Brown v. Davis -

Filing 12

ORDER denying 11 Motion to Rescind Determination with Objections and Brief in Support.(Signed by Judge George C Hanks, Jr) Parties notified.(dperez, 3)

Download PDF
United States District Court Southern District of Texas ENTERED UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION COREY BURRELL BROWN, TDCJ #00649267, Petitioner, VS. LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. May 09, 2017 David J. Bradley, Clerk § § § § § CIVIL ACTION NO. 3:16-CV-338 § § § § § § ORDER The petitioner, Corey Burrell Brown (TDCJ #00649267), is a state prisoner incarcerated in the Texas Department of Criminal Justice - Correctional Institutions Division (“TDCJ”). He filed a petition for a writ of habeas corpus to challenge a state court conviction under 28 U.S.C. § 2254, and the Court transferred the petition to the Eastern District of Texas, Sherman Division because Brown was convicted in Grayson County. See 28 U.S.C. § 124(c)(3). Brown has filed a motion asking the Court to evaluate his petition under 28 U.S.C. § 2241 instead of 28 U.S.C. § 2254 (Dkt. 11); he argues that the Court must do this because the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) “did not alter or amend [Section] 2241” (Dkt. 11 at p. 2). The Court will deny the motion. Brown has filed at least one petition under Section 2254 challenging his conviction, and his conviction is 24 years old. See Eastern District of Texas Case Number 4:96-CV-36. It is evident that Brown is attempting to proceed under Section 2241 in order to avoid the statutory restrictions on successive 1/2 Section 2254 petitions1 and the AEDPA’s statute of limitations.2 That will not work: as a scholarly opinion by Judge Lake points out, “a state prisoner may not use [Section] 2241 to circumvent procedural hurdles to review under [Section] 2254.” Major-Davis v. Stephens, No. H–15–2373, 2015 WL 5093237, at *1 & n. 2 (S.D. Tex. Aug. 28, 2015) (citing cases). Because Brown challenges a state court judgment and seeks his immediate release from confinement, the petition is governed by Section 2254, not Section 2241, regardless of how Brown styles it. Id. Brown’s motion requesting the Court to rescind its determination that Section 2254 applies (Dkt. 11) is DENIED. The Clerk will provide a copy of this order to the parties. SIGNED at Galveston, Texas, this 9th day of May, 2017. ___________________________________ George C. Hanks Jr. United States District Judge 1 2 See 28 U.S.C. § 2244(b). See 28 U.S.C. § 2244(d). 2/2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?