Miller v. Secretary, Department of Corrections et al
Filing
18
ORDER that Miller's petition is denied. The Clerk is directed to enter judgment against Miller and to close this case. COA and IFP on appeal denied. Signed by Judge Virginia M. Hernandez Covington on 6/28/2018. (MLH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
REILIES WAYNE MILLER,
Petitioner,
v.
Case No. 8:17-cv-1595-T-33AEP
SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
____________________________/
ORDER
Reilies Wayne Miller, a Florida inmate, timely filed a pro se petition for writ of habeas
corpus under 28 U.S.C. § 2254 challenging his Sarasota County convictions. (Doc. 1).
Respondent filed a response (Doc. 10) and Miller filed a reply (Doc. 17).
Upon
consideration, the petition is DENIED.
Procedural History
Miller was convicted after a jury trial of first degree murder and grand theft motor
vehicle. (Doc. 12, Ex. 1, p. 195). The state trial court sentenced him to life in prison. (Doc.
12, Ex. 1a, pp. 344-47). The state appellate court per curiam affirmed the convictions and
sentences. (Doc. 12, Ex. 4). The state appellate court denied Miller’s petition alleging
ineffective assistance of appellate counsel, filed under Florida Rule of Appellate Procedure
9.141(d). (Doc. 12, Exs. 13, 14). Miller’s motion for postconviction relief filed under Florida
Rule of Criminal Procedure 3.850 was denied. (Doc. 12, Exs. 15, 16, 16a). The state
appellate court per curiam affirmed the denial of relief. (Doc. 12, Ex. 20).
Page 1 of 29
Facts1
Miller and his sister, Alicia Miller (“Alicia”), used and sold pain killers. Miller and
Alicia obtained pills in part through Miller’s prescriptions for Roxicodone and Oxycontin.
On the night of April 15, 2010, Miller and Alicia wanted more pills but needed money.
Joseph Hickey, whom they had met once before, had called Alicia looking for pills. Miller
and Alicia decided to lure Hickey into meeting with them by telling him that they had pills
for sale, and then to rob him. They agreed that it might become necessary to shoot Hickey
during the robbery if anything went wrong.
Alicia and Hickey had phone contact several times on the night of April 15 into the
morning of April 16. During this time, Miller and Alicia stole a panel van. Alicia drove the
van to pick up Hickey at the arranged meeting site at about 6:00 a.m. on April 16. Miller
rode in the front passenger’s seat. After Hickey entered through the rear passenger’s side
sliding door, Miller turned in his seat and shot Hickey.
Alicia continued driving for a time before parking in a vacant waterfront lot. She and
Miller exited the van. Miller apparently shifted the van into drive and weighted down the
gas pedal, causing the van to lurch forward. It came to rest hanging over a sea wall. Alicia,
thinking that they “were leaving Joe Hickey there suffering,” refused to leave the scene.
(Doc. 12, Ex. 1e, p. 612). Miller returned to the van. After he shot inside the van several
times, he and Alicia fled on foot.
After Miller’s arrest, he initially denied involvement. However, he then told police
that Hickey “pulled a knife” and “dove on” him, resulting in a struggle during in the back of
1
The factual summary is based on the trial transcript and appellate briefs.
Page 2 of 29
the van during which Hickey “went for the gun” and the gun accidentally discharged several
times. (Doc. 12, Ex. 1d, pp. 477, 487, 489). Miller told police that he disassembled the gun
and threw pieces of it in a lake and a dumpster. Miller stated that he took Hickey’s knife
from the van and threw it into a lake.
Hickey was shot four times. The medical examiner determined that the fatal wound
was a gunshot to the right side of Hickey’s head.
Standard Of Review
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs this
proceeding. Carroll v. Sec’y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas relief
can only be granted if a petitioner is in custody “in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2254(a). Section 2254(d) provides that federal
habeas relief cannot be granted on a claim adjudicated on the merits in state court unless
the state court’s adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.
A decision is “contrary to” clearly established federal law “if the state court arrives at a
conclusion opposite to that reached by [the Supreme] Court on a question of law or if the
state court decides a case differently than [the Supreme] Court has on a set of materially
indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A decision is an
“unreasonable application” of clearly established federal law “if the state court identifies the
correct governing legal principle from [the Supreme] Court’s decisions but unreasonably
Page 3 of 29
applies that principle to the facts of the prisoner’s case.” Id. at 413.
The AEDPA was meant “to prevent federal habeas ‘retrials’ and to ensure that statecourt convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S.
685, 693 (2002). Accordingly, “[t]he focus . . . is on whether the state court’s application
of clearly established federal law is objectively unreasonable, and . . . an unreasonable
application is different from an incorrect one.” Id. at 694. See also Harrington v. Richter,
562 U.S. 86, 103 (2011) (“As a condition for obtaining habeas corpus from a federal court,
a state prisoner must show that the state court’s ruling on the claim being presented in
federal court was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.”).
The state appellate court denied Miller’s petition alleging ineffective assistance of
counsel and affirmed the denial of postconviction relief without discussion. This decision
warrants deference under § 2254(d)(1) because “the summary nature of a state court’s
decision does not lessen the deference that it is due.” Wright v. Moore, 278 F.3d 1245,
1254 (11th Cir. 2002). See also Richter, 562 U.S. at 99 (“When a federal claim has been
presented to a state court and the state court has denied relief, it may be presumed that
the state court adjudicated the claim on the merits in the absence of any indication or statelaw procedural principles to the contrary.”). When a state appellate court issues a silent
affirmance, “the federal court should ‘look through’ the unexplained decision to the last
related state-court decision that does provide a relevant rationale” and “presume that the
unexplained decision adopted the same reasoning.” Wilson v. Sellers, 138 S.Ct. 1188,
1192 (2018).
Exhaustion Of State Court Remedies; Procedural Default
Page 4 of 29
A federal habeas petitioner must exhaust his claims for relief by raising them in state
court before presenting them in his petition. 28 U.S.C. § 2254(b)(1)(A); O’Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999) (“[T]he state prisoner must give the state courts an
opportunity to act on his claims before he presents those claims to a federal court in a
habeas petition.”).
