MILLER v. BROWN

Filing 29

ENTRY Discussing Petition for Writ of Habeas - Miller's habeas petition fails to satisfy this difficult standard and that petition is therefore denied. Judgment consistent with this Entry shall now issue. The court finds that Miller has failed to show that reasonable jurists would find it debatable whether the petition states a valid claim of the denial of a constitutional right and debatable whether [this court] was correct in its procedural ruling. The court therefore denies a certificate of appeal. **SEE ENTRY** Signed by Judge Jane Magnus-Stinson on 1/28/2015. (AH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
TIMOTHY MILLER,
Petitioner,
v.
RICHARD BROWN,
Respondent.

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Case No. 2:13-cv-399-JMS-WGH

Entry Discussing Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
Having considered the pleadings and the expanded record, and being duly advised, the
Court finds that the petition of Timothy Miller for a writ of habeas corpus should be denied. In
addition, the Court finds that a certificate of appealability should not be issued. These conclusions
rest on the following facts and circumstances:
1.

Miller is serving the executed portion of sentences imposed by an Indiana state

court following his conviction after trial by jury of child molesting and sexual misconduct with a
minor. These offenses were based on a long period of molestation of and sexual activity with
Miller’s step-daughter, a minor at all pertinent times. His convictions were affirmed on direct
appeal in Miller v. State, No. 06A01-0810-CR-487 (Ind.Ct.App. May 6, 2009). The trial court’s
denial of Miller’s motion for post-conviction relief was affirmed on appeal in Miller v. State, No.
06A04-1211-PC-591 (Ind.Ct.App. April 10, 2013).
2.

Miller now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254(a). His five

habeas claims are: (1) the trial court abused its discretion when it allowed the State to use a
demonstrative aid during the victim’s testimony in violation of Indiana Evidence Rule 612 and

insufficient evidence supported his conviction for child molesting; (2) the State withheld Detective
Thomas Beard’s notes of his interview with the victim and the State’s repeated reference that DNA
evidence conclusively identified Miller of the victim’s child placed Miller in grave peril; (3) the
trial court improperly informed the alternate jurors they could participate during trial; (4) trial
counsel was ineffective for not presenting evidence that Miller did not lease the apartment until
2003, which he claims would have shown he first had sex with the victim after she turned fourteen
years old; and (5) newly discovered evidence proves his actual innocence and the State failed to
provide him with this evidence. The first three claims were presented to the Indiana Court of
Appeals in Miller’s direct appeal, with the only the Rule 612 evidentiary argument being presented
in his petition for transfer. The fourth claim was presented to the Indiana state courts in Miller’s
action for post-conviction relief, including in his petition for transfer. The fifth claim has not been
presented to the Indiana state courts.
3.

A federal court may grant habeas relief only if the petitioner demonstrates that he

is in custody "in violation of the Constitution or laws . . . of the United States." 28 U.S.C. § 2254(a)
(1996). Miller filed his 28 U.S.C. § 2254 petition after the effective date of the Antiterrorism and
Effective Death Penalty Act (AEDPA). His petition, therefore, is subject to the AEDPA. See Lindh
v. Murphy, 521 U.S. 320, 336 (1997).
4.

Under the current regime governing federal habeas corpus for state prison inmates,

the inmate must show, so far as bears on this case, that the state court which convicted him
unreasonably applied a federal doctrine declared by the United States Supreme Court.” Redmond
v. Kingston, 240 F.3d 590 (7th Cir. 2001) (citing 28 U.S.C. Section 2254(d)(1); Williams v. Taylor,
529 U.S. 362 (2000); Morgan v. Krenke, 232 F.3d 562 (7th Cir. 2000). Thus, “under AEDPA,
federal courts do not independently analyze the petitioner's claims; federal courts are limited to

reviewing the relevant state court ruling on the claims.” Rever v. Acevedo, 590 F.3d 533, 536 (7th
Cir. 2010). “A state-court decision involves an unreasonable application of this Court's clearly
established precedents if the state court applies this Court's precedents to the facts in an objectively
unreasonable manner.” Brown v. Payton, 544 U.S. 131, 141 (2005) (internal citations omitted);
see also Badelle v. Correll, 452 F.3d 648, 653 (7th Cir. 2006). “The habeas applicant has the
burden of proof to show that the application of federal law was unreasonable.” Harding v. Sternes,
380 F.3d 1034, 1043 (7th Cir. 2004) (citing Woodford v. Visciotti, 537 U.S. 19, 25 (2002)).
5.

