Boone v. Quantana
Filing
5
MEMORANDUM OPINION AND ORDER: it is ORDERED as follows: 1. Reginald Boone's 1 28 U.S.C. § 2241 petition for a writ of habeas corpus is DENIED; 2. This matter is DISMISSED and STRICKEN from the Court's docket; 3. Judgment shall be entered contemporaneously in favor of the Respondent. Signed by Judge Danny C. Reeves on October 31, 2014. (MWZ) cc: COR (Petitioner via U.S. Mail)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Lexington)
REGINALD BOONE,
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Petitioner,
V.
FRANCISCO QUINTATA, Warden,
Respondent.
Civil Action No. 5: 14-84-DCR
MEMORANDUM OPINION
AND ORDER
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Petitioner Reginald Boone is an inmate confined at the Federal Medical Center
located in Lexington, Kentucky. Proceeding pro se, Boone has filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241.1 He challenges his firearm conviction under 18
U.S.C. § 924(c)(1). Because a § 2241 petition is not the proper vehicle for obtaining the
relief that Boone seeks, his petition will be denied.
I.
In 1992, Boone exchanged $30.00 worth of cocaine and some money for a shotgun.
United States v. Reginald Boone, Criminal No. 2:92-cr-113-2 (E.D. Va. 1992).2 He and six
co-defendants were charged with conspiracy to distribute or possess with intent to distribute
cocaine in violation of 21 U.S.C. § 846, as well as various associated firearms violations. Id.
1
Although the petitioner was prosecuted in the Eastern District of Virginia, the action is properly filed in this
district because a § 2241 petition must be filed in the judicial district where the petitioner and his custodian are
physically present. 28 U.S.C. § 2241(a); see Martin v. Perez, 319 F.3d 799, 802 (6th Cir. 2003).
2
Because Boone’s criminal proceeding predated the advent of the PACER electronic database, the Court is
unable to electronically access the documents filed in that proceeding. The available docket sheet indicates that
Boone’s criminal record was archived in the Federal Records Center in 2000 and in 2005.
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Following conviction, all seven co-defendants appealed. Boone claimed that insufficient
evidence supported the conspiracy conviction and challenged the calculation of his sentence.
He appealed the district court’s denial of his motion to suppress evidence and his conviction
of two counts of using or carrying a firearm in relation to a drug trafficking crime in
violation of 18 U.S.C. § 924(c)(1). In addition, Boone challenged the constitutionality of the
Federal Sentencing Guidelines’ base offense levels for crack cocaine. United States v.
Harris, 39 F.3d 1262, 1264 (4th Cir. 1994).
The Fourth Circuit affirmed Boone’s convictions and sentences, with the exception of
the life sentence imposed under 21 U.S.C. § 841(b)(1)(A).
Because the district court
improperly aggregated quantities of various substances, the matter was remanded for
resentencing. See Harris, 39 F.3d at 1271-72. On remand, the district court found that
Boone qualified as a career offender and imposed a new sentence. Boone again appealed and
the Fourth Circuit vacated his conviction under 18 U.S.C. § 924(c) in light of Bailey v.
United States, 516 U.S. 137 (1995), decided during the pendency of Boone’s appeal.
[Record No. 1-1]
Accordingly, the Boone’s case was remanded a second time for
resentencing. United States v. Boone, No. 95-5055, 1996 U.S. App. LEXIS 20572 at *4 (4th
Cir. Aug. 16, 1996) (unpublished). Appealing his sentence once again, Boone argued that
the United States failed to present sufficient evidence to support a conviction of the drug
charges. However, the Fourth Circuit affirmed the sentence, finding that Boone had waived
the issue. United States v. Boone, No. 96-4971, 1997 U.S. App. LEXIS 29868 at *3 (4th Cir.
Oct. 19, 1997) (unpublished).
On October 22, 1998, Boone filed a motion to vacate, set aside or correct his sentence
under 28 U.S.C. § 2255. The trial court denied the motion. And in January 2006, the Fourth
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Circuit denied Boone’s motion for authorization to file a successive § 2255 petition. In re:
Reginald Boone, No. 06-173 (4th Cir. 2006).
II.
In conducting an initial review of habeas petitions under 28 U.S.C. § 2243, the Court
must deny the relief sought “if it plainly appears from the petition and any attached exhibits
that the petitioner is not entitled to relief.” Rule 4 of the Rules Governing § 2254 Cases in
the United States District Courts (applicable to § 2241 petitions pursuant to Rule 1(b)).
Because Boone is not represented by an attorney, the Court evaluates his petition under a
more lenient standard. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321
F.3d 569, 573 (6th Cir. 2003). Thus, at this stage of the proceedings, the Court accepts
Boone’s factual allegations as true and liberally construes his legal claims in his favor.
In 2007, long after the petitioner’s conviction became final, the United States
Supreme Court issued a decision in Watson v. United States. 552 U.S. 74 (2007). The
defendant in Watson negotiated the purchase of a semi-automatic pistol from an undercover
law enforcement agent. Watson paid for the weapon with OxyContin tablets. He was
arrested and charged under 18 U.S.C. § 924(c) for “using” the pistol during and in relation to
a drug trafficking crime. In overturning Watson’s conviction, the Supreme Court held that a
person who receives a firearm in exchange for drugs has not “used” the firearm as part of
that transaction.3 Id. at 83.
Here, Boone asserts that his situation is indistinguishable from Watson. [Record No.
1] Although he obtained the firearm in question as a result of a drugs-for-gun trade, Boone
3
Watson left undisturbed the Supreme Court’s holding that one who supplies a firearm in exchange for drugs
“uses” the firearm for the purpose of § 924(c). Watson, 552 U.S. at 83; Smith v. United States, 508 U.S. 223 (1993).
