Miller v. Warden, FCI Ashland
| Decision Date | 22 June 2020 |
| Docket Number | Civil No. 0: 19-15-HRW |
| Parties | BYRON JAMES MILLER, Petitioner, v. WARDEN, FCI ASHLAND, Respondent. |
| Court | U.S. District Court — Eastern District of Kentucky |
Byron James Miller has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging the enhancement of his federal sentence in 1998. [D. E. No. 1] The warden has filed a response. [D. E. No. 12] Miller has not filed a reply, and the deadline to do so has passed. See [D. E. No. 7 at 3] This matter is ripe for decision.
In May 1991, Miller pleaded guilty to selling cocaine, a Schedule II controlled substance, in violation of Tenn. Code § 39-17-417(a)(3) in the Circuit Court of Davidson County, Tennessee. [D. E. Nos. 12-2 at 24, 12-3] Miller was sentenced to eight years in prison, suspended to an eight-year term of probation. See Miller v. Rivera, No. 1: 13-CV-442-RC-ZJH (E.D. Tex. 2013) [R. 4 therein at 8, 16-17, 30-31].
In 1997 Miller was convicted of federal conspiracy and drug trafficking charges in St. Louis, Missouri. Miller was sentenced to 292 months imprisonment, a term reduced in 2019 to 188 months. United States v. Miller, No. 4: 96-CR-365-CDP-1 (E.D. Mo. 1996); Miller v. United States, 135 F.3d 1254 (8th Cir. 1998).
While serving that sentence in a federal penitentiary in Pekin, Illinois, in 1998 Miller was caught with heroin. He was charged with possession of narcotics with intent to distribute, and a jury convicted him of violating 21 U.S.C. § 841(a)(1) and 841(b)(1)(C) and a related offense. In light of his two prior drug trafficking convictions in Tennessee and Missouri, the presentence investigation report concluded that Miller qualified as a career offender under § 4B1.1 of the Sentencing Guidelines. [D. E. No. 14 at 6] Miller was sentenced to 210 months imprisonment for his crimes, at the bottom of the applicable guidelines range, with that sentence to run consecutively to his federal sentence from Missouri. United States v. Miller, No. 1: 98-CR-10046-MMM-1 (C.D. Ill. 1998); United States v. Miller, 199 F. 3d 416 (7th Cir. 1999).
Miller has challenged his convictions and sentences through numerous motions under 28 U.S.C. § 2255 and Civil Rules 59(e) and 60(b), without success. See United States v. Miller, 542 F. App'x 526, 527-28 (7th Cir. 2013).
Miller argues in his petition that his state conviction under Tenn. Code § 39-17-417 was for "possession of narcotics for resale," and is not a "controlledsubstance offense" for purposes of U.S.S.G. § 4B1.1. [R. 1 at 2] Miller refers to Mathis v. United States, 136 S. Ct. 2243 (2016) as the basis for his claim.1 In a supplement to his petition, Miller also contends that the Sixth Circuit's decision in United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (en banc) supports his claim for relief. [D. E. No. 6] The Court has thoroughly reviewed the materials submitted by both of the parties, and will deny the petition because Miller's claims are not properly pursued in a § 2241 petition and are substantively without merit.
A federal prisoner generally may not raise a challenge to his sentence in a petition filed under 28 U.S.C. § 2241. United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001). Instead, a prisoner must file a motion under 28 U.S.C. § 2255 in the court that convicted and sentenced him to challenge his conviction or sentence. Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 2003). A § 2241 petition is not an additional or alternative remedy to the one available under § 2255. Hernandez v. Lamanna, 16 F. App'x 317, 320 (6th Cir. 2001).
The "savings clause" of 28 U.S.C. § 2255(e) creates a narrow exception to this rule if the remedy afforded by § 2255 is "inadequate or ineffective" to test the legality of a petitioner's detention. Truss v. Davis, 115 F. App'x 772, 773-74 (6thCir. 2004). A § 2255 motion is not "inadequate or ineffective" simply because such a motion would be barred or untimely or because a previous § 2255 motion was unsuccessful. Copeland v. Hemingway, 36 F. App'x 793, 795 (6th Cir. 2002); Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir. 2002) ().
