UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION at LONDON

ROBERT JACOB KESTER, ) ) Petitioner, ) Civil No. ) 6:19-cv-298-JMH v. ) ) J.A. BARNHART, Warden, ) ) MEMORANDUM OPINION Respondent. ) AND ORDER

*** *** *** *** Robert Jacob Kester is an inmate at the Federal Correctional Institution in Manchester, Kentucky. Proceeding without a lawyer, Kester filed a petition for a writ of habeas corpus pursuant to

. [DE 1]. The Respondent then filed a response to Kester’s petition [DE 10], and Kester has filed a reply brief [DEs 12, 13]. Thus, this matter is ripe for a decision from this Court. For the reasons set forth below, the Court will deny Kester’s petition. In 2012, a federal grand jury indicted Kester, charging him with being a felon in possession of a firearm. See United States v. Robert Kester, No. 3:12-cr-022, at DE 1 (S.D. Ind. 2012). Kester eventually pled guilty to the charge, and the United States District Court for the Southern District of Indiana sentenced him to 109 months and 21 days in prison. See

at DEs 22, 31. The court later amended its judgment to make it clear that its sentence was to run concurrent with a sentence imposed in state court. See

at DE 38 at 2. Kester did not appeal, and he did not file a motion to vacate his sentence pursuant to

. That said, Kester has filed multiple motions asking the Southern District of Indiana to further amend his sentence, and some of those motions remain pending. See

at DEs 41 and 42 (denied);

DEs 51 and 54 (pending). Nevertheless, Kester has now filed a § 2241 petition with this Court. [DE 1]. As an initial matter, Kester’s arguments regarding his sentence are very difficult to follow. [See id.]. That said, Kester repeatedly cites § 5G1.3 of the United States Sentencing Guidelines and claims that the Southern District of Indiana’s sentence runs afoul of that provision. [Id.]. Indeed, at one point, Kester summarizes his claims by discussing § 5G1.3 and saying, “Errors were made during my sentencing. I can’t get my District Court to see and correct these errors. So now I ask this Court to please help me.” [DE 1-1 at 13]. Kester’s § 2241 petition, however, constitutes an

impermissible collateral attack on his underlying sentence. Although a federal prisoner may challenge the legality of his sentence on direct appeal and in a § 2255 motion, he generally may not do so in a § 2241 petition. See United States v. Peterman,

(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 way the prisoner’s sentence is being carried out. See Terrell v. United States,

(6th Cir. 2009). Simply put, Kester cannot use a § 2241 petition as a way of challenging the sentence imposed by the Southern District of Indiana.

To be sure, there is a limited exception under which federal prisoners have been permitted to challenge the validity of their sentences in a § 2241 petition. However, 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 shows that his sentence was improperly enhanced. See Hill v. Masters,

(6th Cir. 2016). In this case, Kester has not made such a showing. Instead, Kester claims that the Southern District of Indiana ran afoul of U.S.S.G. § 5G1.3 when it imposed his sentence. However, the Sixth Circuit has clearly stated that a prisoner cannot raise this type of claim in a § 2241 petition “because the claim

constitutes a challenge to the imposition of his sentence, and not the execution of his sentence.” Apotosky v. Merlak, No. 17-3283,

, *3 (6th Cir. Jan. 2, 2018). In short, as the Sixth Circuit has said, “§ 2255, not § 2241, is the proper vehicle by which [the prisoner] should raise his § 5G1.3 claim.” Id. Accordingly, it is ORDERED that: (1) Kester’s petition for a writ of habeas corpus pursuant to

[DE 1] is DENIED; (2) All pending motions are DENIED as moot; (3) This action is DISMISSED and STRICKEN from the Court’s docket; and (4) A corresponding Judgment will be entered this date. This 2nd day of March, 2020.

GEE) ocean m. Hood oye ‘Se = Senior U.S. District Judge