The requirement of exhausting state remedies as a prerequisite to federal review is
satisfied if the petitioner “fairly presents” his claim in each appropriate state court and alerts
that court to the federal nature of the claim. Picard v. Connor, 404 U.S. 270, 275-76
(1971). “If the petitioner has failed to exhaust state remedies that are no longer available,
that failure is a procedural default which will bar federal habeas relief, unless either the
cause and prejudice or the fundamental miscarriage of justice exception is established.”
Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001).
Discussion
Ground One
Miller argues that the trial court erroneously gave a “stand your ground” jury
instruction. Because Miller has not alleged a federal constitutional violation, his claim is not
cognizable in this federal habeas proceeding. See Branan v. Booth, 861 F.2d 1507, 1508
(11th Cir. 1988) (“[A] habeas petition grounded on issues of state law provides no basis for
habeas relief.”). Further, any federal claim that could be construed from his argument is
unexhausted because Miller’s appellate challenge to the jury instructions relied solely on
state law. (Doc. 12, Ex. 2, pp. 13-16). See Pearson v. Sec’y, Dep’t of Corr., 273 Fed.
App’x 847, 849-50 (11th Cir. 2008) (“The exhaustion doctrine requires the petitioner to
‘fairly present’ his federal claims to the state courts in a manner to alert them that the ruling
Page 5 of 29
under review violated a federal constitutional right.”); Zeigler v. Crosby, 345 F.3d 1300,
1307 (11th Cir. 2003) (“To present a federal constitutional claim properly in state court, ‘the
petitioner must make the state court aware that the claims asserted present federal
constitutional issues.’” (quoting Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir.
1998))).
In his reply, Miller appears to argue that he exhausted a federal claim by citing two
state decisions, Dorsey v. State, 74 So.3d 521 (Fla. 4th DCA 2011), and Newman v. State,
976 So.2d 76 (Fla. 4th DCA 2008). He alleges that these decisions “establish the claim as
a deprivation of a constitution[al] right.” (Doc. 17, p. 4). However, neither decision involves
federal constitutional issues. See id. And a state prisoner does not fairly present a federal
claim to a state court “if that court must read beyond a petition or a brief . . . that does not
alert it to the presence of a federal claim.” Baldwin v. Reese, 541 U.S. 27, 32 (2004).
Accordingly, Miller did not exhaust a federal claim concerning the jury instructions.
State procedural rules do not provide for successive direct appeals. See Fla. R.
App. P. 9.140(b)(3) (stating that a notice of appeal must be filed within 30 days of the
rendition of a sentence). Because Miller therefore cannot return to state court to present
a federal claim, his ground is procedurally defaulted. See Smith, 256 F.3d at 1138. Miller
has not argued or established that either the cause and prejudice exception or the
fundamental miscarriage of justice exception applies to overcome the default. Ground One
is therefore barred from review.
Ground Two Through Eight: Ineffective Assistance Of Counsel
The rest of Miller’s claims allege ineffective assistance of counsel. Claims of
ineffective assistance are analyzed under the test set forth in Strickland v. Washington, 466
Page 6 of 29
U.S. 668 (1984). Strickland requires a showing of deficient performance by counsel and
resulting prejudice. Id. at 687. To show deficient performance, Miller must demonstrate
that “counsel’s representation fell below an objective standard of reasonableness.” Id. at
687-88. A court must consider whether, “in light of all the circumstances, the identified acts
or omissions [of counsel] were outside the wide range of professionally competent
assistance.” Id. at 690. However, “counsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment.” Id.
Miller must demonstrate that counsel’s alleged error prejudiced the defense because
“[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside
the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 69192. He must establish “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome.” Id. at 694.
The Strickland standard applies to claims of ineffective assistance of trial counsel
and appellate counsel. Smith v. Robbins, 528 U.S. 259, 285 (2000); Heath v. Jones, 941
F.2d 1126, 1130 (11th Cir. 1991). To show deficient performance of appellate counsel,
Miller must show that appellate counsel’s failure to identify and raise a non-frivolous issue
was an objectively unreasonable performance. Robbins, 528 U.S. at 285-86. To show
prejudice, Miller must show a reasonable probability that, but for counsel’s unreasonable
failure, he would have prevailed on appeal. Id.
Obtaining relief on a claim of ineffective assistance of counsel is difficult because
“[t]he standards created by Strickland and § 2254(d) are both ‘highly deferential,’ and when
Page 7 of 29
the two apply in tandem, review is ‘doubly’ so.” Richter, 562 U.S. at 105 (citations omitted).
See also Cullen v. Pinholster, 563 U.S. 170, 202 (2011) (a petitioner must overcome the
“‘doubly deferential’ standard of Strickland and AEDPA.”).
Ground Two
Miller contends that appellate counsel was ineffective in failing to argue that the trial
court abused its discretion when it refused to allow the defense’s expert witness to testify,
resulting in a due process violation. The state appellate court rejected this claim without
discussion when it denied Miller’s petition alleging ineffective assistance of appellate
counsel.
Whether testimony is admissible concerns the application of Florida evidentiary law.
By denying Miller’s petition, the state appellate court determined what would have
happened had appellate counsel raised this state law claim. This Court must defer to the
state appellate court’s underlying determination of Florida law. See Herring v. Sec’y, Dep’t
of Corr., 397 F.3d 1338, 1354-55 (11th Cir. 2005) (“The Florida Supreme Court has already
told us how the issues would have been resolved under Florida state law had [counsel]
done what [Petitioner] argues he should have done . . . It is a ‘fundamental principle that
state courts are the final arbiters of state law, and federal habeas courts should not secondguess them on such matters.’” (quoting Agan v. Vaughn, 119 F.3d 1538, 1549 (11th Cir.
1997))). See also Will v. Sec’y, Dep’t of Corr., 278 Fed. App’x 902, 908 (11th Cir. 2008)
(“Although an ineffective-assistance-of-counsel claim is a federal constitutional claim, which
we consider in light of the clearly established rules of Strickland, when ‘the validity of the
claim that [counsel] failed to assert is clearly a question of state law, . . . we must defer to
the state’s construction of its own law.’” (quoting Alvord v. Wainwright, 725 F.2d 1282, 1291
Page 8 of 29
(11th Cir. 1984))). Miller has not shown that the state appellate court unreasonably applied
Strickland or unreasonably determined the facts in denying his claim. He is not entitled to
relief on Ground Two.
