Herrera v. Smith et al

Filing 7

ORDER OVERRULING OBJECTIONS AND ADOPTING 2 REPORT AND RECOMMENDATIONS. Signed by District Judge Ron Clark on 10/18/18. (ljw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
JESSE HERRERA

§

VS.

§

WARDEN, RUFUS H. DUNCAN
GERIATRIC FACILITY

§

CIVIL ACTION NO. 9:18-CV- 21

ORDER OVERRULING OBJECTIONS AND ADOPTING THE
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner, Jesse Herrera, a prisoner confined at the Rufus H. Duncan Geriatric Facility with
the Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se,
filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.1
The Court referred this matter to the Honorable Zack Hawthorn, United States Magistrate
Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this Court.
Construing the complaint as claims involving the conditions of confinement, the Magistrate Judge
recommends the petition be dismissed without prejudice.
The Court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such order, along with the record, and pleadings. Plaintiff filed
objections the Report and Recommendation of United States Magistrate Judge. This requires a de
novo review of the objections in relation to the pleadings and applicable law. See FED. R. CIV. P.
72(b).
In his objections, petitioner confirms it was intent to file a § 2241 petition relating to a state
court conviction. Petitioner states he is challenging claims from the U.S. Court of Appeals for the
Fifth Circuit in Cause No. 99-50393 wherein the Clerk allegedly denied petitioner the right of access
to in forma pauperis status granted by the district court relating to his state court conviction from

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In his objections, petitioner confirms it was his intent to file a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2241. The proper respondent in a § 2241 petition is the warden of the facility where petitioner is
incarcerated.

Travis County, Texas. Petitioner also complains the Fifth Circuit denied him the right of access to
the appellate process by refusing to docket his appeal.
As outlined by the Magistrate Judge, any challenge relating to a state court conviction must
be brought pursuant to 28 U.S.C. § 2254. To the extent petitioner asks this Court to make some
determination regarding actions or inactions taken by the Fifth Circuit Court of Appeals, this Court
has no authority or jurisdiction to do so. This petition for writ of habeas corpus filed pursuant to 28
U.S.C. § 2241 is improper. If petitioner wishes to challenge the state court conviction, petitioner
must seek authorization from the Fifth Circuit Court of Appeals to file a successive § 2254 petition.
ORDER
Accordingly, plaintiff’s objections are OVERRULED. The findings of fact and conclusions
of law of the Magistrate Judge are correct, and the report of the Magistrate Judge is ADOPTED.
A Final Judgment will be entered in accordance with the recommendations of the Magistrate Judge.

So Ordered and Signed
Oct 18, 2018

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