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argues that he is innocent of the firearm offense because he did not “use” a firearm, but
received one. Thus, he asserts that he was found guilty on the basis of facts that do not
constitute a crime and his conviction and sentence under § 924(c) must be vacated.
III.
Boone’s petition is not properly raised under 28 U.S.C. § 2241. As a general rule, if a
federal prisoner seeks to attack the execution of his sentence by challenging the computation
of his parole or sentencing credit, he may do so by filing a petition under § 2241 in the
district court having jurisdiction over his custodian. Jones v. Walton, 2012 U.S. App. LEXIS
27144 at *4 (6th Cir. 2012) (citing United States v. Jalili, 925 F.2d 889, 894 (6th Cir. 1991)).
Federal inmates who seek to challenge their convictions should file those claims in the
sentencing court under 28 U.S.C. § 2255. Terrell v. United States, 564 F.3d 442, 447 (6th
Cir. 2009). Under highly exceptional circumstances, a federal inmate may challenge his
conviction and the imposition of a sentence under § 2241 rather than § 2255, if he establishes
that his remedy is inadequate or ineffective to test the legality of his detention under the
savings clause of § 2255. 28 U.S.C. § 2255(e). It is the petitioner’s burden to prove that his
remedy under § 2255 is inadequate or ineffective. Martin, 319 F.3d at 803.
Boone argues that his petition falls under the savings clause of § 2255(e) because he
has already exhausted his remedy under § 2255 and been denied relief. [Record No. 1, p. 89] However, this argument is without merit. A remedy under § 2255 is not considered
“inadequate or ineffective” merely because relief under that section has been denied
previously, the petitioner is procedurally barred from pursuing relief under § 2255, or he has
been denied permission to file a successive motion to vacate. Martin, 319 F.3d at 803-04;
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United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001); Charles v. Chandler, 180 F.3d
753, 756 (6th Cir. 1999).
To demonstrate inadequacy or ineffectiveness, a petitioner must establish that he is
actually innocent. Wooten, 677 F.3d at 307. Where a petitioner seeks to have a federal court
invoke jurisdiction over claims that are normally beyond the pale of its authority to review,
he should submit documentary evidence of his actual innocence beyond his mere allegations.
Bousley, 523 U.S. at 623.
“Actual innocence” is “factual innocence, not mere legal
insufficiency.” Souter v. Jones, 395 F.3d 577, 590 (6h Cir. 2005) (citing Bousley v. United
States, 523 U.S. 614, 623 (1998)). Petitioners may satisfy this burden by showing that there
has been “an intervening change in the law that establishes their actual innocence.”
Peterman, 249 F.3d at 462.
Boone alleges that Watson constitutes an intervening change in the law sufficient to
establish his actual innocence of the firearm charge. [Record No. 1] However, he has not
shown that Watson set forth a new rule of constitutional law. Rather, the decision was based
on a statutory interpretation of 18 U.S.C. § 924(c)(1). See Lowe v. Cauley, 2009 U.S. Dist.
LEXIS 87049 at *5 (E.D. Ky. 2009). Moreover, even assuming arguendo that Watson
created a new rule, Boone has not shown that the Supreme Court has made the decision
retroactive to cases on collateral review. See Tyler v. Cain, 533 U.S. 656, 663 (2001) (only
the Supreme Court can make a new rule retroactive); see also Shelton v. United States, 2010
WL 2471692 (S.D. Ohio 2010) (Watson is not retroactive to cases on collateral review). See
also In re Zuniga-Hernandez, 2010 U.S. App. LEXIS 27753 *1-2 (5th Cir. 2010) (holding
that Watson was based on statutory interpretation, not applied retroactively to cases on
collateral review).
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In support of his argument that Watson applies retroactively, Boone relies on United
States v. Thomas, 627 F.3d 534, 538 (4th Cir. 2010). In Thomas, the Fourth Circuit held that
Watson announced a new substantive rule that applied retroactively to initial petitions under
§ 2255(f)(3). However, the Fourth Circuit noted the contrast in the statutory language
governing retroactivity between initial petitions under §2255(f)(3) and “second or
successive” motions under § 2255(h), cautioning that successive petitions must rely on a new
rule of constitutional law explicitly “made retroactive to cases on collateral review by the
Supreme Court.” Id. at 536. As noted above, the present action is not Boone’s initial § 2255
petition.4 Because the Supreme Court in Watson did not explicitly establish that its holding
would apply retroactively to cases on collateral review, Boone is barred from asserting
“actual innocence” here.
IV.
Boone fails to meet his burden of demonstrating that his remedy under § 2255 would
be inadequate or ineffective. He presents no new rule of law made retroactive to his case by
the Supreme Court that would establish his actual innocence. In short, Boone’s claim is not
properly raised in a § 2241 petition. If Boone elects to proceed under § 2255, he must file a
motion in the Fourth Circuit Court of Appeals requesting permission to file a successive §
2255 petition based upon the Supreme Court’s ruling in Watson. Accordingly, it is hereby
ORDERED as follows:
1.
Reginald Boone’s 28 U.S.C. § 2241 petition for a writ of habeas corpus
[Record No. 1] is DENIED.
4
Boone filed his initial § 2255 petition in 1998, which was denied. In 2006, his motion for leave to file a
second § 2255 petition was also denied. In re: Reginald Boone, No. 06-173 (4th Cir. 2006).
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2.
This matter is DISMISSED and STRICKEN from the Court’s docket.
3.
Judgment shall be entered contemporaneously in favor of the Respondent.
This 31st day of October, 2014.
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