Ground Three
Miller contended that Hickey was experiencing drug withdrawal and that it caused
Hickey to act aggressively and attack him. Before trial, the State moved to exclude
evidence about Hickey’s alleged drug withdrawal. In ruling on the motion, the trial court
indicated that Miller could present evidence “should a proper predicate be laid and
relevance established.” (Doc. 12, Ex. 1, p. 191). Miller claims that his testimony would
have laid a foundation to allow the defense to call three witnesses: Dr. Goldberger, Carol
Springer, and Don Atkins. Miller claims that counsel misadvised him that he did not need
to testify in order for the witnesses to be called and led him to believe “that testimony of
states witnesses alone was enough to lay a foundation for expert and other defense
witnesses.” (Doc. 1, p. 8). He also argues that his testimony would have contradicted
Alicia’s testimony, which incriminated him in the murder.
Miller proffered Dr. Goldberger’s testimony to support his theory that Hickey “was
using pills, he was out, and he was desperately seeking and persistently seeking pills.”
(Doc. 12, Ex. 1f, p. 767). Dr. Goldberger testified that Hickey’s blood and urine tested
positive for oxycodone. (Doc. 12, Ex. 1e, p. 751). Dr. Goldberger opined that making
multiple phone calls during the night and agreeing to meet for drugs at 6:00 a.m. was
activity consistent with drug withdrawal, and that in addition to displaying such drug-seeking
activity, a person experiencing withdrawal may become irritable or unpredictable in his
behavior. (Id., pp. 752-53). But Dr. Goldberger conceded that he did not know whether
Page 9 of 29
Hickey was an addict or was suffering from withdrawal at the time of his death. (Id., pp.
754, 756).
The State objected to Dr. Goldberger’s testifying before the jury. The State asserted
that since there was no evidence that Hickey was an addict, or that Hickey was seeking
drugs because he needed them to overcome withdrawal symptoms, Dr. Goldberger’s
testimony was impermissibly speculative. (Id., p. 758, 760; Ex. 1f, pp. 761, 763). The trial
court agreed, concluding that there was no “sufficient basis to support the introduction of
his testimony” but noting that Dr. Goldberger could “potentially sit in if the defendant were
to testify” to such information. (Doc. 12, Ex. 1f, p. 768).
Miller wanted to call Springer and Atkins in connection with the knife he claims
Hickey carried. Miller told police that he took Hickey’s knife and threw it in a lake, but no
evidence at trial indicated that a knife was ever recovered. Miller asserted that when he
was in jail awaiting trial, he told Springer where to look for the knife. (Doc. 12, Ex. 1e, p.
727). Miller contended that Springer and Atkins could testify about why Springer’s search
for Hickey’s knife was unsuccessful. Counsel addressed this proposed testimony with the
trial court:
[COUNSEL]: [Carol Springer] was described a knife and locations to look for
the knife. She conducted a search for the knife in the canals along Gulf
Gate, finding lots of discarded metal but no knife; went to the maintenance
people, and they said, Well, given the time that you’re now searching for the
knife - - the knife could have been discarded in April. It was December when
the information was given up, that it was a wet, rainy season, and the knife
would have been washed down and buried under soot.
THE COURT: She won’t be able to testify to what was told to her. Is that
what you would be offering Mr. Atkins for?
[COUNSEL]: Yes.
Page 10 of 29
THE COURT: And he maintains canals. I saw his deposition on file.
[COUNSEL]: Yes.
THE COURT: So they would be presented together only for looking for the
knife and a potential hypothesis as to why the knife could not be located?
[COUNSEL]: Correct.
(Id., pp. 726-27).
The State objected to the presentation of these witnesses if Miller did not testify. (Id.,
pp. 727-29). After Miller decided not to testify, counsel informed the court that the defense
would not call Springer or Atkins. (Doc. 12, Ex. 1f, pp. 769, 771). Counsel further agreed
that “that foundation is needed to be laid by Mr. Miller testifying.” (Id., p. 770).
The state court denied Miller’s claim that counsel misadvised him not to testify:
Defendant’s first allegation is based on the State’s Motion in Limine. In short,
the defense could bring in testimony regarding the victim’s alleged drug
addiction (and consequently, Defendant’s self-defense theory that the victim
attacked him because he was in withdrawal) only if there was a proper
foundation for the proposed evidence. Defendant sought to include
testimony from three witnesses. Defendant alleges that counsel advised him
he did not need to testify because the State’s witnesses laid the foundation
to get the evidence in for the defense. The Court heard the proffered
testimony for those three witnesses and ruled the testimony was not
admissible. The Court could not determine whether Defendant’s testimony
would have laid the necessary predicate for the witnesses because
Defendant did not testify. Defendant believes his own testimony would have
laid the necessary foundation and his attorney prejudiced him by misadvising
him.
Defendant indicated in his motion he would have testified consistently with
his statement to law enforcement. Specifically, Defendant maintains that: (1)
he did not attempt to rob the victim, (2) he only intended to sell the victim
pills, (3) he had the gun for protection because the time of day for the sale
was unusual, (4) the victim attacked him and he shot the victim during that
struggle, and (5) he only lied, at first, to the Detective out of fear. All of these
statements were already in evidence (except Defendant’s justification for
lying) via law enforcement’s videotaped conversation with him. Defense
counsel argued that Defendant’s videotaped statement to law enforcement
Page 11 of 29
shows Defendant thought something was off about the drug deal due to the
time of day and apparent urgency of it. Therefore, the defense argued, the
doctor’s testimony about drug addiction and withdrawal would show the
reasonableness of Defendant’s state of mind going into the situation.
However, Defendant’s allegations that his testimony would have made a
difference are refuted by the record, and Defendant has failed to show
prejudice. There were three witnesses at issue: Dr. Goldberger, Carol
Springer, and Don A[t]kins. Dr. Goldberger would have testified in support
of the defense that the victim was in drug withdrawal. Carol Springer and
Don A[t]kins would have testified about a search for a knife they conducted
based on Defendant’s information, and they would give potential reasons why
the knife could not be located.
