Miller v. McKinney---PER #3 IRO RESPONDENT TO RESPOND 30 DAYS AFTER PETITIONER FILES SUPPLEMENTAL PETITION/BRIEF

Filing 24

ORDER re 4 Petition for Writ of Habeas Corpus filed by Dion Scott Miller. Mr. Millers 28 USC Section 2254 Petition is denied. Petitioners 23 MOTION to Withdraw as Attorney is granted. Even though the denial of the habeas petition closes this ca se, the Court is persuaded that substitute counsel should still be appointed so that the Petitioner is fully represented for any other additional matters or filings that may be required. The Clerk of Court shall appoint Mr. Miller a new lawyer in this case. Signed by Senior Judge Donald E OBrien on 12/12/13. (CJA Panel Administrator notified) (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
DION SCOTT MILLER,
Petitioner,

No. 12-CV-3009-DEO

vs.

RULING ON 28 U.S.C. § 2254

JAMES MCKINNEY, Warden,
Respondent.
____________________
This matter is before the Court on Petitioner Dion Scott
Miller’s [hereinafter Mr. Miller], 28 U.S.C. § 2254 Petition.
After a bench trial, a judge convicted Mr. Miller in the Iowa
District Court for Webster County of first degree burglary in
violation of I.C.A. § 713.1 (2007).

See State v. Miller, 767

N.W.2d 421 (Table) (Iowa Ct. App. 2009).

He is currently

incarcerated in the Fort Dodge Correctional Facility in Fort
Dodge, Iowa.
I.

FACTUAL BACKGROUND
As recounted in Miller, 767 N.W.2d 421 (Table) at 1-3)

the following facts were clear from the trial testimony: Over
a period of about six years, Mr. Miller had a relationship
with Renysha Newsome.

In August 2007, Newsome broke off the

relationship, and at some point began a relationship with Mr.
Miller's half-brother, Marcus Hill [hereinafter Mr. Hill].

The following month, Mr. Miller sent a number of threatening
text messages to Newsome's cellphone, such as:

“U said dat

[expletive] u dead”; “u dead”; “N if u eva say nothing to me
I will kill ur trifling ass.”
Very early in the morning of October 3, 2007, Ms. Newsome
received a couple of text messages from Miller asking about
her whereabouts:
do wat u do.”

“Where u at,” and “U ain't home [expletive]

Ms. Newsome decided to leave her car at the bar

they were at and ride with Mr. Hill to his home.

Ms. Newsome

intentionally did not drive to Mr. Hill's house because she
was concerned about parking her car in front of the house
where Mr. Miller could see it.
Around 3:00 a.m., Mr. Miller also arrived at Mr. Hill's
house.
door.

Mr. Hill and Ms. Newsome heard a knock on the front
Ms. Newsome asked Mr. Hill not to answer the front

door, but Mr. Hill said it would be okay to answer it.

Mr.

Hill instructed Ms. Newsome to go into the bedroom and shut
the door.

Ms. Newsome did so.

Ms. Newsome could not see what

was going on in the front room, but heard grumbling and
bumping going on “maybe like someone was wrestling.”
Miller then opened the bedroom door and came in.

2

Mr.

He grabbed

Newsome by the hair and began punching her.
all over her face.

He hit Newsome

Hill tried to get Mr. Miller off of Ms.

Newsome, repeatedly telling Miller to “get the [expletive]
out.”

Mr. Hill also told Newsome to call the police.

The

beating continued even after Mr. Hill told Mr. Miller to get
out.
Eventually, Mr. Hill got a hold on Mr. Miller, enabling
Ms. Newsome to escape.

Newsome ran out of the house into the

nearby woods, and listened as Mr. Hill and Mr. Miller argued
and Hill continued to tell Mr. Miller to get out. Eventually,
Mr. Miller left the house.
woods

while

Mr.

