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Tuesday, April 26, 2016
Ind. Decisions - 7th Circuit issues 2-1 opinion today
In Michael Miller v. Sup. of Pendleton Corr. Fac. (SD Ind., Barker), a 25-page, 2-1 opinion, Judge Easterbrook writes:
Michael Miller was convicted in Indiana of three counts of child molestation and sentenced to three consecutive 40-year terms. The sexual abuse, including anal intercourse, began when the victim was nine and continued for six years. When imposing the lengthy term (effectively life in prison), the state judge relied not only on the nature of Miller’s conduct but also on his four prior convictions, his failure to reform after stretches of imprisonment, and the absence of any mitigating factors.
The convictions were affirmed on direct appeal, see Miller v. State, No. 34A02-0307-CR-563 (Ind. App. June 8, 2004). Miller then filed a collateral attack, contending that his appellate lawyer furnished ineffective assistance by failing to contest the length of his sentence.* * * The state’s court of appeals eventually concluded that appellate counsel should have raised this issue, but that its omission did not result in prejudice under the standard of Strickland v. Washington, 466 U.S. 668, 694–96 (1984), and equivalent state decisions, which ask whether the petitioner has demonstrated a “reasonable probability” that the outcome of the direct appeal would have been different.
The court observed that the substantive standard for appellate review in Indiana is whether the sentence is “inappropriate in light of the nature of the offense and the character of the offender.” Ind. App. R. 7(B). (Miller does not contend that his sentence violates the Cruel and Unusual Punishments Clause or any other rule of federal law.) After reviewing the evidence, the appellate court held “that Miller has not established that his 120-year aggregate sentence is inappropriate in light of the nature of the offense and the character of the offender.” Miller v. State, 2013 Ind. App. Unpub. LEXIS 377 (Mar. 16, 2013) at *19. [sic. The ILB located this NFP opinion here, it was filed Mar. 26, 2013]
This means that, if Miller’s appellate lawyer had contested the sentence, the argument would have failed on the merits. Because, in the state court’s view, the chance of success was zero, it necessarily followed that Miller had not shown a “reasonable probability” that a better appellate lawyer could have obtained a lower sentence for him. A federal district judge then denied Miller’s petition for a writ of habeas corpus under 28 U.S.C. §2254. Miller v. Zatecky, No. 1:13-cv-913- SEB-TAB (S.D. Ind. Mar. 26, 2015).
Because Indiana addressed on the merits the question whether Miller has established prejudice, we must decide whether the state’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”. 28 U.S.C. §2254(d)(1). * * *
Miller has not shown that the state judiciary made an error of federal law, so he is not entitled to collateral relief. AFFIRMED
ADELMAN, District Judge [ED Wis., sitting by designation], dissenting. [beginning at p. 9 of 25] Because appellate counsel provided ineffective assistance by failing to challenge Michael Miller’s 120-year prison sentence, I would conditionally grant the writ. The majority concludes that Miller fails to show that the state judiciary made any error of federal law in rejecting this claim. For the reasons that follow, I respectfully dissent.
Posted by Marcia Oddi on April 26, 2016 08:32 PM
Posted to Ind. (7th Cir.) Decisions