Miller v Oliver

Filing 66

MEMORANDUM AND OPINION denying 32 amended petition for writ of habeas corpus under 28 U.S.C. 2241. The clerk of court shall enter judgment in favor of respondent. Signed by Magistrate Judge Clifford J. Proud on 4/30/2014. (jmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
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ROBERT E. MILLER, JR.,
Petitioner,
vs.

JEFF S. WALTON
Respondent.

Civil No. 13-cv-1307-CJP 1

MEMORANDUM and ORDER
PROUD, Magistrate Judge:
Robert E. Miller, Jr., an inmate in the custody of the BOP, is before the
Court seeking habeas relief under 28 U.S.C. §2241. Through counsel, he filed an
amended petition for writ of habeas corpus under 28 U.S.C. §2241 at Doc. 32.
Counsel was subsequently granted leave to withdraw. See, Doc. 57.
Miller argues that he is entitled to habeas relief on his convictions for
solicitation to kill a witness and attempted murder of a witness because those
convictions were based solely on the testimony of one witness, who has since
recanted.

Respondent argues that the petition must be denied because the

remedy afforded by 28 U.S.C. §2255 was not inadequate or ineffective to test the
legality of petitioner’s detention.
Relevant Facts and Procedural History
In 1998, petitioner Miller was convicted by a jury in the Northern District of

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This case was assigned to the undersigned for final disposition upon consent of the parties
pursuant to 28 U.S.C. §636(c). See, Doc. 47.

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Georgia of two counts of manufacturing and distributing counterfeit currency, one
count of solicitation to kill a witness, and one count of attempting to murder a
witness.

He was sentenced to 110 months imprisonment on each of the

counterfeiting counts, 240 months imprisonment on the solicitation count, and
240 months on the attempted murder count. The first three sentences were to
run consecutively, and the last sentence was to run concurrently. Doc. 41, Ex. 2,
at Docket Entry 135.
In July, 2006, Miller filed a motion to vacate, set aside or correct his
sentence under 28 U.S.C. §2255 in the Northern District of Georgia.

In that

motion, he argued that the only witness against him on the solicitation and
attempted murder counts, Troy Plante, had since recanted his testimony. The
court concluded that Miller had known of Plante’s recantation for more than one
year before filing his §2255 motion and, therefore, the motion was untimely. Doc.
41, Ex. 1.
The Eleventh Circuit Court of Appeals denied Miller’s request for a
certificate of appealability. Doc. 41, Ex. 2, at Docket Entry 230.
Miller has also filed a number of other legal actions, including successive
§2255 motions and several §2241 petitions.

A list of Miller’s numerous

postconviction filings is at Doc. 41, Ex. 3.
In February, 2011, the Eleventh Circuit denied Miller leave to file a second
or successive §2255 motion, stating:
In his application, Miller indicates that he wishes to raise two claims in a
second or successive §2255 motion: (1) a freestanding actual-innocence
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claim, based on a material witness's apparent recantation of his trial
testimony, and (2) a claim that his original §2255 motion should have been
considered timely pursuant to 28 U.S.C. §2255(f)(4). He acknowledges
that neither of his claims is based on either a new rule of constitutional law
or newly discovered evidence, and that he presented both claims in his
original §2255 motion. The district court's records show that an evidentiary
hearing was held in the original § 2255 proceedings, during which Miller
presented evidence of the witness's recantation and argued for application
of §2255(f)(4). Therefore, Miller has not identified either a new rule of law
or newly discovered evidence in support of his claims, and, thus, he has
failed to meet the statutory requirements of §2255(h)(l)-(2).
In re Robert Ethan Miller, Jr., Case No. 11-10498-F (11th Cir., February 24,
2011). The Eleventh Circuit’s order was docketed in Miller’s criminal case in the
Northern District of Georgia at Doc. 341. See, Doc. 41, Ex. 2.
Applicable Legal Standards
Generally, petitions for writ of habeas corpus under 28 U.S.C. §2241 may
not be used to raise claims of legal error in conviction or sentencing, but are
limited to challenges regarding the execution of a sentence.

See, Valona v.

United States, 138 F.3d 693, 694 (7th Cir.1998).
A federally convicted person may challenge his conviction and sentence by
bringing a motion pursuant to 28 U.S. C. §2255 in the court which sentenced
him. A §2255 motion is ordinarily the “exclusive means for a federal prisoner to
attack his conviction.” Kramer v. Olson, 347 F.3d 214, 217 (7th Cir. 2003). A
prisoner is generally limited to only one challenge of his conviction and sentence
under §2255. A prisoner may not file a “second or successive” motion unless a
panel of the appropriate court of appeals certifies that such motion contains
either 1) newly discovered evidence “sufficient to establish by clear and convincing

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evidence that no reasonable factfinder would have found the movant guilty of the
offense,” or 2) “a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable.”

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U.S.C. §2255(h).
It is possible, under very limited circumstances, for a prisoner to challenge
his federal conviction or sentence under §2241. 28 U.S.C. §2255(e) contains a
“savings clause” which authorizes a federal prisoner to file a §2241 petition where
the remedy under §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)
The Seventh Circuit has explained that, in order to fit within the savings
clause following Davenport, a petitioner must meet three conditions. First, he
must show that he relies on a new statutory interpretation case rather than a
constitutional case. Secondly, he must show that he relies on a decision that he
could not have invoked in his first §2255 motion and that case must apply
retroactively. Lastly, he must demonstrate that there has been a “fundamental
defect” in his conviction or sentence that is grave enough to be deemed a
miscarriage of justice. Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013).

