Doctor v. Mansukhani

Filing 19

ORDER re 8 REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus filed by Frankie L Doctor. The court wishes to receive a response from the defendant to the Report and Recommendation. The government is requested to file a response within 30 days of the date of this order. Signed by Honorable Joseph F. Anderson, Jr. on 7/23/2014. (gmil)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Frankie L. Doctor,

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Petitioner,
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v.
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Warden Mansukhani,
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Respondent.
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______________________________________ )

C/A No. 0:14-425-JFA-PJG

ORDER

The pro se petitioner, Frankie L. Doctor, is a federal inmate housed at the Federal
Correctional Institution (FCI) in Estill, South Carolina. He brings this action under
28 U.S.C. § 2241 challenging his federal sentence imposed by the this court in August 2006.
Specifically, petitioner claims actual innocence of the Armed Career Criminal Act (ACCA),
18 U.S.C. § 924(e), contending his former conviction for assault and battery of a high and
aggravated nature (ABHAN) does not qualify as a predicate offense under the ACCA.
Petitioner cites to United States v. Hemingway, 734 F.3d 323 (4th Cir. 2013) wherein the
Fourth Circuit found that the South Carolina crime of ABHAN is not a categorically violent
felony under the ACCA. Petitioner seeks resentencing without the ACCA enhancement.
The petitioner went to trial in the United States District Court for the District of South
Carolina and was found guilty of being a felon in possession of a firearm. He was sentenced
on April 20, 2006 to 260 months imprisonment. He filed an unsuccessful direct appeal of
his sentence. On January 10, 2013, this court denied the motion of petitioner to vacate his

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sentence pursuant to 28 U.S.C. § 2255 as untimely.
The petitioner now asks this court to resentence him without the career offender
designation, contending that he is actually innocent of his sentence enhancement pursuant
to the ACCA.
The Magistrate Judge assigned to this action1 has prepared a thorough Report and
Recommendation and opines that the petitioner’s § 2241 motion should be summarily
dismissed. The Report sets forth in detail the relevant facts and standards of law on this
matter, and the court incorporates such without a recitation.
The petitioner was advised of his right to file objections to the Magistrate Judge’s
Report and Recommendation and he has timely done so. Petitioner contends that from
sentencing through his direct appeal and first § 2255 motion, the circuit has foreclosed any
challenges to the use of ABHAN as being a violent felony for the purpose of ACCA.
Petitioner further argues that Deschamps v. United States, 133 S.Ct. 2276 (2013) sets forth
a new standard to evaluate which crimes set forth a new standard to evaluate violent felonies.
He also argues that in light of the recent Fourth Circuit case of Whiteside v. United States,
No. 13-7152, that he should be permitted to file this § 2241.

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The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil
Rule 73.02. The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight, and the responsibility to make a final determination remains with the court. Mathews
v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions
of the Report and Recommendation to which specific objection is made, and the court may accept, reject,
or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the
Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1).

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The Magistrate Judge reviewed the § 2241 claims in light of the three-part test set out
in In re Jones, 226 F.3d 328, 333 (4th Cir. 2000). A petition attacking the validity of a
sentence should normally be brought under 28 U.S.C. § 2255. Because the petitioner has
already filed one § 2255 petition, a second or successive petition is prohibited unless he can
obtain certification from the Fourth Circuit Court of Appeals, which he has not done.
In light of the recent case of Whiteside, the court wishes to receive a response from
the defendant to the Report and Recommendation. Accordingly, the government is requested
to file a response within 30 days of the date of this order.
IT IS SO ORDERED.

July 23, 2014
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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