United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION AND ORDER
William O. Bertelsman, United States District Judge
2017, inmate Michael Lee Millis filed a petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2241 in the
district of his incarceration, the United States District
Court for the Central District of Illinois. [R. 1] From that
date through the present, Millis has remained confined at the
Federal Correctional Institution in Pekin, Illinois, and the
respondent in this proceeding is his warden there. In his
petition, Millis invoked Dean v. United States, __
U.S. __, 137 S.Ct. 1170 (2017) to seek relief from the
sentence imposed by this Court in 1995. [R. 1, 2] See also
United States v. Millis, No. 93-CR-55-WOB (E.D. Ky.
initial response, the government asserted that Millis's
petition was “wholly without merit, ” but
requested additional time to research Millis's litigation
history. [R. 6] The government then filed a second request
for additional time to respond. In doing so, it noted that in
2011 the United States Attorney for this District indicated
that if Millis filed a request with the President to commute
his sentence, he would support it. See [R. 7 at 3-5]. On that
basis, counsel for the government suggested that perhaps
“Millis might desire to have his petition considered by
his prosecuting court, ” and asserting that
“[u]nder 28 U.S.C. § 1404(a), a district court can
transfer any civil action to any other district to which all
parties have consented.” [R. 8] Millis took the bait,
and filed a one-sentence motion to transfer his § 2241
petition to this Court. [R. 9] On October 2, 2017, the
Central District of Illinois transferred the petition to this
Court in a one-sentence text order entered the next day.
transfer of Millis's § 2241 petition to this Court
was fruitless of course, as this Court lacks jurisdiction
over his custodian. The warden of FCI-Pekin in Illinois is
the only respondent who can effectuate the relief he seeks,
Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004), but
his presence outside this Commonwealth prevents this Court
from ordering him to provide it. Id. at 435, 442-43
(“The plain language of the habeas statute thus
confirms the general rule that for core habeas petitions
challenging present physical confinement, jurisdiction lies
in only one district: the district of confinement.”);
28 U.S.C. § 2241(a) (authorizing federal courts to grant
habeas relief “within their respective
jurisdictions.”). It is for that reason that the
Seventh Circuit has disapproved the use of § 1404(a) -
even assuming its applicability to § 2241 petitions,
which are not “civil actions, ” but original
actions deemed civil in nature - to transfer a § 2241
petition to the sentencing court in similar, albeit not
identical, circumstances. Hicks .v Duckworth, 856
F.2d 934 (7th Cir. 1988); see also United States v.
Wyatt, 672 F.3d 519, 520-24 (7th Cir. 2012).
the Court concludes that transferring the petition back to
the district of incarceration is not warranted.
Christianson v. Colt Indus. Operating Corp., 486
U.S. 800, 816-17 (1988) (transferee court will generally not
revisit transferor court's determination to transfer case
under the law of the case doctrine). And like the Seventh
Circuit in Wyatt, the Court concludes that a
re-transfer would be pointless, in this instance because the
petition fails to state a viable basis for relief.
Court conducts an initial review of Millis's petition
pursuant to 28 U.S.C. § 2243. Alexander v. Northern
Bureau of Prisons, 419 F. App'x 544, 545 (6th Cir.
2011). In Dean, the Supreme Court held that the mere
fact that 18 U.S.C. § 924(c) requires the imposition of
a mandatory minimum sentence for a conviction under it does
not preclude the sentencing court from considering that
sentence when determining the sentence to be imposed for
other convictions. Dean, 137 S.Ct. at 1175-78.
Millis does not explain how Dean might assist him,
stating only that he seeks “correction” of his
sentence in light of that decision. [R. 1 at 6-7]
petition must be denied for several reasons. At a minimum,
for a claim based upon a recently-issued Supreme Court
decision interpreting a statute to be cognizable in a §
2241 petition, the holding must be retroactively applicable
to cases on collateral review. Wooten v. Cauley, 677
F.3d 303, 307-08 (6th Cir. 2012). The Dean decision
does not meet this threshold requirement. United States
v. Payne, No. 94-CR-150-TCK, 2017 WL 3730612, at *2
(N.D. Okl. Aug. 29, 2017) (“All authority located by
this Court indicates that Dean does not announce a
new rule of law that was made retroactive to cases on
collateral review.”) (collecting cases); Simmons v.
Terris, No. 17-CV-11771, 2017 WL 3017536, at *3 (E.D.
Mich. July 17, 2017) (holding claim under Dean is
not cognizable in § 2241 petition); Wells v.
Terris, No. 17-CV-12253, 2017 WL 3777120, at *2 (E.D.
Mich. Aug. 31, 2017) (same).
the government noted in its response [R. 7], Millis's
sentence was imposed in 1995 when the Sentencing Guidelines
were mandatory, and it was that constraint that
limited the Court's authority in sentencing, not the
mandatory nature of the sentence required for his §
924(c) conviction. And the Sixth Circuit, like the Seventh
Circuit, has long held that the Supreme Court's decision
in United States v. Booker, 543 U.S. 220 (2005), is
not retroactively applicable to cases on collateral review.
Humphress v. United States, 398 F.3d 855, 860-61
(6th Cir. 2005). Finally, it was this Court's concern
with the length of Millis's overall sentence, after
engaging in a thorough and searching analysis of each of his
component sentences, that prompted it to consider making a
downward departure and which resulted in the imposition of a
sentence of 410 months imprisonment. [R. 1 at 11-17] In sum,
the concern that animated the holding in Dean simply
did not occur in Millis's sentencing.
Court notes that if Millis files a petition for clemency with
the President of the United States, this Court would support
it is ORDERED that:
Millis's petition for a writ of habeas corpus [R. 1] is
Court will enter an appropriate judgment.
pending motions are DENIED AS MOOT.
matter is STRICKEN from the active ...