     Case: 15-60181      Document: 00513622472         Page: 1    Date Filed: 08/03/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 15-60181                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
HENRY EARL MILLER,                                                         August 3, 2016
                                                                           Lyle W. Cayce
              Petitioner - Appellant                                            Clerk

v.

S. FISHER, Warden of Federal Correctional Complex Yazoo City (Medium),

              Respondent - Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                               USDC 3:14-CV-354


Before STEWART, Chief Judge, and PRADO and SOUTHWICK, Circuit
Judges.
PER CURIAM:*
       Proceeding without counsel, Petitioner-Appellant Henry Miller appeals
the district court’s dismissal of his 28 U.S.C. § 2241 petition. He has also filed
motions for appointment of appellate counsel, for summary reversal, to file an
out-of-time reply to the Government’s response to his motion for summary
reversal, to strike an argument in the Government’s brief, and for clarification


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                      No. 15-60181
on the issue of subject matter jurisdiction. We AFFIRM the district court’s
dismissal of Henry Miller’s petition and DENY as moot Henry Miller’s
appellate motions.
                                   BACKGROUND
        Miller is currently incarcerated at the Federal Correctional Complex in
Yazoo City, Mississippi. However, the convictions giving rise to this appeal
stem from Miller’s role in two South Carolina bank robberies. We gather the
facts underlying these robberies from the factual basis proffered at Miller’s
guilty plea hearing and Miller’s Pre-Sentence Investigation Report (“PSR”).
        At some point prior to August 2003, Henry Miller and Derrick Miller
began to plan a bank robbery and targeted a branch of the National Bank of
South Carolina (“NBSC”) in Spartanburg, South Carolina. For over a month,
both Millers cased the NBSC from the outside, and, on one occasion, Henry
Miller entered the bank under the pretense of opening an account in order to
make inside observations. On August 5, the two sought to make good on their
planning. Derrick Miller showed Henry Miller a gun that he planned to use
during the bank robbery to occur later that day. 1 Fearing that Derrick Miller
might injure someone, Henry Miller secretly removed the ammunition from
the gun, but continued onward with the plan. The Millers then took Henry
Miller’s car to an apartment complex near the NBSC and approached the bank
on foot. They eventually entered the bank and ordered all employees to the
floor. Derrick Miller stood near the teller counter and held bank employees at



   1 One particular paragraph from Henry Miller’s PSR warrants reproduction in full: “On
August 5, 2003, Derrick Earl Miller showed Henry Earl Miller a gun that he planned to use
during the bank robbery that date. According to Henry Miller, when Derrick Miller walked
out of the room, Henry Miller removed the ammunition from the weapon without Derrick
Miller’s knowledge.     According to Henry Miller, he believed Derrick Miller was
unpredictable, and he removed the ammunition to ensure no one would be injured during the
robbery” (emphasis in original). At sentencing, Henry Miller did not object to any portion of
the PSR.
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                                    No. 15-60181
gunpoint while Henry Miller went behind the counter and began placing
money in a duffle bag. 2 The Millers then prepared to exit the bank and again
ordered all employees to stay down, this time warning them not to move for
ten minutes because “someone was watching from outside.” As they fled from
the bank to the nearby-parked car, a dye pack included with the money
activated inside the duffel bag. The Millers then took Henry Miller’s car to
Greensboro, North Carolina, where they rented a hotel room under a third
party’s name; counted the dye-stained money; and used acetone to remove the
dye. The bank reported a loss in excess of $30,000 from this robbery.
        On December 23, Henry Miller and Derrick Miller robbed a Capital Bank
in Greenville, South Carolina, under similar circumstances.              Wearing ski
masks and waving handguns, both Millers entered the bank and said, “Get the
f*** down on the g** damn floor now.” Derrick Miller again held the employees
at gunpoint while Henry Miller again went behind the teller counter and took
money from the teller drawer and the vault, this time ordering employees not
to give him any dye packs. The Millers then exited the bank and ran to a
nearby-parked car. The bank reported a loss of approximately $65,000 from
this robbery.
        For his role in the two robberies, Henry Miller eventually pleaded guilty
in the District of South Carolina to two counts of aiding and abetting armed
bank robbery in violation of 18 U.S.C. §§ 2113(a), 2113(d), and 2, and two
counts of aiding and abetting the use or carrying of a firearm during a crime of
violence in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2.            The court later
sentenced him to a total term of 300 months’ imprisonment. The Fourth




