Milton v. Cross
Filing
5
ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 10/13/2015. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TIMOTHY MILTON,
# 08416-089,
Petitioner,
vs.
JAMES N. CROSS,
Respondent.
Case No. 15-cv-957-DRH
MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner Timothy Milton is an inmate who is currently incarcerated in the
Federal Correctional Institution located in Greenville, Illinois (“FCI-Greenville”).
Milton filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, in
order to challenge his conviction and sentence in United States v. Milton, et al.,
Case No. 06-cr-223-PP-1 (E.D. Wis. 2006) (“criminal case”).
This matter is now before the Court for preliminary review of the habeas
petition. Rule 4 of the Federal Rules Governing Section 2254 Cases in United
States District Courts provides that upon preliminary consideration by the district
judge, “[i]f it plainly appears from the face of the petition and any exhibits
annexed to it that the petitioner is not entitled to relief in the district court, the
judge shall make an order for its summary dismissal and cause the petitioner to
be notified.” Rule 1(b) of those Rules gives this Court the authority to apply the
rules to other habeas corpus cases.
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I.
Background
On September 19, 2006, Milton was charged with the following four counts
in a twenty-two count indictment: Count 1 - conspiracy to possess with intent to
distribute one kilogram or more of a mixture and substance containing heroin
and fifty grams or more of a mixture and substance containing cocaine base
resulting in death or bodily injury, 21 U.S.C. §§ 841(b)(1)(A), 846; Count 3 knowingly and intentionally distributing a mixture of substances containing
heroin that resulted in death from the use of heroin, 21 U.S.C. §§ 841(a)(1),
(b)(1)(C), 18 U.S.C. § 2; Count 4 - knowingly and intentionally distributing a
mixture of substances containing heroin, 21 U.S.C. §§ 841(a)(1), (b)(1)(C),
18 U.S.C. § 2; and Count 6 - being a felon in possession of a firearm, 18 U.S.C.
§ 922(g)(1) (Doc. 20, criminal case). 1
Milton entered into a written plea agreement on August 7, 2007, in which
he agreed to plead guilty to Count 1 (Doc. 144, criminal case). In exchange, the
government agreed to dismiss the remaining counts of the indictment at the time
of sentencing (Doc. 1-1, pp. 1-4).
Consistent with the plea agreement,
Milton pleaded guilty to Count 1 on October 17, 2007 (Doc. 228, criminal case).
Counts
3,
4,
and
6
were
dismissed
on
the
government’s
motion.
On September 16, 2008, Milton received a sentence of 216 months, followed by
1
In order to determine Milton’s criminal and litigation history, the Court reviewed the
Public Access to Court Electronic Records (“PACER”) website (www.pacer.gov). See Bova
v. U.S. Bank, N.A., 446 F. Supp. 2d 926, 930 n. 2 (S.D. Ill. 2006) (a court may judicially
notice public records available on government websites) (collecting cases).
Court documents are, of course, public records of which the Court can take judicial
notice. See Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994).
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five years of supervised release (Doc. 1-1, p. 3; Doc. 366, criminal case).
Judgment was entered the same day (Doc. 367, criminal case). Milton did not file
a direct appeal.
On October 5, 2009, however, Milton filed a motion to vacate, set aside, or
correct sentence under 28 U.S.C. § 2255 (Doc. 463, criminal case).
Milton v.
United States, Case No. 09-cv-00959-CNC (E.D. Wis. 2009) (“collateral attack”)
(Doc. 1).
He raised two constitutional challenges to his sentence based on
grounds of ineffective assistance of counsel. First, Milton argued that his counsel
forced him to seek an extension of the deadline for filing his original § 2255
motion.
Second, Milton argued that his counsel failed to challenge the
enhancements used to increase his sentence. Milton specifically challenged the
adjustments to the base offense level calculated in the presentence investigation
report (PSR) for being a leader or organizer, U.S.S.G. § 3B1.1(a), and for
possession of a firearm, U.S.S.G. § 2D1.1(b)(a).
The United States District Court for the Eastern District of Wisconsin
denied the § 2255 motion (Doc. 3, collateral attack). The district court assumed
that the motion was timely, but concluded that Milton’s sentence was not
unconstitutionally enhanced under Apprendi v. New Jersey, 530 U.S. 466, 490
(2000), or its progeny. The district court further found that Milton’s counsel did
raise objections to the guidelines range as calculated in the PSR, and the court
considered and overruled those objections. Accordingly, the district court denied
the § 2255 motion and the certificate of appealability.
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II.
Habeas Petition
Milton now challenges his conviction and sentence under the penalty
enhancement provision of the Controlled Substances Act that is applicable where
death or serious bodily injury results from the use of a distributed substance
(Doc. 1-1, pp. 3-4). Milton cites Burrage v. United States, -- U.S. --, 134 S. Ct.
881 (Jan, 27, 2014), as a new, retroactive statutory interpretation decision that
calls his conviction and sentence under Count 1 into question.
According to
Milton, the Burrage decision requires the government to prove beyond a
reasonable doubt that his “knowing or intentional” distribution of heroin was the
“but for” cause of death of the victim(s) at issue (Doc. 1-1, p. 4). He claims that
the heroin at issue was merely a “contributing factor” in the death that resulted,
not the “but for” cause of death.
