United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
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).
files an answer at Doc. 14, and petitioner filed a reply at
Facts and Procedural History
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
entered into a written plea agreement. No. 06-00223-PP-1,
Doc. 144, ¶5.
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.
Legal Standards Applicable to Section 2241
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).
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.
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
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).
Burrage v. United States, 134 ...