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United States v. Mills

United States District Court, D. Vermont

February 5, 2018

United States of America
v.
Selwyn Mills

          REPORT AND RECOMMENDATION (DOCS. 59, 67)

          John M. Conroy United States Magistrate Judge.

         Defendant Selwyn Mills, proceeding pro se, has moved pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct a sentence imposed upon him by this Court in 2002. (Doc. 59.) Mills was convicted by a plea of guilty to a Superseding Information charging him with one count of engaging in a conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846 (Doc. 31), and was sentenced to a term of 70 months in prison to be followed by a three-year term of supervised release (Doc. 46). Mills satisfied the custodial portion of his sentence, and in approximately February 2009, jurisdiction over his term of supervised release was transferred to the United States District Court for the Northern District of New York (NDNY). (Doc. 58.)

         In the pending § 2255 Motion, Mills challenges the custodial portion of his 2002 sentence, even though he has already served the required term. He also objects to a 2012 supervised release proceeding that concluded with the NDNY determining that Mills violated the terms of his supervised release by committing new, unrelated crimes for which he was convicted in the Commonwealth of Pennsylvania Court of Common Pleas.

         For the reasons explained below, I recommend that Mills's § 2255 Motion (Doc. 59) be DENIED, as the claims raised therein are time-barred, moot, procedurally barred, and lacking in substantive merit. I further recommend that the government's pending Motion to Transfer or Dismiss (Doc. 67) be DENIED as moot.

         Background

         I. Proceedings in the District of Vermont

         This case began on February 19, 2002, when a Criminal Complaint was filed in the District of Vermont charging Mills and his codefendant, Jennifer Sutter, with engaging in a conspiracy to distribute cocaine base and heroin in violation of 21 U.S.C. § 846, and possession with intent to distribute cocaine base and heroin in violation of 21 U.S.C. § 841(a)(1). (Doc. 1.) Counsel was appointed for Mills pursuant to the Criminal Justice Act. (Doc. 4.) Thereafter, Mills entered into a written Plea Agreement with the government wherein he agreed to waive his right to proceed by indictment and plead guilty to a criminal information charging him with engaging in a conspiracy to distribute cocaine in violation of 21 U.S.C. § 846. (Doc 31.)

         On August 15, 2002, Mills appeared before United States District Judge J. Garvan Murtha and waived his right to proceed by indictment. (Doc. 33.) Mills pleaded guilty to the Superseding Information pursuant to Rule 11 of the Federal Rules of Criminal Procedure. Judge Murtha accepted Mills's guilty plea, and ordered the preparation of a presentence report (PSR) in anticipation of sentencing. (Doc. 34.)

         Soon thereafter, a PSR was submitted to the Court. The PSR concluded that Mills's sentencing guideline range with respect to imprisonment was 72-87 months, based on an adjusted offense level of 23 and a criminal history category of IV. (PSR at 15, ¶ 72.) The offense level quantity calculation was determined using cocaine base instead of powder cocaine because, as noted in the PSR, Mills and his coconspirator had distributed 5-20 grams of cocaine base. (PSR at 5, ¶ 18.)

         On December 16, 2002, Mills appeared before Judge Murtha for sentencing and was sentenced to a 70-month term of imprisonment, to be followed by a three-year term of supervised release. (Doc. 46.) No. direct appeal was filed.

         II. Proceedings in the NDNY

         Mills served the custodial portion of his sentence and began his term of supervised release on April 9, 2007. (Doc. 57 at 1.) In approximately February 2009, jurisdiction over Mills's supervised release was transferred from the District of Vermont to the NDNY pursuant to 18 U.S.C. § 3605. (Doc. 58.)

         About 10 months later, on November 16, 2009, the United States Probation Office for the NDNY submitted a petition to the New York court, advising that Mills had violated conditions of his supervised release by engaging in drug use and traveling out of the district without permission. (Doc. 67-1 at 1.) Mills admitted to the drug use violation and was sentenced to an additional 10 months in prison, to be followed by a two-year term of supervised release. (Id.) Mills was released from the Bureau of Prisons on December 4, 2011 to commence his second term of supervised release. (Id.)

