Milton v. Miller
2016 U.S. App. LEXIS 2241
| 10th Cir. | 2016Background
- Milton was prosecuted in two simultaneous Oklahoma cases (drug-trafficking carrying mandatory life-without-parole if prior felonies applied, and a drive-by-shooting); separate counsel represented him in each case.
- Prosecutor McGoldrick’s file contained notes reflecting several possible plea configurations (including a 25/20 package and later-noted 23/23 entry), and he testified he actually communicated a 25/20 package and, immediately before the preliminary hearing, an in-court 20/20 package in the presence of defense counsel for the drive-by case. McGoldrick denied ever offering a 23-year deal prior to the preliminary hearing.
- At a pretrial proceeding Judge Gray mentioned a 23-year offer; confusion arose about whether a 23-year offer had been made and whether Milton’s trial counsel told him about any plea offers.
- Milton claimed on collateral review that appellate counsel was ineffective for failing to raise that trial counsel had not informed him of a (pre-preliminary) plea offer (the “Original Claim”). The OCCA denied relief; this court reversed in part, ordered an evidentiary hearing to resolve the factual dispute about whether a pre-preliminary 23-year offer had been conveyed.
- The federal evidentiary hearing showed no 23-year pre-preliminary offer was actually communicated; instead, testimony established a 25/20 package was pending and a 20/20 offer was made immediately before the preliminary hearing, and that prosecutors had warned (to defense counsel in the drive-by case) they would likely pursue the drug charge (and its mandatory life exposure) if the drive-by were dismissed.
- The district court denied Milton’s habeas petition: the Original Claim failed because no 23-year offer had been made; the court also rejected two additional claims arising from the hearing (one alleging Reynolds failed to convey the prosecutor’s “warning” and another about post-prelim counsel’s failure to negotiate), finding them unexhausted and meritless. The panel denies a certificate of appealability.
Issues
| Issue | Milton’s Argument | State’s Argument | Held |
|---|---|---|---|
| Whether appellate counsel was ineffective for not raising on direct appeal that trial counsel failed to inform Milton of a pre-preliminary 23-year plea offer (Original Claim) | Appellate counsel should have raised trial counsel’s failure to convey a favorable pre-prelim plea; Milton would have accepted it and suffered prejudice | No such 23-year pre-prelim offer was ever communicated; therefore no prejudice and no meritorious issue for appellate counsel to raise | No COA on this claim (Milton has abandoned it); evidentiary hearing showed no 23-year offer was made, so no Strickland prejudice |
| Whether Milton may rely on a new claim that trial counsel Reynolds failed to communicate the prosecutor’s warning that the drug charge would likely be prosecuted (New Claim) | Reynolds omitted a material warning that the drug case plea bargaining would likely end if the drive-by were dismissed, which affected Milton’s decision and caused prejudice | The alleged warning was not sufficiently certain; Milton already knew offers were package deals and rejected them; testimony undermines any showing he would have accepted a deal even with fuller disclosure | COA denied; reasonable jurists would not debate the district court’s merits rejection — claim lacks prejudice under Strickland |
| Amendment/exhaustion: whether the New Claim is an amplification of the Original Claim or a new, unexhausted claim requiring amendment or return to state court | Milton contends the new evidence merely clarifies/amplifies his original allegation that counsel withheld plea information | The New Claim has a different factual predicate (failure to convey a prosecutorial warning), was not pleaded in state court, and is a distinct ineffective-assistance claim | Treated as a new claim; court may address unexhausted claims on the merits in rare circumstances but here denies COA on the merits |
| Whether a COA should issue | Milton argues reasonable jurists could debate the district court’s assessment based on evidentiary ambiguities and the stakes (life without parole) | The record after the evidentiary hearing fails to establish a debatable Strickland prejudice or deficient performance on the claimed theories | COA denied on all presented bases |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance: deficient performance and prejudice)
- Slack v. McDaniel, 529 U.S. 473 (2000) (standard for granting a certificate of appealability)
- Smith v. Robbins, 528 U.S. 259 (2000) (appellate-counsel ineffectiveness framework and prejudice standard)
- Cullen v. Pinholster, 563 U.S. 170 (2011) (exhaustion and AEDPA limits on federal habeas review of state-court records)
- Williams v. Taylor, 529 U.S. 420 (2000) (§2254(e)(2) diligence standard and evidentiary-development principles)
- McGee v. Higgins, 568 F.3d 832 (10th Cir. 2009) (federal review requires adherence to controlling Strickland standard)