United States v. Miller
Opinion of the Court
ORDER
Byron Miller was caught with heroin at the federal prison in Pekin, Illinois, where he was serving a lengthy sentence for drug crimes involving crack cocaine. The heroin possession led to additional convictions — and 210 more months in prison — for possession of a controlled substance with intent to distribute, 21 U.S.C. § 841(a)(1), and possession of contraband by an inmate, 18 U.S.C. § 1791(a)(2). That was in 1998. Since then we have affirmed Miller’s convictions on direct appeal, United States v. Miller, 199 F.3d 416 (7th Cir. 1999); declined to grant a certificate of appealability when he challenged those convictions in a first motion to vacate under 28 U.S.C. § 2255, see Miller v. United States, No. 00-1420 (C.D.Ill.), appeal dismissed, No. 01-3235 (7th Cir. Nov. 14, 2001); denied two applications for leave to file a second or successive § 2255 motion, Miller v. United States, No. 04-3057 (7th Cir. Aug. 16, 2004); Miller v. United States, No. 04-1221 (7th Cir. Feb. 9, 2004); and refused to grant a certificate of ap-pealability after Miller tried to appeal the dismissal of a successive § 2255 motion that he filed without our permission, Miller v. United States, No. 06-2210 (7th Cir. Aug. 3, 2006). Altogether, before this year, Miller had filed five § 2255 motions challenging his 1998 convictions; he mislabeled the last four, and the district court suspected that he did so deliberately to avoid the bar against second or successive motions. See Miller v. United States, No. 00-1420, 2006 WL 898143, at *2 (C.D.Ill. Apr. 5, 2006).
Miller has now filed yet another § 2255 motion challenging his 1998 convictions. This one is captioned as a “Motion for Reconsideration of Judgment/Order Based on a Sentence Reduction Pursuant to a Modification of Sentence.” In this latest submission Miller argues that the district court should reconsider its application of the career-offender guideline to his 1998 convictions. See U.S.S.G. § 4B1.1. (Miller’s sentence for his crack offenses was reduced based on a retroactive amendment to the sentencing guidelines, see 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10, and he frivolously asserts that the sentence reduction undermines the consecutive punishment he received as a career offender for the additional crimes he committed in prison.) The district court looked past the label and recognized Miller’s filing to be a § 2255 motion, see Narvaez v. United States, 674 F.3d 621, 627-30 (7th Cir. 2011), and thus dismissed it for lack of subject-matter jurisdiction.
Miller filed a notice of appeal. In that document he also asked for a certificate of appealability, which is necessary to proceed with this appeal. See 28 U.S.C. § 2253(c)(1)(B). The district court did not issue a certificate, and before we could evaluate his application, Miller filed a brief. That brief not only discusses the claim made in his latest motion but also adds others, including one based on Alleyne v. United States, — U.S. -, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), and several more claims that Miller previously asserted in his unauthorized § 2255 motions. What his brief omits is any suggestion that the district court has misread his “Motion for Reconsideration” as another in a string of successive § 2255 motions. The government has filed a response brief instead of, as would be the norm, asking to be excused from responding given the absence of a certificate of appealability.
We have reviewed the district court’s decision and the appellate record, and we conclude that Miller has not made a sub
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Respondent v. Byron J. MILLER, Defendant-Movant
- Cited By
- 1 case
- Status
- Published