Miller v. USA
Filing
2
OPINION AND ORDER The court: (1) DENIES Joseph Miller's motion to vacate under 28 U.S.C. § 2255; (2) GRANTS Joseph Miller's application to proceed in forma pauperis; (3) DENIES Joseph Miller's motion for production of documents; (4) GRANTS Joseph Miller's motions to supplement; (5) DENIES AS MOOT Joseph Miller's motion for status; (6) DENIES Joseph Miller's motion to show cause; and (7) DENIES Joseph Miller a certificate of appealability. Signed by Senior Judge James T Moody on 10/21/19. (Copy mailed to pro se party)(kjp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA
v.
JOSEPH B. MILLER
)
)
)
)
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No. 2:12 CR 10
OPINION and ORDER
Petitioner Joseph Miller has filed a motion (DE # 144) to vacate his sentence
pursuant to 28 U.S.C. § 2255. For the following reasons, Miller’s motion will be denied.
I.
BACKGROUND
The following factual and procedural history is adopted from the Seventh
Circuit’s opinion on Miller’s direct appeal.
On December 13, 2011, a clean-cut male in his late 30s or early 40s robbed
the Standard Bank & Trust in Hammond, Indiana. The robber wore a
thigh-length leather coat, black sneakers with red stitching, and a
green-and-white baseball cap with a Chicago Bulls logo. He approached
bank teller Judith Tauber, who was standing next to her supervisor
Pakama Hoffman, and handed Tauber a note demanding money. Tauber
quickly turned over some $5,000 in cash. The robber then exited the bank
and headed in the direction of Amtech Technology Systems, a nearby
business. He climbed into a blue Ford Explorer with Illinois plates and
drove off. The vehicle was captured on Amtech surveillance video.
FBI Agent Michael Peasley reviewed the surveillance footage but, after
attempting to sharpen the image, could not identify the Explorer’s license
plate number. He sent the video footage to the Lake County High
Intensity Drug Trafficking Area (“HIDTA”) Task Force, where the image
was refined so that all but one digit on the license plate became legible.
Using the enhanced image, Agent Peasley searched the Illinois vehicle
registration database and entered each of the ten possible license plate
combinations. One of those combinations matched the plate number of a
Ford Explorer registered to defendant-appellant Joseph Miller, who lived
a few miles outside of Hammond, in Lansing, Illinois.
The FBI conducted surveillance of Miller for several days. Agent Peasley
observed Miller’s Ford Explorer parked outside of his home and, based on
the vehicle’s distinctive characteristics, including stickers, rain dams, and
window tinting, Agent Peasley concluded that Miller’s Explorer was the
same vehicle captured on the Amtech video. During the surveillance
period, Miller and his girlfriend, Debra Loggins, were the only individuals
seen driving the vehicle. On January 5, 2012, agents searched Miller’s
home with Loggins’s consent and recovered a black leather jacket
resembling that worn by the bank robber. The agents also seized Miller’s
black sneakers, which featured red stitching and distinctive tabs that
matched the embellishments on the robber’s sneakers. They did not locate
any cash or a Chicago Bulls hat, though Loggins’s daughter stated that
Miller and Loggins owned matching green-and-white Chicago Bulls
baseball caps.
That same day, Agent Peasley questioned Miller at the Lansing, Illinois
police station, where he advised Miller of his Miranda rights. Miller
initially denied involvement in the robbery, though when Agent Peasley
showed him a photo of the robber and the Ford Explorer in the Amtech
parking lot, Miller responded, “That’s my vehicle, but that’s not me.”
Forty-five minutes into the interview, however, Agent Peasley asked
Miller if he had a firearm, to which Miller replied, “I did not have a gun.”
Understanding this to mean that Miller was admitting to the robbery,
Agent Peasley clarified, “You mean you didn’t have a gun during the
robbery,” to which Miller replied, “Yes.” Miller also explained that,
following the robbery, he had thrown the Chicago Bulls cap into a nearby
dumpster. This conversation was not recorded, and Miller did not sign a
written confession.
Early in the investigation, Agent Peasley provided photo arrays to both
Tauber and Hoffman, the Standard Bank witnesses. Hoffman pointed at
Miller’s picture in the array but stated that she could not be 100% certain
that he was the robber. Tauber pointed to Miller’s photo and recalled that
she had thought the bank robber resembled a courier who she had
previously seen at the bank. Miller’s photo, she explained, reminded her
of that same courier. In support of the criminal complaint against Miller,
Agent Peasley submitted an affidavit recounting the photo line-up with
Tauber. The affidavit reads, in pertinent part:
[When] law enforcement showed a photo lineup containing
a photo of Miller and five other subjects to [Tauber,] [s]he
pointed to the photo of Miller and said, “He looks familiar to
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me.” [Tauber] explained that when she was being robbed,
she thought the man reminded her of a courier who comes
into the bank. When she saw the photo of Miller, she again
thought the photo reminded her of the courier.
Tauber later reviewed Agent Peasley’s affidavit and disagreed with its
characterization of her statements. She clarified that the photograph of
Miller “looked familiar, because it reminded her of the courier, not
because the photograph looked like the bank robber.” When Miller
learned of this discrepancy, he moved to depose Tauber prior to trial. The
district court denied Miller’s motion after the government explained that
it “expect[ed] [Tauber’s] trial testimony to be—that she did not identify
the photograph as the bank robber.” Tauber, in fact, died shortly
thereafter and no evidence relating to her observations upon viewing the
photo array was introduced at trial.
