Simpson v. Ormond
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
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
J. RAY ORMOND, Warden
Civil No. 16-272-GFVT
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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
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.
Accordingly, it is ORDERED as follows:
Simpson’s petition for a writ of habeas corpus [R. 1] is DENIED.
The Court will enter a judgment contemporaneously with this order.
This matter is DISMISSED and STRICKEN from the docket.
This the 2nd day of October, 2017.
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