Millis v. Segal

• Decision Date: 28 July 2021
• Docket Number: No. 20-1520,20-1520
• Citation: 5 F.4th 830
• Parties: Michael L. MILLIS, Petitioner-Appellant, v. M. SEGAL, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

5 F.4th 830

Michael L. MILLIS, Petitioner-Appellant,

v.M. SEGAL, Warden, Respondent-Appellee.

No. 20-1520

United States Court of Appeals, Seventh Circuit.

Argued December 7, 2020

Decided July 28, 2021

Michael T. Brody, Vaughn Edward Olson, Attorneys, Jenner & Block LLP, Chicago, IL, for Petitioner - Appellant.

Katherine Virginia Boyle, Attorney, Office of the United States Attorney, Urbana Division, Urbana, IL, W. Scott Simpson, Attorney, Office of the United States Attorney, Street Springfield, IL, for Respondent - Appellee.

Before Sykes, Chief Judge, and Brennan and St. Eve, Circuit Judges.

Brennan, Circuit Judge.

In 1994, Michael Millis was found guilty of several crimes related to a pair of armed robberies in the Eastern District of Kentucky. At sentencing, Millis's previous convictions qualified him as a career offender under the then-mandatory Sentencing Guidelines. Millis received a total sentence of 410 months’ imprisonment and since his confinement, he has sought post-conviction relief at least a dozen times.

Millis does so again here. Attempting to benefit from intervening legal changes that affect his career offender designation, Millis invokes what is often known as the "savings clause" of 28 U.S.C. § 2255(e), which would allow him to petition for a writ of habeas corpus under 28 U.S.C. § 2241. But the savings clause is a narrow exception to the general rule that a federal sentence must be collaterally attacked under 28 U.S.C. § 2255. Millis's sentence on his guidelines counts fell within the range for a non-career offender, so the district court held that his career offender designation had not resulted in a miscarriage of justice, the third element of this court's savings clause test. We agree and affirm the denial of his habeas petition.

I

In May 1993, Michael Millis and Michael Creeden committed two armed robberies in Ohio and Indiana. In June 1993, state police stopped the duo and searched their vehicle, which contained ammunition, a pistol, and cash proceeds from the robberies. A magistrate judge later found that traffic stop to be pretextual. But by then, Creeden had already implicated Millis as the getaway driver in the robberies.

In February 1994, a grand jury in the Eastern District of Kentucky returned a five-count superseding indictment against Millis:

• Count One charged aiding and abetting an armed bank robbery in violation of 18 U.S.C. §§ 2 and 2113(a), (d) ;

• Count Two charged aiding and abetting the use of a firearm during and in relation to a crime of violence in violation of 18 U.S.C. §§ 2 and 924(c) ;

• Count Four charged possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1) ;

• Count Five charged aiding and abetting a Hobbs Act robbery in violation of 18 U.S.C. §§ 2 and 1951(a) ;

• Count Six charged aiding and abetting the use of a firearm during and in relation to a crime of violence in violation of 18 U.S.C. §§ 2 and 924(c).

Millis went to trial in March 1994, and a jury convicted him on all five counts.

Millis's presentence report, prepared using the 1993 U.S. Sentencing Commission Guidelines Manual, initially calculated his total offense level as 26 and his criminal history category as V. But two of Millis's previous convictions—a 1992 Ohio conviction for aggravated assault and a 1991 Ohio conviction for selling marijuana—plus his federal armed bank robbery conviction qualified him as a career offender for sentencing. Under U.S.S.G. § 4B1.1 (1993), a career offender designation applied, in relevant part, if "(2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense." This designation raised his total offense level to 34 and his criminal history category to VI.

Millis's sentencing occurred before United States v. Booker , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), so the resulting guidelines range was mandatory absent a departure. Based on Millis's total offense level of 34 and his criminal history category of VI, Counts One, Four and Five (the non- § 924(c) counts) carried a guidelines range of 262 to 327 months. Counts Two and Six (the § 924(c) counts) carried mandatory minimum sentences of 60 months and 240 months, required by statute to be served consecutive to any other sentence. With his career offender status, Millis's sentencing exposure was 562 to 627 months: 262 to 327 months for the guidelines range on the non- § 924(c) counts and 300 months for the mandatory sentences on the § 924(c) counts. Without his career offender status, however, Millis's sentencing exposure would have been 410 to 437 months: 110 to 137 months for the guidelines range on the non- § 924(c) counts and 300 months for the mandatory sentences on the § 924(c) counts. So the terms for the non- § 924(c) counts fluctuated based on the guidelines, but the terms for the § 924(c) counts remained fixed by statute.