   2  According to Henry Miller’s PSR, “two of the three employees interviewed by United
States Probation advised both [Derrick Miller and Henry Miller] were in possession of a
firearm during the [August 2003] robbery.”
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Circuit dismissed as untimely his direct appeal. See United States v. Miller,
312 F. App’x 511 (4th Cir. 2008) (per curiam).
      Henry Miller has since pursued post-conviction relief in multiple venues.
See, e.g., In re Miller, No. 15-152 (4th Cir. Mar. 31, 2015) (denying
authorization to file a successive § 2255 motion based on Rosemond v. United
States, 134 S. Ct. 1240 (2014)); Miller v. United States, No. 6:04-cr-00022-GRA-
3, 2014 WL 1232205, at *1 (D.S.C. Mar. 24, 2014) (treating a second motion for
reconsideration as a successive § 2255 motion and dismissing for lack of
jurisdiction); United States v. Miller, 318 F. App’x 200, 201 (4th Cir. 2009) (per
curiam) (affirming the denial of an initial § 2255 motion and treating a first
motion for reconsideration as an unauthorized successive filing); United States
v. Miller, Nos. 6:04-CR-022-HFF, 6:06-CV-548-HFF, 2007 WL 2684844, at *2–
3, *7 (D.S.C. Sept. 7, 2007) (re-characterizing a handwritten letter as an initial
§ 2255 motion and denying relief). In April 2014, he filed the instant § 2241
petition in the Southern District of Mississippi, relying on Rosemond to argue
that he is actually innocent of aiding and abetting the earliest-in-time
§ 924(c)(1)(A) offense because he lacked advance knowledge that Derrick Miller
would use or carry a firearm during the August 2003 robbery. Specifically,
Henry Miller argued that his claim was properly brought via § 2241 and the
savings clause in 28 U.S.C. § 2255(e) because Rosemond was retroactively
applicable to cases on collateral review; his claim was previously foreclosed by
Fourth Circuit precedent; and Rosemond established that he may have been
convicted of a nonexistent offense.
      The magistrate judge issued a Report and Recommendation, concluding
that the petition should be dismissed because, even if Rosemond was
retroactively applicable, record evidence satisfied Rosemond’s advance
knowledge requirement. Miller objected and requested an evidentiary hearing.
Without holding the requested hearing, the district court adopted the
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                                       No. 15-60181
magistrate judge’s findings and conclusions and dismissed Miller’s petition for
lack of jurisdiction. Miller timely appealed, and the district court granted him
leave to proceed in forma pauperis.
                                      DISCUSSION
        Miller raises a host of issues on appeal and has filed numerous pleadings
in support of his assertions. Principally, Miller argues: (1) that the district
court erred in dismissing his § 2241 petition because his claim was properly
brought via § 2255’s savings clause and Rosemond, and (2) that the court erred
in failing to hold the requested evidentiary hearing before dismissing his
petition. 3 We address each argument in turn.
                                               A.
        We begin with Miller’s argument that his claim was properly brought
under § 2255’s savings clause. Generally, a federal prisoner who seeks to
collaterally challenge the legality of his conviction or sentence must file a
§ 2255 motion in the sentencing court. See, e.g., Reyes-Requena v. United
States, 243 F.3d 893, 895 n.3 (5th Cir. 2001); see also Padilla v. United States,
416 F.3d 424, 425–26 (5th Cir. 2005) (per curiam). However, § 2255’s savings
clause allows a federal prisoner to attack his conviction or sentence by filing a
§ 2241 petition where he is incarcerated if he can show that the remedies
provided under § 2255 are “inadequate or ineffective to test the legality of his
detention.” 18 U.S.C. § 2255(e); see also Reyes-Requena, 243 F.3d at 895 n.3,
901. To show that his § 2255 remedies are inadequate or ineffective, a prisoner
must make “a claim (i) that is based on a retroactively applicable Supreme
Court decision which establishes that the petitioner may have been convicted


