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Miltonn v. Werlich

United States District Court, S.D. Illinois

January 24, 2018

TIMOTHY MILTON, Petitioner,
v.
T. G. WERLICH, Respondent.

          MEMORANDUM AND ORDER

          Herndon Judge.

         Petitioner Timothy Milton, an inmate in the custody of the Bureau of Prisons, filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 challenging his conviction for conspiracy to distribute heroin and cocaine base which resulted in death or bodily injury. He relies on Burrage v. United States, 134 S.Ct. 881 (2014).

         Respondent files an answer at Doc. 14, and petitioner filed a reply at Doc. 16.

         Relevant Facts and Procedural History

         Timothy Milton pleaded guilty to one count of conspiracy to distribute heroin and cocaine base which resulted in death or bodily injury, in violation of 21 U.S.C. § 841(a), in the Eastern District of Wisconsin. United States v. Milton, No. 06-00223-PP-1 (E. D. Wis.). Because death resulted from use of the heroin distributed by petitioner, he was subject to a statutory sentencing range of 20 years to life imprisonment pursuant to § 841(b)(1)(A). Under the statute, the 20 year minimum sentence applies when “death or serious bodily injury results from the use of” a controlled substance unlawfully distributed by a defendant.

         Milton entered into a written plea agreement. No. 06-00223-PP-1, Doc. 144, ¶5.[1]

         In September 2008, Milton was sentenced to 216 months imprisonment. No. 06-00223-PP-1, Judgment, Doc. 367. At the sentencing hearing, the government orally moved for a downward departure from mandatory minimum sentence of 20 years pursuant to 18 U.S.C. § 3553(e). The court calculated his Guidelines range as 360 months to life, granted the § 3553(e) motion, and sentenced Milton to 216 months imprisonment. No. 06-00223-PP-1, Transcript of Sentencing Hearing, Doc. 481, pp. 14, 24-25.

         Applicable Legal Standards

         1. Legal Standards Applicable to Section 2241

         Generally, petitions for writ of habeas corpus under 28 U.S.C. §2241 may not be used to raise claims of legal error in conviction or sentencing, but are limited to challenges regarding the execution of a sentence. See, Valona v. United States, 138 F.3d 693, 694 (7th Cir.1998).

         A prisoner who has been convicted in federal court is generally limited to challenging his conviction and sentence by bringing a motion pursuant to 28 U.S.C. §2255 in the court which sentenced him. A motion under §2255 is ordinarily the “exclusive means for a federal prisoner to attack his conviction.” Kramer v. Olson, 347 F.3d 214, 217 (7th Cir. 2003). And, a prisoner is generally limited to bringing only one motion under §2255. A prisoner may not file a “second or successive” motion unless a panel of the appropriate court of appeals certifies that such motion contains either 1) newly discovered evidence “sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense, ” or 2) “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. §2255(h).

         However, it is possible, under very limited circumstances, for a prisoner to challenge his federal conviction or sentence under §2241. 28 U.S.C. §2255(e) contains a “savings clause” which authorizes a federal prisoner to file a §2241 petition where the remedy under §2255 is “inadequate or ineffective to test the legality of his detention.” The Seventh Circuit construed the savings clause in In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998): “A procedure for postconviction relief can be fairly termed inadequate when it is so configured as to deny a convicted defendant any opportunity for judicial rectification of so fundamental a defect in his conviction as having been imprisoned for a nonexistent offense.”

         The Seventh Circuit has explained that, in order to fit within the savings clause following Davenport, a petitioner must meet three conditions. First, he must show that he relies on a new statutory interpretation case rather than a constitutional case. Secondly, he must show that he relies on a decision that he could not have invoked in his first §2255 motion and that case must apply retroactively. Lastly, he must demonstrate that there has been a “fundamental defect” in his conviction or sentence that is grave enough to be deemed a miscarriage of justice. Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013). See also, Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012).

         2. Burrage v. United States, 134 ...


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