Milo (ID 0101994) v. Kansas, State of et al

Filing 34

MEMORANDUM AND ORDER ENTERED: Petitioner's amended application for habeas corpus 15 is denied. Signed by District Judge John W. Broomes on 08/24/18. Mailed to pro se party Gregory John Milo by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GREGORY JOHN MILO,
Petitioner,
v.

Case No. 17-3154-JWB

DAN SCHNURR, Warden,
El Dorado Correction Facility, and
KANSAS ATTORNEY GENERAL,
Respondents.

MEMORANDUM AND ORDER
This case comes before the court on Petitioner’s amended application for a writ of habeas
corpus under 28 U.S.C. § 2254. (Doc. 15.) The matter has been fully briefed and is ripe for
decision. (Docs. 30, 33.) The court has reviewed those portions of the state court record which
are pertinent to the issues raised in the amended application and finds that an evidentiary hearing
is not warranted. Petitioner’s amended application is DENIED for reasons set forth herein.
Petitioner was convicted of attempted first degree murder, aggravated robbery and
attempted aggravated robbery following a nolo contendere plea in state court and sentenced to 272
months in prison. In a federal habeas proceeding, the state court’s factual findings are presumed
correct and petitioner bears the burden of rebutting that presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1). Here, Petitioner does not challenge the state court’s findings.
Accordingly, the court incorporates the Kansas Court of Appeal’s version of the facts:
On July 21, 2011, Milo pled no contest to one count of attempted first-degree murder, one
count of aggravated robbery, and one count of attempted aggravated robbery. In return, the
State dismissed additional charges of aggravated kidnapping, attempted aggravated
robbery, aggravated battery, possession of a firearm by a felon, and possession of
marijuana with intent to distribute. The State also agreed to request the mid-box sentence
for attempted first-degree murder and request that the sentences run concurrently.
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Milo was represented by David Magariel. At the plea hearing, Milo informed the district
court that he was 22 years old, he had graduated high school, he was not under the influence
of alcohol or drugs, he understood the crimes with which he had been charged, he had time
to consult with Magariel about the charges and his plea, Magariel had explained the
penalties for the crimes, Magariel had answered all of his questions, and he was satisfied
with Magariel's services.
The district court advised Milo that depending on his criminal history score his potential
sentences would be as follows: (1) a minimum of 147 months' imprisonment and a
maximum of 653 months' imprisonment for attempted first-degree murder; (2) a minimum
55 months' imprisonment and a maximum of 247 months' imprisonment for aggravated
robbery; and (3) a minimum of 31 months' imprisonment and a maximum of 136 months'
imprisonment for attempted aggravated robbery. Milo told the court that he understood the
possible sentences.
Milo confirmed that he signed the plea agreement, he understood that the agreement was
only a recommendation that was not binding on the district court, he understood the court
could impose any penalty allowed by the law, and he understood all the rights he was
forfeiting through his no contest plea. At the State's request, the district court took judicial
notice of the testimony from the preliminary hearing. The district court confirmed that Milo
was present at the preliminary hearing, understood the court would use the facts from that
hearing to determine if there was sufficient evidence to support his plea, and understood
that, if a sufficient factual basis for the plea existed, the plea would be accepted and he
would be found guilty and sentenced as if he had pled guilty.
The district court reiterated that although Milo was not admitting guilt, he would be found
guilty if he pled no contest and there was a sufficient factual basis for the charges. Magariel
informed the district court that he was satisfied that there was sufficient evidence to support
the charges. Finally, Milo told the district court that he was entering the no contest plea
voluntarily and of his free will and had not been threatened or made any promises outside
of what was contained in the plea agreement. The district court accepted Milo's no contest
plea.
Milo's presentence investigation (PSI) report indicated that his criminal history score was
“C.” This score was based on Milo's past criminal history of: (1) two nonperson felony
convictions of forgery from Missouri; (2) a nonperson misdemeanor conviction for giving
false information to an officer from Missouri; and (3) a juvenile adjudication for firstdegree robbery, a person felony, from Missouri. On August 30, 2011, Milo, through
Magariel, filed an objection to the PSI report, arguing that his juvenile adjudication for
first-degree robbery was not a proper conviction under Kansas law and must be stricken
from his criminal history calculation. After the removal of this adjudication, Milo claimed
his criminal history score should be “F.”
On August 31, 2011, Milo filed a pro se motion to withdraw his no contest plea. In his
motion, Milo argued: (1) Magariel had told him the plea agreement was for a 214–month
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sentence; (2) his plea was based off of his criminal history score being “F” rather than “C;”
(3) Magariel had told him that a plea of no contest meant that the district court could find