In addition to the substantive principles just noted, “[i]t is the rule in this country

that assertions of error in criminal proceedings must first be raised in state court in order to form
the basis for relief in habeas. Claims not so raised are considered defaulted.” Breard v. Greene,
523 U.S. 371, 375 (1998) (citing Wainwright v. Sykes, 433 U.S. 72 (1977)). When procedural
default has occurred, it can be overcome if a habeas petitioner “can demonstrate either (a) cause
for the default and prejudice (i.e., the errors worked to the petitioner's ‘actual and substantial
disadvantage,’); or (b) that failure to consider his claim would result in a fundamental miscarriage
of justice (i.e., a claim of actual innocence).” Conner v. McBride, 375 F.3d at 649 (internal citations
omitted). “Cause” for a procedural default exists if the petitioner can demonstrate that “some
objective factor external to the defense impeded counsel’s efforts to comply with the State’s
procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Prejudice is demonstrated by
showing that the errors worked to the petitioner’s “actual and substantial disadvantage.” United
States v. Frady, 456 U.S. 152, 170 (1982). In Schlup v. Delo, 513 U.S. 298, 327 (1995), the
Supreme Court explained that to establish a "fundamental miscarriage of justice" a petitioner must
demonstrate that "a constitutional violation has probably resulted in the conviction of one who is
actually innocent." Id. (quoting Murray v. Carrier, 477 U.S. at 496). And, in order to establish a

claim of actual innocence “he must convince the court that no reasonable juror would have found
him guilty but for the error(s) allegedly committed by the state court.” Perruquet v. Briley, 390
F.3d 505, 515 (7th Cir. 2004) (citing Schlup). Despite his conclusory claims to the contrary, Miller
has made no showing that he is actually innocent, so he may not pursue claims that are procedurally
defaulted.
6.

Miller committed procedural default as to several of his habeas claims by not

including them in his petition to transfer on direct appeal. Specifically, his challenge to the
sufficiency of the evidence (a portion of claim one), and his second, third and fifth claims were
not included in his petition to transfer following the decision in his direct appeal. Miller insists that
these claims were referenced in his petition for transfer, but this is insufficient to consider them to
have been presented in that petition a grounds for transfer. O'Sullivan v. Boerckel, 526 U.S. 838,
845 (1999) (“‘[S]tate prisoners must give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State's established appellate review
process,’ including review by the state's court of last resort, even if review in that court is
discretionary.”). Without a showing of cause and prejudice or that the failure to reach the merits
of these claims would result in a miscarriage of justice, the court is unable to reach the merits of
these claims.
7.

The portion of Miller’s first claim which was fully exhausted is his claim that the

trial court erred in permitting the State to use a demonstrative aid during the victim’s testimony in
violation of Indiana Evidence Rule 612. This claim, however, presents entirely a question of
Indiana state law and not cognizable under § 2254(a). A viable habeas claim pursuant to § 2254(a)
necessarily precludes a claim which is not based on alleged noncompliance with federal law.
Wilson v. Corcoran, 131 S. Ct. 13, 16 (2010); Perruquet v. Briley, 390 F.3d 505, 511 (7th Cir.

2004)(“To say that a petitioner's claim is not cognizable on habeas review is thus another way of
saying that his claim ‘presents no federal issue at all.’”)(quoting Bates v. McCaughtry, 934 F.2d
99, 101 (7th Cir. 1991)).
8.

