Miller v. United States
| Decision Date | 19 August 2018 |
| Docket Number | No. 16 C 4387,16 C 4387 |
| Parties | SHARIFF MILLER, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Northern District of Illinois |
Hon. Virginia M. Kendall
This matter is before the Court on Petitioner Shariff Miller's pro se Motion to Vacate, Set Aside, or Correct his sentence pursuant to 28 U.S.C. § 2255 (the Petition). (Dkts. 1, 11). For the reasons set forth below, Miller's Petition is denied. The Court further declines to certify any issue for appeal pursuant to 28 U.S.C. § 2255(c)(2).
Miller is no stranger to this Court. He has appeared on multiple statuses, two jury trials, three sentencings, and numerous hearings. In 2008, Petitioner Shariff Miller was arrested in Zion, Illinois, following a police search of his residence pursuant to a warrant which yielded approximately forty (40) grams of crack cocaine, three firearms, and assorted ammunition. (Dkt. 8) at 1. Subsequent to his arrest, Miller was charged with possession of crack cocaine with intent to distribute in violation of 21 U.S.C. § 841(a); felon-in-possession of a firearm in violation of 18 U.S.C. § 922(g); and possession of a firearm in furtherance of a drug offense in violation of 18 U.S.C. § 924(c). Id. Miller was convicted by a jury of all three offenses on May 26, 2009. Id. On December 2, 2010, the Court sentenced Miller to 180 months on Count One, a concurrent 120 months on Count Two, and a consecutive 60 months on Count Three for a total of 240 months. See United States v. Miller, 2009 WL 3156740, at *1 (N.D. Ill. Sept. 28, 2009). On January 5, 2011, Miller appealed his conviction. His conviction for being a felon-in-possession of a firearm was affirmed, but his convictions for possession of crack cocaine with intent to distribute and possession of a firearm in furtherance of a drug offense were reversed due to the admission of 404(b) evidence which the appellate court deemed to be overly prejudicial. See United States v. Miller, 673 F.3d 688, 702 (7th Cir. 2012) (the First Appeal). The Court had permitted the cross examination of Miller regarding his previous federal felony conviction for distributing heroin within the prior ten years pursuant to Fed. R. Evid. 609 and the Seventh Circuit held it to be overly prejudicial. The Court held a second jury trial and did not permit the jury to hear the evidence regarding his prior conviction.
Miller was re-tried on the charges and he represented himself after being given numerous court-appointed attorneys with whom he refused to work. A second jury again convicted him of possessing with intent to distribute at least 28 grams of cocaine base in violation of § 841(a)(1), this time without the information regarding the previous conviction; the jury acquitted him of possessing a gun in furtherance of a drug trafficking offense. (Dkt. 8) at 2. On November 20, 2013, the Court sentenced Miller to 200 months on the possession with intent to distribute count and 120 months (running concurrently) on the felon-in-possession count. Id. On November 27, 2013, Miller appealed (the Second Appeal) and his appointed appellate counsel Sara Varner challenged only the conditions of Miller's supervised release. Meanwhile, the Government agreed to remand for sentencing consistent with United States v. Thompson, 777 F.3d 368 (7th Cir. 2015) finding that Miller should have an opportunity to challenge the conditions of his supervised release.
Accordingly, on January 6, 2016, the Court re-sentenced Miller to 175 months on the possession with intent to distribute count and 120 months on the felon-in-possession count to run concurrently (the 2016 Resentencing) a significant reduction from his first sentence. (Dkt. 8) at 2. On January 28, 2016, Miller appealed his sentence (the Third Appeal) but he later withdrew the appeal. Id. Specifically, on April 11, 2016, Miller requested through counsel an order dismissing his appeal with prejudice so that he could instead pursue relief under 28 U.S.C. § 2255. United States v. Miller, No. 16-1169 (Dkt. 11) (7th Cir.). On April 15, 2016, he filed the instant timely § 2255 Motion. (Dkt. 1). After the Government had submitted its response, Miller filed an Amended Petition on May 31, 2016. (Dkt. 11).
Section 2255 allows a federal prisoner to move the district court that imposed his sentence to vacate it, set it aside, or correct it. See 28 U.S.C. § 2255. Such a motion seeks "an extraordinary remedy because it asks the district court essentially to reopen the criminal process to a person who already has had an opportunity for full process." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). Unlike a direct appeal, where a defendant may complain of nearly any error, § 2255 proceedings may only be used to correct errors that vitiate the sentencing court's jurisdiction, are of constitutional magnitude, or constitute a fundamental defect which inherently results in a complete miscarriage of justice. Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004); see 28 U.S.C. § 2255(a) (). A § 2255 motion is not a substitute for a direct criminal appeal. See Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007) (). And a "claim cannot be raised for the first time in a § 2255 motion if it could have been raised at trial or on direct appeal." McCoy v. United States, 815 F.3d 292, 295 (7th Cir. 2016). However, challenges of ineffective assistance not waived by failure to raise them on direct appeal. Gaylord v. United States, 829 F.3d 500, 506 (7th Cir. 2016).
Miller makes four arguments in support of his request to be re-tried and/or resentenced. Three of the arguments challenge Miller's classification as a career offender under the Sentencing Guidelines. Miller's other argument is that both his trial and appellate counsel were constitutionally ineffective in violation of the Sixth Amendment. See (Dkts, 1, 11).
First, a challenge of the Court's application of the Sentencing Guidelines, rarely, if ever, constitutes a Constitutional concern cognizable under habeas relief. See generally Hawkins v. United States, 706 F.3d 820 (7th Cir. 2013) (); see also United States v. King, 2011 WL 2416101, at *4 (N.D. Ill. June 14, 2011) ().
Second, under the Sentencing Guidelines, an adult defendant is a career offender if he is convicted of a crime of violence or a controlled substance offense and if he has at least two prior felony convictions for crimes of violence or controlled substance offenses. U.S.S.G. § 4B1.1(a). A "controlled substance offense" is defined as "an offense under federal or state law, punishableby imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense." U.S.S.G. § 4B1.2(b).
Miller was sentenced as a career offender on all three occasions because he was at least eighteen years old at the time of his federal convictions (one of which was for the possession with intent to distribute 28 grams or more of crack cocaine, which is a controlled substance offense) and he had two prior felony convictions for controlled substance offenses. The two qualifying convictions relied upon by the Court were a 1997 "Manufacture/Deliver Cocaine" conviction from Kenosha County, Wisconsin and a 2000 "Manufacture/Deliver" conviction from Lake County, Illinois.
Miller now argues that the Wisconsin conviction does not qualify as a "controlled substance offense" for purposes of the career offender Guidelines. Specifically, Miller was convicted of violating Wis. Stat. § 961.41(1)(cm)1 (1997). At the time of his crime, this statute read:
Specifically, Miller makes three arguments about the statute: (1) the statute criminalizes "deliver" and the word "delivery is not a part of the definition in § 4B1.2 and therefore the Wisconsin law prohibits a range of conduct that is broader than the definition of "controlled substance offense"; (2) the arresting officer had discretion to charge either a felony or a misdemeanor based on the amount of drugs and chose to charge a felony because Miller was uncooperative and that discretion makes the statue unconstitutionally vague; and (3) he was charged with a miniscule amount of drugs, which, if he had been sentenced under the federal sentencing...
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