Michael MILLER, Petitioner-Appellant, v. Dushan ZATECKY, Superintendent, Pendleton Correctional Facility, Respondent-Appellee.
No. 15-1869
United States Court of Appeals, Seventh Circuit.
Decided April 26, 2016.
Rehearing and Rehearing En Banc Denied June 21, 2016.
820 F.3d 275
Argued April 18, 2016. * Judge Williams did not participate in the consideration of this petition.
Ellison is entitled to a disciplinary hearing comporting with Wolff or else his good time must be restored. Accordingly, the district court‘s decision is VACATED, and the case is REMANDED for further proceedings.
Jesse Drum, Andrew A. Kobe, Attorneys, Office of the Attorney General, Indianapolis, IN, for Respondent-Appellee.
Before EASTERBROOK and SYKES, Circuit Judges, and ADELMAN, District Judge.**
EASTERBROOK, Circuit Judge.
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, 811 N.E.2d 496 (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. (Miller made many other arguments, but all except the sentencing issue have been abandoned.) 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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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.”
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
Because Indiana addressed on the merits the question whether Miller has established prejudice, we must decide whether the state‘s decision “was contrary
Miller recognizes that Indiana‘s judiciary articulated the legal standard the same way the Supreme Court does, so he contends that the state court‘s decision was an “unreasonable application” of the governing standard. But, as far as we can see, the decision was not based on federal law at all, let alone federal law “clearly established” by the Supreme Court. It rests on a conclusion that, as a matter of state law, it would have been futile to contest the sentence‘s length on appeal, because a 120-year sentence is not “inappropriate in light of the nature of the offense and the character of the offender.” A federal court cannot disagree with a state court‘s resolution of an issue of state law. See, e.g., Bradshaw v. Richey, 546 U.S. 74, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005); Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991).
Shaw v. Wilson, 721 F.3d 908, 914-15 (7th Cir.2013), shows that a defendant may use ineffective-assistance doctrine to gain the benefit of state law when a lawyer‘s error prevented the state judiciary from recognizing the force of a potential state-law defense (or other advantage secured by state law). Doing that does not use
Miller maintains that the state court‘s decision was “unreasonable” because, when considering dispositions of similar cases, the court of appeals did not discuss any opinion issued after June 8, 2004, the date Miller‘s direct appeal was decided. Later decisions, according to Miller, look more favorably on contentions that sentences in sex-offense cases are too long, and had the court of appeals used them as comparisons this would have demonstrated a “reasonable probability” of appellate success. But the court of appeals considered only decisions that were “available as precedent during Miller‘s direct appeal” (Miller v. State at *17).
Nonetheless, Miller insists that Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), entitles him to the benefit of hindsight. That isn‘t what Lockhart holds. It did not concern
Fretwell was convicted of a capital crime in Arkansas and sentenced to death. The jury instructions permitted the jurors to consider, as an aggravating factor, that the crime had been committed for pecuniary gain. A few months before Fretwell‘s sentencing, a panel of the Eighth Circuit had held that the Eighth Amendment forbids a state to use as an aggravating factor any element of the substantive crime. Collins v. Lockhart, 754 F.2d 258 (8th Cir.1985). Fretwell‘s lawyer did not ask the Arkansas judge to apply Collins. By the time Fretwell filed a collateral attack in federal court, Collins had been overruled as inconsistent with Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988). See Perry v. Lockhart, 871 F.2d 1384 (8th Cir.1989). Another panel of the Eighth Circuit held that Fretwell was entitled to the benefit of the holding in Collins, even though that decision was wrong, but the Supreme Court reversed. It held that the Sixth Amendment does not entitle litigants to gain from judicial errors.
