Miller v. Hogsten
Filing
6
MEMORANDUM OPINION & ORDER: (1) Petitioner Stacey D. Miller's motion for extension oftime to file a brief, [D. E. No. 3 ], is GRANTED nunc pro tunc;(2) Miller's 28 U.S.C. § 2241 petition for writ of habeas corpus, [D. E. No. 1 ], and supplemental § 2241 petition, [D. E. No. 4 ], are DENIED;(3) This action is DISMISSED, sua sponte, from the docket; and(4) Judgment will be entered contemporaneously with this MemorandumOpinion and Order in favor of the Respondent, Warden D. Berkebile.Signed by Judge Henry R. Wilhoit, Jr on 5/9/2012.(RBB)cc: COR (paper copy to pro se party via US Mail)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERJ'l" DIVISION AT LONDON
STACEY NIILLER,
Civil Action No. 6:11-00260-HRW
Petitioner,
v.
D. BERKEBILE, Warden,
MEMORANDUM OPINION
AND ORDER
Respondent.
***** ***** ***** *****
Stacey Miller, confined in the Federal Medical Center located in Lexington,
Kentucky ("FMC-Lexington") has filed a pro se petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241, [R. 1], which he has supplemented with subsequent
filings, [R. 4], and [R. 6].
As Miller has paid the $5.00 filing fee, the Court screens his § 2241 petition
pursuant to 28 U.S.C. § 2243. At the screening phase, the Court must dismiss any
petition that "is frivolous, or obviously lacking in merit, or where ... the necessary
facts can be determined from the petition itself without need for consideration of a
return." Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (citations omitted).!
The Court holds pro se pleadings to less stringent standards than those drafted by attorneys.
Burton v. Jones, 321 F.3d 569,573 (6th Cir. 2003); Hahn v. Star Bank, 190 F.3d 708, 715 (6th Cir.
1999). During screening, the Court accepts as true a pro se litigant's allegations and liberally
construes them in his favor. Urbina v. Thoms, 270 F.3d 292,295 (6th Cir. 2001).
Because Miller has not demonstrated that his remedy in the federal court where he
was convicted was an inadequate or ineffective means of challenging his conviction
and sentence, or that other grounds exist entitling him to relief under § 2241, his
petition will be denied, and this action will be dismissed.
CONVICTION, APPEAL AND COLLATERAL CHALLENGES
A federal jury in Madison, Wisconsin, found Miller guilty of two counts of
distributing more than five grams of cocaine base in violation of 21 U.S.C. §§
841 (a)(l) and (b)(1). United States v. Miller, 3:02-CR-00071-bbc-2 (W.D. Wis) ("the
Trial Court"). On April 17, 2002, Miller was sentenced to a 400- month prison term
followed by eight years ofsupervised release. Miller's conviction and sentence were
affirmed on appeal. See United States v. Miller, 327 F.3d 598 (7th Cir. 2003).
On July 28, 2004, Miller filed a motion to vacate his sentence under 28 U.S.C.
§ 2255, setting forth thirty-one grounds for relief. Three ofMiller's grounds for relief
(Grounds 26-28) alleged ineffective assistance of counsel in violation of the Sixth
Amendment of the United States Constitution. 2
2
Miller's other § 2255 claims were: (1) the government engaged in prosecutorial misconduct
in numerous instances; (2) the Trial Court violated his right to due process of law and/or equal
protection in its rulings relating to the admission ofevidence and testimony, denying Miller's various
requests for continuances, and improperly enhancing his sentence for (a) conduct that had not been
charged in the indictment, and (b) obstruction of justice under V.S.S.G. § 3C1.1 after finding that
he (Miller) tried to present untruthful alibi witnesses; (3) the government failed to seek a reduction
in his sentence under Fed. R. Crim. P. 35 or U.S.S.G. § 5K1.1 as it had promised, and (4) his
appellate counsel rendered ineffective assistance in violation of the Sixth Amendment.