At Miller’s June 2013 trial, video footage from both Standard Bank and the
Amtech parking lot was admitted. Hoffman testified as the sole
eyewitness. Although she had been unable to pick Miller out of the photo
array, Hoffman made an in-court identification of Miller as the robber at
trial. Miller’s attorney, Adam Tavitas, did not object to the admission of
Hoffman’s identification. However, on cross-examination, Tavitas
emphasized that Hoffman had observed the robber only briefly and had
been unable to identify Miller in the photo array presented to her shortly
after the robbery. Loggins’s daughter also testified at trial, identifying the
robber’s green-and-white baseball cap as a hat identical to one Miller had
owned. Loggins herself denied previously seeing Miller with a
green-and-white Bulls hat. She also denied several prior statements she
had made to law enforcement, but admitted telling agents that Miller was
the individual in the Amtech surveillance footage. When again confronted
with the footage during trial, Loggins stated that she was unable to
identify the person depicted. However, Loggins did positively identify the
car in the image as Miller’s Ford Explorer.
Agent Peasley also testified at trial, and described the circumstances
surrounding Miller’s confession and other details relating to the
investigation. When questioned about his identification of Miller’s vehicle,
Agent Peasley explained that he reviewed the Amtech surveillance tape
and was eventually able to read all of the digits on the vehicle’s license
plate, with the exception of one number. Agent Peasley’s testimony
continued as follows:
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Q. And did you do anything to enhance your ability to read
th[e license plate]?
A. We played with the video quite a lot. We looked at could
we adjust the colors, even invert the colors, do anything we
can to bring out those numbers. And we continued to do
that and then got to the point where we were able to read all
but that one digit. So we then started playing with those
digits in the registration system database to look and see if
we could find a match.
Q. All right. And let me just have you explain something
you just said. You said you were playing with the video. Did
you make any changes or enhancements—
A. No.
Through Agent Peasley, the government also admitted various financial
records. Records from Miller’s electric company confirmed that his bill
had been delinquent prior to the robbery but was paid the day after the
robbery. Bank account records revealed that Miller’s account was
overdrawn by $159.82 on the morning of the robbery and that two cash
deposits totaling $370 were made into his account later that same day.
Agent Peasley testified, however, that Miller’s account was “delinquent by
about 730 something dollars [on the morning of] the bank robbery.” The
government referenced this $730 figure during its closing argument.
Tavitas cross-examined Agent Peasley on several issues. He emphasized
that Agent Peasley did not record the interview in which Miller
purportedly confessed, and pointed out other shortcomings in the
investigation, including that no handwriting exemplar was obtained from
Miller, no fingerprints or DNA were recovered from the scene, and no
stash of money was found at Miller’s house. Tavitas did not question
Agent Peasley about Tauber’s statements in relation to the photo array,
nor did he attempt to correct Agent Peasley’s testimony regarding the
amount by which Miller’s account was overdrawn. Ultimately, Miller was
found guilty of bank robbery in violation of 18 U.S.C. § 2113(a), and
sentenced to 225 months’ imprisonment.
Represented by new counsel, Miller filed a motion for a new trial
pursuant to Federal Rule of Criminal Procedure 33. He argued that
Tavitas provided constitutionally ineffective assistance, first, because he
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did not introduce evidence that Agent Peasley’s affidavit
“mischaracterized” Tauber as having identified Miller as the robber;
second, because he did not object to Agent Peasley’s testimony regarding
the enhancement of the license plate images; and third, because Tavitas
did not challenge Agent Peasley’s incorrect assertion that Miller’s bank
account was more than $700 overdrawn on the day of the robbery.
At an evidentiary hearing, Agent Peasley testified that he had sent the
Amtech video to HIDTA staff who “took a look at the video to try to clear
it up to see if we could see what the [license plate] tag was.” He also
attempted to clarify the image on his own but was unsuccessful. Agent
Peasley admitted he could not recall exactly how the video was sent to
HIDTA, who adjusted its sharpness, or what techniques were used to do
so. He believed HIDTA “simply adjusted aspects of the image, so—like,
they adjusted the color ration [sic]. They adjusted the zoom level. They
adjusted sharpness of the photos.” However, he insisted that HIDTA “did
not change the photograph.” Agent Peasley also admitted that he erred in
testifying that Miller’s bank account was overdrawn by approximately
$730 on the day of the robbery. He explained that he had mistakenly
conflated the relevant pre-robbery account balance (-$159.82) with Miller’s
account balance a few weeks after the robbery (-$713).
Tavitas also testified at the hearing regarding his representation of Miller.
He explained that he did not question Agent Peasley about Tauber’s
statements because he did not want to introduce evidence that might
allow the jury to infer that Tauber thought Miller resembled the robber.
Tavitas also stated that it was not part of his trial strategy to challenge the
assertion that the car in the Amtech lot belonged to Miller, as Miller and
Loggins had both admitted to Agent Peasley that the car in the Amtech lot
was his. Rather, Tavitas’s trial strategy was to argue that the car was
Miller’s, but that the man in the video was someone else. Tavitas therefore
saw no need to cross-examine Agent Peasley regarding the process by
which he verified the robber’s license plate number. Tavitas could not
explain his failure to correct Agent Peasley’s misstatement with respect to
Miller’s bank records.