Miller concludes from this that anyone who advances an ineffective-assistance claim is entitled to the benefit of hindsight. Yet that was not the Court‘s point. The case stands for the proposition that a person seeking federal collateral review must show that the state court committed an error of federal law—not that it took a step mistakenly (and temporarily) thought to be an error, but that the state judiciary really was in error. Given Lowenfield and Perry, the instructions at Fretwell‘s sentencing trial were constitutionally valid; he had no legitimate beef about them, and at any new sentencing hearing the instructions would have been repeated verbatim.
Later decisions have emphasized that Lockhart does not redefine Strickland‘s “prejudice” component. See, e.g., Lafler v. Cooper, — U.S. —, 132 S.Ct. 1376, 1386-87, 182 L.Ed.2d 398 (2012); Glover v. United States, 531 U.S. 198, 202-04, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001). Indeed, the Court has understood Lockhart as an anti-hindsight decision, warning against the “natural tendency to speculate as to whether a different ... strategy might have been more successful.” Maryland v. Kulbicki, — U.S. —, 136 S.Ct. 2, 4, —
Miller observes that our opinion in Shaw remarks in passing that “hindsight is permissible.” 721 F.3d at 918. That‘s so in the sense that, under Lockhart, federal law must favor the petitioner when the collateral attack is resolved, as well as when the state‘s decision became final. Nothing in Lockhart justifies any general resort to hindsight. Immediately after the language we have quoted, our opinion in Shaw cites 506 U.S. at 372, where Lockhart condemns resort to hindsight to disparage the performance of counsel. And we cannot forget that Strickland asks whether there is a reasonable probability that “but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” 466 U.S. at 694. That has the same temporal focus as the state‘s court of appeals in Miller‘s case, asking whether a better performance by counsel could have affected the outcome then and there.
If Shaw meant more by its remark, it still cannot control the outcome in a proceeding under
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, dissenting.
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.
I.
A jury convicted Miller of three counts of child molestation, and the trial court sentenced him to 40 years in prison on each count running consecutively for a total of 120 years.1 On direct appeal, Mil-
Miller then petitioned for post-conviction relief in state court, arguing, inter alia, that his appellate counsel provided ineffective assistance. The state trial court held a hearing, at which appellate counsel testified he did not have any independent recollection of or knowledge why he did not raise the sentencing issue on direct appeal. The trial court denied relief, and the Indiana court of appeals affirmed.
The state court of appeals found that counsel should have raised the sentencing issue on direct appeal and thus considered whether there was a reasonable probability that the outcome of the appeal would have been different had he done so. In analyzing this issue, the court distinguished two cases “available as precedent during Miller‘s direct appeal,” opining that Miller‘s case was more aggravated. The court noted that Miller acted as a father figure to the victim and found the nature of the offense particularly contemptible because Miller had significant time to reflect upon the heinous nature of his actions between the dates on which the crimes occurred. The court also found that Miller‘s prior criminal history, which included three Class D felony drug convictions and a Class A misdemeanor conviction, and the fact that he molested the victim over a six-year time span demonstrated his inability to lead a law abiding life and his depraved character. The court concluded:
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. Consequently, Miller cannot establish that there is a reasonable probability that his sentence would have been revised pursuant to Appellate Rule 7(B) if appellate counsel had raised the issue on direct appeal. We therefore affirm the trial court‘s finding that Miller‘s appellate counsel was not ineffective.
Miller v. State, 2013 Ind.App. Unpub. LEXIS 377, at *19-20 (Ind.Ct.App. Mar. 26, 2013) (internal citations omitted).
Miller then sought habeas relief in federal court. The district court denied his petition, but we granted a certificate of appealability on the issue of whether appellate counsel provided ineffective assistance and sua sponte appointed counsel to represent Miller on this appeal.
II.
Because his case is governed by the Antiterrorism and Effective Death Penalty Act (“AEDPA“), in order to obtain relief Miller must show that the decision of the last state court to address his claim on the merits was contrary to, or involved an unreasonable application of, clearly estab-
In order to establish a claim of ineffective assistance, a defendant generally must show (1) that counsel‘s performance was deficient, and (2) that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The present case involves the performance of counsel on direct appeal. An appellate lawyer performs deficiently if he abandons a non-frivolous claim that was both obvious and clearly stronger than the claims he actually presented. Shaw v. Wilson, 721 F.3d 908, 915 (7th Cir.2013). The court evaluates performance from the perspective of a reasonable attorney at the time of the appeal, avoiding the distorting effects of hindsight. Id.