   3 Miller also argues that the district court erroneously concluded that his decision to plead
guilty procedurally barred him from receiving relief under Rosemond and impermissibly
shifted the burden of proof by requiring him to prove that he lacked the advance knowledge
required by Rosemond. Both of these arguments are wholly unsupported by the record and
do not warrant discussion.
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                                  No. 15-60181
of a nonexistent offense and (ii) that was foreclosed by circuit law at the time
when the claim should have been raised in the petitioner’s trial, appeal, or first
§ 2255 motion.” Reyes-Requena, 243 F.3d at 904. The savings clause is “only
a limited exception,” and Miller’s burden to establish “the inadequacy of the §
2255 remedy is a stringent one.” Christopher v. Miles, 342 F.3d 378, 382 (5th
Cir. 2003) (internal quotation marks and citation omitted).
      As has previously been the case, here we need not discuss any issues of
retroactivity or unavailability because Henry Miller has failed to show that he
was convicted of a nonexistent offense. See, e.g., Freeman v. Werlich, No. 15-
30734, ___ F. App’x ___, ___, 2016 WL 2961793, at *2 (5th Cir. May 20, 2016)
(“Here, we need not decide the issues of retroactivity and unavailability
because there is no possibility that the jury convicted [Defendant] of a
nonexistent offense.”).    In Rosemond, the Supreme Court held that an
accomplice defendant “has the intent needed to aid and abet a § 924(c) violation
when he knows that one of his confederates will carry a gun.” 134 S. Ct. at
1249. This requires the Government to prove that the accomplice had “advance
knowledge” of a firearm, i.e., knowledge at a time when the accomplice could
reasonably elect to opt out or walk away. See id. at 1249–50. However, as the
Rosemond Court carefully explained, “if a defendant continues to participate
in a crime after a gun was displayed or used by a confederate, the jury can
permissibly infer from his failure to object or withdraw that he had such
knowledge.” Id. at 1250 n.9.
      The record evidence reflects that, before the August 2003 robbery,
Derrick Miller showed Henry Miller the firearm he planned to use to
consummate the offense; indeed, by Henry Miller’s own admission to
probation, he secretly removed the ammunition from the firearm before the
robbery because he believed Derrick Miller might injure someone. This alone
shows that Henry Miller unmistakably knew beforehand that Derrick Miller
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would “carry a gun” during the NBSC robbery. Id. at 1248. Furthermore,
rather than opt out or withdraw based on this knowledge, Henry Miller
proceeded to the bank with Derrick Miller; went behind the counter and
gathered money after Derrick Miller began holding bank employees at
gunpoint; prepared to exit the bank with Derrick Miller by ordering employees
to remain on the floor for ten minutes or face injury; and fled the state and
rented a hotel room with Derrick Miller, where he helped count and clean the
dye-stained proceeds from the robbery. This is sufficient to satisfy Rosemond’s
knowledge requirement. 4 Id. at 1249–50 & n.9.
        Accordingly, even after Rosemond, Henry Miller fails to show that he
was convicted of a nonexistent offense on the § 924(c)(1)(A) count related to the
August 2003 armed bank robbery. Thus, he fails to meet the requirements of
§ 2255’s savings clause, and the district court correctly dismissed the petition.
                                             B.
        Miller next argues that the district court erred in dismissing his petition
without first holding an evidentiary hearing based on his assertion that he
informed his public defender “that he had not known that his codefendant
would possess or use a gun during the commission of the first bank robbery
that occurred on August 5, 2003.” We have explained that “‘where petitioner’s



   4  Henry Miller fails to proffer evidence that he “would have ‘increase[d] the risk of gun
violence’ by aborting the robbery once the firearm was displayed.” Rainwater v. Werlich, No.
14-31039, ___ F. App’x ___, ___, 2016 WL 2640483, at *2 (5th Cir. May 9, 2016) (per curiam)
(alteration in original) (quoting Rosemond, 134 S. Ct. at 1251). His conclusory assertions in
his reply brief—where he notably fails to acknowledge the evidence in his PSR—are not
evidence. Rather, as the court below noted, the only evidence tendered in support of the
petition is Henry Miller’s own affidavit testimony that he was “surprised” when Derrick
Miller pulled out a firearm during the August 2003 robbery. Of course, record evidence
establishes that Henry Miller can hardly claim surprise—Derrick Miller showed him the gun
before the robbery and Henry Miller secretly removed the ammunition from it. In any event,
mere surprise does not establish that withdrawing would have “increase[d] the risk of gun
violence—to [Henry Miller] himself, other participants, or bystanders.” Rosemond, 134 S. Ct.
at 1251.
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allegations, if proven would entitle him to relief, he is entitled to an evidentiary
hearing and an opportunity to prove the truth of the matters asserted’ unless
his claims ‘are fully refuted by the record and files.’”         United States v.
Batamula, No. 12-20630, ___ F. 3d ___, ___, 2016 WL 2342943, at *5 (5th Cir.
May 3, 2016) (en banc) (Dennis, J., dissenting) (quoting Powers v. United
States, 446 F.2d 22, 24 (5th Cir. 1971)). Stated otherwise, “[a] district court
must hold an evidentiary hearing ‘[u]nless the motion and the files and records
of the case conclusively show that the prisoner is entitled to no relief.’” United
States v. Rivas-Lopez, 678 F.3d 353, 358 (5th Cir. 2012) (second alteration in
original) (quoting 28 U.S.C. § 2255(b)).
      Applying this standard here, we are convinced that the record
conclusively establishes that Rosemond does not entitle Miller to relief. As
discussed infra, the record establishes that Henry Miller became aware that
Derrick Miller would carry a firearm during the August 2003 bank robbery
before the pair entered the bank. Rather than opt out based on that knowledge,
Henry Miller continued to participate in the criminal venture by
consummating the armed bank robbery, fleeing, and crossing a state line to
“clean” and share in the proceeds. Because this record evidence conclusively
satisfies Rosemond, the district court was not required to hold an evidentiary
hearing before dismissing the petition.
                                 CONCLUSION
      For the foregoing reasons, the judgment of the district court is
AFFIRMED. Henry Miller’s motions for appointment of appellate counsel, for
summary reversal, to file an out-of-time reply to the Government’s response to
his motion for summary reversal, to strike an argument in the Government’s
brief, and for clarification on the issue of subject matter jurisdiction are
DENIED as moot.


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