Miller

Newsome remained hidden in the

drove

his

car

back

and

forth,

apparently looking for Newsome. Mr. Miller then sought refuge
at

a

friend's

house

not

far

from

Mr.

Hill’s

home.

Subsequently, Newsome sought medical attention and contacted
the police.
As part of their investigation, Iowa Division of Criminal
Investigation arranged for Newsome's cousin, Valerie Newsome,
to call Mr. Miller on a recorded line.

In the call, Mr.

Miller said that Mr. Hill:
...didn't want to let me in the house,
“cause I sat out there and beat on the
3

door, beat on the door because I was ... I
was peep[ing torn] all night and I said I
knew what was going on ... [W]hen I [said]
please open the door, I'm like the police,
police now the police is on me. He, and
he, I'm trying to walk in the house, he
tried
a
football
[tackle]
and
[expletive]...
Ms. Newsome did not actually see Mr. Miller enter the
house on October 3, because she was hiding in the bedroom, but
she later told the police that Mr. Hill had “let him in.”
a

recorded

interview

with

Officer

Larry

Hedlund

of

In
the

Division of Criminal Investigation on the evening of October
3, Mr. Hill stated that Mr. Miller “came pounding on our door
... so I let him in.”

Mr. Hill denied tackling Mr. Miller but

said that Mr. Miller “pushed” past him.
II.

PROCEDURAL HISTORY
Mr. Miller went to trial on December 11, 2007, after

waiving his right to a jury.

At the commencement of trial,

Miller's counsel gave a brief opening statement. He explained
that Hill was “on the lamb” because of a probation violation
and would not be testifying.

However, Mr. Miller's counsel

stated that Hill had given a recorded statement to the effect
that he had “let [Miller] in.”
clear

that

this

statement

was
4

Mr. Miller's counsel made it
an

important

part

of

his

client's defense and that he intended to rely upon it at
trial.
Ms. Newsome testified at trial along with several law
enforcement officials.

The contest at trial was not over

whether Mr. Miller had assaulted Ms. Newsome, but whether he
had entered Hill's home without a right, license, or privilege
to do so.

See I.C.A. § 713.1 (2007).

Mr. Miller's counsel

tried repeatedly to introduce evidence of Mr. Hill's recorded
statement that he had “let [Miller] in.”

However, the State

objected on hearsay grounds, and the district court sustained
the State's objections.
When the testimony finished around mid-day, Mr. Miller's
counsel asked that the court wait until 1:00 p.m. to see if
Mr. Hill would appear.

(The mother of Mr. Miller and Mr. Hill

had appeared and testified.).

The court agreed to this

recess, but Mr. Hill did not arrive.

At that point, Mr.

Miller's counsel moved for a mistrial.

The district court

asked if a motion to continue had been filed, but Mr. Miller's
counsel indicated that he was asking for a new trial rather
than a continuance.
a mistrial.

The district court denied the motion for

Subsequently, the court found Mr. Miller guilty

5

of first-degree burglary in violation of I.C.A. §§ 713.1 and
713.3(1)(c).

The Court denied Miller's motion for a new

trial.
Mr. Miller then appealed his conviction. See Miller, 767
N.W.2d 421 (Table) at 1-5.

Mr. Miller argued that:

the district court should have admitted
evidence of Hill's out-of-court statement
that he “let him [Miller] in.” Miller does
not dispute that the statement is hearsay,
but maintains it should have been admitted
under the residual exception set forth in
Iowa Rule of Evidence 5.803(24) and
5.804(5)....
Id.
court

