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)

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

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§ CIVIL ACTION NO. 3:16-CV-338
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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
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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.
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George C. Hanks Jr.
United States District Judge

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See 28 U.S.C. § 2244(b).
See 28 U.S.C. § 2244(d).

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