Delaine v. Shults et al

Filing 17

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 12 Report and Recommendations, Signed by District Judge Carlton W. Reeves on 2/12/2020. (PG)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
STEVEN DELAINE
V.

PETITIONER
CAUSE NO. 3:16-CV-938-CWR-FKB

L. SHULTS, et al.

RESPONDENTS

ORDER ADOPTING REPORT AND RECOMMENDATION
Before the Court is the Report and Recommendation of United States Magistrate Judge F.
Keith Ball. Docket No. 12. After examining the record in this case, Judge Ball recommended that
Petitioner Steven Delaine’s 28 U.S.C. § 2241 petition for writ of habeas corpus be denied. Id.
Delaine has objected to the Report and Recommendation. Docket No. 14.
Delaine does not object to the Magistrate Judge’s finding that Delaine’s reliance on Begay
v. United States, 553 U.S. 137 (2008), and United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016),
fails to provide relief under the saving clause exception of 28 U.S.C. § 2255. However, Delaine
argues that the Supreme Court’s ruling in Persaud v. United States, 571 U.S. 1172 (2014),
supersedes established Fifth Circuit precedent that “a claim of actual innocence of a career offender
enhancement is not a claim of actual innocence of the crime of conviction and, thus, not the type
of claim that warrants review under § 2241.” In re Bradford, 660 F.3d 226, 230 (5th Cir. 2011).
However, his argument is foreclosed by Robinson v. United States, in which the Fifth Circuit held
that “Persaud was not a substantive decision” and accordingly did not overrule its precedent
regarding the availability of § 2241 relief. 812 F.3d 476, 477 (5th Cir. 2016). Delaine’s arguments
are preserved for further review.
Having fully reviewed the Magistrate Judge’s Report and Recommendation, the court
concludes that the Report and Recommendation is well-reasoned and legally correct, and therefore

overrules Delaine’s objection. The Report and Recommendation is adopted fully as this Court’s
own Order. Accordingly, Delaine’s petition for writ of habeas corpus is dismissed. A separate
Final Judgment shall issue this day.
SO ORDERED AND ADJUDGED, this the 12th day of February, 2020.

s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE