United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
Gregory F Van Tatenhove United States District Judge
Allen Kerr is an inmate at the United States Penitentiary -
McCreary in Pine Knot, Kentucky. Proceeding without a lawyer,
Kerr 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 Kerr's petition.
2010, a jury convicted Kerr of being a felon in possession of
a firearm, and the trial court sentenced him to 268 months in
prison. See United States v. Kerr, No.
1:09-cr-290-NCT-1 (M.D. N.C. 2010). Kerr filed a direct
appeal, and his case was remanded for resentencing, but the
trial court imposed the same sentence on remand. See
Id. at R. 75, R. 108. Kerr then filed another direct
appeal, but the United States Court of Appeals for the Fourth
Circuit affirmed the judgment of the district court. See
United States v. Kerr, 737 F.3d 33 (4th Cir. 2013).
moved to vacate his sentence pursuant to 28 U.S.C. §
2255 and argued, among other things, that the jury actually
found him not guilty of being a felon in possession
of a firearm, as evidenced by the trial transcript. The trial
court, however, addressed Kerr's argument at length and
denied his motion. See United States v. Kerr, No.
1:09-cr-290-NCT-1 at R. 171, R. 188 (M.D. N.C. 2017). Kerr
appealed the trial court's decision, but the Fourth
Circuit denied him a certificate of appealability and
dismissed his appeal. Id. at R. 198.
has now filed a § 2241 petition with this Court. [R. 1.]
While Kerr's petition is difficult to follow, he appears
to be making numerous arguments related to his
previously-litigated claim that the jury actually found him
not guilty of the charge against him. Kerr cites
numerous Supreme Court and federal circuit court cases to
support his petition, and he asks this Court to “vacate
[his] sentence and dismiss [the] indictment” against
him. [R. 1 at 31.] Kerr also asks the Court to appoint him a
lawyer to represent him in this case. [R. 4.]
initial matter, the Court will deny Kerr's request for
the appointment of counsel. Kerr does not have a
constitutional right to counsel in this civil case, and this
matter does not present the kind of exceptional circumstances
that would otherwise justify the appointment of counsel.
See Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir.
Court also will deny Kerr's § 2241 petition because
it constitutes an impermissible collateral attack on his
underlying conviction and sentence. While Kerr could and did
challenge the legality of his conviction and sentence on
direct appeal and in his § 2255 motion, he cannot do so
now in his § 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, Kerr cannot use a § 2241 petition as a way of
challenging his underlying conviction and sentence.
sure, there are limited exceptions under which federal
prisoners have been permitted to challenge the validity of
their convictions or sentences in a § 2241 petition. But
the United States Court of Appeals for the Sixth Circuit has
explained that a prisoner can only proceed in this manner if
he can demonstrate that an intervening change in statutory
law establishes his actual innocence, see Wooten v.
Cauley, 677 F.3d 303, 307-08 (6th Cir. 2012), or shows
that his sentence was improperly enhanced, see Hill v.
Masters, 836 F.3d 591, 599-600 (6th Cir. 2016). Here,
while Kerr has cited and discussed multiple cases, he has not
clearly identified an intervening change in statutory law
that is relevant to his case. Thus, the principles set forth
in Wooten and Hill are simply not
applicable to Kerr's petition.
it is ORDERED that:
Clerk of the Court shall SUBSTITUTE Warden
J. Ray Ormond for the United States of America as the
Respondent in this proceeding.
Kerr's motion for the appointment of counsel [R.
4] is DENIED.
Kerr's petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241 [R. 1] is
other pending motions are DENIED as moot.
action is DISMISSED and