2
On December 29,2004, the Trial Court denied the § 2255 motion, finding that
some ofthe claims were barred because Miller had unsuccessfully raised them in his
direct appeal; that some claims were barred because Miller could have raised them
on direct appeal but failed to do so; and that the majority ofMiller's claims, including
his three Sixth Amendment ineffective assistance of counsel claims, were barred
because he had alleged only conclusory and self-serving allegations, not specific
evidence. See United States v. Miller, No. 04-C-0527-C, 01-CR-0071-C-02, 2004
WL 3052076, (W. D. Wis. December 29, 2004). The Trial Court rejected Miller's
Sixth Amendment claim that his trial counsel was ineffective for not calling witnesses
to challenge the charge that he distributed cocaine base, explaining that witnesses
were not needed because the composition of the cocaine base was irrelevant in
sentencing. Id., at *6.
On March 8, 2005, the Trial Court granted Miller a certificate of appealability
as to his Sixth Amendment ineffective assistance of counsel claims, but denied a
certificate of appealability as to his claim that it had enhanced his sentence by relying
on facts not found beyond a reasonable doubt in violation of Blakely v. Washington,
124 S. Ct. 2531 (2004) and United States v. Booker 125 S.Ct. 738 (2005), which was
3
decided on January 12, 2005. 3 See United States v. Miller, No. 04-C-0527-C,
01-CR-0071-C-02, 2005 WL 568064, at *1 (W.D. Wis. March 08,2005). The Trial
Court explained that because ofthe Court ofAppeals for the Seventh Circuit had just
one month before issued a decision holding that the rights recognized in Booker do
not apply retroactively to cases on collateral review, McReynolds v. United States,
397 F3d 479 (7th Cir. 2005), Miller could not show that he was entitled to a
modification of his sentence based upon Booker. Miller, 2005 WL 568064, at * 1.
Miller appealed. On June 6, 2006, the denial of the § 2255 motion was
affirmed. Miller v. United States, 183 F. App'x 571 (7th Cir. 2006). The court
concluded that: (1) the government was not required to divulge the non-usable part
of the cocaine base for which Miller was held responsible; (2) under U.S.S. G. §
2D1.1, the Trial Court properly enhanced Miller's sentence based on the "entire
weight of any mixture or substance containing a detectable amount ofthe controlled
substance," not just on the actual amount of controlled substance he possessed; (3)
based on Miller's career offender status, his guideline imprisonment range of 360
months to life, his relevant conduct, and his obstruction ofjustice based on suborning
Booker held that defendants in federal criminal cases have a right to a jury determination of
any disputed factual subject that increases the maximum punishment. 125 S. Ct. at 756. The Court
held also that the Sentencing Guidelines are unconstitutional to the extent they require judges to base
sentences on facts that are not the product of factfinding by a jury but that the guidelines are not
unconstitutional ifjudges use them for advisory purposes. Id.
4
perjury at trial, the Trial Court properly enhanced Miller's sentence; (4) it was not
ineffective assistance for Miller's trial counsel not to have called witnesses to testify
on the composition ofthe cocaine base because the issue was irrelevant in sentencing;
and (5) Miller failed to support his other three ineffective assistance claims with
specific allegations showing that their alleged actions, or inactions, would have made
a difference in the outcome of the trial. Id., at 579-81. 4
On August 9,2010, Miller filed a motion in the Trial Court seeking relief from
his sentence under Federal Rule of Civil Procedure 60(b). See Trial Court Docket,
Entry No. 181. Miller alleged that the Indictment was constitutionally defective
because it charged him only with distributing "cocaine base" without charging him
with all elements ofan aggravated cocaine offense necessary to enhance his sentence,
i. e., "the drug type ofthe carrier controlled substance in which the cocaine base must
be contained," id., p. 5; that based on the defective Indictment, the government falsely
represented to him that he was facing a mandatory minimum sentence of forty years;
and that based on the government's fraudulent misrepresentations, the Trial Court
imposed an illegal sentence which exceeded the statutory maximum sentence for the
charged offense.
