United States of America v. Byron J. Miller

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 14, 2013
Decided November 15, 2013
Before
DIANE P. WOOD, Chief Judge
JOEL M. FLAUM, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 13‐2011
UNITED STATES OF AMERICA,
Plaintiff‐Respondent,
v.
BYRON J. MILLER,
Defendant‐Movant.
Appeal from the United States District
Court for the Central District of Illinois.
No. 98‐CR‐10046
Michael M. Mihm,
Judge.
O R D E R
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,
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 13‐2011 Page 2
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 appealability
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, 133 S. Ct. 2151 (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 substantial showing of the denial of a constitutional
right. We thus DENY his application for a certificate of appealability and DISMISS this
appeal. See 28 U.S.C. § 2253(c)(2); United States v. Carraway, 478 F.3d 845, 849 (7th Cir.

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No. 13‐2011 Page 3
2007). In addition, to the extent that Miller’s appellate brief might be construed as an
application to file a second or successive § 2255 motion premised on Alleyne, we DENY
that application, since the Supreme Court has not made Alleyne retroactive to cases on
collateral review. See Simpson v. United States, 721 F.3d 875, 876 (7th Cir. 2013). Miller
has been warned by the district court that he faces monetary sanctions if he persists in
filing unauthorized, successive § 2255 motions; we add our own warning that a
restriction on future filings is also likely if Miller continues on the same path.
See Montgomery v. Davis, 362 F.3d 956, 957 (7th Cir. 2004); Alexander v. United States, 121
F.3d 312, 315–16 (7th Cir. 1997).

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