The district court denied Miller’s new trial motion. First, it found no
ineffectiveness relating to Tavitas’s choice not to cross-examine Agent
Peasley about Tauber’s pre-trial statements, concluding that Tavitas had
made a “sound tactical decision.” The court also concluded that Tavitas
acted permissibly in declining to question Agent Peasley about the license
plate enhancement process as Tavitas had explained that he did not intend
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to argue at trial that the vehicle on the scene did not belong to Miller.
Finally, the district court assumed that Tavitas’s failure to correct Agent
Peasley’s testimony regarding Miller’s bank account balance was error but
that, considering the strength of the government’s case, it did not
prejudice Miller.
United States v. Miller, 795 F.3d 619, 622–25 (7th Cir. 2015).
Miller, through his appellate counsel, then pursued these claims on a direct
appeal. See id. On appeal, Miller argued that he was entitled to a new trial because
Agent Peasley offered false testimony during trial regarding: (1) his involvement in
clarifying the surveillance footage to obtain the license plate number; and (2) the
amount by which Miller’s bank account was overdrawn on the morning of the robbery.
Miller also argued that he was entitled to a new trial because his trial counsel provided
constitutionally ineffective assistance by: (1) failing to seek the suppression of
Hoffman’s in-court identification of Miller as the robber; (2) failing to cross examine
Peasley about Tauber’s clarification of statements she made while examining the photo
array; and (3) failing to correct Peasley’s statement about Miller’s account deficit on the
morning of the robbery. Id. at 627-28.
The Seventh Circuit affirmed this court’s denial of Miller’s motion for a new trial.
The Court specifically found that Peasley’s statements did not effect the jury’s verdict.
The Court also held that Miller’s trial counsel did not provide constitutionally
inadequate representation. The Court held that trial counsel’s decision not to object to
Hoffman’s in-court identification did not fall below an objective standard of reasonable
attorney performance. Id. at 629. Second, the Court found that trial counsel’s decision
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not to cross examine Peasley using the statements Tauber made while viewing the
photo array was a legitimate trial strategy. Id. at 629-30. Finally, the Court held that trial
counsel’s failure to correct Peasley’s misstatement regarding Miller’s bank account did
not prejudice Miller. Id. at 630.
Miller now moves to vacate his conviction pursuant to 28 U.S.C. § 2255. Miller’s
motion, supplemented several times and containing hundreds of pages of argument,
identifies 10 claims (Claims A-J)1 which he believes entitle him to relief. Miller’s claims
can be categorized as claims of: (1) ineffective assistance of trial counsel; (2) ineffective
assistance of appellate counsel; (3) challenges to the Government’s evidence; and (4)
challenges to the conditions of his supervised release.
II.
LEGAL STANDARD
A § 2255 motion allows a person in federal custody to attack his or her sentence
on constitutional grounds, because it is otherwise illegal, or because the court that
imposed it was without jurisdiction. 28 U.S.C. § 2255(a). Motions to vacate a conviction
or correct a sentence ask a court to grant an extraordinary remedy to a person who has
already had an opportunity of full process. Kafo v. United States, 467 F.3d 1063, 1068 (7th
Cir. 2006).
A § 2255 motion is not a substitute for a direct appeal, nor is it a means by which
a petitioner may appeal his claims for a second time. Varela v. United States, 481 F.3d
1
Miller’s original motion also included claims K-M. However, in his reply brief,
Miller clarifies that he no longer wishes to pursue these claims. (DE # 176 at 2.)
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932, 935 (7th Cir. 2007). A petitioner cannot raise constitutional claims (other than
ineffective assistance of counsel) in a § 2255 motion that he could have, but did not,
raise in a direct appeal unless: (1) he shows good cause for, and actual prejudice from,
his failure to raise the claims on appeal; or (2) failure to consider the claim would result
in a fundamental miscarriage of justice, such as when a petitioner is actually innocent of
the crime. Delatorre v. United States, 847 F.3d 837, 843 (7th Cir. 2017); Fountain v. United
States, 211 F.3d 429, 433 (7th Cir. 2000). “Cause for a default is ordinarily established by
showing that some type of external impediment prevented the petitioner from
presenting his federal claim [on direct appeal]. Prejudice is established by showing that
the violation of the petitioner’s federal rights worked to his actual and substantial
disadvantage, infecting his entire trial with error of constitutional dimensions.” Lewis v.
Sternes, 390 F.3d 1019, 1026 (7th Cir. 2004) (internal citations and quotation marks
omitted). A petitioner cannot raise nonconstitutional issues in a § 2255 motion that he
failed to raise on direct appeal, regardless of cause and prejudice. Sandoval v. United
States, 574 F.3d 847, 850 (7th Cir. 2009); Lanier v. United States, 220 F.3d 833, 842 (7th Cir.
2000).
III.
DISCUSSION
A.
Procedurally Barred Claims
Miller’s motion to vacate contains a number of procedurally barred claims. He
may not obtain relief on these claims.
First, some of Miller’s claims were raised on direct appeal. For example, on
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appeal Miller argued that trial counsel should have impeached the credibility of
Hoffman’s identification of him as the robber. Miller, 795 F.3d at 629-30. This claim is
procedurally barred. Miller is not permitted to re-litigate any claim that the Seventh
Circuit has already considered. See Varela, 481 F.3d at 935; White v. United States, 371
F.3d 900, 902 (7th Cir. 2004).
Similarly, Miller’s claims that he received ineffective assistance of trial counsel
are also barred. An ineffective assistance of counsel claim may typically only be raised
once. Peoples v. United States, 403 F.3d 844, 848 (7th Cir. 2005) (“[I]neffective assistance of
counsel is a single ground for relief no matter how many failings the lawyer may have
displayed. Counsel’s work must be assessed as a whole; it is the overall deficient
performance, rather than a specific failing, that constitutes the ground of relief.”). On
appeal, Miller argued that he received ineffective assistance of trial counsel. Miller, 795
F.3d at 627. In its opinion, the Seventh Circuit noted that because Miller raised the issue
on direct appeal, he would not be permitted to pursue an ineffective assistance of trial
counsel claim again in any collateral attack. Id. at n. 5. Miller attempts to circumvent this
procedural bar by arguing that appellate counsel provided ineffective assistance by
failing to warn Miller of the consequence of raising the issue on direct appeal, and/or
failing to raise additional issues regarding trial counsel’s performance. As discussed in a
different section of this opinion, those arguments are not pursuasive.
Miller also presents a number of claims in his present motion that he did not
raise during his direct appeal, and therefore these claims are procedurally defaulted. See
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McCoy v. United States, 815 F.3d 292, 295 (7th Cir. 2016). It is possible for a petitioner to
overcome his procedural default of constitutional issues if he can demonstrate either: (1)
cause and prejudice; or (2) actual innocence. Delatorre, 847 F.3d at 843. However, Miller
makes no argument for actual innocence. Furthermore, while cause may be
demonstrated where a petitioner has established ineffective assistance of counsel, see
Veytia-Bravo v. United States, 972 F.2d 352 (7th Cir. 1992), Miller has not established
ineffective assistance of appellate counsel, as discussed below.
B.
Ineffective Assistance of Appellate Counsel
Miller identifies several reasons why he believes appellate counsel provided
constitutionally ineffective assistance. Construing Miller’s pro se § 2255 motion and
filings liberally, see Beal v. Beller, 847 F.3d 897, 902 (7th Cir. 2017), none of the reasons he
identifies is sufficient for this court to grant his motion to vacate.
Claims that appellate counsel was ineffective are analyzed under Strickland v.
Washington, 466 U.S. 668 (1984). Smith v. Robbins, 528 U.S. 259, 285 (2000). Under
Strickland, “a defendant claiming ineffective counsel must show that counsel’s actions
were not supported by a reasonable strategy and that the error was prejudicial.”
Massaro v. United States, 538 U.S. 500, 505 (2003).
“To satisfy the deficient performance prong, a petitioner must show that the
representation his attorney provided fell below an objective standard of
reasonableness.” Vinyard v. United States, 804 F.3d 1218, 1225 (7th Cir. 2015). “A court’s
scrutiny of an attorney’s performance is ‘highly deferential’ to eliminate as much as
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possible the distorting effects of hindsight, and we ‘must indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional
assistance.’” Id. (internal citation omitted).
To satisfy the prejudice prong, a petitioner must establish that “‘there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’” Strickland, 466 U.S. at 694. “This does not mean
that the defendant must show that counsel’s deficient conduct more likely than not
altered the outcome in the case. Rather, a reasonable probability is a probability
sufficient to undermine confidence in the outcome, which in turn means a substantial,
not just conceivable likelihood of a different result.” Harris v. Thompson, 698 F.3d 609,
644 (7th Cir. 2012) (internal citations and quotation marks omitted). See also Canaan v.
McBride, 395 F.3d 376, 386 (7th Cir. 2005) (“Even if the odds that the defendant would
have been acquitted had he received effective representation appear to be less than fifty
percent, prejudice has been established so long as the chances of acquittal are better
than negligible.” (internal citation omitted)). “Making this probability determination
requires consideration of the totality of the evidence before the judge or jury, and a
verdict or conclusion only weakly supported by the record is more likely to have been
affected by errors than one with overwhelming record support.” Harris, 698 F.3d at 645
(internal citations and quotation marks omitted).
A petitioner’s “failure to establish either element of the Strickland framework will
result in denial of his claim.” Daniels v. Knight, 476 F.3d 426, 434 (7th Cir. 2007). If a
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petitioner fails to make a proper showing under one of the Strickland prongs, the court
need not consider the other. See Strickland, 466 U.S. at 697 (“[A] court need not
determine whether counsel’s performance was deficient before examining the prejudice
suffered by the defendant.”).
1.
Appellate Counsel was Not Ineffective for Raising Ineffective
Assistance of Trial Counsel Claim on Direct Appeal
Miller contends that appellate counsel was ineffective because he raised a claim
of ineffective assistance of trial counsel on direct appeal – precluding Miller from
pursuing this claim on a motion to vacate, where the record could be more fully
developed. Miller is correct that it is typically advisable to wait to pursue such a claim
until a collateral attack pursuant to § 2255, as such claims are typically “unlikely to
succeed without additional evidence showing why trial counsel had acted as he did,
and what the adverse consequences of a mistake would have been.” Peoples, 403 F.3d at
846. However, the Seventh Circuit has noted that an attorney’s choice to pursue an
ineffective assistance claim on direct appeal may be justified where the district court has
already held a hearing on a defendant’s motion for a new trial, evidence regarding trial
counsel’s performance has already entered the record, and the defendant is represented
by different counsel on appeal. Id. That is precisely what occurred in Miller’s case. Thus,
Miller has failed to demonstrate that appellate counsel’s performance in bringing the
claim on direct appeal fell below an objective standard of reasonableness.