4
The Seventh Circuit addressed, in detail, Miller's numerous other § 2255 claims, and
affirmed the Trial Court's denial of them. Id., at 578-79; and at 581-582.
5
The next day, the Trial Court characterized the submission as a successive §
2255 motion and denied it because Miller had not obtained the Seventh Circuit's
permission to file a successive § 2255 motion. Id., Entry No. 182.
On November 1, 2010, Miller filed a motion in the Trial Court seeking a
modification of sentence pursuant to 18 U.S.C. § 3582 and Amendments 706 and 711
to the Sentencing Guidelines. Id., Entry No. 181. 5
These Amendments were
intended to reduce the disparities in sentences for crack cocaine and power cocaine
by reducing the base offense levels applicable to crack cocaine offenses.
On
November 4, 2010, the Trial Court denied that motion because Miller is a career
offender as defined by U. S.S.G. 4B 1.1 (a), and Amendments 706 and 711 do not apply
to career offenders. Id., Entry No. 182.
CLAIMS ASSERTED
~N
THE § 2241 PETITION
Miller asserts essentially the same claim in this § 2241 petition that he asserted
in his Rule 60(b) motion! construed successive § 2255 motion: that the Indictment
failed to charge him with all elements necessary to prove that he distributed crack
cocaine. He slightly modified his challenge in his § 2241 petition, this time alleging
that his trial counsel rendered ineffective assistance of counsel in violation of the
This was Miller's second § 3582(c)(2) motion. On January 4,2010, the Trial Court denied
his first motion seeking a sentence reduction under § § 3582(c)(2). See Trial Court Docket No. 176.
6
Sixth Amendment by failing to advise him of, and challenge, the constitutional
defectiveness of the Indictment, and by not challenging the government's failure to
prove that the controlled substance ofwhich he was convicted of distributing was in
fact "crack" cocaine. In support of his claims, Miller cites two Seventh Circuit
decisions, United States v. Booker, 70 F.3d 488, (7th Cir. 1995), and United States
v. Edwards, 397 F. 3d 570 (7th cir. 2004).
In Booker, the Seventh Circuit noted that although "cocaine base" and
"cocaine" are scientifically synonymous, 21 U.S.C.A. § 841(b)(1)(A)(iii) assigned
enhanced penalties to offenses involving 50 grams or more of "cocaine base" but
required 5 kilograms or more (a 100: 1 ratio) of "cocaine" or "its salts" to trigger the
enhanced penalties. Id., at 489. The court held that despite the chemical identity
between cocaine and cocaine base, "the legislative history of § 841 (b) demonstrates
that Congress intended the terms to have different meanings," id., at 492, and that for
purposes of the mandatory minimum sentence in 21 U.S.C. § 841(b)(1)(A)(iii), the
phrase "cocaine base" refers to cocaine base that constitutes crack. Id.
In Edwards, the district court applied two 10-year mandatory minimum
sentences based on Edwards' possession of non-crack forms of cocaine base,
concluding that any form of cocaine base qualified for the mandatory minimum
sentence under 21 U.S.C. § 841(b)(1)(A)(iii), which prescribes a mandatory minimum
7
sentence of ten years for the manufacture, distribution, or possession with intent to
manufacture or distribute 50 grams or more of "cocaine base." United States v.
Edwards, 294 F. Supp.2d 954, 959-60 (N.D. Ill. 2003).
On appeal, the Seventh Circuit addressed whether the distinction between
cocaine base and crack was meaningful for purposes of the enhanced penalties for
cocaine base offenses under 21 U.S.C. § 841(b). Edwards, 397 F.3d at 571. 6 The
court observed that "All crack is cocaine base but not all cocaine base is crack," id.,
and reversed Edwards' sentence, holding that under its prior decision in Booker, the
mandatory minimum sentence in 21 U.S.C.A. § 841(b)(1)(A)(iii) applied only to
cocaine base offenses involving crack cocaine. Id., at 577.
