed numerous cases challenging his
convictions and sentences. 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.
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.
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.
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.
Court adopts the Magistrate Judge's description of
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 § 2241 petition that seeks to challenge the validity
of a federal sentence must either be dismissed or ...