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Millis v. Pullen

United States District Court, C.D. Illinois, Peoria Division

September 30, 2019

MICHAEL LEE MILLIS, Petitioner,
v.
T. PULLEN, Acting Warden, Respondent.

          ORDER AND OPINION

          SUE E. MYERSCOUGH UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Petitioner Michael Lee Millis' Petition for Writ of habeas corpus under 28 U.S.C. § 2241 (Doc. 1). For the reasons set forth below, Petitioner's claim based on Dean v. United States, 137 S.Ct. 1170 (2017), his claims regarding his convictions under 18 U.S.C. § 924(c), and his cumulative impact claim are DISMISSED. However, Respondent failed to address Petitioner's claim that he should not have been sentenced under the mandatory sentencing guidelines as a career offender in light of United States v. Burris, 912 F.3d 386 (6th Cir. 2019), and it could have merit. Respondent is ORDERED to file a supplemental response addressing this claim within twenty-one days of entry of this Order.

         Also before the Court is Millis' Amended Petition (Doc. 4) filed on June 17, 2019. The Amended Petition does not set forth additional claims, but rather provides more detailed legal support for the claims he raised in his original Petition. The Court construes this filing as a Motion to Amend his Petition, which, due to the need for additional briefing from Respondent, is GRANTED.

         I. BACKGROUND

         In March 1994, a federal jury in the District Court for the Eastern District of Kentucky found Millis guilty of aiding and abetting an armed bank robbery in violation of 18 U.S.C. §§ 2 and 2113(a) and (d); Hobbs Act robbery in violation of 18 U.S.C. §§ 2 and 1951(a); two counts of aiding and abetting in the use and carrying of a firearm during and in relation to crimes of violence in violation of 18 U.S.C. §§ 2 and 924(c); and possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). United States v. Creeden, et. al., No. 2:93-cr-00055 (E.D. Ky.); see also United States v. Millis, 89 F.3d 836 (6th Cir. 1996) (unpublished).

         The Presentence Investigation Report (PSR) found that Millis qualified as a career offender under § 4B1.2 of the then-mandatory Sentencing Guidelines based on a prior $50 marijuana sale conviction and a prior Ohio aggravated assault conviction. See Pet. at 4 (Doc. 1).[1] His mandatory sentencing range under the guidelines was 562 to 627 months' imprisonment (consisting of 262 to 327 months on his armed bank robbery, Hobbs Act Robbery, and § 922(g) convictions, as well as mandatory five-year and twenty-year consecutive imprisonment sentences on his two § 924(c) convictions). Id. However, after applying downward departures based on his age, his minor role in the offense, and the minor nature of his prior criminal record, he was sentenced to a total of 410 months' imprisonment. Id.

         Millis' Petition outlines his prior attempts to obtain post-conviction relief, but only his most recent § 2241 petition is relevant to this case. In that case, Millis filed his § 2241 petition in this district, as he was confined at the Federal Correctional Institution in Pekin, Illinois, at that time as well. See Millis v. King, No. 2:17-CV-184-WOB, 2017 WL 6813672, at *1 (E.D. Ky. Oct. 10, 2017). He argued he was entitled to relief in light of the Supreme Court's decision in Dean v. United States, 137 S.Ct. 1170 (2017), which held that a sentencing court can consider the mandatory minimum sentence under 18 U.S.C. § 924(c) when choosing a just sentence for the predicate count. Id. at 1177.

         Respondent suggested that a transfer to the District Court for the Eastern District of Kentucky might be appropriate since the original prosecuting office in the Eastern District of Kentucky had previously said that it would support a petition for commutation of his sentence. After Millis agreed and filed a motion to transfer the petition, the case was transferred to the Eastern District of Kentucky. Millis, 2017 WL 6813672, at *1. The Eastern District of Kentucky noted that the transfer “was fruitless of course, as this Court lacks jurisdiction over his custodian.” Id. Nonetheless, the court concluded that transferring the petition back was not warranted, as the case was without merit. Id. The court found that relief was not available under the § 2255(e) savings clause because Dean was not retroactive. Millis, 2017 WL 6813672, at *2. Further, the court found that Dean did not apply to Millis' case because Millis was sentenced under the guidelines when they were mandatory so it was “not the mandatory nature of his § 924(c) conviction” that restricted the sentencing court's discretion, but the mandatory nature of the sentencing guidelines. Id. The district court also noted that it would support a petition for clemency with the President of the United States if Millis were to file one. Id.

         The Sixth Circuit affirmed the denial of Millis' § 2241 Petition on July 18, 2018. Millis v. Kallis, No. 17-6328 (6th Cir. July 18, 2018). Millis then sought rehearing en banc, arguing that because the Eastern District of Kentucky did not have jurisdiction over the custodian, it should not have reached a decision on the merits. This request was also denied. Millis, No. 17-6328 (6th Cir. Oct. 9, 2018). The Supreme Court denied certiorari in February 2019. Millis v. Kallis, 139 S.Ct. 1223 (2019).

         Millis filed the instant Petition on April 22, 2019. He has re-alleged his prior argument that he is entitled to relief in light of Dean v. United States, 137 S.Ct. 1170 (2017). Additionally, he argues that he no longer qualifies as a career offender in light of the new statutory interpretation rule announced in United States v. Burris, 912 F.3d 386 (6th Cir. 2019), that in light of Sessions v. Dimaya, 138 S.Ct. 529 (2018), his convictions under § 924(c) are unconstitutionally void for vagueness, and that “the cumulative effect of all the aforementioned sentencing errors warrants re-sentencing.”

