Harrington v. Ormond

Filing 3

MEMORANDUM OPINION & ORDER: 1. Harrington's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. # 1 ) is DENIED; 2. This action is DISMISSED and STRICKEN from the Court's docket; and 3. A corresponding Judgment shall be entered this date. Case Terminated. Signed by Judge David L. Bunning on 9/12/2017.(RBB)cc: COR, paper copy to Kurt Harrington, via US Mail.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT LONDON
CIVIL ACTION NO. 17-199-DLB
KURT HARRINGTON
VS.

PETITIONER
MEMORANDUM OPINION AND ORDER

J. RAY ORMOND, WARDEN

RESPONDENT
*** *** *** ***

In 2014, inmate Kurt Harrington filed a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. In that petition, Harrington argued that his federal sentence
was improperly enhanced in light of the Supreme Court’s decision in Burrage v. United
States, 134 S. Ct. 881 (2014). This Court analyzed Harrington’s claim and determined
that it could not be brought in a § 2241 petition because “the Supreme Court has not
expressly held that its holding in Burrage is retroactively applicable to cases on collateral
review.” Harrington v. Holland, No. 6:14-cv-192-DLB (E.D. Ky. May 4, 2015) at Doc. #10.
The Court also added that “several recent cases have noted that the Burrage decision
has never been held to be retroactively applicable to such cases.” Id. Thus, the Court
denied Harrington’s § 2241 petition. See id. Harrington did not appeal that decision.
Now, two years later, Harrington has filed another § 2241 petition with this Court.
(Doc. # 1). In Harrington’s latest petition, he repeats his Burrage claim and suggests that,
since the Court issued its last decision, a few federal circuit courts outside of the Sixth
Circuit have determined that Burrage is retroactively applicable to cases on collateral
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review. (Doc. # 1 at 5-6). While that may be true, as another federal district court has
recently pointed out, neither the Supreme Court nor the Sixth Circuit has yet indicated
that Burrage is retroactive to cases on collateral review. See Love v. Terris, No. 2:17-cv11913, 2017 WL 3412098, *3 (E.D. Mich. 2017). At this time, “[i]n the absence of any
clear language by the Supreme Court or the Sixth Circuit that Burrage is retroactive to
cases on collateral review, petitioner cannot raise such a claim in his § 2241 petition.” Id.
Furthermore, the only current authority in the Sixth Circuit that would allow
Harrington to challenge his sentence enhancement in a § 2241 petition is Hill v. Masters,
836 F.3d 591 (6th Cir. 2016). In that case, the Sixth Circuit indicated that such challenges
can only be brought by “prisoners who were sentenced under the mandatory guidelines
regime pre-United States v. Booker, 543 U.S. 220 . . . (2005).” Hill, 836 F.3d at 599.
Since the trial court sentenced Harrington in 2010, well after the Supreme Court decided
Booker, his case does not fit within Hill’s very narrow confines. Therefore, under current
case law, Harrington’s claim is not cognizable under § 2241. Accordingly,
IT IS ORDERED that:
1. Harrington’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241
(Doc. # 1) is DENIED;
2. This action is DISMISSED and STRICKEN from the Court’s docket; and
3. A corresponding Judgment shall be entered this date.

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This 12th day of September, 2017.

K:\DATA\ORDERS\ProSe\Harrington 17-199-DLB Memorandum CDS.docx

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