him not guilty; (4) there was insufficient evidence to support his conviction of attempted
first-degree murder; and (5) his aggravated robbery and attempted aggravated robbery
convictions were multiplicitous.
At a hearing on September 1, 2011, Magariel informed the district court that Milo needed
a new appointed attorney because his pro se motion alleged that Magariel had “advised
him inappropriately as to some legal matters in the case.” The district court agreed and
allowed Magariel to withdraw. The district court subsequently appointed Zane Todd to
represent Milo.
On November 1, 2011, the State filed a response to Milo's motion to withdraw his plea.
The State acknowledged that all parties believed that Milo would have a criminal score of
“F.” However, the State argued that this did not result in Milo's plea not being knowing or
voluntary because Milo had been advised of the maximum and minimum penalties for his
offenses and because Milo had been advised that the court was not bound by the plea
agreement. The State also argued that Magariel's alleged statement to Milo that he could
be found not guilty if there was not a sufficient factual basis for his no contest plea did not
provide good cause to withdraw his plea. Finally, the State noted that, while Milo does not
specifically argue ineffective assistance of counsel, “his arguments, taken cumulatively,
could be seen as such. Therefore, an analysis of the effectiveness of Mr. Magariel must be
taken into account.”
On November 9, 2011, the district court held a hearing on Milo's motion to withdraw his
plea. Milo testified that he believed a no contest plea meant that the court could still find
him not guilty based on the evidence and he believed there was a high probability that he
would be found not guilty because there was no evidence. Milo also testified that he
informed Magariel that he had a prior adult forgery conviction and a prior juvenile
conviction of first-degree robbery. According to Milo, Magariel said he would be in the
“F” box and receive a sentence of 214 months' imprisonment.
Magariel also testified at the hearing. As to Milo's criminal history, Magariel testified Milo
told him that he had a prior forgery conviction in Jackson County, Missouri. Magariel
testified that he consulted with the State about Milo's criminal history because “it was a
higher level case.” Magariel testified that it appeared from the NCIC that Milo had a second
forgery conviction and misdemeanors with unknown dispositions. Magariel also called
Milo's Missouri public defender and confirmed that the only convictions he was aware of
were Milo's two forgery convictions. Magariel testified that Milo never informed him that
he had a juvenile robbery adjudication. Had Milo informed him of this adjudication,
Magariel testified that he would have advised him he would have a criminal history score
of “C.”
Magariel also testified that he told Milo that a no contest plea did not require him to admit
guilt, but he was not contesting the facts of the case. Magariel also informed Milo that the
State would provide a factual basis for the plea and the judge would determine if that basis
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was sufficient to find him guilty. Magariel testified that he told Milo that it was possible
for the judge to find him not guilty, “but that that was extremely unlikely, and that for all
intents and purposes, he would be found guilty.”
Magariel also testified that he went over the plea form with Milo line by line to ensure that
he understood it thoroughly. Magariel informed Milo that (1) it was a mid-box plea; (2) he
thought his criminal history score was “F,” which would result in a sentence of 214 months'
imprisonment; (3) the plea called for the sentences for the counts to run concurrently; (4)
the court did not necessarily have to follow the plea agreement, but he had reason to believe
it would; and (5) the maximum sentencing exposure if Milo went to trial was a lot greater.
Magariel testified that during their conversation Milo asked him, “Can you assure me I'm
going to get 214 months?” Magariel responded, “As long as your only criminal history is
those two prior forgeries, that's what you will get.”
After hearing the evidence, the district court made a ruling from the bench. The district
court utilized the Edgar factors to determine whether there was good cause to allow Milo
to withdraw his plea. See State v. Edgar, 281 Kan. 30, 36–38, 127 P.3d 986 (2006). First,
the district court evaluated whether Milo was represented by competent counsel. The
district court noted Magariel's lengthy experience as a public defender. The district court
also found that Magariel's testimony showed he had made “more than due diligent inquiries
into [Milo's] criminal history.” Specifically, the district court cited Magariel's testimony
that (1) he asked Milo what his criminal history was; (2) he called Milo's Missouri public
defender to inquire about Milo's convictions; (3) he inquired with the State as to what
convictions Milo had on the NCIC; and (4) he was knowledgeable of the impact of juvenile
adjudications on a defendant's criminal history score. For these reasons, the district court
found that Magariel provided Milo with competent counsel.
Next, the district court found that there was no evidence that Magariel mistreated, coerced,
or took unfair advantage of Milo. The district court then turned to whether Magariel
intentionally or unintentionally misled Milo about his criminal history score. The district
court found that it did not believe that Milo had informed Magariel of his juvenile
adjudication for first-degree robbery, perhaps because Milo hoped the adjudication would
not be discovered. The district court cited Milo's prior crimes of dishonesty and Magariel's
knowledge of the impact of a felony adjudication on Milo's criminal history score as
reasons for not believing Milo's testimony. The district court found that Milo was not
misled in anyway by Magariel regarding his plea. Rather, the district court concluded that
Milo failed to provide full information to Magariel.
The district court also found that Milo was fully informed of the potential sentences he
could receive and that the court was not bound by the plea agreement. The district court
also found that Milo was aware that he could be found guilty or not guilty when he entered
a no contest plea and Magariel had informed him that it was extremely unlikely the court
would not accept the factual basis for the plea. The district court found that the plea was
fairly and voluntarily entered into and understandingly made. For these reasons, the district
court concluded that there was not reasonable grounds or good cause to withdraw the plea
and denied Milo's motion.
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The district court held a sentencing hearing on December 15, 2011. At the hearing, the
district court denied Milo's objection to the inclusion of his juvenile adjudication for firstdegree robbery in his criminal history score and found that he had a criminal history score
of “C.” The district court sentenced Milo to: (1) 272 months' imprisonment for his
conviction of attempted first-degree murder; (2) 59 months' imprisonment for his
conviction of aggravated robbery; and (3) 32 months' imprisonment for his conviction of
attempted aggravated robbery. The district court ordered the sentences were ordered to run
concurrently giving Milo a controlling sentence of 272 months' imprisonment.
Milo appealed the denial of his motion to withdraw his plea, and this court issued an
opinion on October 4, 2013. State v. Milo, No. 108,228, 2013 WL 5507288 (Kan. App.
2013) (unpublished opinion), rev. denied 300 Kan. 1106 (2014). This court held that the
district court was correct when it found that Magariel provided competent counsel and
made diligent inquiries into Milo's criminal history. 2013 WL 5507288, at *4. The court
also held that there was no evidence of coercion, mistreatment, or unfair advantage. 2013
WL 5507288, at *4. This court determined that the district court properly applied the Edgar
factors and did not abuse its discretion when it denied Milo's motion to withdraw his plea.
2013 WL 5507288, at *5. Further, this court concurred that there was no reasonable
grounds or good cause to permit Milo to withdraw his plea on the basis that he believed he
would be found not guilty if he entered a plea of no contest. 2013 WL 5507288, at *5.
Finally, this court also rejected Milo's claim that using his prior convictions to calculate his
criminal history score violated his rights under Apprendi v. New Jersey, 530 U.S. 466, 120
S. Ct. 2348, 147 L. Ed. 2d 435 (2000). 2013 WL 5507288, at *5. For these reasons, this
court affirmed the district court's denial of Milo's motion to withdraw his plea. 2013 WL
5507288, at *6.
On August 20, 2015, Milo filed a motion to withdraw his plea after sentencing under
K.S.A. 2015 Supp. 22–3210. Milo raised the following claims in his motion: (1) Magariel
was constitutionally ineffective for failing to make a record of the presumptions regarding
Milo's criminal history that formed the basis for the plea agreement; (2) Magariel was
constitutionally ineffective for failing to adequately and reasonably investigate Milo's
criminal history score prior to Milo entering the no contest plea; (3) Magariel was
constitutionally ineffective for failing to competently explain to Milo his rights to withdraw
a no contest plea; and (4) his appellate counsel was constitutionally ineffective for failing
to argue that the district court applied an incorrect legal standard in denying the presentence
motion to withdraw plea.
The State filed a response to Milo's motion on August 25, 2015. The State argued that
Milo's motion was barred by res judicata because Milo had appealed on the issue of
ineffective assistance of counsel and had received an adverse ruling. The State requested
that the district court summarily deny Milo's motion.
The district court ruled on Milo's motion on October 28, 2015. The district court noted that
Milo previously had filed a motion to withdraw his plea, which had received an evidentiary
hearing, a final judgment on the merits, and had been affirmed on direct appeal. The district
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court found that Milo's current motion sought a second or successive hearing on his motion
to withdraw his plea and raised the same cause of action, involved the same parties, and
sought the same relief. For these reasons, the district court found that res judicata precluded
Milo from litigating a second motion to withdraw his plea and denied his motion. Milo
timely filed a notice of appeal.
State v. Milo, No. 114,832, 384 P.3d 1033, 2016 WL 7178341 at *1-4 (Kan. Ct. App. 2016), review
denied (July 25, 2017) (“Milo II”).
The Kansas Court of Appeals affirmed Petitioner’s conviction on direct appeal. State v.
Milo, No. 108,228, 310 P.3d 1078, 2013 WL 5507288 (Kan. Ct. App. 2014) (“Milo I”).

