United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove United States District Judge
inmate Torvos Simpson has filed a pro se petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2241. [R. 1.]
This matter is before the Court to conduct an initial review
of Simpson's petition pursuant to 28 U.S.C. § 2243.
Alexander v. Northern Bureau of Prisons, 419
Fed.Appx. 544, 545 (6th Cir. 2011).
Thanksgiving Day in 1993, when he was under eighteen years
old, Simpson and two cohorts convinced a sixteen year old
girl to give them a ride in her car. The group then seized
control of the vehicle from the girl, drove down a deserted
road, and murdered her. Following his arrest, Simpson pled
guilty to carjacking in violation of 18 U.S.C. § 2119
and possession of a firearm during the commission of a crime
of violence in violation of 18 U.S.C. § 924(c). The
trial court sentenced Simpson to life imprisonment without
the possibility of parole for the carjacking, and a
consecutive 60-month sentence was imposed for the §
924(c) conviction. United States v. Simpson, No. 2:
94Cr-1-JRG-2 (E.D. Tex. 1995)
2014, Simpson obtained permission from the Fifth Circuit to
file a second or successive motion under 28 U.S.C. §
2255 to challenge his life sentence in light of the Supreme
Court's decision in Miller v. Alabama, 567 U.S.
460 (2012). In Miller, the Supreme Court held that
imposing a sentence of life imprisonment without the
possibility of parole upon a defendant who committed murder
while a juvenile would violate the Eighth Amendment's
prohibition against imposing “Cruel and Unusual
Punishments” if that sentence was mandatory, meaning
imposed under a sentencing scheme that deprived the
sentencing authority of discretion to consider juvenile
offender characteristics, such as lessened culpability and
heightened capacity for rehabilitation. Miller, 567
U.S. at 470-72.
However, the trial court denied Simpson's § 2255
motion because Miller made clear that a trial court
may sentence a juvenile homicide offender to life
imprisonment without parole so long as the court had
discretion to impose a different punishment after considering
the characteristics of youthful offenders. Miller,
567 U.S. at 476, 479-80. Because the trial court could and
did consider such factors, and had discretion under the
Sentencing Guidelines to impose a sentence from 360 months to
life imprisonment, Simpson's sentence did not violate the
Eighth Amendment. In 2015, the Fifth Circuit denied a
certificate of appealability from that decision. United
States v. Simpson, No. 15-40097 (5th Cir. Oct. 1, 2015).
present case, Simpson reiterates the same claim under
Miller previously considered and rejected by the
trial court and the Fifth Circuit. However, his petition must
be denied because Simpson cannot assert his Miller
claim in a § 2241 petition. A challenge to a sentence is
permissible in a Section 2241 petition only when (1) the
petitioner's sentence was imposed pre-Booker,
when the Sentencing Guidelines were mandatory; (2) the
petitioner was foreclosed from asserting the claim in a
successive petition under § 2255; and (3) after the
petitioner's 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 his federal sentence no longer
qualified as a valid predicate offense. Hill v.
Masters, 836 F.3d 591, 599-600 (6th Cir. 2016).
Simpson's claim satisfies the first requirement, but
fails the second and third. Simpson was permitted to and
actually did assert his Miller claim in a §
2255 motion, and the mere fact that he was denied relief does
not render § 2255 unavailable, Copeland v.
Hemingway, 36 Fed.Appx. 793, 795 (6th Cir. 2002), or
permit him a second “bite at the apple” through a
§ 2241 petition. Hernandez v. Lamanna, 16
Fed.Appx. 317, 360 (6th Cir. 2001). And Simpson relies upon
Miller, a Supreme Court decision not founded upon
statutory interpretation but upon the Eighth Amendment. His
claim is therefore not one of actual innocence. Wooten v.
Cauley, 677 F.3d 303, 307-08 (6th Cir. 2012).
Simpson's claim therefore plainly does not satisfy two of
the requirements of Hill, and his sentencing claim
therefore does not fall within the narrow scope of Section
2255(e)'s savings clause. United States v.
Peterman, 249 F.3d 458, 461-62 (6th Cir. 2001).
it is ORDERED as follows:
1. Simpson's petition for a writ of habeas corpus [R. 1]
2. The Court will enter a judgment contemporaneously with
3. This matter is DISMISSED and
STRICKEN from the docket.
 In doing so, the Fifth Circuit
concluded that Miller necessarily constituted a new
substantive rule of constitutional law, and hence was
retroactively applicable to cases on collateral review, in
light of the procedural posture of Miller itself.
Two years later the Supreme Court expressly so held in