This is because the heroin was taken in
combination with other drugs (Doc. 1-1, pp. 8). Under Burrage, the government
could not have satisfied its burden of proof, and Milton would not have entered
into a plea agreement conceding “but for” causation. Milton argues that his guilty
plea under the written plea agreement cannot stand, and his counsel provided
ineffective assistance when persuading him to enter it.
III.
Discussion
As a general matter, § 2241 is the appropriate means by which to challenge
the fact or duration of confinement, while § 2255 is properly invoked when
challenging the validity of a conviction and sentence. Brown v. Rios, 696 F.3d
638, 640 (7th Cir. 2012); Hill v. Werlinger, 695 F.3d 644, 645 (7th Cir. 2012);
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Kramer v. Olson, 347 F.3d 214, 217 (7th Cir. 2003); Walker v. O’Brien, 216 F.3d
626, 629 (7th Cir. 2000).
Milton does not challenge the duration of his
confinement, per se. Therefore, § 2241 does not appear to provide him with an
appropriate avenue for relief.
Generally, a federally convicted person may challenge his conviction and
sentence by bringing a motion pursuant to § 2255 in the court that sentenced
him. Indeed, a § 2255 motion is ordinarily the “exclusive means for a federal
prisoner to attack his conviction.”
Kramer, 347 F.3d at 217.
However, the
statute generally limits a prisoner to 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
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.”
28 U.S.C. § 2255(h).
Milton did not seek leave to file a second or successive
§ 2255 motion to pursue the arguments he now makes under Burrage because he
claims that he was foreclosed from doing so.
The Seventh Circuit has recognized that it is possible, under very limited
circumstances, for a prisoner to challenge a federal conviction or sentence under
§ 2241. Section 2255(e) contains a “savings clause,” which authorizes a federal
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prisoner to file a § 2241 petition where the remedy under § 2255 is “inadequate
or ineffective to test the legality of his detention.”
See 28 U.S.C. § 2255(e);
see also United States v. Prevatte, 300 F.3d 792, 798-99 (7th Cir. 2002).
Section 2255 is inadequate or ineffective when three requirements are met: (1) the
petition relies on a new case of statutory interpretation rather than a
constitutional decision; (2) the case was decided after his first § 2255 motion but
is retroactive; and (3) the alleged error results in a miscarriage of justice.
Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013); Rios, 696 F.3d at 640.
In Hill, the Seventh Circuit reiterated that “‘[i]nadequate or ineffective’ means that
a ‘legal theory that could not have been presented under [Section] 2255
establishes the petitioner’s actual innocence.’” 2
Hill, 695 F.3d at 648
(citing Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir. 2002); In re Davenport,
147 F.3d 605, 608 (7th Cir. 1998)).
Milton now contends that he is one of those for whom the § 2255 motion is
inadequate or ineffective to test the legality of his detention. He relies on Burrage
as the “new” statutory interpretation case that supports his request for relief
under § 2241. He correctly asserts that he could not have relied on Burrage in
his first § 2255 motion because it was decided after the motion.
Burrage is a recent decision in a line of cases that include Alleyne v.
United States, 570 U.S. --, 133 S. Ct. 2151 (2013), and Apprendi v. New Jersey,
2
Relevant to Milton’s situation, § 2255(f) sets a one-year limitations period on filing a
§ 2255 motion. However, the one-year period runs from the later of, among other things,
“the date on which the right asserted was initially recognized by the Supreme Court, if
that right has been newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review.” 28 U.S.C. § 2255(f)(3).
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530 U.S. 466 (2000), holding that a factor which increases the minimum or
maximum possible sentence must be submitted to a jury and found beyond a
reasonable doubt.
At issue in Burrage was whether a defendant may be
sentenced under the enhanced penalty provision in § 841(b)(1)(C), which is a 20year mandatory minimum sentence that applicable when death “results from” the
use of the unlawfully distributed drug, if the use of the drug “contributes to, but is
not a but-for cause of, the victim’s death.”
Burrage, 134 S. Ct. at 885.
The Supreme Court held that “but for” causation is required in order for the
enhanced penalty to apply. Id. at 892. And the “death” enhancement has two
elements: (1) knowing or intentional distribution of the controlled substance
under § 841(a)(1); and (2) death resulting from the use of the drug under
§ 841(b)(1)(C). Id. at 887.
Upon review of Burrage in light of the petition, the Court now finds that
further review of this matter is necessary. Without commenting on the merits of
the § 2241 petition, the Court concludes that the petition survives preliminary
review under Rule 4 and Rule 1(b) of the Rules Governing Section 2254 Cases in
United States District Courts. Accordingly, a response shall be ordered.
IV.
Disposition
IT IS HEREBY ORDERED that Respondent Warden James N. Cross shall
answer the petition or otherwise plead within thirty (30) days of the date this
order is entered (on or before November 12, 2015). 3 This preliminary order to
3
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 7 of 8
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 United States Magistrate Judge Clifford J. Proud for further
pre-trial proceedings.
IT IS FURTHER ORDERED that this entire matter be REFERRED to
United States Magistrate Judge Proud for disposition, as contemplated by
Local Rule 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.
Failure to provide such notice may result in dismissal of this action. See FED. R.
CIV. P. 41(b).
IT IS SO ORDERED.
Signed this 13th day of October, 2015.
Digitally signed
by David R.
Herndon
Date: 2015.10.13
17:19:34 -05'00'
United States District Court Judge
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