At Millis's sentencing hearing, the district court began by announcing that the guidelines range and mandatory sentences "have come out too heavy because they would come out to 45 years [540 months]."¹ "I'm contemplating departing downward," the district court stated, "on those elements where I have any discretion to depart downward, to 110 months plus the mandatory part of five years [60 months] and 20 years [240 months] which would bring up a total of 410 months." After summarizing Millis's offense conduct, the district court remarked that, "for this kind of conduct, I would have given 25 years [300 months], subject to parole which would have resulted in a sentence of eight or ten years." A sentence of 45 years, for the district court, would be "probably tantamount to life imprisonment for driving the get-away car in two robberies" and "excessive." The district court then said: "This conduct is minimal. ... If I could get it down to 25 [years], which is what I think would be appropriate if I had discretion, I would do that, but we couldn't get it down that far."

After noting the preservation of the government's sentencing objections and adopting the presentence report, the district court sentenced Millis as follows. On a guidelines range of 262 to 327 months, Millis benefitted from a downward departure and received 110 months on Counts One, Four, and Five—the non- § 924(c) counts—served concurrently. For the § 924(c) counts, Millis received the statutorily required 60 months on Count Two and 240 months on Count Six, with each term consecutive to any other count, for a total of 300 months. Taken together, Millis received a total sentence of 410 months’ imprisonment.

The district court then reiterated: "Again, I will say for the record if I had discretion in this case, I would sentence him to about 25 years [300 months]." In "clarify[ing] the reasons for [its] departure," the district court noted that it looked at Millis's age, "which is not the sole reason for departing but is a factor," as well as "the underlying circumstances" of the convictions that qualified him as a career offender. Remarking that Millis's "other prior record is also minor," the district court concluded its departure explanation by stating:

So I believe the career status and the criminal history category overstates his actual criminal background, and then these mandatory minimums kick in, that adding it up, technically it comes out to a -- in a sentence that is in excess of what justice requires. So therefore we'll make the sentence of 410 months. I will state for the record, if these guidelines are ever looked at retroactively some day, that I would, in my discretion, sentence him to 25 years if I had discretion.

In its statement of reasons, the district court confirmed that it "departed based on [Millis's] age (not the sole reason)" and "also considered the underlying circumstances of the prior convictions which made [Millis] a career offender." At bottom, it "believe[d] [Millis's] career offender status over-state[d] the seriousness of his actual criminal background."

II

In general, a federal prisoner must collaterally attack his conviction or sentence under 28 U.S.C. § 2255. Only one motion may be filed under § 2255, unless the appropriate court of appeals grants permission for a second or successive motion. See 28 U.S.C. § 2255(h). A federal prisoner may receive permission to file another § 2255 motion in limited circumstances—based on "newly discovered evidence" or "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court." Id. "In the great majority of cases," a § 2255 motion, which must be filed in the district of conviction, is the "exclusive postconviction remedy" for a federal prisoner. Purkey v. United States , 964 F.3d 603, 611 (7th Cir.), reconsideration denied , 812 F. App'x 380 (7th Cir. 2020), and cert. denied , ––– U.S. ––––, 141 S. Ct. 196, 207 L.Ed.2d 1128 (2020).

But sometimes, a federal prisoner may seek relief under the general habeas corpus statute, 28 U.S.C. § 2241. This pathway, however, is a narrow one. E.g. , Higgs v. Watson , 984 F.3d 1235, 1238 (7th Cir. 2021). If relief under § 2255 is "inadequate or ineffective to test the legality of his detention," then a federal prisoner may petition under § 2241 in the district of confinement, 28 U.S.C. § 2255(e), which is how Millis's appeal comes to us. We have developed a three-part test for determining whether the savings clause of § 2255(e) applies. To petition successfully 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 that case in his first § 2255 motion and the case applies retroactively; and (3) the error is grave enough to be deemed a miscarriage of justice. Chazen v. Marske , 938 F.3d 851, 856 (7th Cir. 2019)...