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Boysaw v. United States

United States District Court, S.D. West Virginia, Beckley Division

June 26, 2017

DONALD M. BOYSAW, Petitioner,



         The Court has reviewed the Petitioner's September 4, 2013 Application Under 28 U.S.C. § 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 for relief.

         By 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.


         Magistrate 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.

         On June 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.

         His 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.

         The 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.[1] 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.)


         This 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 Cir. 1978).


         The 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.

         The 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 petition.

         In his 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 ...

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