Boose v. Mays

Filing 8

MEMORANDUM AND ORDER ENTERED: This action is dismissed and all relief is denied without prejudice. Signed by Senior District Judge Richard D. Rogers on 1/28/2014. (Mailed to pro se party Phillip E. Boose by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
PHILLIP E. BOOSE,
Petitioner,
v.

CASE NO.

13-3016-RDR

CLAUDE MAYS, Warden,
Respondent.
MEMORANDUM AND ORDER
The court previously screened this pro se habeas corpus
petition, which was filed by a federal inmate pursuant to 28 U.S.C.
§ 2241 seeking to challenge his sentence.

An Order was entered

requiring Mr. Boose to show cause why this matter should not be
dismissed for lack of jurisdiction.

Having considered petitioner’s

response (Doc. 6), the court dismisses this action for the reasons
stated in its prior Order and herein.

BACKGROUND
In 2000, when Mr. Boose was 18 years old, he pled guilty to three
Missouri state charges of selling a controlled substance (crack
cocaine) to the same undercover officer on June 10, 19, and 23, 1999.
See U.S. Boose, 92 Fed.Appx. 377, 378 (8th Cir. 2004).

“The state

court handled all three counts under one case number and consolidated
the proceedings.”

Id.

Petitioner alleges that each offense was a

class B felony with a maximum sentence of 15 years under Missouri
1

law.

Memorandum (Doc. 4) at 9.

He was not sentenced to the maximum

on any count, but to concurrent terms of five years imprisonment on
each count, his sentences were suspended, and he was granted a
three-year term of probation.
In 2003, Mr. Boose was convicted upon trial by jury in the United
States District Court for the Western District of Missouri “on
charges of being a convicted felon in possession of ammunition that
had been transported in interstate commerce in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e).”
(W.D.Va. 2010).

See Boose v. O’Brien, 2010 WL 2640333

According to petitioner, this offense had a maximum

penalty, without enhancement, of ten years.

However, Mr. Boose was

sentenced to 240 months in prison because he was found to qualify
for an enhanced sentence under the Armed Career Criminal Act (ACCA)
based on his three prior state drug convictions.1

He appealed to the

Eighth Circuit Court of Appeals raising issues that included
“challenges to the District Court’s determination that he is an armed
career criminal under § 924(e).”

His argument that the three state

convictions should have been treated by the federal sentencing court
as a single “criminal episode” rather than separate convictions was
1
“The Armed Career Criminal Act (ACCA) imposes a 15-year mandatory prison
term on an individual convicted of being a felon in possession of a firearm if
that individual has ‘three previous convictions . . . for . . . a serious drug
offense . . . committed on occasions different from one another.’ § 924(e)(1).”
Chambers v. U.S., 555 U.S. 122, 124 (2009); U.S. v. Rodriguez, 553 U.S. 377, 393
(2008)(dissenting opinion)(“The ACCA mandates a 15–year minimum sentence for
anyone convicted of violating § 922(g) . . . who ‘has three previous convictions
[for] a serious drug offense’ among his prior crimes.
§ 924(e)(1)(2000 ed., Supp.
V). Section 924(e)(2)(A) . . . defines ‘serious drug offense’ as an offense under
state or federal drug laws, ‘for which a maximum term of imprisonment of ten years
or more is prescribed by law.’”).

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rejected.

Id.

In 2004, the Eighth Circuit affirmed Boose’s

conviction and sentence, and the United States Supreme Court denied
his petition for a writ of certiorari.

See id., cert. denied, 543

U.S. 884 (Jan. 10, 2005).
Petitioner filed an initial motion in the sentencing court
pursuant to 28 U.S.C. § 2255, which was denied in 2005.

He does not

specify the issues raised in that motion or whether it was appealed.
Mr. Boose has petitioned the Eighth Circuit for authorization to file
a second or successive § 2255 motion, but his applications have been
denied.

See Boose v. O’Brien, 2010 WL 2640333, at *1.

CLAIMS AND ARGUMENTS
Mr. Boose makes numerous claims and arguments in his two
Memoranda of Law (Docs. 3 & 4) and his response (Doc. 6).

His main

claims may be summarized as (1) he was denied due process in that
the ACCA is vague and failed, prior to his commission of a federal
offense, to provide adequate notice that he could receive such an
enhanced sentence; (2) neither his prior state drug offenses nor his
federal offense behavior warranted his enhanced federal sentence,
which violates the Eighth Amendment, and (3) changes in the law since
he filed his initial § 2255 motion, entitle him to relief under §
2241

because

they

are

not

new

retroactively by the Supreme Court.