The Iowa Court of Appeals concluded that the district
was

within

its

discretion

to

exclude

the

testimony, stating that:
[a] district court has no discretion to
deny the admission of hearsay that falls
within
a
hearsay
exception,
and
no
discretion to admit hearsay if it is not
covered by an exception.
Id.; State v.
Dullard, 668 N.W.2d 585, 589 (Iowa 2003).
...
Essentially, the rule sets forth five
requirements that must be met before
evidence can be admitted under the residual
exception:
(1) trustworthiness; (2)
materiality; (3) necessity; (4) notice; and
(5) service of the interests of justice.
State v. Rojas, 524 N.W.2d 659, 662–63
(Iowa 1994); State v. Kone, 557 N.W.2d 97,
100 (Iowa Ct. App. 1996).
The district
court is to make findings on each of these
6

hearsay

criteria, and each must be satisfied before
the evidence can be admitted.
State v.
Weaver, 554 N.W.2d 240, 247 (Iowa 1996),
overruled on other grounds by State v.
Hallum, 585 N.W.2d 249, 254 (Iowa 1998);
Kone, 557 N.W.2d at 100–01.
Here the
district court found that the criteria of
materiality, notice, and service of the
interests
of
justice
had
been
met.
However, it determined the statement to be
insufficiently trustworthy. This factual
finding is entitled to deference, and
should
be
upheld
if
supported
by
substantial evidence. State v. Cagley, 638
N.W.2d 678, 681–82 (Iowa 2001) ...We
believe the district court's finding on the
trustworthiness requirement was supported
by
substantial
evidence.
...Hill's
statement was not made under oath. Hill
was also Miller's half-brother. Moreover,
the recorded interview as a whole suggests
that
Hill
may
have
been
somewhat
downplaying the incident.
For example,
Hill said, “I don't know if [Miller] was
really hitting her” until Officer Hedland
responded, “Well, somebody hit her, she's
got cuts and bruises,” at which point Hill
replied, “Yeah, that's what I was gonna
say, like you said, she got a lot of cuts,
so he must a been hitting, you know.”
Similarly, in the interview, Hill denied
having an understanding why Miller would
care
if
Hill
was
with
Newsome.
Accordingly, we sustain the district
court's
determination
that
Hill's
out-of-court statement did not meet the
trustworthiness element of the residual
hearsay exception. We also note, as did
the district court, that Miller apparently

7

made no attempt to subpoena Hill for trial,
nor did Miller move for a continuance to
try to locate Hill when essentially invited
to do so by the district court.
Miller, 767 N.W.2d 421 (Table) at 2-3.

Mr. Miller made

several other arguments pro se, which the Court of Appeals
Id. at 4-5.

considered and rejected.

Mr. Miller then filed a post conviction relief action,
arguing that, “his trial attorney was ineffective in failing
to

subpoena

Hill

for

trial

and

in

failing

to

continuance of the trial until Hill was found...”

seek

Miller v.

State, 805 N.W.2d 397 (Table), 1 (Iowa Ct. App. 2011).
Court

of

Appeals

denied

Mr.

Miller’s

request

conviction relief, stating that:
First, Miller made admissions that his
entry into the home was forced... in a
recorded telephone call ...he stated
“[Hill] didn't want to let me in the
house,” “I beat on the door,” and “[Hill]
tried a football [tackle]” once he gained
entry.
[S]econd, Hill's out-of-court
statement was not entirely exculpatory.
Although Hill did say he let Miller in, he
also said that Miller was “pounding on the
door,” and Miller pushed past him once the
door was opened... Third, Hill's statement
that he let Miller into his house was
cumulative of the ex-girlfriend's trial
testimony that Hill told her he let Miller
in. See Schrier v. State, 347 N.W.2d 657,
664 (Iowa 1984) (noting the failure to
8

a

for

The
post

produce cumulative testimony is not a
sufficient showing of prejudice in an
ineffective-assistance claim).
Finally,
even if Miller's initial entry into Hill's
home was not forced, Hill appeared to
concede at the postconviction relief
hearing that Miller's right to be in the
home ended at some point thereafter. See
Iowa Code § 713.1 (stating a defendant's
presence in an occupied structure is
unlawful if the defendant remains in the
structure after the defendant's “right,
license or privilege to be there has
expired”)... Specifically, he said he told
Miller to “get the [expletive] out” of the
house. This concession was consistent with
the ex-girlfriend's trial testimony... We
conclude there is no reasonable probability
the result of Miller's trial would have
been different had his trial attorney
secured the testimony of Hill or asked for
a continuance so that he could be located.
Miller, 805 N.W.2d 397 (Table) at 1 -2.

Mr. Miller then filed

the present Petition under 28 U.S.C. § 2254.
III.

ISSUES
Mr. Miller raises two issues.

Mr. Miller argues that 1)

his trial counsel provided ineffective assistance of counsel
for his failure to take Hill’s deposition, subpoena Hill for
trial, or otherwise secure Hill for trial; and 2) that his
trial counsel provided ineffective assistance of counsel for

9

his failure to seek a continuance when Hill failed to appear
for trial.
IV.

1

LAW AND ANALYSIS
28 U.S.C. § 2254(a) provides that a federal court

shall entertain an application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment of a
State court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the
United States.
A federal court's review of a State court decision under
§ 2254 is deferential.
(8th Cir. 2003).

Lomholt v. Iowa, 327 F.3d 748, 751

A state court decision on the merits should

not be overturned unless it:
(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

1

Mr. Miller’s pro se Petition alleged six grounds for
relief. The brief prepared by Mr. Miller’s attorney addresses
only two of those arguments.
According to his brief, Mr.
Miller’s appointed counsel has conferred with Mr. Miller and
Mr. Miller has decided to waive those grounds not briefed by
his attorney.
10

determination of the facts in light of the
evidence presented in the State court
proceeding.
28 U.S.C. § 2254(d)(1)-(2).
A

State

Court

decision

contains

an

unreasonable

application of Supreme Court law if it makes "a conclusion
opposite that reached by [the] Court on a question of law or
. . . decides a case differently than [the] Court has on a set
of materially indistinguishable facts."

327 F.3d at 752

(quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)).
State court's factual findings are presumed correct.
U.S.C. § 2254(e)(1).

A
28

In order to overcome this presumption,

Mr. Miller must show "by clear and convincing evidence that
the state court's . . . factual findings do not enjoy support
in

the

record."

327

F.3d

at

752

(citing

28

U.S.C.

§

2254(e)(1)).
Both issues Mr. Miller raised in his 28 U.S.C. § 2254
Petition

involve

a

claim

counsel.

“[T]he right to counsel is the right to effective

assistance of counsel."
771 (1970).
guarantees

for

ineffective

assistance

of

McMann v. Richardson, 397 U.S. 759,

The Fourteenth Amendment Due Process Clause
the

right

to

a

fair

11

trial.

Strickland

v.

Washington, 466 U.S. 668, 684-85 (1984).

The Sixth Amendment

guarantees the right to assistance of counsel.

U.S. Const.

Amend. VI. In Strickland, the Supreme Court elaborated on the
relationship between the Fourteenth and Sixth Amendments:
The benchmark for judging any claim of
ineffectiveness must be whether counsel's
conduct
so
undermined
the
proper
functioning of the adversarial process that
the trial cannot be relied on as having
produced a just result.
466 U.S. at 686.

The moving party must demonstrate two

components to establish ineffective assistance of counsel:
(1) counsel's conduct was deficient, and (2) prejudice.
U.S. at 687.

466

Counsel's conduct is deficient when it is

unreasonable "under prevailing professional norms."
v. Kentucky, 130 S. Ct. 1473, 1481 (2010).

Padilla

A showing of

prejudice requires that "counsel's errors" be so serious that
they "deprive the defendant of a fair trial . . . ."
at 687.
a

466 U.S.

In other words a Petitioner must show "that there is

reasonable

probability

that,

but

for

counsel's

unprofessional errors, the result of the proceeding would have
been different."
does

not

466 U.S. at 694.

require

"preponderance

of

a

different

the

A reasonable probability
outcome

evidence"
12

but

be
does

proven

by

require

a
"a

probability
outcome."
A.
Mr.

sufficient

to

undermine

confidence

in

the

Id.