As Ms. Springer[’s] and Mr. A[t]kins[’s] testimonies would be based on the
information Defendant initially gave them about the knife’s location,
Defendant would have to testify and lay the foundation that he did provide
such information and what that information was. Even if Defendant testified,
neither of the knife search witnesses found anything, so any hypothesis
about why they did not find it would be speculation. As they did not find
anything, their ability to support the self-defense theory is not of such an
impact that it was reasonably probable that their testimony would have
changed the outcome of the proceeding. Defendant has failed to show
prejudice regarding these two witnesses.
Dr. Goldberger’s testimony was excluded after proffer because there was not
enough evidence in the record to support his opinion testimony. The doctor
had no information that the victim was an addict, or that he was suffering
from withdrawal at the time of the murder. His opinion testimony then would
be entirely speculation based on a hypothetical situation without any
knowledge of the actual events that transpired. The Court advised the
attorneys that in order for Dr. Goldberger’s testimony regarding possible drug
addiction or withdrawal to be admissible, there must have been substantive
evidence regarding drug use, but all that was in evidence was discussion that
he took one pill which was within therapeutic range. There were no facts in
evidence that the victim was a drug addict, in withdrawal, or that he was
seeking pills to somehow help his cravings.
In order to overcome this barrier, Defendant’s proposed testimony would
need to show that he knew or suspected that the victim was in withdrawal in
order for Dr. Goldberger’s testimony to have any relevance. Defendant did
not know the victim except that he met him once briefly and sold him some
drugs. Even if counsel had advised Defendant to testify, Defendant could not
testify as to the victim’s drug addiction or withdrawal because he did not have
any knowledge of that. Defendant’s proposed testimony, which was already
Page 12 of 29
known to the Court through law enforcement, does not include any
information about the victim’s purported drug addict condition. There is no
evidence that, even with Defendant’s proposed testimony, the Court would
have permitted Dr. Goldberger’s testimony. Defendant has failed to show
any prejudice from defense counsel’s failure to introduce Dr. Goldberger’s
proposed testimony, and thus, counsel cannot be found ineffective for
advising Defendant not to testify.
Additionally, when the Court made its final decision to exclude testimony,
Defendant was thoroughly advised on the matter. The Court explained to
Defendant that his testimony was “part of the equation for the court ruling on
admissibility of the doctor’s testimony.” Defendant admitted that before
entering the courtroom he conferred with counsel twice about testifying.
Defendant took responsibility for his decision, stating “I made the decision
and [the attorneys] were informed by me. We discussed this.” The Court
asked Defendant repeatedly if he wanted to testify, and he consistently said
no. He conferred with counsel to ensure the issue was preserved for the
record. The Court advised Defendant at the very beginning of the trial to let
his attorneys know anytime he needed a break to speak to them if he was
confused or didn’t understand something. The Court specifically advised
Defendant that his testimony was needed to “potentially” get the other
witnesses’ testimony in, and he still refused. His decision not to testify
impacted three total defense witnesses. He was aware of that when he
discussed the matter with his attorneys. Defendant knew that the testimony
would not come in unless there was some other way to put evidence on to
lay the foundation for those witnesses. After all of the potential evidence was
ruled on, the Court gave Defendant one more opportunity to change his mind
or discuss the matter with his attorneys, and he refused to testify. Defendant,
however, claims that while it was his decision, it was based on bad advice
from his attorneys.
Defendant further claims that his testimony would have contradicted another
State’s witness (Defendant’s sister), and if the jury believed him over her,
then there is a reasonable probability the outcome would have been different.
Defendant’s story was already in evidence through the law enforcement
recording. The only new information the jury would have learned from his
proposed testimony was that he lied because he was afraid, which is the
same reason Defendant’s sister gave for her own lies. Defendant concedes
later in his sworn motion that “during this interview it was obvious to the jury
that the Defendant, out of fear, told two stories . . . which in turn killed the
Defendant’s credibility.” If the jury already knew that Defendant was afraid,
his testimony on the issue was not necessary nor would it have created a
reasonable probability that the outcome of the proceeding would have been
different. Additionally, the jury was well aware of Defendant’s sister’s
inconsistent statements and incentive to testify. Despite knowing all that,
Page 13 of 29
they still chose to convict Defendant.
In order to establish ineffective assistance of counsel, Defendant must show
both that his counsel was deficient and, assuming the first prong is met, that
there was a reasonable probability that, but for counsel’s errors, the result of
the proceeding would have been different. Strickland, 466 U.S. at 694;
Spera, 971 So. 2d at 757-58. Based on Defendant’s proposed testimony,
there is no reasonable probability that the result of the proceeding would
have been different if Defendant had been advised to testify, as he now
proposes, consistently with his statement to law enforcement.
(Doc. 12, Ex. 16, pp. 4-8) (court’s footnotes omitted) (emphasis in original).
The record supports the denial of Miller’s claim. Miller has not shown that he could
have given testimony about Hickey’s alleged addiction and withdrawal that was necessary
to lay the foundation for Dr. Goldberger’s testimony. As the state court’s order notes, Miller
told police that he thought the situation was “shady” based on Hickey’s seeking pills in the
middle of the night. (Doc. 12, Ex. 1d, p. 488). However, the evidence presented at trial
indicates that Miller had only met Hickey once, and Miller has not shown that he knew the
extent of Hickey’s drug use or whether Hickey was experiencing withdrawal when Miller
picked him up. (Doc. 12, Ex. 1e, pp. 625-26). Further, Miller does not establish that
Springer and Atkins could have testified to why Springer was unable to locate a knife.
Accordingly, he fails to show any reasonable probability that Springer’s and Atkins’s
speculative testimonies would have changed the outcome of trial. In regard to these three
witnesses, therefore, Miller does not show prejudice resulting from counsel’s alleged
deficient performance in advising him not to testify.
Finally, although Miller could have testified to a different version of events than
Alicia, the jury was aware of his version through the introduction of his lengthy statement
to police in which he claimed the gun accidentally discharged during a struggle with Hickey.