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constitutional

rules

applied

In support of these claims, Mr. Boose alleges that he was 21
years old when arrested and thus too young to be a career criminal;
he was convicted of “simple possession of ammunition alone” with no
firearm and no violence; and his Missouri state convictions were all
“relatively minor” and nonviolent and do not qualify as predicate
“serious drug offenses” under the ACCA.

Petitioner argues that he

is factually “innocent of violating 18 U.S.C. § 924(e).”

He also

argues that he has served the unenhanced ten-year statutory maximum
for his offense under 18 U.S.C. § 922(g)(1), his confinement beyond
that maximum is unconstitutional, and he is thus entitled to
immediate release from custody.
With respect to his § 2255 remedy, petitioner alleges that he
“used the only statutory vehicle available to attack his sentence
nearly eight years ago before it was determined that his prior drug
offense was not in fact serious enough to require an extended prison
term under federal law.”

He also contends that the remedy was

ineffective because he was not in custody illegally until he had
served the ten-year statutory maximum.

This court is asked to “apply

the savings clause of section 2255.”

DISCUSSION
This court remains convinced that it lacks jurisdiction to
consider petitioner’s challenges to his federal sentence for several
reasons.

In his response, petitioner mainly continues to attack the
4

legality of his sentence, rather than its execution, by arguing
violations of due process, changes in the law, and cruel and unusual
punishment.

His claims are direct attacks upon his conviction and

sentence, and as such are cognizable only under § 2255.
Maye, 529 Fed.Appx. 907, 909 (10th Cir. 2013).

Haynes v.

Section 2241 is simply

not the appropriate remedy. Id.2
Moreover, petitioner’s attempt to raise a savings-clause
argument fails.

He has not demonstrated that all the arguments he

raises in this petition could not have been tested in his initial
§ 2255 motion.

Id.

He did in fact challenge his ACCA classification

in his initial § 2255 motion, even if not on all grounds presented
in this petition.

Because petitioner has failed to make this

showing, this court has no difficulty determining that he has not
met the Tenth Circuit’s savings-clause test set forth in Prost v.
Anderson, 636 F.3d 578, 584, 592 (10th Cir. 2011).

See Abernathy v.

Wandes, 713 F.3d 538, 547 (10th Cir. 2013)(“In Prost, we set forth
our test [to determine if a petitioner could properly invoke §
2255(e)’s savings clause]: we ask ‘whether a petitioner’s argument
challenging the legality of his detention could have been tested in
an initial § 2255 motion.

If the answer is yes, then the petitioner

2
Mr. Boose has previously been informed by this and other courts that a
petition under § 2241 attacks the execution of a sentence rather than its validity,
while a § 2255 motion “attacks the legality of detention . . . and must be filed
in the district that imposed the sentence.” Bradshaw v. Story, 86 F.3d 164, 166
(10th Cir. 1996); Stanko v. Davis, 617 F.3d 1262, 1267 (10th Cir. 2010). He is
also well aware that unless a § 2255 remedy is inadequate or ineffective, it is
the exclusive remedy for testing the validity of a sentence. Purvis v. Wiley,
214 Fed.Appx. 774, 776 (10th Cir. 2007)(citing Caravalho v. Pugh, 177 F.3d 1177,
1178 (10th Cir. 1999).

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may not resort to the savings clause and § 2241.’”)(quoting Prost,
636 F.3d at 584).
The court specifically rejects any suggestion that petitioner’s
remedy under § 2255 is inadequate or ineffective merely because his
most recent claims are not ones that would allow him to bring a second
or successive § 2255 motion.

If this were a valid argument, the

limitations on challenges to federal sentences and convictions set
forth in § 2255 would be eviscerated.

See Sines v. Wilner, 609 F.3d

1070, 1073 (10th Cir. 2010)(“In Caravalho . . , we held that the remedy
under § 2255 is not inadequate or ineffective merely because the
statute greatly restricts second or successive motions.).
Under the savings clause, habeas corpus review is available
under § 2241 only if the petitioner can show that the remedy by §
2255 motion is inadequate or ineffective.

The circumstances under

which the § 2255 remedy may be declared inadequate or ineffective
have been repeatedly described as “rare or extremely limited,” and
actual examples of such circumstances are nearly non-existent.

See

e.g., Sines, 609 F.3d at 1073 (“In Caravalho . . . [w]e noted only
a few circumstances suggested by courts of appeal as rendering § 2255
inadequate or ineffective: abolition of the original sentencing
court; the sentencing court’s refusal to consider, or inordinate
delay in considering, the § 2255 motion; and the inability of a single
sentencing court to grant complete relief when sentences have been
imposed by multiple courts.”