Uncalled Witness
Miller

argues

that

his

trial

attorney

provided

ineffective assistance of counsel by failing to call Mr. Hill
as a witness in Mr. Miller’s trial.

Mr. Miller argues that

because Mr. Hill would have testified that he let Mr. Miller
in to the house, the prosecution would have been unable to
prove the charge of burglary.

As discussed above, to prove

ineffective counsel, Mr. Miller must show that his counsel
failed to perform an essential duty and that failure resulted
in prejudice.
Accordingly, the first factor the Court must consider is
whether counsel failed to perform an essential duty.
Circuit has stated that:
strategic choices resulting from lack of
diligence in preparation and investigation
[are] not protected by the presumption in
favor of counsel.
Kenley v. Armontrout,
937 F.2d 1298, 1304 (8th Cir. 1991); see
also Wiggins v. Smith, 539 U.S. 510, 527
(2003) (Strickland does not establish that
a
cursory
investigation
automatically
justifies a tactical decision.... Rather,
a reviewing court must consider the

13

The 8th

reasonableness of the investigation said to
support that strategy. (citing Strickland,
466 U.S. at 691).
Armstrong

v.

Kemna,

534

F.3d

857,

2008)(internal quotation marks omitted).

864-65

(8th

Cir.

Mr. Miller argues

that his counsel’s decision to not even subpoena Mr. Hill was
ineffective assistance.

Specifically, Mr. Miller argues that

because Mr. Hill’s testimony was so critical to his defense
that failure to take every reasonable step to secure Mr.
Hill’s testimony was ineffective.
The Respondent argues that there was virtually no chance
Mr. Hill would have appeared at trial, no matter what steps
Mr. Miller’s counsel took. The Respondent points out that Mr.
Hill had an outstanding warrant against him, and that he would
have been arrested had he appeared at the Courthouse.

The

Respondent’s implication is that because there was virtually
no chance that Mr. Hill would appear to testify, Mr. Miller’s
trial counsel was correct to concentrate his efforts on
getting the district court to consider Mr. Hill’s previous out
of court statement that he had let Mr. Miller in the house.
However, Mr. Miller’s trial counsel failed to convince
the Iowa District Court to admit Mr. Hill’s out of court

14

statement.

2

Thus, because Mr. Hill was not available to

testify, Mr. Miller’s already meager defense crumbled. In the
Armstong case, cited by Mr. Miller, the 8th Circuit reviewed
a situation where trial counsel failed to properly secure the
presence of several out of state witnesses. Counsel’s failure
apparently was based on a lack of understanding of how to
secure

the

presence

of

out

of

state

witnesses

via

the

applicable state laws.
In a similar case, the 8th Circuit ruled that,”
we find it difficult to understand the
logic of trial counsel's decision to forego
even attempting to subpoena the witnesses,
particularly when Armstrong's trial date
drew
near,
when
trial
counsel
was
unsuccessful in her attempts to contact the
witnesses to make alternative arrangements,
and when the witnesses lacked funds to
travel at their own expense. See Garton v.
Swenson, 417 F. Supp. 697, 702 (W.D. Mo.
1976)
...
Counsel
need
not
attain
perfection, but he [or she] must exercise
reasonable diligence.” Laws v. Armontrout,
863 F.2d 1377, 1386 (8th Cir. 1988) (en
banc) (quotation omitted). Trial counsel
did not exercise reasonable diligence [in
this case]...
2

As noted by the Iowa Court of Appeals, there is no
indication the trial court erred in refusing to consider the
evidence. Rather, it was counsel’s failure for failing to at
least try to attain a sworn out of court statement from Mr.
Hill.
15

Armstrong, 534 F.3d at 865-66.
This Court is persuaded that the present situation is
very similar to the Armstrong facts. While trial counsel need
not attain perfection, he must exercise reasonable diligence.
There is no guarantee that counsel could have secured Mr.
Hill’s participation in the trial.