To determine prejudice in this context, the court asks whether there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the direct appeal would have been different. Id. at 918. As this court stated in a similar case involving appellate counsel‘s failure to raise an issue of Indiana law on direct appeal:
In assessing prejudice, we must bear in mind once again that we are making a comparative inquiry about counsel‘s choices; we are not resolving any issue of state law, and we are not telling the Indiana judiciary how it should approach this issue. Prejudice exists, however, if counsel bypassed [a] nonfrivolous argument that, if successful, would have resulted in the vacation of [the petitioner‘s] conviction.... And when evaluating prejudice, unlike when evaluating attorney performance, ‘hindsight is permissible. Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993); Hemstreet v. Greiner, 491 F.3d 84, 91 (2d Cir.2007); Eddmonds v. Peters, 93 F.3d 1307, 1326 n. 5 (7th Cir.1996). This means that the Indiana Supreme Court‘s [later decisions are] relevant to whether the argument [counsel] jettisoned was both nonfrivolous and stronger than the sufficiency argument he presented.
Id.
There can be little doubt that counsel performed deficiently by failing to raise the sentencing issue on Miller‘s direct appeal. The evidentiary challenges counsel raised were all but doomed to fail, given the standards of review Indiana appellate courts apply, and the clerical correction did Miller no good.
On the other hand, Indiana appellate courts are authorized to independently “review and revise” sentences.
The Indiana court correctly set forth the standards for evaluating ineffective assistance of appellate counsel claims. The court cited state rather than federal decisions, but there is nothing wrong with that (so long as the state cases do not contradict federal law as set forth by the Supreme Court). See, e.g., Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002).
As Miller notes, however, the state court limited its analysis to cases pre-dating Miller‘s direct appeal, ignoring later cases cited by the parties in which Indiana appellate courts revised sentences in similar cases. Miller argues that this is “contrary to” the holding of Lockhart v. Fretwell that, while the performance prong is evaluated without the benefit of hindsight, prejudice is measured based on the law as it exists at the time the court adjudicates the ineffective assistance claim. See 506 U.S. at 372; see also Shaw, 721 F.3d at 918 (“[W]hen evaluating prejudice, unlike when evaluating attorney performance, hindsight is permissible.“).
While the state court discussed only cases available at the time of Miller‘s direct appeal, it did not explicitly state that later cases were irrelevant as a matter of law; as indicated, the court set forth the correct standards earlier in its decision. We will not grant a writ simply because the state court failed to cite all of the pertinent cases.3
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. Consequently, Miller cannot establish that there is a reasonable probability that his sentence would have been revised pursuant to Appellate Rule 7(B) if appellate counsel had raised the issue on direct appeal.
The conclusion in the second sentence does not necessarily follow from the premise in the first sentence. A court considering an ineffective assistance claim need not definitively resolve in the defendant‘s favor the merits of the arguments counsel omitted, “for under Strickland [the defendant] need show only a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” United States v. Weathers, 493 F.3d 229, 238 (D.C.Cir.2007) (internal quote marks omitted, emphasis in original); see also Shaw, 721 F.3d at 918 (rejecting the respondent‘s argument that the petitioner‘s claim would have failed under state law because his “theory does not turn on the ultimate outcome in the state courts; it depends only on the relative strength of this argument over the one counsel chose“).
Given the numerous cases in which Indiana appellate courts revised similar sentences, there is at least a reasonable chance Miller may have obtained such relief on direct appeal. That this panel of the Indiana court of appeals found the sentence appropriate on post-conviction review does not foreclose the possibility that the Indiana supreme court (or the different panel of the court of appeals that heard Miller‘s direct appeal)4 would have exercised independent authority differently.5 Indeed, had counsel raised the sentencing issue on direct appeal, there is every reason to believe that Miller‘s case would have been on the list set forth in note 2, above.