Page 14 of 29
(Doc. 12, Ex. 1d, pp. 487-90, 495-96, 506). Miller fails to show a reasonable probability
that the outcome would have been different had explained to the jury that he initially denied
involvement in his statement to police because he was scared. Furthermore, Alicia
admitted at trial that she had told different stories and had initially lied to the police. (Doc.
12, Ex. 1e, pp. 589-91). Counsel elicited her testimony that she had changed her story and
that her last three statements were true “so that [she] could get a reduced sentence.” (Doc.
12, Ex. 1e, pp. 621-23). Considering that the jury was aware of Alicia’s inconsistent
statements and her motive to testify, as well as Miller’s own version of events, Miller does
not show that he was prejudiced as a result of counsel’s misadvice not to testify to his
version of events.
The state court’s decision did not involve an unreasonable application of Strickland,
nor was it based on an unreasonable determination of fact. Accordingly, Miller is not
entitled to relief on Ground Three.2
Ground Four
Miller contends that trial counsel was ineffective in failing to move to suppress his
post-Miranda3 statements on the basis that detectives questioned him after he said that he
did not understand his rights. The state court denied his claim:
Defendant alleges his confession was involuntary and should have been
2
Miller claims in his reply that the state court erred in not conducting an evidentiary hearing on this
claim. Miller cannot bring a new claim in his reply. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir.
2008) (“We do not address arguments raised for the first time in a pro se litigant’s reply brief. Lovett v. Ray,
327 F.3d 1181, 1183 (11th Cir. 2003). Timson, thus, has abandoned this issue.”). Further, his claim is not
cognizable in this federal habeas proceeding. See Anderson v. Sec’y, Dep’t of Corr., 462 F.3d 1319, 1330
(11th Cir. 2006) (“[T]he state court’s failure to hold an evidentiary hearing on a petitioner’s 3.850 motion is not
a basis for federal habeas relief.”).
3
Miranda v. Arizona, 384 U.S. 436 (1966).
Page 15 of 29
suppressed. Defendant alleges he did not understand his rights and he was
suffering from withdrawal symptoms because he told the Detective he was
“dope sick” at the end of their conversation. The Detective who took
Defendant’s statements testified Defendant did not appear to be under the
influence of drugs or alcohol at the time of the interview. The Detective
further testified that he did not believe there was anything wrong with
Defendant based on his experience dealing with drug users. The Court, jury,
and both of Defendant’s trial counsel were all able to see and hear Defendant
in this video recording during discovery and at trial. They would be best
suited to interpret Defendant’s statements and determine whether Defendant
appeared confused or sick. There is also no indication from the recording
that Defendant did not understand his rights. The relevant portion of the
recording played at trial is as follows:
Detective:
Before we go any further, you have rights. And
because you’re in custody right now, I’m going to
tell you your rights.
Defendant:
All right.
Detective:
I’m going to advise them, and I’m going to read
them right off of this form. These are called your
Miranda rights.
Defendant:
Okay.
Detective:
I don’t know if you’ve ever heard them before.
Defendant:
Yeah.
. . .[4]
Detective:
Do you understand those rights? Do you need to
read these?
Defendant:
No, sir.
Detective:
Okay. All I need you to do is sign it right here.
This isn’t an admission. This doesn’t mean
anything. This just says I read these to you.
4
The portion of the transcript omitted by the postconviction court’s order reflects that Detective
LeFebvre asked Miller to listen while he read from the rights advisement form, and then read Miranda
warnings to Miller. (Doc. 12, Ex. 1d, p. 445).
Page 16 of 29
Okay. And I’m going to note the time for the
record . . .
Based on the transcript, Defendant was aware of his rights. He heard them
before. When asked an admittedly compound question regarding whether
he understood his rights or needed to read them, he replied, “No, sir.”
Defendant argues he was saying no, as in, he did not understand his rights.
However, Defendant did not make any other statements during the recording
to indicate he did not understand those rights, nor did he ask any questions
about his rights. A defendant bears the burden to overcome the strong
presumption that trial counsel’s performance was not ineffective. McCoy v.
State, 113 So. 3d 701, 707 (Fla. 2013). Counsel had no obligation to move
to suppress a post-Miranda statement which appeared to be given freely and
voluntarily. The Court cannot deem trial counsel ineffective for failing to
pursue a meritless issue. Tefteller v. Dugger, 734 So. 2d 1009, 1020 (Fla.
1999). Therefore, this ground is denied.
(Doc. 12, Ex. 16, pp. 9-10) (court’s footnotes omitted).
Miller has failed to show that the state court’s decision was objectively unreasonable.
A waiver of the right to remain silent “must be . . . ‘made with a full awareness of both the
nature of the right being abandoned and the consequences of the decision to abandon it.’”
Berghuis v. Thompkins, 560 U.S. 370, 382-83 (2010) (quoting Moran v. Burbine, 475 U.S.
412, 421 (1986)). Whether a person who waives his Miranda rights has “the requisite level
of comprehension” depends on the “totality of the circumstances surrounding the
interrogation.” Burbine, 475 U.S. at 421 (quoting Fare v. Michael C., 422 U.S. 707, 725
(1979)).
The transcript does not show that Miller lacked an understanding of the rights he
was waiving. Rather, it appears to show that Miller said, after conveying his familiarity with
Miranda and being read his rights, that he did not need to read the rights advisement form.
And as the state court noted, Miller made no statements during the interview indicating he
did not understand his rights, nor did he ask any questions about his rights. (Doc. 12, Ex.
Page 17 of 29
1d, pp. 443-91, 494-508, 510-520). Accordingly, he has not demonstrated that counsel
performed deficiently in failing to move to suppress his statements. See Bolender v.
Singletary, 16 F.3d 1547, 1573 (11th Cir. 1994) (“[I]t is axiomatic that the failure to raise
nonmeritorious issues does not constitute ineffective assistance.”).
Because Miller fails to show that the state court unreasonably applied Strickland or
unreasonably determined the facts in denying his claim, he is not entitled to relief on
Ground Four.
