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Milliner v. United States

United States District Court, E.D. Missouri, Eastern Division

February 14, 2018

JAMES L. MILLINER, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          RODNEY W. SIPPEL UNITED STATES DISTRICT JUDGE.

         This 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.

         I. Background

         On, 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.

         The 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.

         In sum, 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.

         II. Grounds for Relief

         In Milliner's 28 U.S.C. § 2255 motion, he alleges the following grounds for relief:

         He was 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 Rogers;
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 cocaine;
f) and counsel's cumulative errors constitute ineffective assistance of counsel.

         III. Standard for § 2255 Relief

         “A 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, 343 (1974).

         “Issues 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 ...


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