Dowell v. Attorney General et al

Filing 6

MEMORANDUM OPINION & ORDER: Having determined that the savings clause of § 2255(e) is not available to Dowell, the Court must deny his petition for a writ of habeas corpus without prejudice to his right to seek relief in the sentencing court. Signed by Judge Joseph M. Hood on 2/24/2017.(SCD)cc: Pro Se Petitioner via US Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
MILTON DOWELL,

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Petitioner,
V.
FRANCISCO QUINTANA, WARDEN,
Respondent.
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Civil No. 17-71-JMH

MEMORANDUM OPINION and ORDER

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Milton Dowell is a prisoner confined at the Federal Medical
Center in Lexington, Kentucky.

Proceeding without an attorney,

Dowell has filed a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2241 [R. 1].

Dowell has named the United States

Attorney General as the respondent in this proceeding, but the
correct

respondent

is

the

warden

of

the

facility

where

the

petitioner is confined, Rumsfeld v. Padilla, 542 U.S. 426, 435
(2004),

so

the

Court

earlier

substituted

Francisco

Quintana,

Warden of the Federal Medical Center, as the respondent in this
proceeding.

The matter stands submitted for initial screening

pursuant to 28 U.S.C. § 2243.
Dowell was convicted following a jury trial in the United
States District Court for the Northern District of Illinois of two
counts of attempted possession with intent to distribute cocaine.
The district judge sentenced him to 360 months imprisonment as a
1 

career

offender

Guidelines.

under

then

mandatory

Federal

Sentencing

His sentence was affirmed on direct appeal.

The

record pertaining to his case as maintained by the trial court
does not reflect any motion to vacate sentence under 28 U.S.C.
§ 2255 filed by Dowell.
Dowell claims that the two drug convictions used to enhance
his sentence under U.S.S.G. § 4B1.1(a) would no longer qualify as
predicate felony drug offenses.

Citing Hill v. Masters, 836 F.3d

591 (6th Cir. 2016), he asks this Court to depart from the
statutory mandated requirement that prisoners like Dowell who wish
to challenge their sentences must do so in the court which imposed
that sentence.

28 U.S.C. § 2255(a).

In Hill, the Sixth Circuit

decided that the savings clause of § 2255 would permit petitioner
Hill to challenge his sentence via a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241.

Hill, 836 F.3d at 599-600.

But the Court is not bound by the Hill decision as it was contrary
to an earlier published panel decision from the same court.1

Salmi

1

  A published prior panel decision “remains controlling authority
unless an inconsistent decision of the United States Supreme Court
requires modification of the decision or this Court sitting en
banc overrules the prior decision.” 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

2

v. Sec’y of Health and Human Servs., 774 F.2d 685, 689 (6th Cir.
1985).
The touchstone of the Hill decision was that the Supreme Court
in Deschamps v. United States, 133 S.Ct. 2276 (2013), announced a
rule that is both new and retroactive.

Hill, 836 F.3d at 595.

But the Sixth Circuit earlier had said that Deschamps is actually
an old rule.

See United States v. Davis, 751 F.3d 769, 775 (6th

Cir. 2014) (“The Supreme Court in Deschamps explained that it was
not announcing a new rule, but was simply reaffirming an existing
approach.”).

Indeed, in Deschamps itself the Supreme Court never

wrote that it was creating a new rule, let alone a retroactive
one. See Deschamps, 133 S.Ct. at 2283 (“Our caselaw explaining the
categorical

approach

and

its

‘modified”

counterpart

all

but

resolves this case.”).
Having determined that the savings clause of § 2255(e) is not
available to Dowell, the Court must deny his petition for a writ
of habeas corpus without prejudice to his right to seek relief in
the sentencing court.
This the 24th day of February, 2017.

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