(citations omitted)).
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A bar pursuant

to the gatekeeping provisions in § 2255 as “second and successive”
or outside the one-year statute of limitations, has plainly and
repeatedly been held not to be among those circumstances.

See e.g.,

Glover v. Fox, ___ Fed.Appx. ___, 2013 WL 6645425 (10th Cir. 2013)(“The
fact that § 2255 bars [Mr. Glover] from bringing his statutory
interpretation now, in a second § 2255 motion . . . , doesn’t mean
the § 2255 remedial process was ineffective or inadequate to test
his argument.”)(quoting Prost, 636 F.3d at 580).
Petitioner has failed to describe any rare or extremely limited
circumstances which demonstrate that his § 2255 remedy was or is
inadequate or ineffective.

The court rejects petitioner’s argument

that he is entitled to this court’s review because the law changed
in his favor too late for his claims to have been presented in his
initial § 2255 motion.

The cases he refers to do not contain new

relevant rules that clearly establish his entitlement to relief from
his federal sentence.

Moreover, even if they did, changes in

relevant law were anticipated by Congress and are grounds for
successive collateral review only under carefully-circumscribed
conditions.

Those conditions are set forth in § 2255(h)(2) and

require that a second or successive collateral attack on a federal
sentence that is based upon a new rule of law must contain a
“previously unavailable” and “new rule of constitutional law” that
has been “made retroactive to cases on collateral review by the
Supreme Court.”

Congress did not provide for successive review
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based on either a new rule that is non-constitutional or a new
constitutional rule that is non-retroactive. 3

Mr. Boose failed,

more than once, to convince either the sentencing court or the Eighth
Circuit that these conditions existed in his case.

In sum, when a

federal inmate has already been denied successive habeas review
because his claim of a recent change in the law does not satisfy the
conditions for such claims in § 2255(h)(2), collateral review of the
same claim is not available under § 2241 in the district of
incarceration by virtue of the savings clause in § 2255(e).
Furthermore, it has generally been held that § 2255’s savings
clause cannot be invoked to challenge a sentence enhancement rather
than the underlying conviction.

See Collins v. Ledezma, 724

F.Supp.2d 1173, 1179-80 (W.D. Okla.)(and cases cited therein), aff’d
400 Fed.Appx. 375 (10th Cir. 2010)(Defendant’s “claim of actual
innocence with respect to a noncapital sentence enhancement, rather
than an underlying crime, does not come within scope of § 2255’s
“savings clause.”), cert. denied, 132 S.Ct. 1142 (2012).
Petitioner’s argument that he could not have litigated his
challenges sooner because he was not illegally confined until he had
served the ten-year portion of his sentence that he admits is valid,

3
Mr. Boose admits in this action that he cannot meet the 2255(h)(2) standards
because the law he relies upon does not amount to a new constitutional rule. Given
these clear statutory limits, it would make no sense for this court to hold, in
essence, that a federal inmate is entitled to successive review not only under
different and less onerous standards but by a court other than the sentencing court
and the appropriate appellate courts, which already determined that successive
review is unavailable.

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while novel, is not supported by any convincing reasoning or legal
authority.

A federal prisoner’s presentation of constitutional

challenges to his sentence either on direct appeal or in his initial
§ 2255 motion is not conditioned upon his having served any portion
of his sentence that he may agree is legal.
Finally, the court finds that this motion is abusive.

Mr. Boose

has been a repetitive filer of post-conviction motions seeking to
continue to challenge his federal conviction after all his direct
appeals and initial § 2255 remedy were exhausted.
F.3d at 1269-70.

See Stanko, 617

His repetitive filings are precisely what the

limitations on successive 2255 motions were intended to prevent.
Here, as in his prior § 2241 petition filed in South Carolina,
petitioner “is improperly attempting to bypass statutory gatekeeping
mechanisms specifically designed to restrict prisoners from abusing
the judicial system by continuing to file multiple habeas corpus
actions in federal court.”

Boose v. Drew, 2008 WL 2557438 (D.S.C.

June 20, 2008).
For all the foregoing reasons and those stated in its prior
screening order, the court finds that it lacks jurisdiction to hear
petitioner’s

habeas

claims

and

dismisses

this

action

without

prejudice.
IT IS THEREFORE ORDERED that this action is dismissed and all
relief is denied, without prejudice.
IT IS SO ORDERED.
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DATED:

This 28th day of January, 2014, at Topeka, Kansas.

s/RICHARD D. ROGERS
United States District Judge

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