Miller v. Werlich

Filing 4

ORDER DISMISSING CASE. Signed by Judge David R. Herndon on 10/24/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

JEREMIAH R. MILLER,
No. 18175-026,
Petitioner,

–855-DRH

vs.
T.G. WERLICH,
Respondent.

MEMORANDUM AND ORDER

Pro se Petitioner Jeremiah Miller, currently incarcerated in the Federal
Correctional Institution at Greenville, Illinois, brings this habeas corpus action
pursuant to 28 U.S.C. § 2241 challenging the imposition of his federal sentence in

United States v. Miller, No. 12-cr-10071-MMM-JEH-3 (C.D. Ill. Aug. 3, 2017)
(“Federal Criminal Case”). Petitioner contends that the sentencing judge in his
Federal Criminal Case mistakenly failed to give him credit pursuant to U.S.S.G. §
5G1.3 for time served in state custody for conduct related to his federal crime,
even after the judge expressed an intention to do so. (Docs. 1, 3).
This case is now before the Court for a preliminary review of the First
1

Amended Petition 1 pursuant to Rule 4 of the Rules Governing Section 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 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.

On May 17, 2012, Petitioner Miller was indicted for Conspiracy to
Manufacture

Methamphetamine

in

violation

of

21

U.S.C.

§§

846,

841(a)(1),841(b)(1)(A). He entered a guilty plea on December 4, 2012. Federal
Criminal Case, Doc. 54. Paragraph 88 of Petitioner’s Presentence Investigation
Report read:
The defendant is currently serving a term of imprisonment for
conduct on an offense that resulted from an offense that is relevant
conduct to the instant offense of conviction and was the basis for an
increase in the offense level for the instant offense. The Court shall
1

After filing his Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (Doc. 1)
(“Original Petition”), Miller filed a Motion to Supplement Habeas Corpus Action (Doc. 3).
In the Motion, Petitioner seeks to supplement his Section 2241 petition with certain
exhibits that he wishes to be considered as part of the original filing. (Doc. 3, p. 1).
Although the Court normally does not accept piecemeal amendments to pleadings, it will
do so in this particular situation, where Miller sought leave to supplement the Original
Petition prior to this Court’s preliminary review of this matter. The Motion to
Supplement (Doc. 3) shall therefore be GRANTED, and the Clerk is DIRECTED to refile
the Original Petition (Doc. 1), the Motion to Supplement (Doc. 3), and the exhibits
proposed in the Motion as a single pleading entitled “First Amended Petition for Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241.” The Court will refer to Document 1, the
Motion (Doc. 3), and the exhibits proposed in the Motion collectively as the “First
Amended Petition.”
2

adjust the sentence for the instant offense for any period of
imprisonment already served on the undischarged term of
imprisonment if the Court determines that such period of
imprisonment will not be credited to the federal sentence by the
Bureau of Prisons. The defendant has served approximately 14
month [sic] on related Case Nos. 11-cf-224 (Fulton County) and 11cf-103 (McDonough County). Furthermore, the sentence for the
instant offense shall be imposed to run concurrently to the
remainder of the undischarged term of imprisonment.
(Exhibit 1 Proposed in Doc. 3).
Petitioner was ultimately sentenced to be imprisoned for 240 months on
June 13, 2013. Federal Criminal Case, Doc. 84. In the judgment, the sentencing
judge was “silent to petitioner’s jail credit.” (Doc. 3, p. 1). On July 23, 2014,
Petitioner sent a letter to the sentencing court requesting credit for the time he
served in state prison for possession of methamphetamine, a charge he claims
was related to his federal crime. Federal Criminal Case, Doc. 125. On October
24, 2016, Petitioner filed a Motion for Clarification of Sentence claiming that his
judgment was entered in error as “[i]t was agreed that [Petitioner] would be
entitled to [his] Earned Jail Credit from February 23, 2012, to the date of
sentencing.”

Federal Criminal Case, Doc. 205.

This Motion was denied on

November 23, 2016 for failure to exhaust administrative remedies.
On June 14, 2017, Petitioner’s judgment was amended to reduce his
sentence to 180 months. Federal Criminal Case, Doc. 223. Petitioner’s judgment
was again amended to reduce his sentence to 81 months on August 3, 2017.
Federal Criminal Case, Doc. 227. Petitioner filed a Motion to Amend Presentence
Investigation Report on August 11, 2017, requesting that the sentencing court

3

review his Presentence Investigation Report and sentencing transcript so as to
grant him “prior jail-time credit” that he never received. Federal Criminal Case,
Doc. 230. He also filed a Motion to Supplement Motion to Correct in which he
seeks to support his request for a 5G1.3 adjustment of his sentence. Federal
Criminal Case, Doc. 231. These motions are still pending in his Federal Criminal
Case in the United States District Court for the Central District of Illinois.
Petitioner pursued administrative remedies on this issue, but his request
for an adjustment to his sentence was ultimately denied because “the federal
sentencing judge was silent as to [Petitioner’s] undischarged state sentence,
causing [his] federal sentence to be served consecutively to the state sentence”
pursuant to 10 U.S.C. § 3584. (Exhibit 4 Proposed in Doc. 3). The Administrator
for National Inmate Appeals also noted that, pursuant to 10 U.S.C. § 3585(b), his
time spent serving another sentence could “not be applied toward his federal
sentence” by the Bureau of Prisons. Id.

