United States District Court, C.D. Illinois, Peoria Division
ORDER AND OPINION
MYERSCOUGH UNITED STATES DISTRICT JUDGE.
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
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.
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v. Millis, 89 F.3d 836 (6th Cir. 1996) (unpublished).
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). 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.
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.
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.
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
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
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.
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)).
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.
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.
Millis' Dean Claim Is Dismissed.
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.”).
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)).
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.”).
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.