Miller v. United States of America

Filing 4

MEMORANDUM AND ORDER regarding Petition for Writ of Habeas Corpus 1 filed by Eric V. Miller. Following initial review, the court finds it does not have jurisdiction over Miller's § 2241 petition, and Miller has not received authorization to file a second or successive § 2255 motion. Therefore, Miller's Petition (Filing No. 1 ) is dismissed without prejudice. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Senior Judge Richard G. Kopf. (Copy mailed/e-mailed to pro se party)(JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ERIC V. MILLER,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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8:11CV361

MEMORANDUM
AND ORDER

This matter is before the court on initial review of Eric Miller’s (“Miller”)
Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2241 (“Petition”).
For the reasons explained below, Miller’s Petition is dismissed.
I. BACKGROUND
According to this court’s records, Miller pled guilty to possession with intent
to distribute cocaine base on October 20, 2006. (United States v. Miller, Case No.
8:06CR124 (D. Neb.), Filing No. 24.) On January 19, 2007, the court sentenced
Miller to 188 months in prison. (Case No. 8:06CR124, Filing No. 29.) On March 2,
2009, Miller filed a Motion to Vacate Under 28 U.S.C. § 2255.

(Case No.

8:06CR124, Filing No. 67.) The court denied Miller’s Motion on May 5, 2010. (Case
No. 8:06CR124, Filing No. 92.) Miller appealed, and the Eighth Circuit Court of
Appeals denied Miller a certificate of appealability on September 30, 2010. (Case No.
8:06CR124, Filing No. 103.)
Miller is serving his sentence at the United States Penitentiary in Leavenworth,
Kansas. (Filing No. 1 at CM/ECF p. 1.) He filed his Petition in this matter on
October 17, 2011.

Miller argues his sentence is unconstitutional because the

sentencing court considered prior convictions for purposes of enhancing his sentence.
(Id. at CM/ECF pp. 1-2.) Miller asks that his sentence be vacated, set aside, or
corrected. (Id. at CM/ECF p. 2.)

II. DISCUSSION
A federal prisoner challenging the legality of his sentence must raise his claims
in a 28 U.S.C. § 2255 motion, while a federal prisoner attacking the execution of a
sentence should raise his claims in a 28 U.S.C. § 2241 petition in the jurisdiction of
incarceration. Nichols v. Symmes, 553 F.3d 647, 649 (8th Cir. 2009); see United
States v. Hutchings, 835 F.2d 185 (8th Cir. 1987) (holding that a federal prisoner
challenging the manner, location, or conditions of sentence’s execution must bring a
petition for writ of habeas corpus under 28 U.S.C. § 2241); Youngman v. United
States, 3:11-cv-03009, 2011 WL 2312092, *2-3 (D.S.D. June 10, 2011) (dismissing
28 U.S.C. § 2241 petition because it was an attack on the validity of a sentence that
should have been made under 28 U.S.C. § 2255).
As set forth above, Miller argues that his sentence was unconstitutional because
the sentencing court considered Miller’s prior convictions for purposes of enhancing
his sentence. (Filing No. 1 at CM/ECF pp. 1-2.) This claim attacks the legality of
Miller’s sentence and must be raised in a motion brought pursuant to 28 U.S.C. §
2255. However, even if the court were to construe Miller’s Petition as a § 2255
motion, the court would have to deny it. As set forth above, Miller previously filed
a § 2255 motion in this court and he does not argue that he has sought or received
permission from the Eighth Circuit Court of Appeals to file a second or successive §
2255 motion. See 28 U.S.C. § 2255(h) (stating that a second or successive motion
must be certified as provided in section 2244 by a panel of the appropriate court of
appeals).
Miller may be able to challenge his sentence or conviction in a § 2241 petition
if he can demonstrate that § 2255 is “inadequate or ineffective.” Abdullah v. Hedrick,
392 F.3d 957, 959 (8th Cir. 2004). Here, Miller does not argue that § 2255 is
“inadequate or ineffective.” Regardless, this court does not have jurisdiction over
Miller’s § 2241 petition because Miller is not incarcerated in this district. See Nichols,
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553 F.3d 647, 649 (reiterating that a claim attacking the execution of a sentence
should be brought in a § 2241 petition in the jurisdiction of incarceration); see also
Youngman, 2011 WL 2312092 at * 2 (finding that, because federal inmate was
incarcerated in Louisiana, the District of South Dakota did not have jurisdiction over
his § 2241 petition). Thus, to the extent Miller seeks to attack the execution of his
sentence or can demonstrate that § 2255 is “inadequate or ineffective,” he must submit
a § 2241 petition to the United States District Court in Kansas, where he is currently
incarcerated.
In summary, this court does not have jurisdiction over Miller’s § 2241 petition,
and Miller has not received authorization to file a second or successive § 2255 motion.
As such, Miller’s Petition must be dismissed.
IT IS THEREFORE ORDERED that: Miller’s Petition (Filing No. 1) is
dismissed without prejudice. A separate judgment will be entered in accordance with
this Memorandum and Order.
DATED this 31 st day of January, 2012.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on
their Web sites. Likewise, the court has no agreements with any of these third parties
or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
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