Grounds Five and Eight
Miller argues that trial counsel was ineffective in failing to object to the prosecutor’s
improper comments during closing arguments. Closing argument is designed to “assist the
jury in analyzing, evaluating and applying the evidence.” United States v. Pearson, 746
F.2d 787, 796 (11th Cir. 1984). While he may not go beyond the evidence presented to the
jury, the prosecutor is not limited to a bare recitation of the facts. As the state court noted,
a prosecutor may comment on the evidence and express the conclusions he contends the
jury should draw from the evidence. United States v. Johns, 734 F.2d 657, 663 (11th Cir.
1984).
See also McArthur v. State, 801 So.2d 1037, 1040 (Fla. 5th DCA 2001) (“The
courts generally allow wide latitude in closing arguments by permitting counsel to advance
all legitimate arguments and draw logical inferences from the evidence.”).
An improper prosecutorial comment will warrant reversal only if it prejudices a
defendant’s substantial rights. Sexton v. Howard, 55 F.3d 1557, 1559 (11th Cir. 1995). A
defendant’s substantial rights “are prejudicially affected when a reasonable probability
arises that, but for the remarks, the outcome [of the trial] would be different.” United States
v. Hall, 47 F.3d 1091, 1098 (11th Cir. 1995) (citing Kennedy v. Dugger, 933 F.2d 905, 914
Page 18 of 29
(11th Cir. 1991)). A reviewing court must evaluate an allegedly improper comment in the
context of the whole trial because “[c]laims of prosecutorial misconduct are fact specific
inquiries which must be conducted against the backdrop of the entire record.” Hall, 47 F.3d
at 1098.
First, Miller claims that the prosecutor improperly argued that the jury should reject
the lesser charge of second degree murder because Miller’s taking a gun when he picked
up Hickey established the premeditation necessary to prove first degree murder.5 Miller
asserts that the prosecutor misstated the law. The prosecutor argued:
The defendant took a gun to a drug deal - - at least Joseph Hickey believed
that it was going to be a drug deal. Why did Wayne[6] Miller take that gun?
There is only one reason, because he intended to kill Joseph Hickey.
...
So the choice of weapon, it’s hard to imagine a more lethal, a more
dangerous, a more deadly weapon than a gun. That in and of itself, taking
that gun, shows premeditation and intent.
...
I submit to you that there was a clear intent and clear premeditation. Why
doesn’t second degree murder apply in this case? Because you would have
to ignore that the defendant took the gun with him in that van. You would
have to ignore the fact that Alicia Miller and Wayne Miller discussed at length
for hours killing Joseph Hickey.
(Doc. 12, Ex. 1f, pp. 855-56, 862).
Second, Miller asserts that the prosecutor’s argument that the victim was shot in the
head immediately upon entering the vehicle was unsupported by the evidence. He claims
that no evidence showed that Hickey was shot immediately, or that the first shot hit him in
the head. The prosecutor said:
5
See § 782.04(1)(a)1., Fla. Stat.
6
The trial transcript shows that Miller went by Wayne, his middle name.
Page 19 of 29
Joseph Hickey never stood a chance after he got into that van. He was shot
almost immediately after climbing into that van through that rear passenger
door.
...
The first shot to Joseph Hickey was a kill shot. Alicia Miller’s testimony, she
sat up here and she told you that the shot was almost immediate. As soon
as Joseph Hickey got into that van, the two men may have greeted each
other, but almost immediately Joseph Hickey was shot in the head. Almost
immediately.
(Id., pp. 851, 856-57).
The state court denied Miller’s claim of ineffective assistance:
Defendant’s counsel is allegedly ineffective for failing to object to the State’s
closing argument when it made statements purportedly not supported by
evidence. In order to prevail on an ineffective assistance of counsel claim
related to improper closing remarks, Defendant “must first show that the
comments were improper or objectionable and that there was no tactical
reason for failing to object.” Stephens v. State, 975 So. 2d 405, 420 (Fla.
2007). Second, he must demonstrate prejudice.
First, the State argued that the reason Defendant took a gun with him to the
crime scene is because he was intending to kill the victim. There is evidence
to support this inference from the trial testimony of Defendant’s sister. Next,
the State argued that the victim was shot almost immediately upon entering
the van. There was testimony to support the State’s claims that the victim
was shot almost immediately and that he was shot in the head. . .
Defendant fails to show that the comments were improper and that counsel
should have objected. As a result, he fails to meet the requirements of
Stephens. This ground is denied.
...
Defendant next argues that the State’s closing argument regarding why
second degree murder did not apply and whether premeditation was
necessary for first degree murder was erroneous. The Court advises the jury
on the law, not the State. Any prejudice that may have been created by the
State’s alleged erroneous legal argument was cured when the Court
instructed the jury that the State’s arguments were not the law and further
when it gave the law in the form of jury instructions. See Freeman v. State,
761 So.2d 1055, 1071 (Fla. 2000) (noting that standard jury instructions are
presumed to be correct).
Page 20 of 29
Defendant further argues that the State’s erroneous legal argument caused
the jury to disbelieve his defense. He points to various testimony which
allegedly supports his defense. The jury, as the trier of fact, determines how
much weight to afford a witness’s testimony and all other evidence. As a
result, this argument fails the second prong of the Strickland test and is
denied. See, e.g., Brown v. State, 846 So.2d 1114 (Fla. 2003).
(Doc. 12, Ex. 16, pp. 15-16) (court’s footnotes omitted).
The record supports the state court’s conclusion that counsel was not ineffective in
failing to object to the prosecutor’s statements. First, Miller fails to show that the prosecutor
improperly argued that Miller’s possession of gun went to establishing premeditation, or that
he was prejudiced by any incorrect statement of the law on first and second degree murder.
Alicia testified that she and Miller discussed the possibility of shooting Hickey:
Q. When Wayne told you something could go wrong, somebody could get
shot, you didn’t care?
A. No, I did not. I’m the one who said to - - as far as I was concerned, he
can go ahead and shoot him.
Q. Shoot him anyway, regardless?
A. Correct.
Q. Witness elimination.
A. Make it easier.
Q. Easier to rob somebody if they’re dead?
A. Correct.
Q. And you suggested that to Wayne?
A. Yes, I did.
(Doc. 12, Ex. 1e, p. 635).
