Boyd v. Nash
ORDER: Petitioner asks the Court to re-open this case to consider his untimely Objection 17 to the previously adopted Report and Recommendation 14 . While the Court will grant Boyd an extension and consider his Objection, for the reasons set out in the Order, the Court has considered but overrules Boyd's Objection. This case remains dismissed. Signed by District Judge Daniel P. Jordan III on October 18, 2017.(SP)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
ROBERT DESHAWN BOYD
CIVIL ACTION NO. 3:16-CV-945-DPJ-FKB
Petitioner Robert Deshawn Boyd asks the Court to re-open this case to consider his
untimely Objection  to the previously adopted Report and Recommendation . While the
Court will grant Boyd an extension and consider his Objection, it does not change the finding
that his Petition is successive. Therefore, Boyd’s Petition for Habeas Corpus  remains
In 2009, Robert Deshawn Boyd pleaded guilty in federal court to possession with intent
to distribute crack cocaine while on parole for multiple state-court crimes. Based upon his plea,
Boyd was sentenced to a term of 10-years imprisonment and sent to the Federal Correctional
Complex in Yazoo City, Mississippi. Further, as a result of his plea, the Kentucky Parole Board
issued a parole-violator warrant and ultimately a writ of detainer against Boyd for breaching the
terms of his parole.
Boyd took issue with the detainer, so on April 25, 2016, he filed a petition seeking habeas
relief under 28 U.S.C. § 2254 in the Western District of Kentucky (hereinafter “Boyd I”). In that
petition, Boyd alleged that the Kentucky Parole Board’s delay in holding a parole-violation
hearing infringed his constitutional rights by: (1) preventing him from participating in federalprison-rehabilitation programs; and (2) prejudicing his ability to defend himself in the parole-
violation hearing. See Def.’s Mot., Ex. 5 [10-5] at 25 (Petition in Boyd I).1 As relief, Boyd
requested either an immediate parole-revocation hearing in state court or, in the alternative, the
dismissal of the writ of detainer. Id. at 22. Significantly, Boyd did not seek habeas relief from
the Federal Bureau of Prisons (“BOP”) regarding the rehabilitation programs.
On December 5, 2016, Boyd filed a second habeas petition , precipitating the instant
case, this time under 28 U.S.C. § 2241 in this Court (hereinafter “Boyd II”). In it, he raised the
same claims as in the § 2254 petition filed in the Kentucky district court. Boyd also requested
the same remedies as those requested in the § 2254 petition: an immediate parole-revocation
hearing in state court or the dismissal of the writ of detainer. See Pet.  at 5.
Thereafter, on March 22, 2017, the Kentucky district court dismissed the § 2254 petition
in Boyd I with prejudice. While the Kentucky district court discussed the possibility of
dismissing the case on procedural grounds, the court nevertheless decided the petition on the
merits, holding that Boyd’s claims raised no constitutional interests. See Def.’s Mot., Ex. 8  at 7 (R&R in Boyd I). 2
Based upon the Kentucky district court’s decision, Magistrate Judge F. Keith Ball
recommended that Boyd’s § 2241 Petition in this Court be dismissed. In the Report and
Recommendation , Judge Ball characterized Boyd’s petition as successive and constituting
an abuse of the writ. He gave the parties until May 15, 2017, to file any objections.
Having received no objections, on May 25, 2017, this Court adopted Judge Ball’s Report
and Recommendation and granted Defendant Warden Nash’s Motion to Dismiss. See Order
Unless otherwise stated, the docket numbers relate to CM/ECF entries in this case.
That Report and Recommendation was initially adopted as unopposed. See Def.’s Mot.,
Ex. 8 [10-8] at 9 (Order adopting R&R in Boyd I). But as in this case, Boyd filed late
objections that the district court considered but rejected on the merits. See Order  at
. A day later, Boyd’s Objection  reached the Court, prompting the Government to
respond  that it was untimely. Boyd thereafter filed two more documents [19, 20]
supplementing his Objection and arguing that the Court should consider it.
Motion to File an Untimely Objection
Boyd says his Objection should be considered timely because there was a disturbance in
the prison mailing system that caused him to receive the Report and Recommendation on May
14, 2017, a mere day before any objections were due. Pet’r’s Aff. [17-1]. More specifically, he
says “[t]he mail delay is do [sic] to phones being thrown over the fence, the [d]rain flooded in
several units, and their [sic] has been a shortage of staff.” Id. at 1.
The Court construes Boyd’s collective submissions as a request to file an untimely
objection. Such relief may be granted to a petitioner after a deadline has passed if the following
considerations do not counsel against it: (1) “the possibility of prejudice to the other parties,” (2)
“the length of the applicant’s delay and its impact on the proceeding,” (3) “the reason for the
delay and whether it was within the control of the movant,” and (4) “whether the movant has
acted in good faith.” Salts v. Epps, 676 F.3d 468, 474 (5th Cir. 2012). Here, Boyd’s explanation
for the alleged delay in receiving the Report and Recommendation sounds fishy, but the Court
will grant the extension primarily because there is no prejudice and the delay is slight.
Objection to Report and Recommendation
Judge Ball concluded that Boyd’s § 2241 Petition in this Court is successive in light of
the § 2254 petition he filed in the Western District of Kentucky in Boyd I. In both petitions,
Boyd argues that his liberty interests are harmed by the Kentucky Parole Board’s delay in acting
upon the writ of detainer. Specifically, Boyd says the almost eight-year delay in bringing his
revocation to a hearing will prejudice his ability to present mitigating evidence at that hearing.
See Def.’s Mot., Ex. 5 [10-5] at 7 (Petition filed in Boyd I); Pet.  at 1. He therefore believes
the State has violated his due-process and equal-protection rights.
Boyd has filed three documents [17, 19, 20] asserting objections to the Report and
Recommendation. His central theme is that the Western District of Kentucky did not decide his
case on the merits and therefore, under Slack v. McDaniel, his Petition here is not successive.
529 U.S. 473 (2000). In Slack, the Court held that a habeas petition “filed after an initial petition
was dismissed without adjudication on the merits for failure to exhaust state remedies is not a
‘second or successive’ petition as that term is understood in the habeas corpus context.” Id. at
478; see also Strickland v. Thaler, 701 F.3d 171, 174 (5th Cir. 2012) (“A § 2254 application filed
after an earlier application that was dismissed without prejudice for failure to exhaust state court
remedies is not a second or successive application.”). The problem for Boyd is that the Report
and Recommendation adopted in the Western District of Kentucky was based on the merits. See
Def.’s Mot., Ex. 8 [10-8] at 7 (R&R in Boyd I). Slack is inapplicable.
Boyd also says his Kentucky petition did not address the equal-protection and proceduralprejudice claims he pursues in this Court. See Objection  at 2. Starting with equal
protection, Boyd apparently believes Kentucky is treating him less favorably than an inmate
named Donte Dixon—though there is no suggestion the two are of different races. Boyd never
uses the words “equal protection” in either petition, but he did mention Dixon’s more favorable
treatment, saying it violated the Fourteenth Amendment. See Def.’s Mot., Ex. 5 [10-5] at 29
(Petition filed in Boyd I); Pet.  at 5. And he expressly referenced “equal protection” in various
post-petition submission in Boyd I. See Def.’s Mot., Ex. 7 [10-7] at 6 (Pe’r’s Traverse response
in Boyd I), Boyd I, Pet’r’s Mot. to Supp.  at 4 (W.D. Ky., Jan. 30, 2017); Boyd I, Objection
 at 4 (W.D. Ky., Feb. 6, 2017). Yet the district court held: “Petitioner’s objections are
without merit in that they do not raise any new or substantial issues that were not otherwise
addressed by the Magistrate Judge.” Boyd I, Order  at 2 (W.D. Ky., Mar. 22, 2017). The
equal-protection claim was raised and considered on the merits in Boyd I.
And as for the prejudice argument, Boyd says in his Boyd II Objection that the delay in
receiving a hearing will make it more difficult to call witnesses and will therefore prejudice his
ability to defend himself. See Objection  at 2. But he said the same thing in the Western
District of Kentucky, see Def.’s Mot., Ex. 5 [10-5] at 8 (Petition in Boyd I). The court there
rejected the argument on the merits. See Def.’s Mot., Ex. 8 [10-8] at 5 (R&R in Boyd I). In fact,
a side-by-side comparison of the two petitions shows that they are materially identical,
substantiating Judge Ball’s recommendation that this case should be dismissed. See Sanders v.
United States, 373 U.S. 1, 12 (1963).
Finally, Boyd’s reliance on In re Cain and Stone v. Powell are likewise unavailing. In
Cain, the Fifth Circuit generally held that a petition is not successive where it raises claims that
could not have been raised in the earlier petitions. 137 F.3d 234, 236 (5th Cir. 1998). Here, the
two petitions are essentially identical and are premised on the same alleged violations. As for
Stone, Boyd apparently relies on the Court’s statement that it “afford[s] broad habeas corpus
relief, recognizing the need in a free society for an additional safeguard against compelling an
innocent man to suffer an unconstitutional loss of liberty.” 28 U.S. 465, 491 n.31 (1976). But
Stone did not address successive petitions and did not condone filing the same petition in two
Boyd also cites Wilkerson v. Nielsen, but that is merely an order denying leave to proceed in
forma pauperis. 529 U.S. 1096 (2000).
Boyd raises a few other points that clearly lack merit and would not change the results of
this Order. Having considered all of Boyd’s arguments, the Court concludes that the Report and
Recommendation was correctly adopted.
For the reasons stated, the Court has considered but overrules Boyd’s Objection. This
case remains dismissed.
SO ORDERED AND ADJUDGED this the 18th day of October, 2017.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE
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