         Less than a year later, on August 28, 2012, the United States Probation Office for the NDNY submitted a second petition to the New York court, advising that Mills had again violated conditions of his supervised release, this time by failing to report a change of address, traveling outside the jurisdiction to Pennsylvania, and committing new criminal conduct in Pennsylvania for which he was arrested on August 3, 2012. He was still in the custody of the Commonwealth of Pennsylvania when the NDNY ordered the issuance of an arrest warrant for Mills on August 30, 2012 for the violations. (Id. at 2-3.) (See Doc. 67-1 at 2-3.) In an apparent reference to these Pennsylvania charges, Mills alleges in his § 2255 Motion that he is now serving “a mandatory 6 ½ to 13 year[] sentence toward his instant offense charges.” (Doc. 59 at 8.) The relevant docket sheet from the Court of Common Pleas of Berks County, Pennsylvania indicates that on August 27, 2013, Mills was convicted of numerous offenses including a felony drug offense for which he was sentenced to 6 and a half to 13 years. Docket at 3-5, Commw. of Penn. v. Mills, No. CP-06-CR-004783-2012 (Pa. Commw. Ct. 2016), https://ujsportal.pacourts.us/DocketSheets/CPReport.ashx?docketNumber=CP-06-CR-0004783-2012 (last visited Jan. 30, 2018). On April 11, 2014, the United States Marshal's Service lodged a detainer with the Pennsylvania correctional authorities based on Mills's 2012 violation warrant. (Doc. 67-2.)

         Years later, on October 13, 2017, the NDNY issued a Writ of Habeas Corpus Ad Prosequendum compelling the production of Mills in that court to face the 2012 supervised release violation allegations. (Doc. 67-3.) Docket entries reveal that Mills appeared in that court on November 16, 2017, at which time counsel was appointed and Mills waived his right to a preliminary examination. United States v. Mills, N.D.N.Y. No. 1:08-cr-00721-LEK. About two weeks later, on November 30, an amended supervised release petition was filed, alleging that Mills: (1) committed new criminal conduct; (2) traveled outside the judicial district without permission; and (3) failed to report a change of address to his supervising probation officer. Mills, No. 1:08-cr-00721-LEK (N.D.N.Y. Nov. 30, 2017), ECF No. 15. On December 7, 2017, a final revocation hearing pursuant to Fed. R. Crim. P. 32.1 was held in the NDNY. Id., ECF No. 17. Mills, represented by counsel, admitted guilt to the violations and was sentenced to 14 months' imprisonment, to run consecutive to his Pennsylvania state court sentence, and to be followed by a 12-month term of supervised release with special conditions. Id., ECF No. 18.

         III. Mills's § 2255 Motion

         Mills filed the instant § 2255 Motion in this Court on September 1, 2017. (Doc. 59.) Therein, he raises a number of claims, focusing centrally on the relationship between his Pennsylvania sentence and custody, and his inability to obtain a hearing in the NDNY regarding the then-pending supervised release violation petition. In Ground One, Mills contends that his failure to receive a hearing on his supervised release violation amounts to a violation of his Fifth Amendment right to due process of law. (Id. at 5.) In Ground Two, Mills asserts that he is “under multiple judgment[]s subjecting him to serve an extended period of time in prison, ” in violation of the Eighth Amendment's prohibition on cruel and unusual punishment. (Id. at 6.) In Ground Three, Mills asserts that the detainer has caused him to be denied “certain privileges or programs of treatment in rehabilitation, ” in violation of his right to due process of law under the Fifth Amendment. (Id. at 7-8.) In Ground Four, Mills brings a double jeopardy claim under the Fifth Amendment, apparently contending that his exposure to a supervised release violation regarding conduct for which he was convicted in state court amounts to double jeopardy. (Id. at 9.) For relief, Mills seeks to have the original sentence imposed in the District of Vermont vacated, set aside, or corrected. (Id. at 13.)

         On October 16, 2017, approximately six weeks after filing the § 2255 Motion, Mills filed an untitled document seeking to add an additional claim under the Fifth Amendment and the Fair Sentencing Act of 2010 (Ground Five). (Doc. 66.) Specifically, Mills appears to assert in this supplemental filing that the 100:1 penalty ratio between offenses involving cocaine base and powder cocaine is “unreasonable” and a violation of his right to due process of law under the Fifth Amendment. (Id.)

         On October 30, 2017, the government filed a Motion to Transfer or Dismiss Mills's § 2255 Motion, arguing that the matter should be transferred to the NDNY because this Court “has no authority to hear the matter.” (Doc. 67 at 1.) Alternatively, the government argues that the matter should be dismissed without prejudice so Mills can pursue whatever relief may be available to him in the court having jurisdiction over the supervised release violation. (Id.) In addition, the government asserts that Mills's Motion fails on its merits because Mills is not “in custody” within the meaning ...


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