Miller appears to argue that had his counsel argued these cases on his behalf,
he would have received a lesser sentence.
DISCUSSION
Section 2255 provides the primary avenue of relief for federal prisoners
claiming the right to release as a result of an unlawful sentence. Terrell v. United
States, 564 F.3d 442,447 (6th Cir. 2009) (citing 28 U.S.C. § 2255(a)). It is the
6
The court noted that the federal Sentencing Guidelines also call for increased penalties, in
the form of heightened base offense levels, for crimes involving "cocaine base, "citing U.S.S.G. §
2D 1.1 (c), and that while the Sentencing Guidelines defined "cocaine base" as "crack" for purposes
ofthe higher penalties, citing U.S.S.G. § 2D1.1(c), Note (D), the statute contained no such limiting
definition. Edwards, 397 F.3d at 571.
8
mechanism for collaterally challenging errors that occurred "at or pnor to
sentencing." Eaves v. United States, No. 4: 10-cv-00036, 2010 WL at 3283018 at
*
6 (E.D. Tenn., August 17,2010).
The "savings clause" of § 2255 permits relief under § 2241 if § 2255 is
"inadequate or ineffective to test the legality of the detention." Terrell, 564 F.3d at
447; Witham v. United States, 355 F.3d 501,505 (6th Cir. 2004)); see 28 U.S.C. §
225 5(e). A federal prisoner may not challenge his conviction and sentence under §
2241 "ifit appears that the applicant has failed to apply for relief, by [§ 2255] motion,
to the court which sentenced him, or that such court has denied relief." See 28 U.S.C.
§ 2255(e). He must prove that his § 2255 remedy is inadequate or ineffective to
challenge the legality of his detention. Charles v. Chandler, 180 F.3d 753 (6th Cir.
1999); Martin v. Perez, 319 F.3d 799 (6th Cir. 2003).
Miller can not make that showing. First, to the extent that he now asserts a
Sixth Amendment claim challenging the manner in which his sentence was calculated
or enhanced under 21 U.S.C. § 841(b)(1)(A)(iii) based on the Seventh Circuit's
Booker decision, he could and should have asserted that specific Sixth Amendment
claim either on direct appeal or when he filed his § 2255 motion. The Seventh
Circuit's Booker decision was rendered on November 16, 1995, over six years before
Miller was sentenced and almost ten years before Miller filed his § 2255 motion.
9
Miller raised other Sixth Amendment claims in his § 2255 motion, but not one
based on the Seventh Circuit's Booker decision. When a prisoner missed an earlier
opportunity to correct a fundamental defect in his conviction under pre-existing law,
his remedy under § 2255 is not rendered "inadequate and ineffective." Charles, 180
F.3d 756-758; United States v. Prevatte, 300 F.3d 792, 800 (7th Cir. 2002).7
Second, Miller asserts essentially the same claims in this § 2241 petition that
he asserted in his Rule 60(b) motion/construed successive § 2255 motion: that the
Indictment failed to charge him with all elements necessary to prove that he
distributed crack cocaine; that the jury was not required to decide all facts relevant
to his drug conviction; and that the Trial Court improperly enhanced his sentence
under the statutes or the federal Sentencing Guidelines based on facts not determined
by a jury. The basis of these claims was clearly the United State Supreme Court's
Booker decision, rendered in January 2005, after he was sentenced in April 2002.
Miller did not seek permission from the Seventh Circuit to proceed with his claims
in a successive § 2255 motion.
In his § 2241 petition, Miller has labeled his claims as "Sixth Amendment
ineffective assistance counsel claims," but they are essentially the same claims he
7
As recognized in United States v. Earnest, 129 F.3d 906 (7th Cir.1997), the Seventh Circuit
Booker decision was later superseded by statute, U.S. S.G. § 201.1 (c)(D) (2008), under which crack
and cocaine base were treated synonymously with respect to sentencing.
