Miller v Oliver

Filing 33

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. IT IS HEREBY ORDERED that Respondent John C. Oliver shall answer the petition or otherwise plead within thirty days of the date this order is entered. Signed by Chief Judge David R. Herndon on 2/6/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROBERT E. MILLER, JR.,
No. 48707-019,
Petitioner,
vs.

CIVIL NO. 13-01307-DRH

JOHN C. OLIVER,
Respondent.
MEMORANDUM AND ORDER
HERNDON, Chief Judge:
Petitioner Robert E. Miller. Jr., represented by counsel, has filed a petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. 32).

Miller is

currently in the custody of the Federal Bureau of Prisons, housed at the United
States Penitentiary in Marion, Illinois. In 1998, Miller was convicted by a jury of
manufacturing and distributing counterfeit currency in violation of 18 U.S.C. §§
471, 473; solicitation to kill a witness, in violation of 18 U.S.C. §§ 373,
1512(a)(1)(A); and attempted murder of a witness, in violation of 18 U.S.C. §§
1512(a)(1)(A), 2.

He is serving a 240 month sentence.

See United States v.

Miller. No. 97-CR-496-01-ODE-GGB (N.D. Ga. Oct. 8, 1998). According to the
petition, Miller’s direct appeal was unsuccessful, and a subsequent motion
pursuant to 28 U.S.C. § 2255 was deemed untimely.
Miller now seeks to upset his conviction and sentence for solicitation to kill
a witness and attempted murder of a witness.
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He contends that a post-trial

affidavit of Troy M. Plante (which is not appended to the petition), exonerates him
and removes the government’s entire basis for the solicitation and attempted
murder charges.
Pursuant to Rule 4 of the Rules Governing Section 2254 Cases in United
States District Courts, a petition shall undergo preliminary review.

Rule 4

provides that upon preliminary consideration by the district court judge, “[i]f it
plainly appears from the petition and any attached exhibits that the 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.
It is possible, under very limited circumstances, for a prisoner to challenge
his federal conviction or sentence under Section 2241.

28 U.S.C. § 2255(e)

contains a “savings clause” which authorizes a federal prisoner to file a Section
2241 petition where the remedy under Section 2255 is “inadequate or ineffective
to test the legality of his detention.” 28 U.S.C. § 2255(e). See United States v.
Prevatte, 300 F.3d 792, 798–99 (7th Cir. 2002). “A procedure for postconviction
relief can be fairly termed inadequate when it is so configured as to deny a
convicted defendant any opportunity for judicial rectification of so fundamental a
defect in his conviction as having been imprisoned for a nonexistent offense.” In
re Davenport, 147 F.3d 605, 611 (7th Cir. 1998).

Miller contends he is actually

innocent of the solicitation and attempted murder charges—without Plante’s

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testimony, there is no basis for the charges and no basis for jurisdiction; in any
event, no reasonable juror could convict him without Plante’s testimony.
The Seventh Circuit’s recent decision in Brown v. Caraway, 719 F.3d 583,
586 (7th Cir. 2013), and the Supreme Court’s decision in McQuiggin v. Perkins,
__U.S.__ 133 S.Ct. 1924 (2013), illustrate that under the miscarriage of justice
doctrine, a convincing actual innocence claim can overcome a wide array of
procedural barriers to collateral relief.
There is insufficient information before the Court upon which to conclude
that dismissal at this preliminary stage pursuant to Rule 4 is appropriate.
Therefore, Respondent Oliver will be required to respond or otherwise plead.
IT IS HEREBY ORDERED that Respondent John C. Oliver shall answer
the petition or otherwise plead within thirty days of the date this order is
entered. 1 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, 9 Executive
Drive, Fairview Heights, Illinois 62208, 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.
IT IS FURTHER ORDERED that this entire matter be REFERRED to a
United States Magistrate Judge for disposition, as contemplated by Local Rule
1

The response date ordered herein is controlling. Any date that CM/ECF should generate in the
course of this litigation is a guideline only. See SDIL-EFR 3.

Page 3 of 4

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. This notification shall be done in writing and not later
than seven days after a transfer or other change in address occurs.
IT IS SO ORDERED.

Digitally signed by
David R. Herndon
Date: 2014.02.06
10:45:19 -06'00'

February 6, 2014

Chief Judge
United States District Court

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