United States District Court, N.D. Texas, Fort Worth Division
OPINION AND ORDER
O'CONNOR UNITED STATES DISTRICT JUDGE.
the Court are Tarrant County Jail inmate Ross Thomas
Brantley, III's (“Brantley”) petition for
writ of habeas corpus under 28 U.S.C. § 2241 (ECF No.
1), Tarrant County Sheriff Bill Waybourn's response
(labeled “Reply”) with exhibits (ECF No. 10), and
Brantley's reply brief, supplemental reply brief, and
second supplemental reply brief (ECF Nos. 15, 17, and
After considering the relief sought by Brantley, the record,
related briefing, and applicable law, the Court concludes
that Brantley's § 2241 petition should be construed
as a petition under 28 U.S.C. § 2254, and the petition
under § 2254 must be DISMISSED.
BACKGROUND/CLAIMS FOR RELIEF
challenges his custody pursuant to the judgment of conviction
and sentence of the 372nd District Court, Tarrant County,
Texas, in cause number 1091400D. Pet. 2-3, ECF No. 1.
Brantley was charged by indictment with the offense of
assault causing bodily injury to a family or household member
with a prior family violence conviction. Resp. 2, ECF No. 10.
In April 2008, Brantley entered a plea of guilty in exchange
for five (5) years' deferred adjudication community
supervision. Id.; Resp. Exhibit A, ECF No.
10. In 2011, the state filed a petition to proceed
to adjudication, and the Court, finding that Brantley
violated certain conditions of his community supervision,
adjudicated his guilt and sentenced him to ten years'
confinement on December 2, 2011. Pet. 3, ECF No.1; Resp. 2;
Exhibit B, ECF No. 10. In the petition filed in this case,
Brantley challenges that conviction, asserting that (1) the
state court abused its discretion in revoking his community
supervision and adjudicating his guilt because he complied
with his reporting requirements, and because the complainant
was not a family member; (2) the state court improperly
considered a then-pending new charge at his adjudication
hearing; (3) his rights under the Equal Protection clause of
the Fourteenth Amendment were violated; and (4) he was denied
effective assistance of counsel. Pet. 5-6, ECF No. 1.
LEGAL STANDARDS and ANALYSIS
§ 2241 Petition Construed as a § 2254
review and consideration of the petition as filed, this Court
finds that it should be construed as a petition for writ of
habeas corpus under 28 U.S.C. § 2254 by a person in
state custody. Irrespective of the label a petitioner uses,
the Court must consider a filed habeas petition under the
proper statutory framework. See Felker v. Turpin,
518 U.S. 651, 662-65 (1996); Solsona v. Warden,
F.C.I., 821 F.2d 1129, 1132 n.1 (5th Cir. 1987). Section
2254 is reserved for habeas petitions on “behalf of a
person in custody pursuant to a judgment of a State
court.” 28 U.S.C. 2254(a). A petition filed under
§ 2241 which attacks the validity of a state
prisoner's underlying state conviction or the sentence
imposed by the trial court is properly construed as a §
2254 petition. See Branch v. Dretke,
No.3:03-cv-2607-H, 2004 WL 1877798, at *1 (N.D. Tex. Aug. 20,
2004), R and R adopted, 2004 WL 1960192 (N.D. Tex.
Sep. 2, 2004); see generally In re Wright, 826 F.3d
774, 778 (4th Cir. 2016) (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). Furthermore, 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)
(construing § 2241 petition challenging state court
conviction as a petition under §2254 and rejecting
Petitioner's claim that he could rely upon § 2241
because a § 2254 petition would be “inadequate or
ineffective”); Branch, 2004 WL 1877798, at *1
(“By attempting to proceed under § 2241 it appears
that petitioner merely seeks to avoid § 2254's
prohibition on filing successive petitions. However, a
petitioner may not utilize § 2241 merely to avoid the
various provisions specifically applicable to § 2254
actions.”). Thus, the instant petition is properly
characterized as a petition under § 2254.
Successive § 2254 Petition
Petitioner's third petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 filed in this Court
challenging the same state court conviction. Pet.,
Brantley v. Stephens, No. 4:13-CV-883-A, ECF No. 1;
Pet, Brantley v. Davis, No.4:16-CV-673-O, ECF No. 1.
The Court takes judicial notice of the pleadings and state
court records filed in these prior federal habeas actions in
the Fort Worth division of this the Northern District of
28 U.S.C. § 2244(b) requires dismissal of a claim
presented in a second or successive petition filed by a state
prisoner under § 2254 that was or could have been
presented in a prior petition unless-
(A) the application shows that the claim relies on a new rule
of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
(B)(i) the factual predicate for the claim could not have
been discovered previously through the exercise of due
(ii) the facts underlying the claim, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.
28 U.S.C. § 2244(b)(1)-(2). Further, before such a
petition is filed in federal district court, the petitioner
must move for authorization to file the petition in the