Wallace v. Louisiana State

Opinion

Case: 23-30687 Document: 00517010042 Page: 1 Date Filed: 12/21/2023

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 23-30687 Summary Calendar FILED ____________ December 21, 2023 Lyle W. Cayce Charles K. Wallace, Clerk

Petitioner—Appellant,

versus

Louisiana State,

Respondent—Appellee. ______________________________

Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:23-CV-5242 ______________________________

Before Jones, Southwick, and Ho, Circuit Judges. Per Curiam: * Charles K. Wallace, Louisiana prisoner # 093248, appeals the district court’s order construing his 28 U.S.C. § 2241 petition as an unauthorized successive 28 U.S.C. § 2254 application and transferring it to this court. He additionally moves for the appointment of counsel.

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 23-30687 Document: 00517010042 Page: 2 Date Filed: 12/21/2023

No. 23-30687

Wallace first argues that the district court improperly construed his § 2241 petition as a § 2254 application. Given that Wallace’s § 2241 petition challenged the validity of his second degree murder conviction, the district court properly construed the petition as filed pursuant to § 2254. See Hartfield v. Osborne, 808 F.3d 1066, 1071-73 (5th Cir. 2015). Our review of Wallace’s remaining arguments likewise show no error. Given that Wallace’s constructive § 2254 application challenged the validity of the same second degree murder conviction that he challenged in his prior § 2254 application, the district court correctly determined that the application was successive. See Leal Garcia v. Quarterman, 573 F.3d 214, 220-21 (5th Cir. 2009). Accordingly, the district court’s transfer order is AFFIRMED. Wallace’s motion for the appointment of counsel is DENIED.