McCoy v. Kizziah

Filing 28

MEMORANDUM OPINION & ORDER: 1. McCoy's petition for a writ of habeas corpus pursuant to 28:2241 (R. 1 ) is DENIED. 2. This action is DISMISSED and STRICKEN from Court's docket. 3. A corresponding judgment will be entered this date. Signed by Judge Karen K. Caldwell on 10/31/2017. (TDA) cc: McCoy via US Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at PIKEVILLE
REGINALD MCCOY,

Civil Action No. 7:16-247-KKC

Petitioner,
v.

MEMORANDUM OPINION
AND ORDER

GREGORY KIZZIAH, Warden,
Respondent.

*** *** *** ***
Reginald McCoy is a federal prisoner who was recently confined at the United States
Penitentiary – Big Sandy in Inez, Kentucky. Proceeding without a lawyer, McCoy has filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. [R. 1]. For the reasons set forth
below, the Court will deny McCoy’s petition.
In 1990, a federal grand jury indicted McCoy, charging him with conspiracy to possess
with the intent to distribute 50 grams or more of cocaine base and possession with the intent to
distribute 50 grams or more of cocaine base.1 Shortly thereafter, the Government filed a notice
pursuant to 28 U.S.C. § 851 indicating that McCoy had multiple prior felony drug convictions and
thus was subject to a mandatory minimum sentence of life in prison pursuant to 21 U.S.C. § 841.
One year later, a jury convicted McCoy of the charges against him. The trial court then sentenced
McCoy to life in prison.

Since McCoy’s convictions are quite old, this procedural history is drawn from multiple sources, including McCoy’s
petition and attached documents at R. 1, his underlying criminal case at United States v. Reginald McCoy, No. 8:90cr-132-EAK (M.D. Fla. 1991), and the denial of another one of his § 2241 petitions at Reginald McCoy v. Harvey
Lapin, No. 2:11-cv-2177 (W.D. La. 2012).
1

McCoy filed a direct appeal, but the United States Court of Appeals for the Eleventh Circuit
affirmed his convictions and sentence. McCoy then filed multiple motions to vacate his sentence
pursuant to 28 U.S.C. § 2255, but those motions were denied. He also filed several § 2241
petitions, but those too were denied.
McCoy has now filed yet another § 2241 petition. [R. 1]. While McCoy’s numerous
arguments are often difficult to understand, he is clearly challenging the validity of his convictions
and sentence. [R. 1, 9, 11, 12]. McCoy cites numerous cases that he claims support his petition.
McCoy’s § 2241 petition, however, constitutes an impermissible collateral attack on his
convictions and sentence. While a federal prisoner may challenge the legality of his convictions
or sentence through a direct appeal and a § 2255 motion, he generally may not do so in a § 2241
petition. See United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001) (explaining the
distinction between a § 2255 motion and a § 2241 petition). After all, a § 2241 petition is usually
only a vehicle for challenges to actions taken by prison officials that affect the manner in which
the prisoner’s sentence is being carried out, such as computing sentence credits or determining
parole eligibility. See Terrell v. United States, 564 F.3d 442, 447 (6th Cir. 2009). Simply put,
McCoy cannot use a § 2241 petition as a way of challenging his convictions and sentence.
McCoy nevertheless suggests that he can attack his convictions and sentence in his § 2241
petition by mentioning § 2255(e)’s savings clause. But that suggestion is off base. To be sure, the
Sixth Circuit has said that “the so-called ‘savings clause’ . . . provides that if section 2255 is
inadequate or ineffective to test the legality of his detention, . . . then a federal prisoner may also
challenge the validity of his conviction or sentence under § 2241.” Bess v. Walton, 468 F. App’x
588, 589 (6th Cir. 2012) (citations and quotation marks omitted). However, the Sixth Circuit has
further explained that “[i]nvocation of the savings clause is restricted to cases where prisoners can

2

show ‘an intervening change in the law that establishes their actual innocence.’” Id. (quoting
Peterman, 249 F.3d at 462). Then, in subsequent cases, the Sixth Circuit has explained precisely
how a prisoner can rely on an intervening change in the law to establish his actual innocence, see
Wooten v. Cauley, 677 F.3d 303, 307-08 (6th Cir. 2012), or even challenge a sentence
enhancement. See Hill v. Masters, 836 F.3d 591, 599-600 (6th Cir. 2016).
In this case, McCoy has not demonstrated that an intervening change in the law establishes
his actual innocence or that his sentence was somehow improperly enhanced. Instead, McCoy
repeats arguments that this Court has already rejected, see McCoy v. Sepanek, No. 7:16-cv-015ART (E.D. Ky. 2016), and he offers other arguments that are either hard to follow or are otherwise
without merit.
For example, McCoy cites the Supreme Court’s decision in Burrage v. United States, 134
S. Ct. 881, 892 (2014), which held that “at least where the use of the drug distributed by the
defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a
defendant cannot be liable under the penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C)
unless such use is a but-for cause of the death or injury.” However, it does not appear from
McCoy’s petition or the record in his underlying criminal case that he was ever actually held liable
under the penalty enhancement provision of § 841(b)(1)(C). Rather, the documents attached to
McCoy’s petition indicate that the trial court determined that he had multiple prior convictions for
felony drug offenses and thus was subject to a mandatory minimum sentence of life in prison
pursuant to a § 841(b)(1)(A). See R. 1-3 at 5-9; see also McCoy v. Lapin, No. 2:11-cv-2177 (W.D.
La. November 13, 2012) (recognizing that McCoy was sentenced to life in prison “based on the
underlying charges and sentencing enhancements for prior drug convictions pursuant to 21 U.S.C.
§ 841.”). Thus, McCoy’s Burrage claim is without merit.

3

McCoy’s reliance on Descamps v. United States, 133 S. Ct. 2276 (2013), and Mathis v.
United States, 136 S. Ct. 2243 (2016), is also unavailing. After all, those cases discuss the
approach courts should use to determine whether a prior conviction constitutes a violent felony for
purposes of the Armed Career Criminal Act and, here, the trial court enhanced McCoy’s sentence
pursuant to § 841(b)(1)(A), a different statute with broader language. See Jose Adrian Hernandez
v. J. Ray Ormond, No. 6:17-cv-081-DLB (E.D. Ky. September 18, 2017) (explaining that the
analysis described in Mathis is not applicable to enhancements pursuant to § 841(b)(1)(A)’s broad
language). In short, McCoy has not explained in any clear way how Descamps and Mathis
represent intervening changes in the law that establish that his sentence was improperly enhanced.
Finally, while McCoy makes several other arguments, none of his claims appear to meet
the requirements set forth in either Wooten or Hill. Thus, McCoy’s § 2241 petition is an
impermissible collateral attack on his convictions and sentence.
Accordingly, it is hereby ORDERED as follows:
1. McCoy’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 [R. 1] is
DENIED.
2. This action is DISMISSED and STRICKEN from the Court’s docket.
3. A corresponding judgment will be entered this date.
Dated October 31, 2017.

4