IN THE UNITED STATES DISTRICT COURT 

 FOR THE NORTHERN DISTRICT OF TEXAS 

 DALLAS DIVISION 

DEXTER STURGEON, JR., ) 

 # 1650438, ) 

 Petitioner, ) 

 ) 

vs. ) No. 3:22-CV-480-S-BH 

 ) 

DIRECTOR, TDCJ-CID, ) 

 Respondent. ) Referred to U.S. Magistrate Judge1

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

Based on the relevant filings and applicable law, the Amended Petition for a Writ of Habeas 

Corpus by a Person in State Custody, received on April 5, 2022 (doc. 14), should be DISMISSED. 

I. BACKGROUND 

Dexter Sturgeon, Jr. (Petitioner), an inmate currently incarcerated in the Texas Department 

of Criminal Justice, Correctional Institutions Division (TDCJ-CID), filed an amended petition for 

a writ of habeas corpus under 28 U.S.C. § 2254 challenging his convictions and sentences in 

“Cause No. F09-32977-PR/ Cause No F09-32976-PR” in Dallas County, Texas. (doc. 14 at 2.) 

The respondent is the Director of TDCJ-CID. (See id. at 1.) 

On May 21, 2010, a jury convicted Petitioner of aggravated sexual assault of a child under 

14 and in Case Nos. F-0932976-R and F-0932977-R, respectively, in the 265th Judicial District 

Court of Dallas County, Texas, and sentenced him to 70 years’ imprisonment and life 

imprisonment. See State v. Sturgeon, Nos. F-0932976-R, F-0932977-R (265th Jud. Dist. Ct., 

Dallas Cnty., Tex. May 21, 2010). The judgments were affirmed on appeal. Sturgeon v. State, 

Nos. 05–10–00672–CR, 05–10–00673–CR, 2011 WL 5042087 (Tex. App.—Dallas Oct. 25, 2011, 

1

 By Special Order No. 3-251, this habeas case has been automatically referred for findings, conclusions, and 

recommendation. 

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pet. ref’d). On April 25, 2012, the Texas Court of Criminal Appeals refused his petition for 

discretionary review (PDR) in both cases. See Sturgeon v. State, Nos. PD-1747-11, PD-1748-11 

(Tex. Crim. App. Apr. 25, 2012). 

Petitioner’s first state habeas applications in each case, received by the Texas Court of 

Criminal Appeals on October 16, 2017, were denied without written order on the findings of the 

trial court without a hearing on November 8, 2017. See Ex parte Sturgeon, Nos. WR-87,548-01, 

WR-87-548-02 (Tex. Crim. App. Nov. 8, 2017). On December 11, 2017, Petitioner filed his first 

federal habeas petition under § 2254 challenging his convictions and sentences. See Sturgeon v. 

Davis, No. 3:17-cv-3365-G-BN, 2018 WL 1721941 (N.D. Tex. Mar. 21, 2018), rec. adopted, 2018 

WL 1718076 (N.D. Tex. Apr. 9, 2018). The petition was denied as barred by the statute of 

limitations. (See No. 3:17-cv-3365-G-BN, doc. 13.) He did not appeal the denial to the United 

States Court of Appeals for the Fifth Circuit (Fifth Circuit). 

While his first § 2254 petition was pending, Petitioner filed his second state habeas 

applications in each case, both of which were dismissed by the Texas Court of Criminal Appeals 

as subsequent applications on February 21, 2018. See Ex parte Sturgeon, Nos. WR-87,548-03, 

WR-87-548-04 (Tex. Crim. App. Feb. 21, 2018). His second § 2254 petition challenging the same 

convictions and sentences was transferred to the Fifth Circuit because he had not received 

authorization to file a successive petition. See Sturgeon v. Davis, No. 3:20-cv-130-K-BN, 2020 

WL 890385, at *2 (N.D. Tex. Jan. 21, 2020), rec. adopted, 2020 WL 887711 (N.D. Tex. Feb. 24, 

2020). The Fifth Circuit denied authorization to file a successive § 2254 petition on June 2, 2020. 