10
raised in his Rule 60(b) motion, and are also premised on the United State Supreme
Court's Booker decision. The Trial Court's refusal to consider Miller's successive
§ 2255 motion- - raising de facto Supreme Court Booker claims- - does not permit
Miller to re-assert them in a § 2241 petition labeled as "Sixth Amendment" claims.
The remedy provided under § 2241 is not an additional, alternative, or
supplemental remedy to that prescribed under § 2255, Charles, 180 F.3d at 758. The
remedy afforded under § 2255 is not rendered "inadequate and ineffective" if the
prisoner presented a claim in a § 2255 motion but was denied relief on the claim. Id.,
180 F.3d at 756-758; Rumler v. Hemingway, 43 F. App'x 946,947 (6th Cir. 2002).
See also Pointdexter v. Nash, 333 F.3d 372,378 (2d Cir. 2003) (holding that habeas
relief under § 2241 is not available where "for example, a prior motion under § 2255
has been made and a successive motion under that section is disallowed by the court
of appeals under the gatekeeping provisions of28 U.S.C. §§ 2244 and 2255.")
Regardless ofthese considerations, Miller's instant claims fail because, as the
Trial Court explained when denying Miller's § 2255 motion, the United States Booker
decision does not apply retroactively to cases on collateral appeal under Seventh
Circuit law. The same hold true in the Sixth Circuit. See Humphress v. United
States, 398 F.3d 855,860 (6th Cir.2005); United States v. Saikaly, 424 F.3d 514,517
(6th Cir. 2005); Swain v. United States, 155 F. App'x 827,832 (6th Cir. 2005) ("Yet
11
neither Blakely nor its federal counterpart...Booker... may be invoked on collateral
review."). While the Supreme Court Booker decision might have possibly assisted
Miller had his case been on direct appeal in 2005, his case was not on direct appeal
at that time; it was only on collateral review in a § 2255 proceeding.
Following the Fair Sentencing Act of 2010, the Sentencing Guidelines
pertaining to crack cocaine were again amended, at Amendment 750. The Sentencing
Commission changed the threshold quantities of crack cocaine which trigger
mandatory minimum sentences under 21 U.S.C. § 841(b), and directed the
Commission to implement comparable changes in the pertinent guideline. As was the
case with the prior amendments to the Sentencing Guidelines, however, Miller's
status as a career offender would likely preclude a reduction in his sentence under
Amendment 750. See United States v. Freeman, No. 1:94-CR-00014, 2012 WL
1309132, at *3 (E.D. Tenn., April 16, 2012); United States v. Morris, No. 2:97-99-6,
2012 WL 760320, at *2 (S.D. Ohio March 07, 2012).
Finally, Miller cites no retroactively applicable Supreme Court decision which
would afford him relief. See United States v. Peterman, 249 F.3d 458,461-62 (6th
Cir. 2001); Charles, 180 F.3d at 757. "The only claim thatthis court has recognized
as cognizable under § 2241 is a claim of actual innocence based upon a new rule of
law made retroactive by a Supreme Court case, such as the claim raised in the case
12
of Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995)."
Townsend v. Davis, 83 F. App'x 728 (6th Cir. 2003).
As the savings clause of § 2255 does not apply, Miller's § 2241 petition will
be denied, and this action will be dismissed.
CONCLUSION
Accordingly, the Court being advised, IT IS ORDERED as follows:
(1)
Petitioner Stacey D. Miller's motion for extension oftime to file a brief,
[D. E. No.3], is GRANTED nunc pro tunc;
(2)
Miller's 28 U.S.C. § 2241 petition for writ of habeas corpus, [D. E.
No.1], and supplemental § 2241 petition, [D. E. No.4], are DENIED;
(3)
This action is DISMISSED, sua sponte, from the docket; and
(4)
Judgment will be entered contemporaneously with this Memorandum
Opinion and Order in favor of the Respondent, Warden D. Berkebile.
This 9th day of May, 2012.
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?