Accordingly, Miller fails to show that the prosecutor’s argument–that Hickey’s taking
Page 21 of 29
a gun with him indicated premeditation–involved anything other than a reasonable
inference that the jury could draw from the evidence. And to the extent he claims that
counsel should have objected because the prosecutor misstated the law, Hickey does not
show prejudice as a result of counsel’s performance. The trial court instructed the jury that
it was to follow the law as set out in the jury instructions, and instructed the jury on the
elements of first degree murder and second degree murder. (Doc. 12, Ex. 1f, pp. 903-05,
907-09, 925). Jurors are presumed to follow the court’s instructions. Brown v. Jones, 255
F.3d 1273, 1280 (11th Cir. 2001) (“We have stated in numerous cases . . . that jurors are
presumed to follow the court’s instructions.”); Raulerson v. Wainwright, 753 F.2d 869, 876
(11th Cir. 1985) (“Jurors are presumed to follow the law as they are instructed.”).
Nor does Miller show that the prosecutor improperly commented that Hickey was
immediately shot in the head. The State presented evidence that Hickey was shot very
shortly after entering the van. Alicia testified:
Q. Tell the [ ]jury what happened when Joseph got into that van?
A. I started to drive away. He got in, him and Wayne greeted each other,
and then very quickly after that, Wayne shot him.
Q. When you say they greeted each other, what do you mean by that?
A. Just a, Hi, how is it going?
Q. How much time elapsed between Joseph Hickey getting into that van and
Wayne pulling the trigger of that gun?
A. I don’t remember precisely. It was not much.
Q. Was it immediate?
A. Pretty much? Pretty quickly, yes. Pretty immediate.
(Doc. 12, Ex. 1e, pp. 606-07).
Page 22 of 29
She again stated, later in her testimony, that Miller shot Hickey almost immediately
after Hickey got in the van. (Id., p. 644). And the prosecutor’s assertion that this
immediate shot struck Hickey in the head was based on 1) Alicia’s testimony that Miller,
sitting in the front passenger’s seat, turned towards the center of the van and fired one
shot, and 2) the medical examiner’s testimony describing the location and characteristics
of Hickey’s fatal head wound. Alicia testified:
Q. Did Wayne ever leave the passenger seat of that van?
A. No, ma’am.
...
Q. It would be inescapable for you not to see Wayne leaving that passenger
seat if he did so?
A. Correct.
...
Q. Are you able to show us from where you’re sitting exactly how Wayne
shot Joseph? Can you show us?
A. I don’t really - - I didn’t really see because I was driving. He never left the
seat. He just sort of turned to the center. . . . He just turned like this
(indicating). It was just a turn.
Q. Just a turn and a shot?
A. Yes, ma’am.
(Id., pp. 607-08).
The medical examiner, Dr. Wilson A. Broussard, Jr., testified about Hickey’s fatal
head wound and the spatter on a door in the van:
A. [State’s Exhibit 57 depicts] the fatal gunshot wound to the right side of the
head. . . . And it’s kind of elongate[d] and irregularly shaped because of the
angle at which this bullet hits kind of the side of the head rather than hitting
direct on.
...
Page 23 of 29
[T]he bullet basically entered in this vicinity behind the frontal bone and the
parietal bone area. And because of the angle, it was a little bit . . .elongated,
and it penetrated into the cranial cavity and exited before getting out to the
right side of the midline, so a little bit of a very slightly downward angle,
something like entrance here, exit about here.
Q. Okay. So there was slightly a downward angle?
A. Very slightly, yes.
Q. Okay. Now, would that injury almost be instantly incapacitating?
A. Yes. . .
...
Q. Okay, so the injury would be consistent with the victim relatively upright
near that cargo door on the right-hand side.
A. Correct. I couldn’t see an explanation for having that kind of pattern [of
spatter with brain material] if he was shot lying down - Q. Okay.
A. - - or from the back of the van or something - Q. Not on the floor of the van or anything like that.
A. Not consistent with that, no.
(Doc. 12, Ex. 1e, pp. 689-90, 694-95, 705).
The prosecutor’s assertion that Hickey was immediately shot in the head derived
from this testimony.
The prosecutor expanded on his argument that Hickey was
immediately shot in the head by stating:
Dr. Broussard’s testimony, head-shot was slightly downward. And use your
common sense and your logic. Joseph Hickey is climbing into the back of a
van. He gets up on the step, and he’s crunching over, getting in pulling the
door closed behind him, his head is right there, pow, shot right in the head
immediately after he gets in the van. Dr. Broussard testified that Joseph
Hickey’s blood and brain matter were on that passenger door, splattered on
the door that he had just entered. The autopsy photo is consistent with
Alicia’s testimony and with Dr. Broussard’s testimony.
Page 24 of 29
(Doc. 12, Ex. 1f, p. 857).
Miller fails to demonstrate that the prosecutor made an improper comment, rather
than a permissible comment that involved a reasonable inference from the evidence.
Accordingly, he has not demonstrated that counsel was ineffective in failing to object to the
prosecutor’s comments. Miller has not shown that the state court’s decision involved an
unreasonable application of Strickland or was based on an unreasonable determination
of fact. He is not entitled to relief on Ground Five or Ground Eight.
Ground Six
Miller argues that trial counsel was ineffective in failing to object to the exclusion of
medical records that supported his theory of defense. He explains:
The State’s theory was that the defendant’s motive for the crime was to
obtain money to purchase prescription pills. The records in question would
show that the defendant had only a day or two prior to the shooting, legally
obtained two different prescription pain medications. That record was critical
in supporting the theory of defense as well as a rebuttal to the theory of the
State.
(Doc. 1, p. 14).
The state court denied this claim:
Defendant next argues that this counsel failed to object to the exclusion of his
medication records from evidence. Defendant has medication records
showing he picked up his pills on April 13, 2010, and therefore had them in
his possession to sell to the victim in the early morning of April 16, 2010.
Defendant asserts that his counsel attempted to enter these records into
evidence, the State objected, and counsel agreed with the State. Defendant
does not point to the record where this happened. However, upon review of
the entire record, the Court notes that the State objected to the records as
irrelevant in its Pre-Trial Motion in Limine and withdrew its objection prior to
the Court’s order on the motion.