Rather, to meet this standard the petitioner must establish that: (1) her sentence was imposed when the Sentencing Guidelines were mandatory before the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005); (2) she was foreclosed from asserting the claim in a successive petition under § 2255; and (3) after her sentence became final, the Supreme Court issued a retroactively applicable decision establishing that - as a matter of statutory interpretation - a prior conviction used to enhance her federal sentence no longer qualified as a valid predicate offense. Hill v. Masters, 836 F. 3d 591, 595, 599-600 (6th Cir. 2016). The petitioner's claim must be based upon a decision of the United States Supreme Court; a decision of a circuit court of appeals will not do. Hueso v. Barnhart, 948 F. 3d 324, 326 (6th Cir. 2020). And the claim must be one that the petitioner had no earlier opportunity to assert, either on direct appeal or in a § 2255 motion. Wright v. Spaulding, 939 F.3d 695, 703 (6th Cir. 2019).
Miller's claims fail to satisfy these criteria. The Sixth Circuit's decision in Havis provides no basis for relief under § 2241 because it is not a decision of the United States Supreme Court. Hueso, 948 F. 3d at 326; Hill, 836 F. 3d at 600.
Mathis, of course, satisfies that baseline requirement. But Miller's mere incantation of the Supreme Court's decision in that case does not mean that his claim is actually based upon it. In Mathis, the Supreme Court held that a statute which sets forth alternative factual means to commit a single offense is not divisible, and hence does not permit resort to the materials described in Shepard v. United States, 544 U.S. 13 (2005) to determine the particular offense committed. Mathis, 136 S. Ct. at 2248-50 (citing Richardson v. United States, 526 U.S. 813 (1999)).
Miller does not assert a Mathis claim: he does not contend that the trial court incorrectly concluded that the Tennessee drug trafficking statute was divisible, or that it errantly referred to Shepard materials.2 Instead he argues only that the Tennessee statute sweeps more broadly than the generic offense and hence cannot qualify as a valid predicate. [D. E. No. 1 at 9, 14-15] That is an argument basedsquarely upon Taylor v. United States, 495 U.S. 575, 599-66 (1990), a claim that Miller could and must have raised at sentencing, on direct appeal, or in an initial § 2255 motion; therefore, he cannot pursue it in a § 2241 petition. Spaulding, 939 F. 3d at 705 ( ). Because Miller had several earlier chances to assert this claim, he may not do so now in a § 2241 petition. Id. at 703.
Even if the merits of Miller's claims were properly raised in his petition, they are without merit. As noted above, Tenn. Code § 39-17-417 is a divisible statute, and hence the Illinois district court could refer to Shepard documents (such as the indictment or information, plea colloquy, verdict forms or judgment) to determine precisely what crime Miller pleaded guilty to in Tennessee. Those documents make plain that he was charged with and convicted of the sale of cocaine, an offense set forth in § 39-17-417(a)(3), not delivery under subsection (a)(2) or possession with intent to sell under subsection (a)(4).3 [D. E. Nos. 12-2 at 17, 19, 24, 42; D. E. No. 12-3] That is not to say, as the warden urges [D. E. No. 12 at 8-10], that Miller's characterization of his prior Tennessee conviction as one for "possession of a controlled substance for resale" is entirely baseless. Indeed, the federal presentence investigation report identified his prior conviction as such. See [D. E. No. 12-2 at 30] And, presumably drawing from the PSR, that is the label attached to this predicate by the federal court in Illinois, both during the sentencing hearing and in its opinion denying relief under § 2255. [D. E. No. 12-2 at 34-35, 39] This mistake appears to have originated from the Tennessee "Court Order for Community Corrections" entered on May 23, 1991, which described Miller's offense as "Possession of a Controlled Substance for Resale: Schedule II." [D. E. No. 12-2 at 43]
That label is self-evidently incorrect, however, as no such crime existed under Tennessee law in 1990 when Miller was charged. Cf. United States v. Douglas, 563 F. App'x 371, 373 (6th Cir. 2014) (). Here thegovernment, much like the Sixth Circuit did in Douglas, assumes that the "possession ... for resale" language is an apparent reference to a subsection of the current version of the statute, in this case § 39-17-417(a)(4), which criminalizes "Possess[ing] a controlled substance with intent to manufacture, deliver or sell such controlled substance." [D. E. No. 12 at 8-10]
But the Court need not assume what can be readily proved.4 The "for resale" language for a controlled substance is found in decisions of the Tennessee courts distinguishing between drug trafficking, a felony under Tenn. Code § 52-1432(a)(1), and possession incident to a "casual exchange," a misdemeanor under § 52-1432(a)(2), (b). These sections are found in Tenn. Code § 52-1432, the statutory precursor to the current law, which was enacted in 1971 and remained in effect until it was...
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