Miller’s claim of ineffective assistance of counsel was presented in his action for

post-conviction relief. The Indiana Court of Appeals recognized the controlling standard set forth
in Strickland v. Washington, 466 U.S. 668, 687 (1984). Miller v. State, No. 06A04-1211-PC-591,
at p. 4 (Ind.Ct.App. April 10, 2013). “Under Strickland, [a defendant] must prove two elements:
(1) that his trial counsel's performance fell below ‘an objective standard of reasonableness,’ [466
U.S.] at 688; and (2) ‘that there is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different,’ id. at 694.” Daniels v. Knight, 476
F.3d 426, 433-34 (7th Cir. 2007)(omitting parallel citations).
9.

“The question is not whether a federal court believes the state court's determination

under the Strickland standard was incorrect but whether that determination was unreasonable--a
substantially higher threshold. And, because the Strickland standard is a general standard, a state
court has even more latitude to reasonably determine that a defendant has not satisfied that
standard.” Knowles v. Mirzayance, 129 S. Ct. 1411, 1420 (2009)(internal citations and quotations
omitted). In applying AEDPA’s “difficult to meet . . . and highly deferential standard,” we must
give the Indiana Court of Appeals’ decisions “the benefit of the doubt.” Cullen v. Pinholster, 131
S. Ct. 1388, 1398 (2011) (internal quotation marks and citations omitted).
10.

In applying this standard, the Indiana Court of Appeals reasonably concluded that

the evidence counsel failed to introduce (a lease or perhaps two leases) was not necessarily
exculpatory. First the authenticity of the leases was suspect, second they did not preclude the
possibility that Miller first assaulted the victim when she was less than 14 years old. These findings

established that Miller was not prejudiced, a conclusion reinforced by the fact that Miller’s attorney
had effectively cross-examined the victim in other ways (including through her own mother’s
testimony). All of the foregoing further established that the attorney’s performance was not
deficient. Miller v. State, No. 06A04-1211-PC-591, at p. 7 (Ind.Ct.App. April 10, 2013). The
Indiana Court of Appeals= Strickland analysis was not "an unreasonable application of clearly
established Federal law." Mitchell v. Esparza, 540 U.S. 12, 17 (2003) (per curiam). Accordingly,
this decision is entitled to AEDPA deference under ' 2254(d)(1), id., and thus is impervious to
Miller’s federal habeas corpus challenge.
11.

Federal habeas relief is barred for any claim adjudicated on the merits in state court

“unless one of the exceptions listed in 28 U.S.C. § 2254(d) obtains.” Premo v. Moore, 131 S. Ct.
733, 739 (2011). “A state court’s determination that a claim lacks merit precludes federal habeas
relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.”
Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652,
664 (2004)). In short, the standard of § 2254(d) is “difficult to meet . . . because it was meant to
be.” Burt v. Titlow, 134 S. Ct. 10, 16 (2013) (internal quotation marks omitted); see also Cavazos
v. Smith, 132 S. Ct. 2, 7–8 (2011) (per curiam) (citing Supreme Court jurisprudence “highlighting
the necessity of deference to state courts in § 2254(d) habeas cases”). Miller’s habeas petition fails
to satisfy this difficult standard and that petition is therefore denied. Judgment consistent with this
Entry shall now issue.
12.

Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules

Governing ' 2254 Proceedings, and 28 U.S.C. ' 2253(c), the court finds that Miller has failed to
show that reasonable jurists would find Ait debatable whether the petition states a valid claim of
the denial of a constitutional right@ and Adebatable whether [this court] was correct in its procedural

ruling.@ Slack v. McDaniel, 529 U.S. 473, 484 (2000). The court therefore denies a certificate of
appeal.
IT IS SO ORDERED.

Date: January 28, 2015

Distribution:
Timothy Miller
No. 189938
Wabash Valley Correctional Facility
Electronic Service Participant-Court Only
Electronically Registered Counsel

_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana