Elliott v. Kizziah

Filing 3

MEMORANDUM OPINION & ORDER: 1. Elliotts petition for a writ of habeas corpus R. 1 is DENIED. 2. This action is DISMISSED and STRICKEN from the Courts docket. 3. A corresponding judgment will be entered this date. Signed by Judge Karen K. Caldwell on 8/30/17.(MJY) cc: COR, Elliott via US Mail.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at PIKEVILLE
LERONDRICK ELLIOTT,
Petitioner,

Civil Action No. 7:17-128-KKC

v.
GREGORY KIZZIAH, Warden,

MEMORANDUM OPINION
AND ORDER

Respondent.

*** *** *** ***
LeRondrick Elliott is a federal prisoner confined at the United States Penitentiary – Big
Sandy in Inez, Kentucky. Proceeding without a lawyer, Elliott 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 Elliott’s petition.
In 2012, Elliott pled guilty to being a felon possession of a firearm in violation of 18 U.S.C.
§ 922(g) and passing counterfeit currency with the intent to defraud in violation of 18 U.S.C. §
472.1 The maximum sentence for violating § 922(g) is usually 10 years in prison, see 18 U.S.C. §
924(a)(2). However, the United States District Court for the Western District of Kentucky
determined that Elliott had at least three previous convictions for either a violent felony or a serious
drug offense that were committed on occasions different from one another. As a result, Elliott was
subject to a mandatory minimum sentence of 15 years in prison pursuant to the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e). Ultimately, the district court sentenced Elliott to that
mandatory minimum of 15 years in prison.

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The procedural history is found at United States v. LeRondrick Elliott, No. 3:11-cr-017 (W.D. Ky. 2013).

Elliott challenged his sentence on direct appeal, arguing that the district court erred in
treating one of his prior convictions as a violent felony under the ACCA. The United States Court
of Appeals for the Sixth Circuit first reviewed Descamps v. United States, 133 S. Ct. 2276 (2013),
which discussed the approach courts should use to determine whether a prior conviction constitutes
a violent felony for purposes of the ACCA. The court then analyzed Elliott’s prior conviction and
determined that it was, indeed, a violent felony. Thus, the Sixth Circuit affirmed Elliott’s sentence.
Elliott then filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, but the district court
denied that motion. The Sixth Circuit also denied Elliott a Certificate of Appealability and his
later request to file a second or successive § 2255 motion.
Elliott has now filed a § 2241 petition with this Court. [R. 1]. Although Elliott’s petition
is difficult to understand, he appears to be arguing once again that he did not have enough predicate
offenses to qualify for an enhanced sentence under the ACCA. [R. 1 at 6-8]. Elliott therefore
“requests to have [his] sentence and ACCA enhancement vacated.” [R. 1 at 8].
Elliott’s § 2241 petition, however, constitutes an impermissible collateral attack on his
sentence. While a federal prisoner may challenge the legality of his 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, Elliott cannot use a § 2241 petition as a
way of challenging his sentence.

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Elliott nevertheless suggests that he can attack his sentence in a § 2241 petition, and he
cites the Sixth Circuit’s recent decision in Hill v. Masters, 836 F.3d 591 (6th Cir. 2016), to support
his position. [R. 1 at 2, 7]. It is true that, in Hill, the Sixth Circuit indicated that a prisoner may
challenge his sentence in a § 2241 petition if he can show, among other things, that “a subsequent,
retroactive change in statutory interpretation by the Supreme Court reveals that a previous
conviction is not a predicate offense for a career-offender enhancement.” Hill, 836 F.3d at 599.
But the court expressly limited its decision to “prisoners who were sentenced under the mandatory
guidelines regime pre-United States v. Booker, 543 U.S. 220 . . . (2005),” see Hill, 836 F.3d at 599,
and Elliott was sentenced in 2013—well after the Supreme Court decided Booker. And, in any
event, as this Court has recently explained, the crux of the Hill decision—that Descamps is a case
of statutory interpretation that is new and retroactive—is contrary to an earlier published panel
decision from the same court and, thus, is not binding on this Court. See Muir v. Quintana, No.
5:17-327-DCR (E.D. Ky. August 17, 2017). In short, Elliott’s reliance on Hill is unavailing.
That said, even if Elliott is correct that Hill permits him to once again attack his sentence
enhancement, the fact remains that the Sixth Circuit has already decided this issue. Indeed, in
dismissing Elliott’s direct appeal, the Sixth Circuit thoroughly discussed Descamps, analyzed his
prior conviction at issue, and concluded that his sentence was properly enhanced under the ACCA.
See United States v. LeRondrick Elliott, No. 13-5427 (6th Cir. 2014). Simply put, this matter has
been resolved.
Finally, there is no merit to Elliott’s suggestion that Mathis v. United States, 136 S. Ct.
2243 (2016), created a new and retroactive rule of law that somehow changes the result in his case.
After all, the Supreme Court gave no indication in Mathis that it was announcing a new rule of
law, let alone intended for that rule to be applied retroactively to cases on collateral review. If
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anything, the Court made it clear that the opposite was true, saying that it’s “precedents made this
a straightforward case” and adding that the result was dictated by “more than 25 years” of Supreme
Court case law. Mathis, 136 S. Ct. at 2257. Thus, Mathis is of no help to Elliott.
Accordingly, it is hereby ORDERED as follows:
1. Elliott’s petition for a writ of habeas corpus [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 August 30, 2017.

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