Miller also occupied a position of trust with the victim, and his crimes also occurred over a several year period. However, Miller was convicted of just three counts, he had no other charges pending, and the record discloses no uncharged conduct related to the same victim. As discussed in note 1, supra, Miller also produced numerous positive character witnesses at his sentencing. Yet he is serving a sentence 30 years longer than Serino.
In Smith v. State, a jury convicted the defendant of four counts of child molesting, based on his step-daughter‘s report
that he had sexual intercourse with her when she was 10 years old and on three other occasions before she turned 14. 889 N.E.2d at 262. The trial court imposed four consecutive sentences of 30-years, 120 years total, based on Smith‘s extensive criminal history, including two sex offenses; the extended period of time over which Smith molested the victim; the heinous violation of trust represented by Smith‘s abuse of his step-daughter; and the additional psychological abuse he inflicted on the girl. Id. at 263-64. Despite these aggravated circumstances, the Indiana supreme court reduced the sentence to a total of 60 years. Id. at 264. Miller sits in prison for twice as long, despite the absence of prior sex offenses on his record or any evidence of additional psychological abuse of the victim.
And in Sanchez v. State, the defendant sexually abused his step-daughters, ages six and nine, resulting in three child molestation convictions. 938 N.E.2d at 721. The trial court imposed concurrent sentences of 40 years for the two counts pertaining to the first child, and a consecutive sentence of 40 years for the count pertaining to the second child. Id. The state supreme court, noting that Sanchez did not use significant force on the girls or cause injury, and that he lacked an extensive prior record, made the sentences concurrent, reducing the total term to 40 years. Id. at 723. Miller was convicted of three counts involving the same victim, who testified that Miller never threatened him or inflicted any injury (other than temporary pain from the intercourse). Yet Miller‘s sentence is three times as long as Sanchez‘s.7
III.
The majority says that the state court‘s decision was not based on federal law at all; rather, it rests on the conclusion that, as a matter of state law, an appeal chal-
lenging the sentence would have been futile. A federal court cannot disagree with a state court‘s resolution of an issue of state law.
We addressed a similar issue in Shaw, a case which also involved counsel‘s failure to raise an issue of Indiana state law on direct appeal. In Shaw, the state amended the information after the deadline set by the then-applicable procedural rule (
When Shaw sought habeas relief, the state argued that the federal courts were entirely prohibited from evaluating the Indiana court of appeals’ assessment of Shaw‘s claim because the claim involved a question of state law. Id. at 914. We rejected that contention:
The state‘s argument, however, misses the point that Shaw is making. Shaw is not asking (and has no reason to ask) that we second-guess an Indiana court on the meaning of Section 35-34-1-5. Shaw is making a simpler point: a competent lawyer in Indiana should have recognized that there was a state statute under which relief for his client was possible and would have pursued that theory on appeal. An argument about the validity of the state‘s effort to amend the indictment would have been materially stronger than the frivolous sufficiency-of-the-evidence point that [counsel] raised. With that much accepted, there is no further role for the federal judiciary: whether the Indiana appellate court would have been persuaded, or if not, whether the Indiana Supreme Court would have granted transfer, is immaterial. The state‘s argument that even this kind of comparative assessment is out of bounds, if accepted, would foreclose federal review of almost any ineffectiveness claim that rests on an attorney‘s mishandling of a state-law issue, no matter how egregiously deficient the attorney‘s performance. It is well established that a defense attorney‘s failure to raise a state-law issue can constitute ineffectiveness.
Id. at 914-15.