Miller contends that he should have been given the choice of whether to pursue
this claim on direct appeal or collateral proceeding. (DE # 145 at 22.) However, this
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choice was not his to make. “While the accused has the ultimate authority to decide
whether to take an appeal, the choice of what specific arguments to make within that
appeal belongs to appellate counsel.” Garza v. Idaho, 139 S. Ct. 738, 746 (2019) (internal
citation and quotation marks omitted). Moreover, appellate counsel is under no
obligation to present all nonfrivolous arguments requested by his client on appeal. Jones
v. Barnes, 463 U.S. 745, 751 (1983). Thus, Miller’s appellate counsel was not ineffective
for declining to leave this choice to Miller’s discretion.
2.
Miller was Not Prejudiced by Appellate Counsel’s Performance
The remainder of Miller’s ineffective assistance of appellate counsel claims can be
resolved on the prejudice prong of the Strickland analysis. Miller argues that appellate
counsel failed to raise several additional arguments regarding trial counsel’s
effectiveness. (DE # 145 at 22.)
To establish prejudice, Miller had to establish that appellate counsel’s decision
not to raise these additional arguments rendered the proceeding in his direct appeal
“fundamentally unfair” and rendered the result of his appeal “unreliable.” Mason v.
Hanks, 97 F.3d 887, 893 (7th Cir. 1996). “[W]hen [an] omitted issue ‘may have resulted in
a reversal of the conviction, or an order for a new trial,’ we will deem the lack of
effective assistance prejudicial. Mason v. Hanks, 97 F.3d 887, 893 (7th Cir. 1996) (internal
citation omitted). When a petitioner argues that his appellate counsel was ineffective for
failing to raise particular issues on appeal, the court “ask[s] only whether there is a
reasonable probability that raising the issue would have made a difference in the
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outcome of the appeal.” Howard v. Gramley, 225 F.3d 784, 791 (7th Cir. 2000) “In other
words, performance is about picking the battles; prejudice looks at whether winning the
battle would have made a difference in the outcome of the war.” Id.
Miller has failed to establish prejudice for two reasons. First, the evidence against
him was powerful. Appellate counsel’s failure to raise the additional arguments Miller
identifies did not render Miller’s appeal fundamentally unfair or the result unreliable.
Second, there is not a reasonable probability that, had appellate counsel raised these
additional arguments, the outcome of his appeal would have been different.
i.
No Prejudice in Light of the Totality of Evidence Against
Miller
In light of the strength of the evidence against him, Miller has not established
that the outcome of his appeal would have been different had appellate counsel raised
additional ineffective assistance claims. In the words of the Seventh Circuit: “the []
evidence of Miller’s guilt is powerful: his vehicle was captured on surveillance video
near the bank at the time of the robbery; there is video footage of a man with a similar
build and similar distinctive clothing entering the vehicle; Peasley testified that Miller
confessed to committing the robbery; and, although Hoffman’s in-court identification of
Miller may not be entitled to much weight . . . it is an additional factor that weighs in
favor of the government’s case.” Miller, 795 F.3d at 627. Moreover, at trial, the
Government submitted evidence that: Miller’s last day at his job was the same day as
the robbery (DE # 77 at 8, 26); a coat similar to the one worn by the robber was
discovered in a hall closet in Miller’s home (DE # 75 at 223); his fiancé s daughter
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testified that she had seen the same type of distinctive hat worn by the robber, in
Miller’s bedroom (Id. at 188-89); a second FBI officer testified that Miller confessed to
wearing the hat on the day of the robbery and later throwing it into a dumpster
somewhere on 57th Street in Chicago (DE # 77 at 17); Miller’s bank account was
overdrawn on the morning of the robbery, but had two cash deposits in the hours after
the robbery (Id. at 63); Miller’s ComEd bill was delinquent the day prior to the robbery,
but was paid in full the day after the robbery (Id. at 63); and Miller’s fiancé testified that
the car in the surveillance video was Miller’s car (DE # 75 at 211).
The evidence against Miller was powerful. In light of this evidence, Miller has
failed to demonstrate a reasonable probability that the result of his appeal would have
been different, had appellate counsel raised additional arguments in support of Miller’s
ineffective assistance of trial counsel claim.
ii.
Evidence from Tena Miller and Debra Loggins
It is not only the strength of the evidence against Miller that persuades this court
that Miller suffered no prejudice on appeal – it is also the weakness of the arguments he
believes appellate counsel incorrectly omitted. The first of these omitted issues regards
how Miller’s trial counsel handled evidence from his mother, Tena Miller, and his
fiancé, Debra Loggins. Miller argues that appellate counsel should have argued that
trial counsel failed to: (1) seek evidence from these witnesses; (2) move for these
witnesses to correct inaccuracies in the investigator’s reports; and (3) call these
witnesses to testify during trial. (DE # 145 at 30.) According to Miller, had trial counsel
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more diligently pursued evidence from these witnesses, his mother and fiancé would
have told trial counsel that investigators misrepresented their statements. Miller argues
that these witnesses never told investigators that they could identify Miller, or his car,
in the surveillance footage, and this evidence could have been used to impeach the
credibility of the law enforcement officers who handled his case. (Id. at 32.)
