United States District Court, S.D. West Virginia, Beckley Division
DONALD M. BOYSAW, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER
C. BERGER UNITED STATES DISTRICT JUDGE.
Court has reviewed the Petitioner's September 4, 2013
Application Under 28 U.S.C. Â§ 2241 for Writ of Habeas
Corpus By a Person in State or Federal Custody (Document
1), brought on the grounds, inter alia, that the
Petitioner's sentence is unconstitutional. The Court has
further reviewed the Petitioner's Petition for Writ
of Habeas Corpus Pursuant to 28 U.S.C. § 2241
(Document 2) (construed as a memorandum in support of his
petition), and the Petitioner's Motion to Amend
2241 (Document 10), which contains additional grounds
Standing Order (Document 4) entered on September 13,
2013, this action was referred to the Honorable Dwane L.
Tinsley, United States Magistrate Judge, for submission to
this Court of proposed findings of fact and recommendation
for disposition, pursuant to 28 U.S.C. § 636. On
September 22, 2014, the Magistrate Judge submitted a
Proposed Findings and Recommendation (PF&R)
(Document 12) wherein it is recommended that this Court deny
the Petitioner's amended petition for a writ of habeas
corpus and dismiss this action. Objections to the Magistrate
Judge's Proposed Findings and Recommendation
were due by October 9, 2014. Upon motion by the Petitioner,
the Court granted an extension until October 23, 2014. The
Petitioner filed his Objections (Document 15) on
October 22, 2015. The Court ordered that this matter be
stayed pending a ruling by the Fourth Circuit Court of
Appeals in United States v. Raymond Surratt, Jr.,
Case No. 14-6851, which has now been resolved. Because the
resolution of Surratt does not significantly alter
the parties' legal positions in this case, no additional
briefing is necessary. For the reasons stated herein, the
Court finds that the Magistrate Judge's PF&R should
be adopted, and the Petitioner's objection overruled.
AND PROCEDURAL HISTORY
Judge Tinsley's PF&R sets forth in detail the
procedural and factual history surrounding the
Petitioner's motion. The Court incorporates by reference
those facts and procedural history, but provides the
following summary to provide context for the ruling herein.
8, 2004, the Petitioner was convicted of being a felon in
possession of a firearm and ammunition in violation of 18
U.S.C. § 922(g)(1) following a jury trial in the United
States District Court for the Western District of Virginia.
He was sentenced to concurrent terms of 188 months of
imprisonment, pursuant to the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e)(1). Since that time, he has
sought to challenge the application of the ACCA to his case.
various motions to modify or vacate his sentence were denied.
However, his direct appeal was partially successful. The
United States Court of Appeals for the Fourth Circuit found
that he was properly sentenced pursuant to the ACCA, but
remanded for resentencing in light of United States v.
Booker, 543 U.S. 220 (2005), which made the United
States Sentencing Guidelines advisory rather than mandatory.
On November 15, 2006, the Petitioner was resentenced to
concurrent terms of 180 months of imprisonment-the statutory
minimum required by the ACCA.
Petitioner again appealed. The Fourth Circuit affirmed his
conviction and amended sentence. He filed a petition pursuant
to 28 U.S.C. § 2255, again challenging his Armed Career
Criminal designation. That petition was dismissed on June 23,
2009. He filed a Rule 60(b) motion multiple
times, all of which were denied as unauthorized successive
§ 2255 motions. He appealed the denial of the Rule 60(b)
motion. On January 21, 2011, the Fourth Circuit denied him a
certificate of appealability and declined to authorize a
second or successive § 2255 motion. On August 20, 2013,
the Fourth Circuit again declined to authorize a second or
successive § 2255 petition. In addition, this Court has
previously denied a petition pursuant to 28 U.S.C. §
2241, which asserted that he should not have been sentenced
under the ACCA. (Civil Action No. 5:09-cv-1484, Document 13.)
Court “shall make a de novo determination of
those portions of the report or specified proposed findings
or recommendations to which objection is made.” 28
U.S.C. § 636(b)(1)(C). However, the Court is not
required to review, under a de novo or any other
standard, the factual or legal conclusions of the magistrate
judge as to those portions of the findings or recommendation
to which no objections are addressed. Thomas v. Arn,
474 U.S. 140, 150 (1985). In addition, this Court need not
conduct a de novo review when a party “makes
general and conclusory objections that do not direct the
Court to a specific error in the magistrate's proposed
findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). When reviewing
portions of the PF&R de novo, the Court will
consider the fact that the Petitioner is acting pro
se, and his pleadings will be accorded liberal
construction. Estelle v. Gamble, 429 U.S. 97, 106
(1976); Loe v. Armistead, 582 F.2d 1291, 1295 (4th
Petitioner argues that he should have been subject to the
ten-year maximum sentence provided for in 18 U.S.C. §
924(a)(2), rather than the fifteen-year minimum sentence
contained in § 924(e)(1). He claims that Alleyne v.
United States, 133 S.Ct. 2151 (2013), constitutes a
change in the law “such that the conduct for which the
prisoner was convicted is no longer deemed criminal.”
(Pet.'s Mem. at 3.) He argues that, under
Alleyne, it was improper for the sentencing court to
engage in fact-finding to determine that he was subject to
the ACCA. In his motion to amend, the Petitioner argues that
the Supreme Court's holding in Descamps v. U.S.,
133 S.Ct. 2276 (2013), provides an additional ground for
relief. He contends that the sentencing court did not
appropriately evaluate his prior convictions in determining
whether they could serve as predicate convictions for
purposes of the ACCA, and states that his drug offenses did
not meet the requirements of the ACCA. In another motion to
amend, he argues he may be entitled to relief under the
United States Supreme Court's ruling in Johnson v.
United States, 135 S.Ct. 2551 (2015), finding the
residual clause of the ACCA unconstitutional.
Magistrate Judge found that the Petitioner's claims
“are not cognizable under section 2241, ” because
they “concern the validity of his sentence, not his
actual conviction for being a felon in possession of a
firearm.” (PF&R at 8.) He points out that
Alleyne's requirement that a jury make factual
findings that increase the statutory sentence “does not
apply to a sentence that is increased by the fact of a prior
conviction.” (Id. at 10, citing
Almendarez-Torres v. United States 523 U.S. 224
(1998.)) Furthermore, he explained that Alleyne is
not retroactively applicable on collateral review.
(Id. at 9-10.) Finally, he declined to explore the
Petitioner's claim under Descamps (after noting
that the same issue had been raised in previous challenges),
finding that the savings clause did not apply, and so the
challenge to his sentence could not be heard in a § 2241
objections, the Petitioner reiterates that a jury did not
“convict him of” being an armed career criminal.
(Obj. at 1.) He cites Persaud v. United States, 134
S.Ct. 1023 (2014), to support his position that the savings
clause does permit petitioners to challenge the legality of
their sentences under § 2241. The Petitioner emphasizes