United States District Court, E.D. Kentucky, Central Division
MEMORANDUM OPINION & ORDER
M. HOOD SENIOR U.S. DISTRICT JUDGE
George Shropshire, proceeding without an attorney, has filed
a motion to alter or amend the judgment entered in this case
pursuant to Federal Rule of Civil Procedure 59(e). [D.E. 8].
In his motion, Shropshire argues that this Court made a
manifest error of law in concluding that it is not bound by
the decision of the Sixth Circuit Court of Appeals in
Hill v. Masters, 836 F.3d 591 (6th Cir. 2016). [D.E.
8 at p. 1]. Shropshire further argues that this Court's
opinion dismissing his case conflicts with the Sixth
Circuit's recent unpublished decision in Sutton v.
Quintana, No. 16-6534 (6th Cir. July 12, 2017). [D.E. at
may grant relief under Rule 59(e) only to (1) correct a clear
error of law; (2) account for newly discovered evidence; (3)
accommodate an intervening change in controlling law; or (4)
prevent a manifest injustice. American Civil Liberties
Union of Ky. v. McCreary Co., Ky., 607 F.3d 439, 450
(6th Cir. 2010); Besser v. Sepanek, 478 F.App'x
1001, 1001-02 (6th Cir. 2012).
the Court finds that there has been no clear error of law,
nor does the Sixth Circuit's decision in Sutton
change this Court's previous analysis. As an initial
matter, Sutton is an unpublished decision and, as
such, is not binding on this Court. Graiser v.
Visionworks of America, Inc., 819 F.3d 277, 283 (6th
Cir. 2016)(citing TriHealth, Inc. v. Bd. Of Comm'rs,
Hamilton Cty., Ohio, 430 F.3d 783, 789 (6th Cir. 2005)).
See also Scarber v. Palmer, 808 F.3d 1093, 1096 (6th
Cir. 2015)(“Of course, neither dicta nor an unpublished
decision is binding precedent.”)(citations omitted).
importantly, Sutton suffers from the same defect as
Hill, in that it directly contradicts an earlier
published panel decision from the Sixth Circuit Court of
Appeals. In Hill, the Sixth Circuit concluded that,
where the remedy under 28 U.S.C. § 2255 is inadequate or
ineffective, the savings clause § 2255(e) permits a
federal prisoner 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 594, 599-600. However, the Court
also explained that “[w]hen seeking to petition under
§ 2241 based on a misapplied sentence, the petitioner
must show (1) a case of statutory interpretation, (2) that is
retroactive and could not have been invoked in the initial
§ 2255 motion, and (3) that the misapplied sentence
presents an error sufficiently grave to be deemed a
miscarriage of justice or a fundamental defect.”
Id. at 595 (citations omitted)(emphasis added).
this test to Hill's petition, the Court began its
analysis by finding that, in Descamps v. United
States, __ U.S., 133 S.Ct. 2276 (2013), the United
States Supreme Court announced a rule that is new and
retroactive. Id. at 595-96. Only then did the Court
continue its analysis to find that, as Hill met all of the
requirements articulated above (and because he was sentenced
under the mandatory guidelines regime pre-United States
v. Booker, 543 U.S. 220 (2005)),  he would be
authorized to challenge his sentence in a § 2241
petition. Id. at 599-600.
problem is that the linchpin of the Sixth Circuit's
analysis in Hill - that Descamps is new and
retroactive - is directly contradictory to the Sixth
Circuit's prior published decision in United States
v. Davis, 751 F.3d 769, 775 (6th Cir. 2014). In
Davis, the Sixth Circuit noted that the Supreme
Court in Descamps held that the “modified
categorical approach” used to determine the nature of a
defendant's prior convictions for sentencing purposes
applies only to divisible statutes. Davis, 751 F.3d
at 775 (citing Descamps, 133 S.Ct. at 2281). The
Court further explained that “[t]he Supreme Court in
Descamps explained that it was not announcing a new
rule, but was simply reaffirming the
Taylor/Shepard approach, which some courts had
misconstrued.” Id. at 775 (emphasis added).
is clear that 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 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”).
this Court will not depart from its prior conclusion that it
is not bound by the Sixth Circuit's decision in
Hill, therefore the savings clause of § 2255(e)
is not available to Shropshire. If Shropshire is unhappy with
this Court's decision, he is free to appeal this case to
the Sixth Circuit. Indeed, this Court hopes that the Sixth
Circuit will address this matter and clarify the controlling
IT IS ORDERED that:
Shropshire's Rule 59(e) Motion to Alter or Amend the
Judgment [D.E. 8] is DENIED.
 The Court notes that the
Sutton Court did not address the Hill
Court's clear statement that its holding applied only to
prisoners sentenced pre-Booker. In doing so, the
Sutton decision would appear to be opening the
floodgates that the Hill Court sought to keep closed
by emphasizing that the relief in Hill would only be