Defendant fails to show how these records would have changed the outcome
of the proceeding. There was testimony to support the fact that Defendant
had filled a prescription for the drugs. There was also testimony that those
Page 25 of 29
drugs were used up prior to the murder. The paper document showing the
medication fill date and amounts would not show that he still had pills in his
possession to sell days later. As Defendant did not show specifically in the
record where counsel failed to object, and also fails to show prejudice even
if an error were made, this ground is denied.
(Doc. 12, Ex. 16, p. 17) (court’s footnotes omitted).
Detective LeFebvre testified that he was aware Miller had a doctor’s appointment
on April 13, and that Miller had prescriptions for Roxicodone and Oxycontin. (Doc. 12, Ex.
1d, p. 548). Alicia stated that Miller obtained about 200 pills on either April 13 or April 14,
but that they were almost out of pills by the time they decided to rob Hickey. (Doc. 12, Ex.
1e, pp. 624-25). She testified:
Q. Alicia, on Tuesday when Wayne got those 200-odd pills until Friday, what
happened to hose pills?
A. He used them - - well, other than he owed some out. He may have sold
some. I don’t believe so. I believe he owed them out, and then there were
four adults using drugs in the home at that time. So they were used.
Q. Let’s talk about what you mean by the statement, “He owed some out.”
What does that mean?
A. When we would run out of pills, usually rather than buying them, because
while I sold them, I did not buy them very often. More often I would borrow
them from other people who I knew went to the doctor and then just pay them
back what I had borrowed them.
(Id., pp. 641-42).
Alicia reiterated that “between what was owed out and what was used” the pills were
gone by the time she and Miller decided to rob Hickey. (Id., p. 644). Considering this
evidence, as the state court found, Miller fails to show that any records confirming he
obtained pills through a prescription in the days before Hickey’s death would demonstrate
“that he still had pills in his possession to sell days later.” Accordingly, he has not
Page 26 of 29
established that counsel was ineffective in failing to object to the exclusion of such records.
Miller has not shown that the state court unreasonably applied Strickland or unreasonably
determined the facts in denying his claim. He is not entitled to relief on Ground Six.
Ground Seven
Miller argues that trial counsel was ineffective in failing to properly impeach
prosecution witness Cheyenne Ewing with her prior inconsistent statements. Ewing was
Hickey’s girlfriend. She testified at trial that Hickey “sometimes” used pain pills, and had
last taken a pill on the morning of April 15. (Doc. 12, Ex. 1c, pp. 339, 343). Miller contends
that at her deposition, however, Ewing testified that Hickey did not use pain pills. He
argues that Ewing’s trial testimony that Hickey used pills occasionally was critical evidence
for the State to disprove his theory that Hickey consistently used pills and acted
aggressively towards Miller because he was experiencing withdrawal. Therefore, he
contends, counsel needed to impeach Ewing’s credibility. The state court denied this claim:
Defendant argues that counsel failed to impeach Cheyenne Ewing. Ms.
Ewing testified in a deposition that the victim did not use pills at the time of
the murder because his mother didn’t like it, but in Court she testified that the
victim used pills on the weekend with her sometimes and he had used one
the morning he died. Defense counsel unsuccessfully attempted to impeach
Ms. Ewing with her inconsistent statements. Ultimately, defense counsel did
not continue with the impeachment attempts. Defendant alleges in his
motion that Ms. Ewing’s inconsistent testimony shows that the victim’s pill
use was more substantial than indicated by the State, up to the point of
addiction.
Defendant fails to show that proper impeachment on this point would have
been reasonably likely to change the outcome of the proceeding. The
witness was not present at the murder and her testimony is not dispositive
of the case. Considering the amount of evidence against Defendant
otherwise (including his own statements to law enforcement and his sister’s
testimony), there is no reasonable probability that proper impeachment of this
witness would have changed the outcome of the proceeding. This ground is
denied.
Page 27 of 29
(Doc. 12, Ex. 16, pp. 18-19) (court’s footnotes omitted).
As the state court’s order described, counsel tried to impeach Ewing with her prior
statement, but abandoned this attempt upon the prosecution’s multiple objections. (Doc.
12, Ex. 1c, pp. 349-54). Even assuming deficient performance, however, Miller fails to
show prejudice. Initially, Miller’s defense did not rely on the argument that Hickey’s alleged
withdrawal caused him to be aggressive because, as discussed in Ground Three, supra,
there was no evidence to support the presentation of the withdrawal theory.7 Moreover,
considering the State’s evidence of guilt, including Alicia’s testimony about the shooting,
Miller does not show a reasonable probability that impeaching Ewing with her prior
statement would have resulted in a different outcome. Accordingly, Miller does not show
that the state court unreasonably applied Strickland’s prejudice prong or unreasonably
determined the facts in denying his claim. He is not entitled to relief on Ground Seven.
Accordingly, it is ORDERED that Miller’s petition (Doc. 1) is DENIED. The Clerk is
directed to enter judgment against Miller and to close this case.
CERTIFICATE OF APPEALABILITY AND
LEAVE TO APPEAL IN FORMA PAUPERIS DENIED
It is ORDERED that Miller is not entitled to a certificate of appealability (COA). A
prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district
court’s denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a district court must first
issue a COA. Id. “A [COA] may issue . . . only if the applicant has made a substantial
7
In closing argument, counsel presented a self-defense theory, contending that 1) Alicia’s testimony
was the only evidence contradicting Miller’s version of events but her testimony was not reliable and 2) the
physical evidence did not rule out a struggle as Miller described. (Doc. 12, Ex. 1f, pp. 867, 869-70, 873-74,
876, 880-81, 884-86).
Page 28 of 29
showing of the denial of a constitutional right.” Id. at § 2253(c)(2). To make such a
showing, Miller “must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S.
274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues
presented were ‘adequate to deserve encouragement to proceed further.’” Miller-El v.
Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4
(1983)). Miller has not made the requisite showing in these circumstances. Finally,
because Miller is not entitled to a COA, he is not entitled to appeal in forma pauperis.
ORDERED at Tampa, Florida, on June 28, 2018.
Reilies Wayne Miller
Counsel Of Record
Page 29 of 29
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?