Millis v. Cross

Filing 24

ORDER DISMISSING CASE with prejudice and denying habeas corpus petition. The Court denies 22 MOTION to Appoint Counsel filed by Michael Lee Millis, denies 5 MOTION for Declaratory Judgment MOTION for Preliminary Injunction filed by Michael Lee Millis and ADOPTS 17 REPORT AND RECOMMENDATIONS. SEE order for details. Signed by Chief Judge David R. Herndon on 1/31/14. (klh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MICHAEL LEE MILLIS,
Petitioner,
v.

Case No. 13-846-DRH-DGW

JAMES N. CROSS,
Respondent.
MEMORANDUM AND ORDER
HERNDON, Chief Judge:
Introduction and Background
Pending before the Court is a Report and Recommendation (“the Report”)
submitted by Magistrate Judge Wilkerson (Doc. 17). The Report recommends
that the Court deny and dismiss with prejudice Millis’ 28 U.S.C. § 2241 petition
and deny his motion for declaratory relief and preliminary injunction (Doc. 5).
Millis filed an objection to the Report (Doc. 23). Based on the following, the Court
adopts in its entirety the Report.
A jury in the Eastern District of Kentucky convicted petitioner for five
counts relating to his participation in a bank robbery. United States v. Millis, 93cr-55 (E.D. KY).

On March 22, 1995 the district court sentenced him to

concurrent terms of 110 months in prison on three counts; plus the Court
sentenced him to 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 was 410 months. (Doc. 1, pp. 16-17; 20-21). He also

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received three years of supervised release on each count, to run concurrently
upon his release from prison (Doc. 1, pp. 26-17). With credit for time spent in
custody prior to sentencing and considering earned and projected good time
credit, the BOP calculated his projected release date as May 26, 2023.
On August 16, 2013, Michael Lee Millis, an inmate incarcerated in the
Federal Correctional Institution at Greenville, Illinois, filed this 28 U.S.C. § 2241
petition (Doc. 1). Millis challenges the execution of his sentence. Specifically,
Millis contends that the Bureau of Prisons (“BOP”) has failed to properly calculate
his projected release date or length of his supervised release. He also filed motion
for declaratory relief and preliminary injunction requesting the transfer to
community halfway house and a proper computation of the terms of his
supervised release in accordance with his judgment of sentence (Doc. 5). Millis
contends that the three-year term of supervised release should be applied against
each set of sentences for a total of nine years. Moreover, he claims that he should
be eligible for placement in a community corrections center and home
confinement. He also claims that if the relevant statutes were correctly applied,
his projected release date to begin his period of supervision would be May 26,
2014. On October 15, 2013, James Cross filed his response to the petition (Doc.
15) and on October 21, 2013, Millis filed a reply (Doc. 16).
On November 19, 2013, Magistrate Judge Wilkerson issued the Report
(Doc. 17).

The Report recommends that the Court deny and dismiss with

prejudice Millis’ habeas corpus petition.

On December 13, 2013, Millis filed

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objections to the Report (Doc. 23). Since timely objections have been filed, this
Court must undertake de novo review of the Report. 28 U.S.C. § 636(b)(1)(B);
Fed. R. Civ. P. 72(b); Southern District of Illinois Local Rule 73.1(b); Govas v.
Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court may “accept, reject or
modify the recommended decision.” Willis v. Caterpillar Inc., 199 F.3d 902, 904
(7th Cir. 1999). In making this determination, the Court must look at all the
evidence contained in the record and give fresh consideration to those issues to
which specific objection has been made. Id.
Legal Standards
A petition seeking habeas corpus relief is appropriate under 28 U.S.C. §
2241 when a petitioner is challenging the fact or duration of confinement. Preiser
v. Rodriguez, 411 U.S. 475, 490 (1973); Waletzki v. Keohane, 13 F.3d 1079,
1080 (7th Cir. 1994).

The writ of habeas corpus may be granted where the

defendant is in custody in violation of the Constitution or laws or treaties of the
United States. See 28 U.S.C. § 2241(c)(3).
Here, Millis filed ten objections to the Report. The Court has reviewed the
objections and finds that these are general objections that are without merit. His
petition contains a simple nonsensical argument: that he should be released nine
years sooner from his sentence of 410 months because of the imposition of his
supervised release.

The Court rejects all of the objections and adopts the

reasoning set forth in the Report.

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It is clear from the statutory setup that a supervised release term is
separate and distinct from a term of imprisonment.