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See also, Brown v. Rios, 696 F3d 638, 640 (7th Cir. 2012).
Analysis
A claim fits within the savings clause where the remedy provided by §2255
is “inadequate or ineffective to test the legality of his detention.” In order to show
that §2255 is inadequate, a petitioner must “first show that the legal theory he
advances relies on a change in law that both postdates his first §2255 motion (for
failure to raise a claim the first time around does not render §255 ‘inadequate’)
and ‘eludes the permission in section 2255 for successive motions.’” Kramer v.
Olson, 347 F.3d 214, 217 (7th Cir. 2003), citing Davenport, 147 F.3d at 611.
Where the claim being advanced in the §2241 petition could have been, or was,
advanced in a prior §2255 motion, the remedy offered by §2255 is not inadequate
or ineffective.

Taylor v. Gilkey, 314 F.3d 832, 835-836 (7th Cir. 2002);

Davenport, 147 F.3d at 609.
The claim being advanced here was raised in Miller’s initial §2255 motion.
The Northern District of Georgia held an evidentiary hearing which stretched over
several days. See, Transcript, Doc. 3, Ex. 2. 2 That court determined that the
motion was not timely filed because it was filed more than a year after Miller
learned that Troy Plante recanted his prior testimony. Doc. 41, Ex. 1.
The fact that the motion was not timely filed does not serve to make the
§2255 remedy inadequate or ineffective. A petitioner cannot “lever his way into
section 2241 by making his section 2255 remedy inadequate….”
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Morales v.

Doc. 3 is original §2241 petition. The amended petition, Doc. 32, refers to the exhibits attached
to Doc. 3.

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Bezy, 499 F.3d 668, 672 (7th Cir. 2007)(emphasis in original). See also, Hill v.
Werlinger, 695 F. 3d 644, 648-649 (7th Cir. 2012), holding that §2255 is not
inadequate or ineffective where the claim could have been presented in a direct
appeal or a §2255 motion.
Petitioner cites no authority holding that failure to file a timely §2255
motion authorizes the petitioner to proceed under §2241.

In the counselled

memorandum attached to the amended petition, petitioner argues at length that
the untimely filing was caused by his previous counsel’s error. That amounts to
an argument that the time period for filing his §2255 motion should be equitably
tolled. Such an argument must be addressed to the Eleventh Circuit, and not to
this Court. Petitioner also seems to be suggesting that the Northern District of
Georgia and/or the Eleventh Circuit erred in dismissing his motion as untimely,
However, even if that decision were erroneous, that circumstance would not serve
to make §2255 inadequate or ineffective. Taylor, 314 F.3d at 835-836.
Lastly, the Court recognizes that petitioner argues that his claim of actual
innocence meets the standard enunciated Schlup v. Delo, 115 S. Ct. 851
(1995).

A credible claim of actual innocence “requires petitioner to support his

allegations of constitutional error with new reliable evidence—whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence—that was not presented at trial. “ Schlup, 115 S. Ct. at 865.
Actual innocence is not a freestanding basis for habeas relief. Rather, “a
credible showing of actual innocence may allow a prisoner to pursue his
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constitutional claims (here, ineffective assistance of counsel) on the merits
notwithstanding the existence of a procedural bar to relief.”

McQuiggin v.

Perkins, 133 S. Ct. 1924, 1931 (2013), McQuiggin reaffirmed the Schlup
standard for a credible showing of actual innocence, cautioning that “tenable
actual-innocence gateway pleas are rare” and describing the Schlup standard as
“demanding” and “seldom met.” McQuiggin, 133 S. Ct. at 1928.
Miller’s claim of actual innocence does not carry the day. First, it is highly
questionable whether Plante’s recantation is sufficient to meet the demanding
Schlup standard. Secondly, Miller has not identified any constitutional defect in
his conviction. Notably, Plante’s affidavit establishes that the prosecution was not
aware that his testimony was (allegedly) untrue. See, Affidavit, Doc. 3. Ex. 1. The
proposition that Plante lied at Miller’s trial, without more, does not establish a
constitutional violation. See, Tabor v. Scott, 251 F.3d 1125, 1130 (7th Cir.
2001).

Lastly, the holding of McQuiggin is that a credible claim of actual

innocence can serve to excuse procedural default. Miller’s §2241 petition is not
barred by procedural default; it is barred by 28 U.S.C. §§ 2244(a) and 2255(e).
Any argument that actual innocence presents cause for excusing the late filing of
his §2255 motion must be presented to the Eleventh Circuit, and not to this
Court.
Conclusion
Robert E. Miller, Jr.’s Amended Petition for a Writ of Habeas Corpus Under
28 U.S.C.

§2241 (Doc. 32) is DENIED.
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This case is DISMISSED WITH

PREJUDICE.
The Clerk of Court shall enter judgment in favor of respondent.
IT IS SO ORDERED.
DATE: April 30, 2014.

s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE

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