         The Court ordered Respondent to respond. Respondent's May 28, 2018, response (Doc. 3) curiously only addressed Petitioner's Dean claim, arguing it was barred as an abuse of the writ, that Dean does not apply retroactively, and that Dean does not otherwise apply to Millis' case. Millis filed an Amended Petition (Doc. 4) on June 17, 2019, which did not raise new claims, but rather provided further legal support for the claims raised in his original Petition-perhaps equally confused by Respondent's failure to address his additional claims. This Order follows.

         II. LEGAL STANDARD

         Generally, federal prisoners who seek to collaterally attack their conviction or sentence must proceed by way of motion under 28 U.S.C. § 2255, the so-called “federal prisoner's substitute for habeas corpus.” Camacho v. English, 16-3509, 2017 WL 4330368, at *1 (7th Cir. Aug. 22, 2017) (quoting Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012)). The exception to this rule is found in § 2255 itself: a federal prisoner may petition under § 2241 if the remedy under § 2255 “is inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). Under the “escape hatch” of § 2255(e), “[a] federal prisoner should be permitted to seek habeas corpus only if he had no reasonable opportunity to obtain earlier judicial correction of a fundamental defect in his conviction or sentence because the law changed after his first 2255 motion.” In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998). Under Seventh Circuit case law, “[t]o pursue relief under § 2241, a petitioner must establish that ‘(1) the claim relies on a statutory interpretation case, not a constitutional case, and thus could not have been invoked by a successive § 2255 motion; (2) the petitioner could not have invoked the decision in his first § 2255 motion and the decision applies retroactively; and (3) the error is grave enough to be deemed a miscarriage of justice.'” Chazen v. Marske, No. 18-3268, 2019 WL 4254295, at *3 (7th Cir. Sept. 9, 2019) (citing Beason v. Marske, 926 F.3d 932, 935 (7th Cir. 2019)).

         III. DISCUSSION

         Millis raises four claims in his Petition: (1) that he no longer qualifies as a career offender in light of United States v. Burris, 912 F.3d 386 (6th Cir. 2019); (2) that in light of Sessions v. Dimaya, 138 S.Ct. 529 (2018), his conviction under § 924(c) is unconstitutionally void for vagueness; (3) that he is entitled to relief in light of Dean v. United States, 137 S.Ct. 1170 (2017); and (4) that “the cumulative effect of all the aforementioned sentencing errors warrants re-sentencing.” Respondent's response only addressed Millis' Dean claim, and the Court agrees that this claim must be dismissed. Moreover, the Court finds that Millis' arguments regarding his § 924(c) convictions and his “cumulative impact” claim, cannot proceed either.

         However, Millis' claim that he should not have been sentenced as a career offender in light of Burris may have merit, and could potentially meet the savings-clause test in light of Respondent's failure to respond. Accordingly, the Court finds additional briefing is needed from Respondent, as further explained below.

         A. Millis' Dean Claim Is Dismissed.

         The Court finds that Millis' claim based on Dean v. United States, 137 S.Ct. 1170 (2017), has already been addressed and denied on the merits in the Eastern District of Kentucky in his previous § 2241 Petition. As Millis' claim has already been decided on the merits by another judge, this Court is not required to review the claim again. See 28 U.S.C. § 2244(a) (“No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus.”).

         Moreover, this Court agrees with the conclusion of the District Court for Eastern District of Kentucky and also finds that Dean is not retroactive. A new rule is only retroactive to cases on collateral review in limited circumstances. Substantive rules, rules that “alter[ ] the range of conduct or the class of persons that the law punishes” or “narrow the scope of a criminal statute by interpreting its terms, ” generally apply retroactively because they “necessarily carry a significant risk that a defendant stands convicted of ‘an act that the law does not make criminal' or faces a punishment that the law cannot impose upon him.” Schriro v. Summerlin, 542 U.S. 348, 352-53, 124 S.Ct. 2519, 2522-23 (2004) (citing Bousley v. United States, 523 U.S. 614, 620, 118 S.Ct. 1604 (1990); Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298 (1974)). On the other hand, “rules that regulate only the manner of determining the defendant's culpability are procedural” and generally do not apply retroactively, unless they are “watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.” Id. at 352-53 (citing Teague v. Lane, 489 U.S. 288, 311, 109 S.Ct. 1060 (1989)).

         Dean is not a substantive rule. Dean does not leave anyone convicted of an act that the law does not make criminal, nor face a punishment that the law cannot impose on him. Dean does not narrow the scope of the criminal statute, but rather clarifies the amount of discretion a district court judge can exercise when crafting a sentence. Accordingly, the Court agrees with the Eastern District of Kentucky, as well as other courts that have considered this issue, and finds that Dean is not retroactive to cases on collateral review. See Gunn v. United States, No. 18-CV-1114, 2018 WL 3078741, at *6 (C.D. Ill. June 21, 2018) (finding Dean is not retroactive as “Dean does not compel courts to do anything”); Tomkins v. United States, No. 16-CV-7073, 2018 WL 1911805, at *19-20 (N.D. Ill. Apr. 23, 2018) (finding Dean was not retroactive on collateral review, and collecting “a couple dozen cases” that had addressed the issue all holding that Dean was not retroactive); Reed v. United States, 2018 WL 453745, at *2 (N.D. Ill. Jan. 16, 2018) (finding that Dean does not apply retroactively to case on collateral review); United States v. Dawson, 300 F.Supp.3d 1207, 1214 (D. Or. 2018) (concluding that Dean does not apply retroactively because the case “was about a sentencing judge's discretion, which is a procedural concern.”).

         Further, the Court agrees that Dean does not apply to Millis' case because Millis was sentenced under the guidelines when they were mandatory. Therefore, it was “not the mandatory nature of his § 924(c) conviction” that restricted the sentencing court's discretion, but the mandatory nature of the sentencing guidelines. Millis, 2017 WL 6813672, at *2. Accordingly, ...


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