18 U.S.C. § 3583(a)

authorizes a court to “include as a part of the sentence a requirement that the
defendant be placed on a term of supervised release after imprisonment.”
Further, 28 U.S.C. § 3624(e) explains the nature of the term of supervised release.
It provides:
(e) Supervision after release. – A prisoner whose sentence includes
a term of supervised release after imprisonment shall be released by
the Bureau of Prisons to the supervision of a probation officer who
shall, during the term imposed, supervise the person released to the
degree warranted by the conditions specified by the sentencing court.
The term supervised release commences on the day the person is
released from imprisonment and runs concurrently with any Federal,
State of local term of probation or supervised release or parole for
another offense to which the person is subject or become subject
during the term of supervised release. A term of supervised release
does not run during any period in which the person is imprisoned in
connection with a conviction for the Federal, State, or local crime
unless the imprisonment is for a period of less than 30 consecutive
days. Upon the release of a prisoner by the Bureau of Prisons to
supervised release, the Bureau of Prisons shall notify such prisoner,
verbally and in writing, of the requirement that the prisoner adhere
to an installment schedule, not to exceed 2 years except in special
circumstances, to pay for any fine imposed for the offense committed
by such prisoner, and of the consequences of failure to pay such fines
under sections 3611 through 3614 of this title.
Obviously, a term of imprisonment and a term of supervised release compose
Millis’ sentence. See Knight v. United States, 73 F.3d 117, 120 n. 5 (7th Cir.
1995)(stating that “[u]nlike parole, a term of supervised release is an order of
supervision imposed in addition to any term of imprisonment imposed as part of
the sentence”); United States v. Goad, 44 F.3d 580, 585 n. 13 (7th Cir.

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1995)(stating that “a term of supervised release does not replace a portion of the
sentence of imprisonment but rather is an order of supervision in addition to any
term of imprisonment imposed by the court”).

Further, as noted by the Report,

the Seventh Circuit last year found the following:
Before the Sentencing Reform Act of 1984 abolished parole in federal
cases, ordinary parole was the supervised release of a prisoner
before he had completed his entire prison sentence. See United
States v. Fazzini, 414 F.3d 695, 699 (7th Cir. 2005). The ‘parolee’
was released from federal custody for good behavior and served the
remainder of his prescribed prison sentence while out on parole,
provided he abided by all the conditions of his release. See 18 U.S.C.
§§ 4161 et seq. (1982) (repealed by the Sentencing Reform Act of
1984, Pub.L. No. 98–473,98 Stat. 2027, but remaining in effect for
those sentenced prior to the Act). Special parole, on the other hand,
was a ‘short-lived instrument of federal justice’ that was statutorily
required to be included in the sentence for certain defendants; it
has since been replaced with ‘supervised release.’ Evans v. U.S.
Parole Comm’n, 78 F.3d 262, 264 (7th Cir.1996); see 28 C.F.R. §
2.57. Courts have described special parole as being entirely different
from and in addition to ordinary parole, as it follows the completion
of ordinary parole and subjects the defendant to reincarceration
during the entire special parole term if its conditions are violated.
See United States v. Bridges, 760 F.2d 151, 155 (7th Cir.1985).
Matamoros v. Grams, 706 F.3d 783, 786 (7th Cir. 2013) (emphasis added to
third sentence only).

Clearly, Millis is required to serve out his term of

imprisonment and then he will be placed on supervised release for three years.
Based on the foregoing, the Court denies Millis’ motion for injunctive relief and
release to a community corrections center.
As to Millis’s motion for appointment of counsel, the Court denies the
motion. After reviewing the record, the Court finds that a hearing is not necessary

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for frivolous petition; therefore, the Court need not appoint counsel in this matter.
See Rule 8(c) of the Rules Governing Section 2254 cases.
Conclusion
Accordingly, the Court ADOPTS the Report in its entirety (Doc. 17). The
Court DENIES and DISMISSES with prejudice Millis’ 28 U.S.C. § 2241 petition,
DENIES the motion for declaratory relief and preliminary injunction (Doc. 5) and
DENIES the motion for appointment of counsel (Doc. 22). The Court DIRECTS
the Clerk of the Court to enter judgment reflecting the same.
IT IS SO ORDERED.
Signed this 31st day of January, 2014.

Digitally signed by
David R. Herndon
Date: 2014.01.31
16:58:03 -06'00'
Chief Judge
United States District Court

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