United States District Court, E.D. Kentucky, Northern Division, Ashland
DENNY R. GULLETT, Petitioner,
J.C. STREEVAL, Warden, Respondent.
MEMORANDUM OPINION AND ORDER
R. WILHOIT JR. JUDGE
R. Gullett is an inmate at the Federal Correctional
Institution in Ashland, Kentucky. Proceeding without a
lawyer, Gullett recently filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241. [D. E. No.
1]. For the reasons set forth below, the Court will deny
1994, a jury convicted Gullett of maliciously damaging a
building by means of an explosive, resulting in death. Under
the law in place at the time of sentencing, the district
court had the authority to sentence Gullett to any term of
years; however, it could not impose a life sentence unless
the jury offered such a recommendation. The district court
interpreted this law as placing a limitation on its authority
to impose a sentence that exceeded Gullett's life
expectancy. The district court also took the view that
good-time credits could be considered when imposing
Gullett's sentence. The district court calculated
Gullett's life expectancy and found it to be 33.8 years.
The district court then sentenced Gullett to 38 years in
prison, which, when good-time credits were considered, was
set to result in a period of incarceration of 33.1 years.
filed a direct appeal with the United States Court of Appeals
for the Fourth Circuit, and he argued, among other things,
that his 38-year sentence was illegal because it exceeded his
life expectancy. See United States v. Gullett, 75
F.3d 941, 948-51 (4th Cir. 1996). The Fourth Circuit
determined that "the district court correctly concluded
that it could not impose a sentence that exceeded
Gullett's life expectancy," but it added that the
district court properly considered Gullett's good-time
credits when it imposed its sentence. Id. at 951.
Thus, the Fourth Circuit concluded that the district court
did not exceed statutory limits when it sentenced Gullett to
38 years in prison. Id.
later, Gullett filed a § 2241 petition with this Court,
and he alleged that new vital statistics life tables
indicated that his life expectancy was shorter than
calculated by the trial court judge. See Gullett v.
Holland, No. O.TO-cv-082-HRW (E.D. Ky. 2010). This
Court, however, concluded that Gullett could not raise his
claim in a § 2241 petition, and, thus, it denied his
request for relief. See Id. at D. E. No. 6. Gullett
appealed, but the United States Court of Appeals for the
Sixth Circuit agreed "that Gullett could not bring his
claim under § 2241." Gullett v. Holland,
No. 10-6201 (6th Cir. July 6, 2011). Thus, the Sixth Circuit
affirmed the denial of Gullett's petition. Id.
has now filed another § 2241 petition with this Court.
[D. E. No. 1]. Gullett argues, among other things, that
recent case law "makes it clear that the sentence
imposed upon his conviction is 38 years (not 33.1 years), a
sentence that exceeds his life expectancy . . ., and a
sentence that exceeds the maximum sentence allowed under the
circumstances of his case." [D. E. No. 1 at 5]. Gullett
cites multiple cases to support his petition, including but
not limited to the Sixth Circuit's decision in Hill
v. Masters, 836 F.3d 591 (6th Cir. 2016), as well as the
United States Supreme Court's decisions in Barber v.
Thomas, 560 U.S. 474 (2010), and Pepper v. United
States, 562 U.S. 476 (2011).
petition constitutes another impermissible attack on his
sentence. While a federal prisoner may challenge the legality
of his convictions or 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, Gullett cannot use a § 2241 petition as a way of
challenging his sentence.
nevertheless argues that he can attack his sentence in a
§ 2241 petition. It is true that, in Hill v.
Masters, 836 F.3d 591 (6th Cir. 2016), the Sixth Circuit
indicated for the first time that a prisoner may challenge
his sentence in a § 2241 petition. However, the Sixth
Circuit explained that 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." Hill, 836
F.3d at 595. The Court also explained that its decision
addressed only a narrow subset of § 2241 petitions-those
involving a "subsequent, retroactive change in statutory
interpretation by the Supreme Court [that] reveals that a
previous conviction is not a predicate offense for a
career-offender enhancement." Id. at 600.
circumstances do not apply in this case. That is because
Gullett has not identified a retroactive change in statutory
interpretation by the Supreme Court demonstrating that his
sentence amounts to a miscarriage of justice or fundamental
defect. While Gullett has cited the Supreme Court's
decisions in Barber and Pepper, neither of
those cases involved the kind of subsequent, retroactive
change in statutory interpretation that would make
Gullett's § 2241 petition cognizable. Moreover,
Gullett's case does not involve the kind of
career-offender-sentence- enhancement issue that was at play
in Hill v. Masters. In short, Gullett's §
2241 petition is simply unavailing.
it is ORDERED that:
Gullett's petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2241 [D.E. No. 1] is
action is DISMISSED and