United States District Court, W.D. Louisiana, Lake Charles Division
RANDY DEE DEMPSEY REG. # 57866180
REPORT AND RECOMMENDATION
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.
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.  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.
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.  Id. at doc. 48.
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.
Screening of Habeas Corpus Petitions
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.
§ 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