However, counsel could

have attempted to depose Mr. Hill, get a sworn statement from
Mr. Hill or subpoena Mr. Hill.

Counsel’s failure to take

these essential steps to secure exculpatory evidence necessary
to Mr. Miller’s defense is clearly deficient.
Once

counsel’s

performance

has

been

shown

to

be

deficient, the Court must next consider whether deficient
performance prejudiced Mr. Miller.

Counsel’s deficiency was

failing to secure Mr. Hill or Mr. Hill’s testimony in a
reliable manner for trial.

Accordingly, to measure whether

that deficiency had a prejudicial effect on Mr. Miller, Mr.
Hill’s proffered testimony must be added to and contrasted
against the body of evidence that actually was presented at
his trial.
2010)

cert.

Armstrong v. Kemna, 590 F.3d 592, 600 (8th Cir.
denied,

130

S.

Ct.

3369

(U.S.

2010)

citing

McCauley-Bey v. Delo, 97 F.3d 1104, 1105-06 (8th Cir. 1996).

16

The Court must gauge the likely outcome of a trial based on
this total body of evidence.
is

a

reasonable

Id.

probability

Prejudice exists if there

that

the

different than that at the actual trial.
analysis, the Court is “mindful of:
all

witnesses,

including

the

outcome

would

be

In conducting this

(1) the credibility of

likely

impeachment

of

the

uncalled defense witnesses; (2) the interplay of the uncalled
witnesses with the actual defense witnesses called; and (3)
the

strength

by

the

Mr. Miller had only one potential witness, Mr. Hill.

Mr.

prosecution.”

of

the

evidence

actually

presented

McCauley-Bey, 97 F.3d at 1105-06.

Miller argues that had Hill testified, he would have testified
that he let Mr. Miller in this house.

This assertion is

bolstered by testimony that Mr. Hill gave at Mr. Miller’s
post-conviction hearing.

At said hearing, Mr. Hill testified

that he merely bumped into Mr. Miller in the home’s small
entry way. Finally, Mr. Hill testified at the post-conviction
hearing that although he attempted to stop Mr. Miller’s
assault on Ms. Newsome, he never asked or ordered Mr. Miller
to leave the house until after Ms. Newsome left the house.
Mr. Miller argues that Mr. Hill’s testimony “would have cast

17

reasonable doubt as to the element of whether Miller entered
the residence without a right, license, or privilege to do so,
or whether he remained on the property after his right,
license, or privilege to be there had expired.”

Docket No.

11, p. 14-15.
The

Respondent

argues

that

Mr.

Miller

suffered

no

prejudicial harm as a result of his counsel’s failure to call
Mr. Hill to the stand.

The Respondent argues that

In this case we have an express credibility
finding by the judge who heard the victim
testify, finding the victim to be “a very
credible witness. . ..” Judgment Entry p.
3; DA App. 138.
See generally State v.
McPhillips, 580 N.W.2d 748, 753 (Iowa 1998)
(Finder of fact is free to reject certain
evidence and credit other evidence)... The
Petitioner’s seemingly unending stream of
graphic text messages from his own cell
phone before and after the attack ...
further sealed his fate... Petitioner was
then recorded by the [law enforcement] in
a phone conversation with the victim’s
cousin admitting key elements of the
crime... Petitioner was recorded admitting
on the phone that his brother “didn't want
to let me in the house” ... Petitioner
admitted that he then “sat out there and
beat on the door,” asking his brother to
“[p]lease open the door” and then claiming
“the police is on me.”... When the door
was finally opened, Petitioner admitted
that as he tried to “walk in the house” his
brother tried to stop him by football
tackling him ...
18

Docket No. 14, p. 20-22.
The Respondent’s argument that Mr. Hill’s failure to
testify did not prejudice Mr. Miller is bolstered by the fact
that the original trial judge hypothetically considered Mr.
Hill’s testimony.