Dis
Petitioner claims that at his sentencing hearing on June 11, 2013, his
sentencing judge agreed with the Presentence Investigation Report to run
Petitioner’s federal sentence concurrent with his related state cases. (Doc. 1, p.
8).

However, due to an error in his original state incarceration date in the

Presentence Investigation Report, the Judge asked the probation officer to “get
him the correct date” so that Petitioner could receive proper credit for jail-time

4

served. Id. Petitioner contends that this was never done, and the judgment in the
case did not reflect the credit the judge intended to give him for time served. Id.
Petitioner seeks to have his sentence adjusted pursuant to U.S.S.G. § 5G1.3 “to
reflect 18 months Petitioner spent in custody” on cases related to his Federal
Criminal Case. (Doc. 3, p. 1).
Petitioner’s “argument challenges the imposition of his sentence, which is a
contention ordinarily raised only under § 2255, see Kramer v. Olson, 347 F.3d
214, 217 (7th Cir.2003), whereas challenges to the execution of a sentence are
generally brought under § 2241, see Valona v. United States, 138 F.3d 693, 694
(7th Cir.1998).” McCall v. United States, 304 F. App’x 449, 450 (7th Cir. 2008).
Because Petitioner “attacks the imposition, not the execution, of his sentence, he
must demonstrate that he falls within the ‘savings clause’ provided by § 2255,
which permits a prisoner to proceed under § 2241 if § 2255 was ‘inadequate or
ineffective to test the legality of his detention.’” Id. (citing 28 U.S.C. § 2255;

Kramer v. Olson, 347 F.3d 214, 217 (7th Cir. 2003); United States v. Prevatte,
300 F.3d 792, 799 (7th Cir. 2002)).
The Court of Appeals for the Seventh Circuit has held that § 2255 is only
inadequate or ineffective when three requirements are satisfied: 1) the petitioner
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. See Brown v. Caraway,
719 F.3d 583, 586 (7th Cir. 2013); Brown v. Rios, 696 F.3d 638, 640 (7th Cir.

5

2012). “‘Inadequate or ineffective’ means that ‘a legal theory that could not have
been presented under § 2255 establishes the petitioner’s actual innocence.’” Hill

v. Werlinger, 695 F.3d 644, 648 (7th Cir. 2012) (citing Taylor v. Gilkey, 314 F.3d
832, 835 (7th Cir. 2002)); In re Davenport, 147 F.3d 605, 608 (7th Cir. 1998)).
To this Court’s knowledge, Petitioner has never brought a § 2255 motion,
nor does he cite a new case of statutory interpretation to support his request for a
shorter sentence or assert that he is innocent of his charges.

Rather, his

challenge is premised on the sentencing court’s alleged mistake in failing to apply
the guidelines pursuant to its intention. Such a challenge is not appropriately
brought in a § 2241 action. See Gravitt v. Veach, 229 F. App’x 417, 418 (7th Cir.
2007) (finding argument court misapplied § 5G1.3, or intended to credit
petitioner under same, attacks imposition not execution of federal sentence, so §
2241 not appropriate vehicle to challenge sentence).
Additionally, Petitioner’s “claim would face a serious obstacle in any
collateral challenge because claims premised on the sentencing guidelines, absent
‘extraordinary circumstances,’ can only be raised on direct appeal.” Id. at 419
(citing Scott v. United States, 997 F.2d 340, 343 (7th Cir. 1993); United States v.

Wisch, 275 F.3d 620, 625 (7th Cir. 2001); Allen v. United States, 175 F.3d 560,
563 (7th Cir. 1999); Soto v. United States, 37 F.3d 252, 254 (7th Cir. 1994)).

Disposition
Section 2241 cannot provide Petitioner with the desired relief, so this

6

action is summarily DISMISSED with prejudice.
The Clerk of Court is directed to enter judgment in favor of Respondent.
IT IS SO ORDERED.

Digitally signed by
Judge David R.
Herndon
Date: 2017.10.24
12:16:21 -05'00'

7