Shropshire v. Quintana

Filing 9

MEMORANDUM OPINION & ORDER: IT IS ORDERED that 8 MOTION to Alter Judgment by George Shropshire is DENIED. Signed by Judge Joseph M. Hood on 8/2/2017.(GLD)cc: COR, Pro se petitioner

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON

GEORGE SHROPSHIRE,
Petitioner,
V.
FRANCISCO QUINTANA, Warden.

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Civil No. 5:17-26-JMH

MEMORANDUM OPINION
& ORDER

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Petitioner George Shropshire, proceeding without an attorney,
has filed a motion to alter or amend the judgment entered in this
case pursuant to Federal Rule of Civil Procedure 59(e).

[D.E. 8].

In his motion, Shropshire argues that this Court made a manifest
error of law in concluding that it is not bound by the decision of
the Sixth Circuit Court of Appeals in Hill v. Masters, 836 F.3d
591 (6th Cir. 2016).

[D.E. 8 at p. 1].

Shropshire further argues

that this Court’s opinion dismissing his case conflicts with the
Sixth Circuit’s recent unpublished decision in Sutton v. Quintana,
No. 16-6534 (6th Cir. July 12, 2017).

[D.E. at p. 1-2].

A court may grant relief under Rule 59(e) only to (1) correct
a clear error of law; (2) account for newly discovered evidence;
(3) accommodate an intervening change in controlling law; or (4)
prevent a manifest injustice.

American Civil Liberties Union of

Ky. v. McCreary Co., Ky., 607 F.3d 439, 450 (6th Cir. 2010); Besser
v. Sepanek, 478 F. App’x 1001, 1001-02 (6th Cir. 2012).

Here, the Court finds that there has been no clear error of
law, nor does the Sixth Circuit’s decision in Sutton change this
Court’s previous analysis.

As an initial matter, Sutton is an

unpublished decision and, as such, is not binding on this Court.
Graiser v. Visionworks of America, Inc., 819 F.3d 277, 283 (6th
Cir. 2016)(citing TriHealth, Inc. v. Bd. Of Comm’rs, Hamilton Cty.,
Ohio, 430 F.3d 783, 789 (6th Cir. 2005)).

See also Scarber v.

Palmer, 808 F.3d 1093, 1096 (6th Cir. 2015)(“Of course, neither
dicta

nor

an

unpublished

decision

is

binding

precedent.”)(citations omitted).
More importantly, Sutton suffers from the same defect as Hill,
in that it directly contradicts an earlier published panel decision
from the Sixth Circuit Court of Appeals.

In Hill, the Sixth

Circuit concluded that, where the remedy under 28 U.S.C. § 2255 is
inadequate or ineffective, the savings clause § 2255(e) permits a
federal prisoner to challenge his sentence via a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241.
F.3d at 594, 599-600.

Hill, 836

However, the Court also explained that

“[w]hen seeking to petition under § 2241 based on a misapplied
sentence,

the

petitioner

must

show

(1)

a

case

of

statutory

interpretation, (2) that is retroactive and could not have been
invoked in the initial § 2255 motion, and (3) that the misapplied
sentence presents an error sufficiently grave to be deemed a
2 

miscarriage of justice or a fundamental defect.”

Id. at 595

(citations omitted)(emphasis added).
Applying this test to Hill’s petition, the Court began its
analysis by finding that, in Descamps v. United States, __ U.S.
___, 133 S.Ct. 2276 (2013), the United States Supreme Court
announced a rule that is new and retroactive.

Id. at 595-96.

Only

then did the Court continue its analysis to find that, as Hill met
all of the requirements articulated above (and because he was
sentenced under the mandatory guidelines regime pre-United States
v. Booker, 543 U.S. 220 (2005)),1 he would be authorized to
challenge his sentence in a § 2241 petition.

Id. at 599-600.

The problem is that the linchpin of the Sixth Circuit’s
analysis in Hill – that Descamps is new and retroactive – is
directly contradictory to the Sixth Circuit’s prior published
decision in United States v. Davis, 751 F.3d 769, 775 (6th Cir.
2014).

In Davis, the Sixth Circuit noted that the Supreme Court

in Descamps held that the “modified categorical approach” used to
determine

the

nature

of

a

defendant’s

prior

convictions

for

1

The Court notes that the Sutton Court did not address the Hill
Court’s clear statement that its holding applied only to prisoners
sentenced pre-Booker.
In doing so, the Sutton decision would
appear to be opening the floodgates that the Hill Court sought to
keep closed by emphasizing that the relief in Hill would only be
available to a very limited subset of § 2241 petitions.
Hill,
F.3d at 599-600.
3 

sentencing purposes applies only to divisible statutes.
751 F.3d at 775 (citing Descamps, 133 S.Ct. at 2281).

Davis,

The Court

further explained that “[t]he Supreme Court in Descamps explained
that it was not announcing a new rule, but was simply reaffirming
the Taylor/Shepard2 approach, which some courts had misconstrued.”
Id. at 775 (emphasis added).
The law is clear that a published prior panel decision
“remains controlling authority unless an inconsistent decision of
the United States Supreme Court requires modification of the
decision

or

decision.”

this

Court

sitting

en

banc

overrules

the

prior

Rutherford v. Columbia Gas, 575 F.3d 616, 619 (6th

Cir. 2009)(quoting Salmi v. Sec'y of Health & Human Servs., 774
F.2d 685, 689 (6th Cir. 1985)). See also United States v. Ritchey,
840 F.3d 310, 316 (6th Cir. 2016)(quoting Susan B. Anthony List v.
Driehaus, 814 F.3d 466, 471 (6th Cir. 2016))(explaining that a
prior published decision binds a later panel of the United States
Court of Appeals for the Sixth Circuit "unless it is overturned by
the Supreme Court or overruled en banc, but departure is also
warranted if 'an inconsistent [ruling] of the United States Supreme
Court requires modification of the decision.’”); 6 Cir. R. 32.1(b)

2

Taylor v. United States, 495 U.S. 575, 602 (1990); Shepard v.
United States, 544 U.S. 13, 26 (2005).

4 

(“Published panel opinions are binding on later panels. A published
opinion is overruled only by the court en banc.”).
Accordingly,

this

Court

will

not

depart

from

its

prior

conclusion that it is not bound by the Sixth Circuit’s decision in
Hill, therefore the savings clause of § 2255(e) is not available
to

Shropshire.

If

Shropshire

is

unhappy

with

this

Court’s

decision, he is free to appeal this case to the Sixth Circuit.
Indeed, this Court hopes that the Sixth Circuit will address this
matter and clarify the controlling case law.
Accordingly, IT IS ORDERED that:
1.

Shropshire’s Rule 59(e) Motion to Alter or Amend the

Judgment [D.E. 8] is DENIED.
This 2nd day of August, 2017.

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