See In re Sturgeon, No. 20-10207 (5th Cir. June 2, 2020).2

 

Petitioner again challenges his state convictions and sentences on two grounds: (1) 

2 Petitioner has also attempted to challenge his sentences and convictions in a civil action filed under 42 U.S.C. § 

1983. See Sturgeon v. Director, et al., No. 3:22-CV-629-E-BK (N.D. Tex. Mar. 17, 2022). 

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“Illegally Imprisoned”; and (2) “Falsely Convicted.” (doc. 14 at 6.) He claims that he is actually 

innocent and seeks relief “TAKEN to fullest extent of the LAW. Would like to see real justice 

done to those to whom did this to me.” (Id. at 7; see also id. at 11.) 

II. JURISDICTION 

“Federal courts are courts of limited jurisdiction. They possess only that power authorized 

by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. 

Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted). They “must 

presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal 

jurisdiction rests on the party seeking the federal forum.” Howery v. Allstate Ins. Co., 243 F.3d 

912, 916 (5th Cir. 2001). Courts have “a continuing obligation to examine the basis for their 

jurisdiction.” MCG, Inc. v. Great W. Energy Corp., 896 F.2d 170, 173 (5th Cir. 1990). 

A district court cannot exercise jurisdiction over a second or successive § 2254 petition 

without authorization from the court of appeals. See 28 U.S.C. § 2244(b); Crone v. Cockrell, 324 

F.3d 833, 836 (5th Cir. 2003). A petition is successive if it raises a claim that was or could have 

been raised in an earlier petition or otherwise constitutes an abuse of the writ. Hardemon v. 

Quarterman, 516 F.3d 272, 275 (5th Cir. 2008) (quoting In re Cain, 137 F.3d 234, 235 (5th Cir. 

1998)); Crone, 324 F.3d at 836-37. If it essentially represents a second attack on the same 

conviction raised in an earlier petition, a petition is successive. Hardemon, 516 F.3d at 275-76 

(distinguishing Crone because “Crone involved multiple § 2254 petitions attacking a single 

judgment.”). A second petition is not successive if the prior petition was dismissed due to 

prematurity or for lack of exhaustion, however. See Slack v. McDaniel, 529 U.S. 473, 487-88 

(2000) (declining to construe an application as second or successive when it followed a previous 

dismissal due to a failure to exhaust state remedies); Stewart v. Martinez-Villareal, 523 U.S. 637, 

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643-46 (1998) (declining to construe an application as second or successive when it followed a 

previous dismissal due to prematurity, and noting the similarities of such dismissal to one based 

upon a failure to exhaust state remedies). Otherwise, “dismissal of a first habeas petition for 

technical procedural reasons would bar the prisoner from ever obtaining federal habeas review.” 

Martinez-Villareal, 523 U.S. at 645. 

Here, Petitioner challenges the same convictions and sentences that he challenged in a prior 

federal petition that was denied on its merits. (See doc. 14 at 2, 6; doc. 15); Sturgeon, 2018 WL 

1721941, at *1, 3-4. Under Hardemon and Crone, he was required to present all available claims 

in that petition. A claim is available when it “could have been raised had the petitioner exercised 

due diligence.” Leonard v. Dretke, No. 3:02-CV-0578-H, 2004 WL 741286, at *3 (N.D. Tex. Apr. 

5, 2004), rec. adopted, 2004 WL 884578 (N.D. Tex. Apr. 20, 2004). The crucial question in 

determining availability is whether Petitioner knew or should have known through the exercise of 

due diligence the facts necessary to his current claims when he filed his prior federal petition 

challenging the same conviction and sentence. 

Petitioner’s § 2254 petition is successive within the meaning of 28 U.S.C. § 2244(b) 

because it raises claims that were or could have been raised in his initial federal petition. When a 

petition is second or successive, the petitioner must seek an order from the Fifth Circuit that 

authorizes this Court to consider the petition. See 28 U.S.C. § 2244(b)(3)(A). The Fifth Circuit 

“may authorize the filing of a second or successive application only if it determines that the 

application makes a prima facie showing that the application satisfies the requirements of [§ 

2244(b)].” 28 U.S.C. § 2244(b)(3)(C). To present a claim in a second or successive habeas petition 

that was not presented in a prior petition, the petition must show that it is based on: (1) “a new rule 

of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that 

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was previously unavailable”; or (2) “the factual predicate for the claim could not have been 

discovered previously through the exercise of due diligence; and [ ] 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)(2). 

Because the Fifth Circuit has not issued an order authorizing this Court to consider a 

successive § 2254 motion, it lacks jurisdiction to consider the petition and it is subject to dismissal. 

