United States District Court, E.D. Kentucky, Southern Division, London
March 31, 2015
UNITED STATES OF AMERICA, Plaintiff,
BOBBY JOE CURRY, Defendant.
DANNY C. REEVES, District Judge.
This matter is pending for consideration of Defendant Bobby Joe Curry's Motion for Relief Under 28 U.S.C. § 2241. [Record No. 547] In this motion, Curry summarily argues that the Court should consider the savings clause of § 2241 to grant the relief sought because he is "actually innocent" of causing the death of Stacey Harris under Burrage v. United States, 134 S.Ct. 881, 187 L.Ed.2d 715 (2014). According to Curry, because the United States did not prove that the drugs he provided to Harris actually caused her death, Burrage provides relief not previously available. While Curry's assertions are factually erroneous, the Court need not address the substance of this claim.
Curry does not assert that he is factually innocent of the underlying drug offense for which he entered a guilty plea. As outlined in the Order entered February 24, 2015 [Record No. 541], a defendant may not seek collateral relief under 28 U.S.C. § 2241 under Burrage when his challenge relates to a sentencing enhancement. De La Cruz v. Quintana, 2014 U.S.App. LEXIS 21847 (6th Cir. Oct. 27, 2014); see also Jones v. Castillo, 489 F.Appx. 864, 866 (6th Cir. 2012) ("Claims alleging actual innocence' of a sentencing enhancement cannot be raised under § 2241."). Moreover, there is no indication that the Supreme Court's holding in Burrage has been applied retroactively to cases on collateral review. Thus, a claim of "actual innocence" is not available under 28 U.S.C. § 2241 because Curry's claim is not based on a new rule of law made retroactive by the Supreme Court. Townsend v. Davis, 83 F.Appx. 728, 729 (6th Cir. 2003). Accordingly, it is hereby
ORDERED that Defendant Bobby Joe Curry's Motion for Relief Under 28 U.S.C. § 2241[Record No. 547] is DENIED. Likewise, his accompanying request for appointment of counsel is denied for the reasons outlined in earlier orders. Again, the Court notes that Curry has not shown that exceptional circumstances exist justifying appointment of counsel.