Millis v. Cross

Filing 10

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson, denying 6 MOTION to Disqualify Judge filed by Michael Lee Millis, 4 MOTION for Writ of Habeas Corpus ad testificandum filed by Michael Lee Millis, 3 MOTION to Appoint Counsel filed by Michael Lee Millis. IT IS HEREBY ORDERED that respondent shall answer or otherwise plead within thirty days of the date this order is entered. Signed by Chief Judge David R. Herndon on 9/13/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MICHAEL LEE MILLIS, # 02887-025,
Petitioner,
vs.

Case No. 13-cv-846-DRH

JAMES N. CROSS,
Respondent.
MEMORANDUM AND ORDER
HERNDON, Chief District Judge:
Petitioner Michael Lee Millis, currently incarcerated in the Federal
Correctional Institution at Greenville, Illinois (“Greenville”), brings this habeas
corpus action pursuant to 28 U.S.C. § 2241 to challenge the execution of his
sentence. Specifically, he contends that the Bureau of Prisons (“BOP”) has failed
to properly calculate his projected release date or the length of his supervised
release.

He seeks declaratory relief, an injunction ordering his transfer to a

community halfway house, and a proper computation of the terms of his
supervised release in accordance with his judgment of sentence and applicable
law.
This matter is now before the Court for review of the petition pursuant to
Rule 4 of the Rules Governing § 2254 Cases in United States District Courts,
which provides that upon preliminary consideration by the district court judge,
“[i]f it plainly appears from the petition and any attached exhibits that the

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petitioner is not entitled to relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the petitioner.” Rule 1(b) of those Rules
gives this Court the authority to apply the rules to other habeas corpus cases.
A jury in the Eastern District of Kentucky convicted petitioner of five counts
relating to his participation in a bank robbery. United States v. Millis, Case No.
93-cr-55 (E.D. Ky.). On March 22, 1995, he was sentenced to concurrent terms of
110 months in prison on three counts; plus a 60-month term and a 240-month
term on the other counts, both of which were ordered to be served consecutively
to the other sentences. Thus, his aggregate sentence totaled 410 months (Doc. 1,
pp. 16-17; 20-21). He was also given three years of supervised release on each
count, to run concurrently upon his release from imprisonment (Doc. 1, pp. 1617; 21). With credit for time spent in custody prior to the imposition of sentence,
and considering earned and projected good conduct credit, the BOP calculated his
projected release date as May 26, 2023 (Doc. 1, p. 24).
Petitioner contends, however, that the three-year term of supervised release
should be applied against each set of sentences for a total of nine years (Doc. 1, p.
9). Moreover, he should be eligible for placement in a community corrections
center and home confinement.

He argues that if the relevant statutes were

correctly applied, his projected release date to begin his period of supervision
would be May 26, 2014 (Doc. 1, p. 10).
Without commenting on the merits of petitioner’s claims, the Court
concludes that the petition survives preliminary review under Rule 4 and Rule

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1(b) of the Rules Governing Section 2254 Cases in United States District Courts.
Accordingly, the government shall be directed to respond.
Pending Motions
Petitioner has filed a motion seeking the appointment of counsel (Doc. 3), a
motion for writ of habeas corpus ad testificandum (Doc. 4), a motion for
declaratory judgment and preliminary injunction (Doc. 5), and a motion to
disqualify or recuse the Judge and other officials assigned to this matter (Doc. 6).
Turning first to the motion to disqualify Judge (Doc. 6), petitioner fails to
articulate any reason applicable to the undersigned Judge which would indicate
bias or even the appearance of impropriety. Instead, he speculates that a ruling in
his favor would show that many federal judges and other officials have been
derelict, and that vast sums of money have been improperly used to unlawfully
incarcerate numerous federal prisoners (Doc. 6, pp. 9-10). Having considered the
motion, the undersigned Judge finds no reason that he cannot consider and
render a fair and impartial ruling in this matter. Further, the motion presents no
reason for the recusal of other Court officials who will assist in the handling of
this case. The motion (Doc. 6) is DENIED.
The petitioner’s motion for appointment of counsel (Doc. 3) is DENIED
without prejudice as premature. Counsel may be appointed in a habeas corpus
proceeding only if an evidentiary hearing is needed or if interests of justice so
require. See Rule 8(c) of the Rules Governing Section 2254 Cases. Whether the
interests of justice require appointment of counsel in this case cannot be

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determined until after the Court has had an opportunity to review and consider
the respondent’s answer to the petition.
The motion for writ of habeas corpus ad testificandum (Doc. 4) is likewise
premature, as the Court has not yet received or reviewed any response to the
petition, nor has any determination been made as to the need for an evidentiary
hearing. Accordingly, this motion is DENIED without prejudice.
The motion for declaratory judgment and preliminary injunction (Doc. 5)
shall be referred to a United States Magistrate Judge for further consideration.
Disposition
IT IS HEREBY ORDERED that respondent shall answer or otherwise
plead within thirty days of the date this order is entered. This preliminary order
to respond does not, of course, preclude the Government from raising any
objection or defense it may wish to present.

Service upon the United States

Attorney for the Southern District of Illinois, 750 Missouri Avenue, East St. Louis,
Illinois, shall constitute sufficient service.
IT IS FURTHER ORDERED that pursuant to Local Rule 72.1(a)(2), this
cause is referred to a United States Magistrate Judge for further pre-trial
proceedings.

This shall include consideration and a recommendation on

petitioner’s motion for declaratory judgment and preliminary injunction (Doc. 5).
IT IS FURTHER ORDERED that this entire matter be REFERRED to a
United States Magistrate Judge for disposition, as contemplated by Local Rule

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72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties consent to such a
referral.
Petitioner is ADVISED of his continuing obligation to keep the Clerk (and
each opposing party) informed of any change in his whereabouts during the
pendency of this action.

Digitally signed by
David R. Herndon
Date: 2013.09.13
15:51:36 -05'00'

IT IS SO ORDERED.
DATED: September 13, 2013

CHIEF JUDGE
UNITED STATES DISTRICT COURT

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