United States District Court, E.D. Kentucky, Southern Division, Pikeville
MEMORANDUM OPINION & ORDER
K. CALDWELL, CHIEF JUDGE
Billy Joe Scott is a prisoner confined at the United States
Penitentiary-Big Sandy (“USP-Big Sandy”) in Inez,
Kentucky. Proceeding without an attorney, Scott has filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241 [R. 1] and a motion to waive payment of the $5.00
filing fee. [R. 3]
the documents filed by Scott indicate that his current inmate
trust account balance is $157.54. [R. 4] Because federal
taxpayers pay Scott's living essentials, he has
sufficient funds to pay the $5.00 filing fee. The Court will
deny Scott's fee motion, and he must pay the $5.00 filing
fee within 21 days. Because the filing fee is incurred when
the petition is filed, and because Scott claims that the
funds in his inmate account are “frozen, ” the
Court will direct the Bureau of Prisons (“BOP”)
to deduct the five dollar filing fee from funds in
Scott's inmate account to satisfy that financial
to Scott's § 2241 petition, in May 2011, a federal
grand jury in the Eastern District of North Carolina issued
an indictment charging Scott with: (1) being a felon in
possession of a firearm, in violation of 18 U.S.C. §
922(g)(1) (count 1); (2) robbery of a business in interstate
commerce, in violation of 18 U.S.C. § 1951 (counts 2, 3,
4, and 5); and (3) using and carrying a firearm during and in
relation to a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii) (counts 6, 7, 8, and 9). In September
2011, pursuant to a plea agreement, Scott pleaded guilty to
counts six and seven, using and carrying a firearm during and
in relation to a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii). The remaining counts against Scott
were dismissed. On January 11, 2012, the court held a
sentencing hearing and calculated Scott's advisory
guideline range to be 384 months based on the statutory
minimum sentence. The court sentenced Scott to a term of
imprisonment of 384 months. Scott did not appeal his
conviction or sentence.
January 2013, Scott filed a pro se motion to vacate his
sentence pursuant to 28 U.S.C. § 2255 asserting that he
unintelligently and unknowingly waived his right to appeal
based on his attorney's ineffective assistance of
counsel. Scott's motion was denied in August 2013.
2016, Scott (represented by counsel) filed a second or
successive motion to vacate his sentence pursuant to 28
U.S.C. § 2255, seeking relief under Johnson v.
United States, 135 S.Ct. 2551 (2015) and Welch v.
United States 136 S.Ct. 1257 (2016). In July 2016, the
Fourth Circuit Court of Appeals issued an order finding that
Scott made a prima facie showing that the new rule of
constitutional law announced in Johnson may apply to
his case and, accordingly, granted authorization for Scott to
file a second or successive § 2255 motion. Although the
district court initially ordered the government to respond to
Scott's motion, in February 2017, the court granted the
government's motion to hold the matter in abeyance
pending the decision of the United States Supreme Court in
Lynch v. Dimaya, No. 15-1498 (S.Ct. 2017). Thus,
although the matter is currently in abeyance, Scott's
second or successive § 2255 motion remains pending as of
this writing. United States v. Scott, No.
5:11-cr-128-D-1 (E.D. N.C. 2011).
his pending § 2255 motion, Scott has filed a § 2241
petition in this Court seeking relief from his conviction and
sentence on the grounds that he is “actually
innocent” of brandishing a firearm in furtherance of a
crime of violence in violation 18 U.S.C. §
924(c)(1)(A)(ii). [R. 1-1 at p. 1] In his petition, Scott
argues that, because he was not punished for any crime of
violence in addition to his present sentence, he does not fit
within the statutory scope of § 924(c)(1)(A)(ii).
the proper mechanism for a federal prisoner to challenge his
or her conviction or sentence is through a motion to vacate
filed pursuant to 28 U.S.C. § 2255. Terrell v.
United States, 564 F.3d 442, 447 (6th Cir. 2009). A
habeas corpus petition under 28 U.S.C. § 2241 may only
be used to challenge a federal conviction under very narrow
circumstances where the remedy provided by § 2255 is
structurally inadequate. Martin v. Perez, 319 F.3d
799, 804 (6th Cir. 2003). Scott is currently challenging his
convictions through a motion for relief under Section 2255,
rendering a petition under § 2241 premature. Smith
v. United States, 89 F.3d 835 (6th Cir. 1996);
United States v. Robinson, 8 F.3d 398, 405 (7th Cir.
1993). Scott must first fully litigate his § 2255 motion
before he may even attempt to seek relief from this Court
pursuant to § 2241. See White v. Grondolsky,
No. 6:06-cv-309-DCR, 2006 WL 2385358, *3 (E.D. Ky. 2006)
(“[T]he Petitioner must first pursue his trial court
remedy under § 2255 before he may seek relief under
§ 2241.”). Thus, Scott's § 2241 petition
will be denied.
IT IS ORDERED as follows:
1. Scott's motion to waive payment of the $5.00 filing
fee [R. 3] is DENIED.
2. The Clerk of the Court shall send a copy of this Order to
the warden of the institution in which Scott is currently
3. Scott's custodian shall send the Clerk of the Court
payment of the $5.00 filing fee from funds in Scott's
inmate trust fund account, so long as the amount in the
account exceeds $10.00.
4. Scott's petition for a writ of habeas corpus [R. 1] is
5. The Court will enter a judgment contemporaneously with