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

Before the Court is the petitioner’s Tony Epps Angleton Tx Pro-Se filing, received on May 

24, 2022 (doc. 21). Based on the relevant filings and applicable law, the filing should be liberally 

construed as a motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e) 

and DENIED. 

I. BACKGROUND 

Dexter Sturgeon, Jr. (Petitioner), filed an amended federal habeas petition under 28 U.S.C. 

§ 2254 that was received on April 5, 2022. (See doc. 14.) On April 12, 2022, it was recommended 

that the petition 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 (Fifth Circuit). (See doc. 18.) To the extent he raised civil claims in the petition, 

those claims were dismissed without prejudice to seeking relief in a separate civil action. (See id.) 

On May 12, 2022, the recommendation was accepted, the petition was dismissed, a certificate of 

appealability was denied, and judgment was entered. (See docs. 19, 20.) In his filing postmarked 

May 20, 2022, and received on May 24, 2022, Petitioner appears to challenge the dismissal of this 

1

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

recommendation. 

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action. (See doc. 21.) He provides an almost word-for-word handwritten copy of In re Epps, 127 

F.3d 364 (5th Cir. 1997), and appears to claim innocence. (See id.) 

II. FED. R. CIV. P. 59(e) 

Because Petitioner’s filing appears to challenge the dismissal of this action and was 

received within 28 days of the entry of judgment, it should be liberally construed as a motion to 

alter or amend the judgment under Rule 59(e) of the Federal Rules of Civil Procedure. See

Williams v. Thaler, 602 F.3d 291, 303 (5th Cir. 2010) (“When a litigant files a motion seeking a 

change in judgment, courts typically determine the appropriate motion based on whether the 

litigant filed the motion within Rule 59(e)’s time limit.”), abrogated on other grounds by Thomas 

v. Lumpkin, 995 F.3d 432, 440 (5th Cir. 2021). To prevail on a motion to alter or amend a judgment 

under Rule 59(e), the moving party must show (1) an intervening change in controlling law; (2) 

the availability of new evidence not previously available; or (3) a manifest error of law or fact. 

See Schiller v. Physicians Resource Group Inc., 342 F.3d 563, 567 (5th Cir. 2003). A Rule 59(e) 

motion is “not the proper vehicle for rehashing evidence, legal theories, or arguments that could 

have been offered or raised before the entry of judgment.” Templet v. HydroChem Inc., 367 F.3d 

473, 479 (5th Cir. 2004). Although courts have “considerable discretion” to grant or to deny a 

Rule 59(e) motion, they use the “extraordinary remedy” under Rule 59(e) “sparingly.” Id. When 

considering a motion to alter or amend a judgment, “[t]he court must strike the proper balance 

between two competing imperatives: (1) finality, and (2) the need to render just decisions on the 

basis of all the facts.” Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 355 (5th Cir. 

1993). 

Here, Petitioner appears to challenge the dismissal of this action by relying on Epps and 

claiming that he is innocent. (See doc. 21.) In Epps, a district court transferred a petitioner’s 

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successive § 2254 petition to the Fifth Circuit “for a determination whether the successive petition 

should be allowed” under 28 U.S.C. §§ 2244(a) and (b)(3)(C). Epps, 127 F.3d at 365. Because 

the petitioner had not sought authorization to file a successive § 2254 petition, the Fifth Circuit 

directed its clerk to notify him about the need to move for authorization to file a successive petition 

and the requirements for a motion. See id. 

As discussed in the recommendation, 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 a 

prior federal petition that was denied on its merits. (See doc. 18 at 4-5.) It noted that the Court 

lacked jurisdiction to consider the petition, and that the petition was subject to dismissal because 

the Fifth Circuit had not authorized the filing of a successive § 2254 petition. (See id. at 4.) After 

noting that a court could alternatively transfer an unauthorized successive § 2254 petition to the 

Fifth Circuit, dismissal was instead recommended because Petitioner has filed multiple challenges 

to the same state convictions. (See id. at 5.) Because Petitioner’s successive § 2254 was dismissed 

and not transferred, Epps has no bearing here. Further, to the extent Petitioner alleges innocence 

of the same state convictions, his claim fails to address the basis for the dismissal of his § 2254 

petition, i.e., that it is an unauthorized successive petition. Rule 59(e) is “not the proper vehicle 

for rehashing evidence, legal theories, or arguments that could have been offered or raised before 

the entry of judgment.” Templet, 367 F.3d at 479. 

Petitioner has not shown the availability of new evidence not previously available, or that 

a manifest error of law or fact was made. He therefore is not entitled to relief under Rule 59(e). 

III. RECOMMENDATION 

The petitioner’s Tony Epps Angleton Tx Pro-Se filing, received on May 24, 2022 (doc. 21), 

should be liberally construed as a motion to alter or amend the judgment under Federal Rule of 

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Civil Procedure 59(e) and DENIED.

SIGNED this 26th day of May, 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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