In his ruling, trial Judge Ostlund stated

that:
Defendant further argues that statements
made outside the court by Mr. Hill
suggested that he gave the defendant
authority. This testimony was not admitted
and [is] not part of the record. Even if
admitted, these alleged out of court
statements
by
Mr.
Hill
are[,]
for
evidentiary purposes[,] certainly tempered
and
possibly
rendered
moot
by
the
incriminating statements by the defendant
himself.
Docket No. 15, 4(d), p. 149.

Clearly the trial Judge Ostlund

considered hypothetical/out of court exculpatory statements
made by Mr. Hill.
statements

in

specifically

While the trial court did not rely on those

convicting

said

that

Mr.

even

Miller,
if

Mr.

the

trial

Hill’s

court

exculpatory

statements were considered, Mr. Miller would still be guilty
based

on

the

weight

of

the

evidence.

The

Respondent

correctly points out that Mr. Hill’s testimony would have
suffered severe credibility questions, since it conflicted

19

with how Mr. Miller described the incident.
had

Ms.

Newsome,

the

victim,

who

Essentially, you

testified

(credibly,

according to the trial court) that Mr. Miller threatened her
via text message and then burst into the house and refused to
leave even though Mr. Hill demanded he get out.

You have Mr.

Miller’s recorded phone call saying he broke into the house
and that Mr. Hill tackled him to try and stop him.

And then

you have Mr. Hill’s testimony that he let Mr. Miller in.

The

Respondent argues, and this Court agrees, that Mr. Hill’s
testimony would not have been deemed credible.
As

mentioned

above,

the

trial

court

hypothetically

considered Mr. Hill’s testimony and stated that it would not
change the outcome of the trial.

For the reasons set out

above, Mr. Hill’s testimony would have suffered from severe
credibility issues, namely, that it was contradicted by both
a (credible) witness and Mr. Miller’s own statements. It also
does not track logically with other evidence in this case.
(Mr. Hill was hiding Ms. Newsome from Mr. Miller, Mr. Miller
was upset that Ms. Newsome was in a relationship with Mr.
Hill, Mr. Miller was sending threatening text messages, and
Mr.

Miller

arrived

at

the

house

20

to

beat

Ms.

Newsome.).

Accordingly, had Mr. Hill testified at the trial, or had he
testified via deposition or affidavit, the result of the trial
would have been the same.

Because Mr. Miller would have been

convicted regardless of the ineffective assistance of his
trial counsel, Mr. Miller has failed to prove the element of
prejudice.
B.

Failure to Seek Continuance

Mr.

Miller

constitutionally

argues

that

ineffective

his

for

trial

failing

counsel
to

was

request

a

continuance when Mr. Hill failed to appear at the courthouse
for Mr. Miller’s trial.

Mr. Miller’s brief quotes the Iowa

District Court’s Post-Conviction Ruling, which says that,
“[i]f

there

believes

is

that

continuance.

any
it

fault

of

concerns

[trial
his

counsel]

failure

to

this

court

request

a

Such an important witness for the defense would

make it difficult for the trial court to deny the motion.”
Docket No. 11, p. 16.
This is, again, an ineffective assistance of counsel
argument.

Accordingly, Mr. Miller must prove both deficient

representation and prejudice. As discussed extensively above,
this Court believes Mr. Miller’s trial counsel failed to

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perform an essential duty when it failed to subpoena Mr. Hill
for trial.

Taking every reasonable step to ensure Mr. Hill’s

appearance was essential in providing Mr. Miller an adequate
defense.

Trial counsel abandoned an essential duty when he

did not ask for a continuance.

In fact, the trial judge

asked, and perhaps even suggested that Mr. Miller seek a
continuance and his counsel still refused to do so.
767 N.W.2d 421 (Table) at 2.

