Simpson v. Ormond

Filing 14

MEMORANDUM OPINION & ORDER: 1. Simpsons petition for a writ of habeas corpus [R. 1] is DENIED. 2. The Court will enter a judgment contemporaneously with this order. 3. This matter is DISMISSED and STRICKEN from the docket.. Signed by Judge Gregory F. VanTatenhove on 10/2/2017.(JMB)cc: COR, Torvos Simpson via US Mail

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION LONDON TORVOS SIMPSON, ) ) ) ) ) ) ) ) ) Petitioner, v. J. RAY ORMOND, Warden Respondent. Civil No. 16-272-GFVT MEMORANDUM OPINION & ORDER *** *** *** *** Federal inmate Torvos Simpson has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. [R. 1.] This matter is before the Court to conduct an initial review of Simpson’s petition pursuant to 28 U.S.C. § 2243. Alexander v. Northern Bureau of Prisons, 419 F. App’x 544, 545 (6th Cir. 2011). On Thanksgiving Day in 1993, when he was under eighteen years old, Simpson and two cohorts convinced a sixteen year old girl to give them a ride in her car. The group then seized control of the vehicle from the girl, drove down a deserted road, and murdered her. Following his arrest, Simpson pled guilty to carjacking in violation of 18 U.S.C. § 2119 and possession of a firearm during the commission of a crime of violence in violation of 18 U.S.C. § 924(c). The trial court sentenced Simpson to life imprisonment without the possibility of parole for the carjacking, and a consecutive 60-month sentence was imposed for the § 924(c) conviction. United States v. Simpson, No. 2: 94Cr-1-JRG-2 (E.D. Tex. 1995) In 2014, Simpson obtained permission from the Fifth Circuit to file a second or successive motion under 28 U.S.C. § 2255 to challenge his life sentence in light of the Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460 (2012). In Miller, the Supreme Court held that imposing a sentence of life imprisonment without the possibility of parole upon a defendant who committed murder while a juvenile would violate the Eighth Amendment’s prohibition against imposing “Cruel and Unusual Punishments” if that sentence was mandatory, meaning imposed under a sentencing scheme that deprived the sentencing authority of discretion to consider juvenile offender characteristics, such as lessened culpability and heightened capacity for rehabilitation. Miller, 567 U.S. at 470-72. 1 However, the trial court denied Simpson’s § 2255 motion because Miller made clear that a trial court may sentence a juvenile homicide offender to life imprisonment without parole so long as the court had discretion to impose a different punishment after considering the characteristics of youthful offenders. Miller, 567 U.S. at 476, 479-80. Because the trial court could and did consider such factors, and had discretion under the Sentencing Guidelines to impose a sentence from 360 months to life imprisonment, Simpson’s sentence did not violate the Eighth Amendment. In 2015, the Fifth Circuit denied a certificate of appealability from that decision. United States v. Simpson, No. 15-40097 (5th Cir. Oct. 1, 2015). In the present case, Simpson reiterates the same claim under Miller previously considered and rejected by the trial court and the Fifth Circuit. However, his petition must be denied because Simpson cannot assert his Miller claim in a § 2241 petition. A challenge to a sentence is permissible in a Section 2241 petition only when (1) the petitioner’s sentence was imposed preBooker, when the Sentencing Guidelines were mandatory; (2) the petitioner was foreclosed from asserting the claim in a successive petition under § 2255; and (3) after the petitioner’s sentence became final, the Supreme Court issued a retroactively applicable decision establishing that - as a matter of statutory interpretation - a prior conviction used to enhance his federal sentence no 1 In doing so, the Fifth Circuit concluded that Miller necessarily constituted a new substantive rule of constitutional law, and hence was retroactively applicable to cases on collateral review, in light of the procedural posture of Miller itself. Two years later the Supreme Court expressly so held in Montgomery v. Louisiana, 577 U.S. __, 136 S. Ct. 718 (2016). longer qualified as a valid predicate offense. Hill v. Masters, 836 F. 3d 591, 599-600 (6th Cir. 2016). Simpson’s claim satisfies the first requirement, but fails the second and third. Simpson was permitted to and actually did assert his Miller claim in a § 2255 motion, and the mere fact that he was denied relief does not render § 2255 unavailable, Copeland v. Hemingway, 36 F. App’x 793, 795 (6th Cir. 2002), or permit him a second “bite at the apple” through a § 2241 petition. Hernandez v. Lamanna, 16 F. App’x 317, 360 (6th Cir. 2001). And Simpson relies upon Miller, a Supreme Court decision not founded upon statutory interpretation but upon the Eighth Amendment. His claim is therefore not one of actual innocence. Wooten v. Cauley, 677 F.3d 303, 307-08 (6th Cir. 2012). Simpson’s claim therefore plainly does not satisfy two of the requirements of Hill, and his sentencing claim therefore does not fall within the narrow scope of Section 2255(e)’s savings clause. United States v. Peterman, 249 F.3d 458, 461-62 (6th Cir. 2001). Accordingly, it is ORDERED as follows: 1. Simpson’s petition for a writ of habeas corpus [R. 1] is DENIED. 2. The Court will enter a judgment contemporaneously with this order. 3. This matter is DISMISSED and STRICKEN from the docket. This the 2nd day of October, 2017.

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