The majority indicates that Shaw permits an ineffective assistance claim where counsel‘s error prevented the state judiciary from recognizing the force of a potential state law argument. Here, according to the majority, appellate counsel‘s mistake did not prevent the Indiana judiciary from looking at Miller‘s sentence; the Indiana court of appeals did so on post-conviction review, concluding that a possible review of the sentence in 2004 would have done him no good—as a matter of state law. For two reasons, this misses the mark.
First, because habeas petitioners must exhaust their state court remedies before turning to the federal courts, it will often be the case that the state post-conviction court addresses the merits of the argument counsel omitted. Indeed, the Indiana court of appeals did so in Shaw. 721 F.3d at 913.10 We granted habeas relief, despite the fact that the omitted claim may have failed as a matter of state law; we declined to be drawn into the content of state law, noting that “it is necessary only to conclude that the amendment issue was clearly stronger than the sufficiency argument.” Id. at 916. We said the same thing assessing prejudice:
[W]e are making a comparative inquiry about counsel‘s choices; we are not resolving any issue of state law, and we are not telling the Indiana judiciary how it should approach this issue. Prejudice exists, however, if counsel bypassed an nonfrivolous argument that, if successful, would have resulted in the vacation
Id. at 918.
Second, the majority makes the same mistake as the Indiana court of appeals, equating one panel‘s discretionary rejection of Miller‘s sentencing claim (based solely on pre-2004 case-law), with a finding that there is no reasonable probability that the state supreme court or another panel of the court of appeals would have modified the sentence on direct appeal. As indicated above, review under Rule 7(B) involves “an exercise of judgment that is unlike the usual appellate process.” Cardwell, 895 N.E.2d at 1223. The Indiana supreme court has explained that:
whether we regard a sentence as appropriate at the end of the day turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case. Individual judgments as to the proper balance to be struck among these considerations will necessarily vary from person to person, and judges, whether they sit on trial or appellate benches, are no exception. There is thus no right answer as to the proper sentence in any given case. As a result, the role of an appellate court in reviewing a sentence is unlike its role in reviewing an appeal for legal error or sufficiency of evidence.
Id. at 1224. Because there is no “right” or “wrong” answer under Appellate Rule 7(B), it is incorrect to say, as the majority does, that the Indiana court of appeals definitively resolved the issue as a matter of state law in finding the sentence appropriate. See id. at 1225 (explaining that the goal of appellate review is “not to achieve a perceived ‘correct’ result in each case“).11
The majority notes that Miller cites no Supreme Court decision holding that a state must give a petitioner the benefit of state law precedent that comes after his conviction became final. This, too, misses the mark. I agree that, while it would have been permissible for the Indiana court of appeals to cite post-2004 cases, no rule of federal law required it to do so. But Miller‘s point is that those cases are available to us in evaluating the state court‘s prejudice determination. Considering later cases does not, as the majority suggests, effectively require that all state law decisions apply retroactively. The operative rule in Indiana was the same in 2004 as in 2013; Miller does not seek benefit of a new, more lenient standard, he simply directs our attention to cases applying the rule which support his position that there is a reasonable probability his sentence would have been modified had his lawyer raised the issue.
The majority contends that Lockhart does not entitle Miller to the benefit of hindsight. While it is true that Lockhart, a pre-AEDPA case, applied case-law postdating the petitioner‘s direct appeal to deny habeas relief, we have not understood the case to be limited to those circumstances. See Shaw, 721 F.3d at 918. In Shaw, for instance, we considered the Indiana supreme court‘s post-direct-appeal decision in Fajardo in evaluating prejudice. Id. The majority correctly notes that Lockhart did not change Strickland‘s prejudice component, see note 3, supra, but the Supreme Court‘s later decisions do not, as the majority suggests, understand Lockhart as an anti-hindsight decision. Maryland v. Kulbicki, — U.S. —, 136 S.Ct. 2, 4, — L.Ed.2d — (2015), cited
IV.
For these reasons, I would vacate the district court‘s decision and remand with instructions to grant the writ unless Indiana affords Miller a new appeal.