United States District Court, S.D. Mississippi, Northern Division
P. Jordan III UNITED STATES DISTRICT JUDGE
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
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
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
federal-prison-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). 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.
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.
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 [10-8] at 7 (R&R in
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
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 . 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
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.
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
Objection to Report and Recommendation
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] ...