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Dempsey v. Myers

United States District Court, W.D. Louisiana, Lake Charles Division

January 23, 2019

RANDY DEE DEMPSEY REG. # 57866180
v.
RODNEY MYERS

         SECTION P

          REPORT AND RECOMMENDATION

          KAY, MAGISTRATE JUDGE

         Before the court is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 by pro se petitioner Randy Dee Dempsey. Dempsey is an inmate in the custody of the Bureau of Prisons (“BOP”) and is currently incarcerated at the Federal Correctional Institution at Oakdale, Louisiana (“FCIO”). This matter has been referred to the undersigned for review, report, and recommendation in accordance with 28 U.S.C. § 636 and the standing orders of this court.

         I.

         Background

         Dempsey brings this petition to challenge his 2006 conviction and sentence in the United States District Court for the Western District of Texas. After pleading guilty to one count of unlawful transport of firearms by a convicted felon under 18 U.S.C. § 922(g), Dempsey was sentenced to a 188 month term of imprisonment, enhanced under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), based on two prior convictions for burglary and one for aggravated robbery under Texas Penal Code §§ 30.02(a)(1) and 29.03. [1] United States v. Dempsey, No. 1:06-cr-0060, docs. 19, 25, 28 (W.D. Tex. Sep. 5, 2006); see Id. at doc. 64. Dempsey did not appeal his conviction or sentence, but he did file a motion to vacate under 28 U.S.C. § 2255 on or about August 22, 2007. Id. at doc. 29. There he claimed that his sentence was improperly enhanced under § 4B1.4(a) of the United States Sentencing Guidelines, when the court construed the burglary conviction referenced in his indictment as a crime of violence. Id. After ordering a response from the government, the court rejected his claim and denied relief. Id. at doc. 35.

         In October 2014, Dempsey filed a successive motion to vacate, alleging that the Supreme Court's recent decision in Descamps v. United States, 133 S.Ct. 2276 (2013), called his conviction and sentence into question. Id. at doc. 38. The district court transferred the matter to the United States Court of Appeals for the Fifth Circuit, and the Fifth Circuit denied Dempsey authorization to proceed with a successive § 2255 motion. Id. at docs. 40, 45. Dempsey then filed a third § 2255 motion on May 31, 2016, seeking relief from his ACCA enhancement based on the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), because he maintained that his Texas burglary convictions only qualified as crimes of violence under the residual clause of the ACCA. [2] Id. at doc. 48.

         This time the Fifth Circuit authorized the filing of a successive § 2255 motion, and the Office of the Federal Public Defender was appointed to represent Dempsey. Id. at docs. 46, 47. The district court then denied relief, holding that Dempsey's Texas burglary convictions qualified as violent felonies under the ACCA as laid out by the Fifth Circuit in United States v. Uribe, 838 F.3d 667, 670-71 (5th Cir. 2016), and that his sentence was therefore appropriately enhanced under the ACCA. Id. at docs. 64, 65. Shortly thereafter, however, the Fifth Circuit overruled Uribe with United States v. Herrold, 883 F.3d 517 (5th Cir. 2018), and held that a conviction under Texas Penal Code § 30.02(a)(1), could not serve as a predicate offense under the ACCA because the Texas burglary statute is indivisible and a portion thereof is broader than the ACCA's generic burglary counterpart. Accordingly, Dempsey moved the district court to reconsider. Id. at docs. 67, 69. The court denied the motion, agreeing that its prior ruling could no longer stand in light of Herrold but determining that Dempsey should instead file another successive § 2255 motion based on that case, for which he must first obtain authorization from the Fifth Circuit. Id. at doc. 71. Dempsey also filed a notice of appeal to the Fifth Circuit, which reje cted his request for a certificate of appealability via judgment dated October 31, 2018. Id. at docs. 66, 73. Dempsey now files the instant habeas petition, seeking relief from his ACCA-enhanced sentence based on Johnson and Herrold and alleging ineffective assistance of post-conviction counsel. Doc. 1; doc. 1, att. 1.

         II.

         Law & Analysis

         A. Screening of Habeas Corpus Petitions

         A district court may apply any and all of the rules governing habeas petitions filed under 28 U.S.C. § 2254 to those filed under § 2241. See Rule 1(b), Rules Governing § 2254 Cases in the United States District Courts. Rule 4 of the Rules Governing § 2254 Cases authorizes preliminary review of such petitions, and states that they must be summarily dismissed “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief.” Id. at Rule 4. To avoid summary dismissal under Rule 4, the petition must contain factual allegations pointing to a “real possibility of constitutional error.” Id. at Rule 4, advisory committee note (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 1970)). Accordingly, we review the pleadings and exhibits before us to determine whether any right to relief is indicated, or whether the petition must be dismissed.

         B. Section 2241

         A § 2241 petition on behalf of a sentenced prisoner “attacks the manner in which a sentence is carried out or the prison authorities' determination of its duration.” Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000). In order to prevail, a § 2241 petitioner must show that he is “in custody in ...


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