Miller v. McKinney---PER #3 IRO RESPONDENT TO RESPOND 30 DAYS AFTER PETITIONER FILES SUPPLEMENTAL PETITION/BRIEF
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
DION SCOTT MILLER,
RULING ON 28 U.S.C. § 2254
JAMES MCKINNEY, Warden,
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
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
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.
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
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.
Hill instructed Ms. Newsome to go into the bedroom and shut
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.
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]
Mr. Hill also told Newsome to call the police.
beating continued even after Mr. Hill told Mr. Miller to get
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.
Newsome remained hidden in the
apparently looking for Newsome. Mr. Miller then sought refuge
Subsequently, Newsome sought medical attention and contacted
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
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
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.”
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.
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.”
Mr. Miller's counsel made it
client's defense and that he intended to rely upon it at
Ms. Newsome testified at trial along with several law
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.
The district court denied the motion for
Subsequently, the court found Mr. Miller guilty
of first-degree burglary in violation of I.C.A. §§ 713.1 and
The Court denied Miller's motion for a new
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
The Iowa Court of Appeals concluded that the district
testimony, stating that:
[a] district court has no discretion to
deny the admission of hearsay that falls
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
(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).
court is to make findings on each of these
criteria, and each must be satisfied before
the evidence can be admitted.
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.
district court found that the criteria of
materiality, notice, and service of the
However, it determined the statement to be
insufficiently trustworthy. This factual
finding is entitled to deference, and
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
statement was not made under oath. Hill
was also Miller's half-brother. Moreover,
the recorded interview as a whole suggests
downplaying the incident.
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
Accordingly, we sustain the district
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
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
continuance of the trial until Hill was found...”
State, 805 N.W.2d 397 (Table), 1 (Iowa Ct. App. 2011).
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
[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
produce cumulative testimony is not a
sufficient showing of prejudice in an
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.
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
his failure to seek a continuance when Hill failed to appear
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
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
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
determination of the facts in light of the
evidence presented in the State court
28 U.S.C. § 2254(d)(1)-(2).
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).
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
Both issues Mr. Miller raised in his 28 U.S.C. § 2254
“[T]he right to counsel is the right to effective
assistance of counsel."
McMann v. Richardson, 397 U.S. 759,
The Fourteenth Amendment Due Process Clause
Washington, 466 U.S. 668, 684-85 (1984).
The Sixth Amendment
guarantees the right to assistance of counsel.
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
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.
Counsel's conduct is deficient when it is
unreasonable "under prevailing professional norms."
v. Kentucky, 130 S. Ct. 1473, 1481 (2010).
A showing of
prejudice requires that "counsel's errors" be so serious that
they "deprive the defendant of a fair trial . . . ."
In other words a Petitioner must show "that there is
unprofessional errors, the result of the proceeding would have
466 U.S. at 694.
A reasonable probability
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
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
justifies a tactical decision.... Rather,
a reviewing court must consider the
reasonableness of the investigation said to
support that strategy. (citing Strickland,
466 U.S. at 691).
2008)(internal quotation marks omitted).
Mr. Miller argues
that his counsel’s decision to not even subpoena Mr. Hill was
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.
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
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
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
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.
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
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.
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.
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
Armstrong v. Kemna, 590 F.3d 592, 600 (8th Cir.
McCauley-Bey v. Delo, 97 F.3d 1104, 1105-06 (8th Cir. 1996).
The Court must gauge the likely outcome of a trial based on
this total body of evidence.
Prejudice exists if there
different than that at the actual trial.
analysis, the Court is “mindful of:
In conducting this
(1) the credibility of
uncalled defense witnesses; (2) the interplay of the uncalled
witnesses with the actual defense witnesses called; and (3)
Mr. Miller had only one potential witness, Mr. Hill.
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
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
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.”
11, p. 14-15.
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 ...
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.
In his ruling, trial Judge Ostlund stated
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
evidentiary purposes[,] certainly tempered
incriminating statements by the defendant
Docket No. 15, 4(d), p. 149.
Clearly the trial Judge Ostlund
considered hypothetical/out of court exculpatory statements
made by Mr. Hill.
While the trial court did not rely on those
statements were considered, Mr. Miller would still be guilty
correctly points out that Mr. Hill’s testimony would have
suffered severe credibility questions, since it conflicted
with how Mr. Miller described the incident.
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.
you have Mr. Hill’s testimony that he let Mr. Miller in.
Respondent argues, and this Court agrees, that Mr. Hill’s
testimony would not have been deemed credible.
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
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
Failure to Seek Continuance
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,
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
Accordingly, Mr. Miller must prove both deficient
representation and prejudice. As discussed extensively above,
this Court believes Mr. Miller’s trial counsel failed to
perform an essential duty when it failed to subpoena Mr. Hill
Taking every reasonable step to ensure Mr. Hill’s
appearance was essential in providing Mr. Miller an adequate
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.
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.
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.
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.
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
Specifically, Mr. Miller stated that he participated
and testified in that hearing via telephone.
However, he was
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
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.
appears that the trial court has discretion regarding whether
the applicant appears:
“[The Court] may order the applicant
brought before it for hearing...).”
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.
Accordingly, it is not properly before this
Furthermore, although Mr. Miller states he submitted
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
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.
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.
For the reasons discussed
above, Mr. Miller’s 28 U.S.C. § 2254 Petition is denied.
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.
The motion further states that Petitioner
represent him for the remainder of this matter.
motion, Docket No. 23, is granted.
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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