See United States v. Fulton, 780 F.3d 683, 686 (5th Cir. 2015). “Alternatively, a district court may 

transfer a petition lacking authorization to [the Fifth Circuit] for want of jurisdiction upon a finding 

that the petition is successive.” Id. Here, because Petitioner has filed multiple challenges to the

same state convictions, his habeas claims should be dismissed for lack of jurisdiction.

III. CIVIL CLAIMS 

As discussed, Petitioner seeks relief “TAKEN to fullest extent of the LAW. Would like to 

see real justice done to those to whom did this to me.” (doc. 14 at 7.) He also states that the 

“people that did this to me all purposely, willingly, and knowingly (broke the LAW) to which is 

proven in my court records,” and that he “would like to see the Courts to do what is only right and 

fair.” (Id.) These allegations and requests for relief do not specifically challenge his custody. 

To the extent Petitioner seeks to assert separate claims against individuals or to seek nonhabeas relief, claims that do not challenge his custody may not be raised in this habeas action. 

Courts may only consider federal habeas petitions under 28 U.S.C. § 2254 on grounds that the 

petitioner is in custody in violation of the Constitution or federal laws. See 28 U.S.C. § 2254(a); 

Preiser v. Rodriguez, 411 U.S. 475, 484-87 (1973). Petitioner’s non-habeas civil claims may be 

liberally construed either as a civil rights action under 42 U.S.C. § 1983, or as a mandamus action 

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under 28 U.S.C. § 1651 that must be raised in a separate civil action against the appropriate parties. 

Because Petitioner may only raise habeas claims in this habeas case, his non-habeas civil claims 

should be dismissed without prejudice to seeking relief in a separate civil action. See Davis v. 

Valdez, No. 3:15-CV-3952-D (BH), 2016 WL 749899, at *2 (N.D. Tex. Jan. 4, 2016), rec. adopted, 

2016 WL 728817 (N.D. Tex. Feb. 24, 2016). 

If Petitioner wishes to pursue relief on any non-habeas civil claims, he must file a separate 

civil action using the appropriate forms and pay the applicable filing fees. The Prison Litigation 

Reform Act (PLRA) requires that all prisoners who bring a civil action pay the full $402 filing fee. 

See 28 U.S.C. § 1915(b)(1).3 A prisoner who is granted leave to proceed in forma pauperis must 

still pay the full filing fee, but is allowed to pay in installments that are automatically withdrawn 

from the prisoner’s trust account. Because of the filing fee, and because he has already filed a 

separate civil action, Petitioner’s filing is not liberally construed as seeking to open a new case at 

this time. 

IV. RECOMMENDATION 

Any habeas claims in the Amended Petition for a Writ of Habeas Corpus by a Person in 

State Custody, received on April 5, 2022 (doc. 14), should be DISMISSED for lack of jurisdiction 

without prejudice to Petitioner’s right to file a motion for leave to file a successive § 2254 petition 

in the United States Court of Appeals for the Fifth Circuit. Any civil claims should be dismissed 

without prejudice to prejudice to seeking relief in a separate civil action. 

 

3

 A $52 administrative fee will be assessed in addition to the $350 filing fee, resulting in a total filing fee of $402 for 

a civil action in which the plaintiff has not sought or been granted leave to proceed in forma pauperis. See District 

Court Miscellaneous Fee Schedule. Where a prisoner plaintiff has been granted leave to proceed in forma pauperis, 

only the $350 filing fee will be deducted from the prisoner’s account. See id. The $52 administrative fee will not be 

deducted. Id.

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SIGNED this 12th day of April, 2022. 

 

INSTRUCTIONS FOR SERVICE AND 

NOTICE OF RIGHT TO APPEAL/OBJECT 

 A copy of these findings, conclusions, and recommendation shall be served on all parties 

in the manner provided by law. Any party who objects to any part of these findings, conclusions, 

and recommendation must file specific written objections within 14 days after being served with 

a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In order to be specific, an objection 

must identify the specific finding or recommendation to which objection is made, state the basis 

for the objection, and specify the place in the magistrate judge’s findings, conclusions, and 

recommendation where the disputed determination is found. An objection that merely incorporates 

by reference or refers to the briefing before the magistrate judge is not specific. Failure to file 

specific written objections will bar the aggrieved party from appealing the factual findings and 

legal conclusions of the magistrate judge that are accepted or adopted by the district court, except 

upon grounds of plain error. See Douglass v. United Servs. Automobile Ass’n, 79 F.3d 1415, 1417 

(5th Cir. 1996). 

 

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