Miller’s appellate counsel’s failure to argue these points did not prejudice Miller.
These witnesses testified at trial and Miller’s trial counsel cross examined them. These
witnesses took advantage of the opportunity to dispute the Government’s position that
they previously identified Miller in the photographs, and they were able to testify as to
what they recall telling investigators. Moreover, Miller’s fiancé confirmed at trial that
she was able to identify Miller’s car as the car in the surveillance footage. Thus, Miller
suffered no prejudice when appellate counsel declined to pursue an ineffective
assistance of counsel claim on these bases.
iii.
HIDTA Evidence
A considerable portion of Miller’s § 2255 motion is committed to an assortment
of challenges to the admissibility of the HIDTA evidence, which clarified the
surveillance footage enough to retrieve all but one digit of the license plate number on
the getaway car. Miller’s present arguments are, in essence, variations on his original
argument on appeal that the Government presented false evidence when Peasley
testified regarding clarification of the surveillance footage to obtain the license plate
number. Miller presently makes arguments regarding: chain of custody, authentication,
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admissibility, and fabrication of evidence.
The Seventh Circuit has already found that any false testimony Peasley offered
did not prejudice Miller because the license plate identification process was merely a
“collateral” matter at trial:
Because both Miller and Loggins had admitted that the vehicle in the
Amtech lot belonged to Miller, the defense did not attempt to challenge
that assertion. And, separate and apart from its license plate number,
Miller’s Ford Explorer possessed certain other distinctive characteristics
(e.g., window stickers, a chrome bumper, tinted windows, and rain dams)
that enabled Agent Peasley to identify Miller’s vehicle as the vehicle
present at the scene of the crime. Therefore, Agent Peasley’s potentially
misleading statements about the license plate identification process were
not essential to the factual finding that the getaway car belonged to Miller.
Miller, 795 F.3d at 626-27.
Miller has now offered FOIA response documents suggesting that the video was
never reviewed by the specific technician that Peasley claimed reviewed the footage.
This does not change the fact that, to prevail on his § 2255 motion, Miller must establish
prejudice. As the Seventh Circuit has already concluded, the license plate identification
process was not essential to a finding that the getaway car belonged to Miller.
Moreover, as this court has already discussed, there was ample evidence to support a
jury’s finding of guilt.
This court’s prejudice inquiry, however, does not end with the conclusion that
there was enough evidence to convict Miller. To determine prejudice, the court must do
more than conduct a sufficiency-of-the-evidence analysis. See Kyles v. Whitley, 514 U.S.
419, 434 (1995). The relevant inquiry “is not just a matter of determining whether, after
17
discounting the inculpatory evidence in light of the undisclosed evidence, the
remaining evidence is sufficient to support the jury’s conclusions. Rather, the question
is whether “the favorable evidence could reasonably be taken to put the whole case in
such a different light as to undermine confidence in the verdict.” Strickler v. Greene, 527
U.S. 263, 290 (1999) (quoting Kyles, 514 U.S. at 435) (applying the Brady materiality
standard); see also Harris v. Thompson, 698 F.3d 609, 646 (7th Cir. 2012) (“The Strickland
prejudice and Brady materiality standards are identical.”). Although prejudice does not
turn on a sufficiency-of-the-evidence test, the strength of the government’s case is
relevant in determining whether “the State’s other evidence is strong enough to sustain
confidence in the verdict.” Smith v. Cain, 565 U.S. 73, 76 (2012); see also United States v.
Agurs, 427 U.S. 97, 112 (1976) (defendant was not deprived of a fair trial due to
undisclosed evidence where omitted evidence did not create a reasonable doubt that
did not otherwise exist).
Cases where undisclosed evidence put the “whole case in such a different light as
to undermine confidence in the verdict” are cases in which the favorable evidence not
introduced at trial impeached the credibility of the other evidence against the
defendant. Compare Strickler v. Greene, 527 U.S. 263 (1999) (the State’s failure to disclose
key eyewitness’ prior statement, which would have severly impeached eyewitness’ trial
testimony or excluded it entirely, did not prejudice capital murder defendant because
there was sufficient independent evidence to support conviction and death sentence)
with Harris v. Thompson, 698 F.3d 609 (7th Cir. 2012) (overwhelming nature of evidence
18
against defendant was not enough to negate prejudical effect of attorney’s failure to
secure testimony of six-year-old sole eyewitness where admission of eyewitness’
testimony would have placed all other evidence at trial in an entirely different light). See
also Sims v. Hyatte, 914 F.3d 1078, 1089 (7th Cir. 2019) (comparing cases).