Miller,

There is no doubt that trial

counsel’s failure to request a continuance was deficient.
Because it is clear that Mr. Miller’s trial counsel was
deficient for failing to perform an essential duty, the
question is whether that failure resulted in prejudice to Mr.
Miller.

Again, that answer is no.

As discussed extensively

above on pages 15, 16, 17, 18, 19, 20 and 21, Mr. Hill’s
testimony would not have altered the outcome of the trial.
The

trial

judge

considered

Mr.

Hill’s

testimony

in

a

hypothetical manner and stated that it would not have affected
the outcome of the trial.

Accordingly, counsel’s failure to

request a continuance did not effect Mr. Miller’s conviction
for burglary. Mr. Miller has failed to show he was prejudiced
by his counsel’s failure to ask for continuance.

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C.

Failure to Participate in I.C.A. § 822 Hearing

During the hearing, Mr. Miller articulated a new issue,
that he had been denied the opportunity to fully participate
in his post-conviction relief hearing before the Iowa District
Court.

Specifically, Mr. Miller stated that he participated

and testified in that hearing via telephone.
not

able

to

hear

the

testimony

of

However, he was

other

witnesses

or

communicate with his attorney in real time during the hearing.
Post-conviction relief actions in Iowa are governed by
I.C.A. § 822.7, which says that:
The application shall be heard in, and
before any judge of the court in which the
conviction or sentence took place... All
rules and statutes applicable in civil
proceedings
including
pretrial
and
discovery procedures are available to the
parties. The court may receive proof of
affidavits, depositions, oral testimony, or
other evidence, and may order the applicant
brought before it for the hearing...
I.C.A. § 822.7.

Accordingly, a post-conviction relief action

is civil in nature.

Generally, in civil cases, counsel can

appear on behalf and in leu of their clients.

Moreover, it

appears that the trial court has discretion regarding whether
the applicant appears:

“[The Court] may order the applicant

brought before it for hearing...).”
23

Id., (emphasis added).

Accordingly, this Court cannot say as a matter of law that Mr.
Miller had a right to interact with the other parties during
his post-conviction relief hearing.
Additionally, as Mr. Miller’s counsel conceded during the
hearing, this was not an issue raised in Mr. Miller 28 U.S.C.
§ 2254 Petition.
Court.
this

Accordingly, it is not properly before this

Furthermore, although Mr. Miller states he submitted

issue

to

the

Iowa

Court

of

Appeals,

there

is

no

indication in the record that this is an issue they had an
opportunity to consider.

As noted above, this Court can only

consider an issue if it has been presented to the state court
and the state court made an unreasonable application of
federal law.

There is no indication that the Mr. Miller has

exhausted his state court remedies on the question of whether
he was denied the opportunity to participate in his postconviction relief hearing.
V.

CONCLUSION
Ultimately, the test in 28 U.S.C. § 2254(d)(1)-(2)(1)sets

a very tough burden for Mr. Miller to surmount, namely a
showing that the Iowa courts acted unreasonably.
has failed to make that showing.

Mr. Miller

For the reasons discussed

above, Mr. Miller’s 28 U.S.C. § 2254 Petition is denied.

24

Further, Mr. Miller’s counsel, Zoshua Zeutenhorst, has
filed a motion to withdraw (Docket No. 23) stating that he has
accepted other employment and will no longer be in the private
practice of law.
has

requested

The motion further states that Petitioner

that

substitute

counsel

be

represent him for the remainder of this matter.
motion, Docket No. 23, is granted.

appointed

to

Petitioner’s

Even though the denial of

the habeas petition closes this case, the Court is persuaded
that substitute counsel should still be appointed so that the
Petitioner is fully represented for any other additional
matters or filings that may be required.

The Clerk of Court

shall appoint Mr. Miller a new lawyer in this case.
IT IS SO ORDERED this 12th day of December, 2013.

__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa

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