United States District Court, E.D. Missouri, Eastern Division
JAMES L. MILLINER, Movant,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
W. SIPPEL UNITED STATES DISTRICT JUDGE.
matter is before me on the motion of James L. Milliner
(“Milliner”) to vacate, set aside, or correct a
sentence by a person in federal custody pursuant to 28 U.S.C.
§ 2255. In his motion, Milliner alleges that his trial
counsel was constitutionally ineffective. For the reasons
below, I find that Milliner's claims are without merit.
As a result, his motion will be denied.
June 23, 2011, Milliner was indicted for conspiracy to
distribute a mixture or substance containing cocaine base in
violation of Title 21, United States Code, Sections 841(a)
and 846. Milliner's first trial on this charge ended in a
mistrial. On September 24, 2013, after a second trial, the
jury convicted Milliner of conspiracy as charged.
charge against Milliner stems from his and his
co-conspirators, Charles McRoberts, Ernest Swan, and Michael
Rogers', continuous sales of crack cocaine beginning in
2007. The following evidence was presented at Milliner's
trial. McRoberts and Swan purchased powder cocaine and
converted it into crack cocaine. Milliner, McRoberts, Swan,
and Rogers packaged the crack cocaine in .2 gram and .5 gram
bags for sale. Rogers sold the crack cocaine at a pavilion at
102 Highway J in Wright City, Missouri. Milliner
“held” the crack cocaine for Rogers while Rogers
sold it. Rogers was arrested in October of 2010. Halesha
Bradshaw replaced Rogers and began selling crack cocaine at
the pavilion. Milliner would provide Bradshaw with
transportation to the pavilion. Bradshaw stopped selling
crack cocaine in November 2010. Christopher Adams replaced
Bradshaw and began selling crack cocaine for the conspiracy.
Adams was replaced by Antwaun Nunn. Milliner's
involvement in the sale of crack cocaine continued until he
was arrested in March 2011.
the evidence was presented that Milliner accompanied his
co-conspirators to Kansas City to purchase powder cocaine,
helped package the crack cocaine for sale, provided crack
cocaine to Rogers on at least ten occasions, provided
surveillance for Bradshaw by watching for police presence in
the area, picked up drugs and drug proceeds from the
front-line sellers, and provided Bradshaw with transportation
to and from the pavilion where she sold the crack cocaine.
(Doc. # 653, Tr. Vol. 1, pp. 137-146, 196); (Doc. # 654, Tr.
Vol. 2, pp. 27-29, 68-81) The members of the conspiracy sold
in excess of 280 grams of crack cocaine. (Doc. # 655, Tr.
Sent., p. 11) Based on this evidence, a jury convicted
Milliner of conspiracy to distribute a mixture or substance
containing cocaine base.
Grounds for Relief
Milliner's 28 U.S.C. § 2255 motion, he alleges the
following grounds for relief:
denied effective assistance of counsel in violation of the
Sixth Amendment when his counsel:
a) failed to call Charles McRoberts to testify;
b) failed to “solicit the truth” from Michael
c) failed to question Michael Rogers and Halesha Bradshaw as
to the purpose of the trip to Texas;
d) failed to establish on cross-examination that Milliner was
not providing Bradshaw rides to sell crack cocaine;
e) failed to question Bradshaw about Milliner not being
present during the cooking and packaging of the crack
f) and counsel's cumulative errors constitute ineffective
assistance of counsel.
Standard for § 2255 Relief
prisoner in custody under sentence of a court established by
Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
the sentence.” 28 U.S.C. § 2255; Watson v.
United States, 493 F.3d 960, 963 (8th Cir. 2007)
(“Under 28 U.S.C. § 2255 a defendant in federal
custody may seek post- conviction relief on the ground that
his sentence was imposed in the absence of jurisdiction or in
violation of the Constitution or laws of the United States,
was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack.”). A motion
pursuant to § 2255 is “intended to afford federal
prisoners a remedy identical in scope to federal habeas
corpus.” Davis v. United States, 417 U.S. 333,
raised and decided on direct appeal cannot ordinarily be
relitigated in a collateral proceeding based on 28 U.S.C.
§ 2255.” United States v. Wiley, 245 F.3d
750, 752 (8th Cir. 2001). One exception arises when there is
a “miscarriage of justice, ” but the Eighth
Circuit Court of Appeals has “recognized such an
exception only when petitioners have produced convincing new
evidence of actual innocence, and the Supreme Court has not
extended the exception to situations beyond involving a
petitioner's actual innocence.” Id.
(citations omitted). “[T]he Court has emphasized the
narrowness of the exception and has expressed its desire that
it remain rare and available only in the extraordinary
case.” Id. (citations omitted). Section 2255
ordinarily “is not available to correct errors which
could have been raised at trial or on direct appeal.”
Ramey v. United States,8 F.3d 1313, 1314 (8th Cir.
1993). “Where a defendant has procedurally defaulted a