Here, in the context of Strickland prejudice, Miller has suffered no prejudice
because the other evidence against him was so strong that it is able to sustain
confidence in the verdict, even if it is true that Peasley lied when he claimed that
HIDTA was able to clarify the surveillance footage.2 This fabrication could not
reasonably be taken to “put the whole case in such a different light as to undermine
confidence in the verdict.” There is powerful evidence against Miller, independent of
any fabrication from Peasley: the car in the surveillance footage had the same
distinctive characteristics as Miller’s car; Miller’s fiancé (who was in possession of the
car while Miller was incarcerated) testified that the car in the surveillance video was
Miller’s; Miller’s fiancé’s daughter testified that Miller owned the same, distinctive
green-checkered Bulls hat worn by the robber; Miller was the same height and build of
the robber; a coat similar to the one worn by the robber was discovered in a hall closet
in Miller’s home; Miller owned shoes similar to those worn by the robber; Miller’s bank
2
The fact that Miller claims that Peasley fabricated this evidence does not
automatically render his trial unfair. “A new trial is required if the false testimony
could . . . in any reasonable likelihood have affected the judgment of the jury[.]” Giglio v.
United States, 405 U.S. 150, 154 (1972) (internal citation and quotation marks omitted).
For the reasons articulated in this section and throughout this opinion, there is not a
reasonable likelihood that a fabrication regarding the license plate identification process
effected the judgment of the jury.
19
account was overdrawn the morning of the robbery and had two cash deposits in the
hours after the robbery; Miller’s overdue electric bill was paid the day after the robbery;
and the day of the robbery was the last day Miller showed up for work. None of this
evidence would be placed in a different light, even if Peasley had fabricated the HIDTA
evidence. And, as already discussed, the HIDTA evidence was not necessary to the
factual finding that the getaway car was Miller’s car. Thus, there is not a reasonable
probability that the outcome of Miller’s appeal would have been different, had counsel
raised these issues on appeal.
Miller makes two additional arguments that are related to his challenges to the
HIDTA evidence. First, he argues that appellate counsel should have argued that trial
counsel’s theory of the case, which conceded that Miller’s car was the getaway car,
amount to ineffective assistance. For the reasons already articulated, appellate counsel’s
failure to raise this issue did not prejudice Miller. There was sufficient independent
evidence that the car belonged to Miller, such that this alleged failure does not
undermine confidence in the Circuit court’s finding that Miller’s trial counsel was not
constitutionally ineffective.
Miller also claims that the Government improperly failed to disclose certain FBI
reports, pursuant to Brady v. Maryland, 373 U.S. 83 (1963). (DE # 145 at 45.) Miller argues
that, according to FBI policy, there should have been reports created that documented
the storage, chain of custody, and testing of the surveillance video, and this policy is
evidence that these reports were created, but were not disclosed. Miller contends that his
20
appellate counsel should have raised a Brady claim on appeal and/or should have
raised an ineffective assistance claim with regard to trial counsel’s failure to discover
and raise this issue at trial. Here, again, Miller’s argument is an attempt to challenge the
admission of the HIDTA evidence. For the reasons already articulated, Miller was not
prejudiced by appellate counsel’s failure to raise this issue on appeal.
iv.
Miller’s Confession
Miller argues that he never made the confession that Peasley claims he did, and
therefore appellate counsel should have argued that trial counsel was ineffective for
failing to have Miller testify at the detention hearing, grand jury proceedings, and for
failing to move to have Peasley amend his statement that Miller confessed. None of
these alleged failures prejudiced Miller. Miller had the opportunity to testify at trial,
and he informed this court that, after discussing the benefits and risks of testifying, he
did not want to take the stand. (DE # 77 at 112-13.) Moreover, there is no indication
that, had trial counsel requested that Peasley correct his report, Peasley would have
changed his statement; at trial Peasley maintained that Miller confessed to having
committed the robbery. Thus, Miller has not established that appellate counsel’s failure
to raise these arguments prejudiced his appeal.
v.
Evidence of Intimidation
Miller claims that appellate counsel should have argued that trial counsel was
ineffective because he failed to argue that there was insufficient evidence of
intimidation to support a conviction under 18 U.S.C. § 2113(a), bank robbery by
21
intimidation. Miller argues that the Government failed to establish intimidation because
Hoffman did not realize that a robbery was occurring until after it had concluded, and
Tauber – who died prior to trial – did not testify.
“Intimidation exists when a bank robber’s words and actions would cause an
ordinary person to feel threatened, by giving rise to a reasonable fear that resistance or
defiance will be met with force.” United States v. Gordon, 642 F.3d 596, 598 (7th Cir.
2011). The Seventh Circuit has found that intimidation was established for purposes of
§ 2113(a) in cases that “share two critical facts: the defendant entered the bank and
made a demand for money.” United States v. Thornton, 539 F.3d 741, 749 (7th Cir. 2008).
A defendant’s mere demand for money that does not belong to him may rise to the
level of intimidation. Gordon, 642 F.3d at 598 (“[A] demand note alone may contain an
implicit threat that rises to the level of intimidation[.]”); Thornton, 539 F.3d at 749
(collecting cases); United States v. Clark, 227 F.3d 771, 775–76 (7th Cir. 2000) (intimidation
element satisfied where defendant, acting in polite and non-violent manner, gave teller
a note demanding money and stated “this is a hold-up”).
Here, appellate counsel’s performance was neither deficient nor prejudicial
because the evidence against Miller established intimidation for purposes of the statute.
The intimidation element of § 2113(a) is governed by an objective test: “would the
defendant’s acts cause an ordinary person to reasonably feel threatened?” United States
v. Hill, 187 F.3d 698, 702 (7th Cir. 1999). The Government did not need to prove that
Tauber or Hoffman actually feared Miller; “the relevant inquiry is whether an ordinary
22
person in her position would have been afraid.” Id. The evidence at trial established that
Miller entered the bank and handed Tauber a note demanding money. He told Tauber,
“You know exactly what this is” and instructed her, “Give me the hundreds as well.”
(DE # 75 at 117-118.) He kept one hand in his pocket while he interacted with Tauber.
(Id. at 120.) This evidence was sufficient to find that a reasonable person in Tauber’s
place would have “understood that the demands were not mere requests which could
be ignored, but rather, felt compelled to comply.” Thornton, 539 F.3d at 748-49. Thus,
there was sufficient evidence of intimidation to secure a conviction under § 2113(a). See
id. (collecting cases).
vi.
Cumulative Effect of Alleged Errors
The court has considered the cumulative effective of all of the alleged errors and
omitted evidence Miller alleges should have been identified on appeal. Even taken as a
whole, Miller has not demonstrated that there is a substantial likelihood that the
outcome of his appeal would have been different had appellate counsel raised these
additional arguments. These arguments are not persuasive in light of the powerful
evidence elicited against him at trial. Therefore, Miller has failed to establish that
appellate counsel’s actions prejudiced the outcome of his appeal.
C.
Conditions of Supervision
Miller contends that the conditions of his supervised release are
unconstitutionally vague, and that his failure to raise this issue at sentencing or on
appeal should be excused because he received ineffective assistance of counsel. If Miller
23
wishes to challenge the conditions of his supervised release, he may do so by filing a
separate motion under 18 U.S.C. § 3583. He should address the issue of waiver in that
motion.
D.
No Hearing Necessary
Miller has requested an evidentiary hearing so that he may question his trial and
appellate counsel. “The court should grant an evidentiary hearing on a § 2255 motion
when the petitioner ‘alleges facts that, if proven, would entitle him to relief.’” Sandoval
v. United States, 574 F.3d 847, 850 (7th Cir. 2009) (internal citations omitted). However,
where a petitioner has failed to present facts necessary to substantiate his ineffective
assistance claim, he cannot meet the threshold requirement for entitlement to an
evidentiary hearing, and a district court may properly deny such a motion. See Fuller v.
United States, 398 F.3d 644, 652 (7th Cir. 2005). Miller has not presented facts that, if
proven, would entitled him to relief. Thus, Miller is not entitled to an evidentiary
hearing.
E.
Motion for Discovery
Miller has moved for the production of documents and copies of court records.
(DE # 155.) He specifically asks for a copy of the final pretrial conference transcript
(DE # 76), and a copy of all Brady and Jencks material that the Government tendered to
trial counsel, documented at Docket Entry # 46. Miller argues that these documents will
support his claim that certain FBI reports were improperly withheld, and that the FBI
did not follow its internal protocol with respect to the enhancement of the surveillance
24
footage. (DE # 155 at 2.)3
“A judge may, for good cause, authorize a party to conduct discovery under the
Federal Rules of Civil Procedure and may limit the extent of discovery.” R. Gov. Sec.
2255 Proc. 6(a). Good cause will be found where “specific allegations before the court
show reason to believe that the petitioner may, if the facts are fully developed, be able
to demonstrate that he is . . . entitled to relief.” Bracy v. Gramley, 520 U.S. 899, 908-09
(1997) (internal citation and quotation marks omitted). Here, Miller has not
demonstrated good cause because even if the FBI failed to follow its internal procedures
for the maintenance of the surveillance video, or the Government improperly withheld
these reports, Miller would not be entitled to relief under § 2255. Therefore, his requests
for the production of documents will be denied.
F.
Certificate of Appealability
Pursuant to § 2255 Habeas Corpus Rule 11, the court must consider whether to
grant or deny a certificate of appealability. A court should issue such a certificate only if
the movant has made a substantial showing of the denial of a constitutional right, that
is, that reasonable jurists would find debatable whether the district court correctly
resolved the issues or would conclude that those issues deserve further proceedings. 28
U.S.C. § 2255; 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 337-38 (2003). The
3
The court notes that, in a subsequent filing, Miller states that he received “all
Jencks and Brady material and all other relevant information in his case file, related to
the AM-Tech Surveillance video, CD’s, and written discovery” in May 2018 from
appellate counsel. (DE # 175 at 2.)
25
court thoroughly discussed the controlling case law on the issue at hand and finds that
the conditions for the issuance of a certificate of appealability are not present in this
case. Therefore no certificate will issue.
IV.
CONCLUSION
For the foregoing reasons, the court:
(1)
DENIES Joseph Miller’s motion to vacate under 28 U.S.C. § 2255
(DE # 144);
(2)
GRANTS Joseph Miller’s application to proceed in forma pauperis
(DE # 146);
(3)
DENIES Joseph Miller’s motion for production of documents (DE # 155);
(4)
GRANTS Joseph Miller’s motions to supplement (DE ## 157, 170);
(5)
DENIES AS MOOT Joseph Miller’s motion for status (DE # 171);
(6)
DENIES Joseph Miller’s motion to show cause (DE # 175); and
(7)
DENIES Joseph Miller a certificate of appealability.
SO ORDERED.
Date: October 21, 2019
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT
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