EASTERN DISTRICT OF TEXAS

No. 6:23-cv-00394

Herron Kent Duckett,

Petitioner,

v.

Director, TDCJ-CID,

Respondent.

ORDER

Petitioner Herron Duckett, an inmate of the Texas Department 

of Criminal Justice proceeding pro se, filed this petition for a writ of 

habeas corpus challenging the legality of his conviction. The petition

has been referred to United States Magistrate Judge John D. Love. 

Petitioner was convicted of evading arrest with a vehicle in the 

124th Judicial District Court of Gregg County, Texas, receiving a 

sentence of 40 years in prison. He took a direct appeal, and his conviction was affirmed by the Sixth Judicial District Court of Appeals. 

Duckett v. State, No. 06-14-00060-CR, 2015 WL 996188 (Tex. App.–

Texarkana Mar. 3, 2015, pet. ref’d). His petition for discretionary 

review was denied. Duckett v. State, No. PD-0358-15 (Tex. Crim. 

App. 2015). Petitioner has also sought state and federal habeas corpus review. See Duckett v. Davis, No. 18-40589, 2019 WL 11866656 

(5th Cir. 2019) (denying certificate of appealability). 

Petitioner now argues that one juror had an implied bias against 

him due to her relationship with law enforcement officers, and that 

counsel failed to ensure that she would be fair and impartial. He also 

asserts that counsel cited the wrong statute in arguing for an instruction on lesser included offenses, causing him to be denied such an 

instruction. 

After review of the pleadings, the magistrate judge issued a 

report (Doc. 8) recommending that the petition be denied. The 

magistrate judge observed that 28 U.S.C. § 2244(b)(3) provides 

that before a second or successive application for habeas corpus 

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relief is filed in the district court, the applicant shall move in the 

appropriate court of appeals for an order authorizing the district 

court to consider the application. The on-line records of the Fifth 

Circuit show that petitioner moved in 2021 for authorization to 

file a successive habeas petition complaining that trial counsel 

failed to challenge a juror with relatives in law enforcement, but 

his request was denied. In re Duckett, slip op. no. 21-40237 (5th 

Cir. 2021). Because petitioner had not received such authorization, the magistrate judge determined that the district court 

lacked jurisdiction to consider petitioner’s application for habeas 

corpus relief. Crone v. Cockrell, 324 F.3d 833, 836 (5th Cir. 2003). 

In his objections, petitioner argues that he is proceeding under 

28 U.S.C. § 2241 rather than § 2254. Because petitioner is challenging the validity of his conviction, his petition is properly construed as a § 2254 petition regardless of the label placed on it. Basey v. Trump, 803 F. App’x 806 (5th Cir. 2020); Hartfield v. Osborne, 808 F.3d 1066, 1071 (5th Cir. 2015). A prisoner cannot 

evade the procedural rules governing § 2254 petitions by the simple expedient of claiming that his petition was brought under 

§ 2241 instead. Gaines v. Dretke, No. 3:06-cv-778, 2002 WL 

2728826 (N.D. Tex., Sept. 22, 2006). Because the petition is 

properly construed as a § 2254 proceeding, the magistrate judge 

correctly determined that it should be dismissed until leave to file 

a successive petition is granted by the Fifth Circuit. Doc. 8 at 2. 

Having reviewed the magistrate judge’s report and the petitioner’s objections de novo, the court overrules the petitioner’s 

objections and accepts the findings and recommendations of the 

magistrate judge’s report. Petitioner’s application for a writ of habeas corpus is therefore dismissed with prejudice as to its refiling 

without permission from the Fifth Circuit, but without prejudice 

as to its refiling once such permission has been obtained. A certificate of appealability is denied sua sponte, but the denial applies 

only to an appeal of the decision in this case and shall have no 

effect upon petitioner’s right to seek permission from the Fifth 

Circuit to file a successive petition. 

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So ordered by the court on October 23, 2023.

J. CAMPBELL BARKER

United States District Judge

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