The

Kansas Supreme Court denied review on August 28, 2014. Petitioner then sought post-conviction
relief under K.S.A. 60-1507 and K.S.A. 22-3210. The state district court denied his petitions and
the Kansas Court of Appeals affirmed. See Milo II; State v. Milo, No. 115,584, 386 P.3d 525, 2016
WL 7179123 (Kan. Ct. App. 2016) (“Milo III”). The Kansas Supreme Court denied review on
both motions on July 25, 2017.
I. Analysis
This court’s ability to consider collateral attacks on state criminal proceedings is governed
by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). Under the highly deferential standard contained in AEDPA, if Petitioner’s claim has
been decided on the merits in state court, this court may only grant relief under two circumstances:
1) if the state court decision was "contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. §
2254(d)(1); or 2) if the state court decision “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.” Id. § 2254(d)(2).
A state court decision is “contrary to” Supreme Court precedent in two circumstances: (1)
when “the state court applies a rule that contradicts the governing law set forth in [the
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Court’s] cases”; or (2) when “the state court confronts a set of facts that are materially
indistinguishable from a decision of [the] Court and nevertheless arrives at a result different
from” that reached by the Court. Williams v. Taylor, 529 U.S. 362, 406, 120 S. Ct. 1495,
146 L. Ed. 2d 389 (2000). A state court decision constitutes an “unreasonable application”
of Supreme Court precedent if “the state court identifies the correct governing legal
principle from [the] Court’s decisions but unreasonably applies that principle to the facts
of the prisoner’s case.” Id. at 413, 120 S. Ct. 1495. Thus, “[u]nder § 2254(d)(1)’s
‘unreasonable application’ clause, . . . a federal habeas court may not issue the writ simply
because that court concludes in its independent judgment that the relevant state-court
decision applied clearly established federal law erroneously or incorrectly. Rather, that
application must also be unreasonable.” Id. at 411, 120 S. Ct. 1495; see also Thomas v.
Gibson, 218 F.3d 1213, 1219-20 (10th Cir. 2000) (discussing Williams).
Hamilton v. Mullin, 436 F.3d 1181, 1186 (10th Cir. 2006).
This court will only consider alleged violations of federal law in reviewing Petitioner’s
application. Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 479-80 (1991). Moreover,
the federal questions must ordinarily have been first presented to the state courts to be considered.
Picard v. Connor, 404 U.S. 270, 277-78, 92 S. Ct. 509, 513 (1971); but see 28 U.S.C. § 2254(b)(2)
(permitting denial on the merits, despite failure to exhaust state remedies).
Petitioner’s application states four grounds for relief related to ineffective assistance of
counsel. Petitioner’s application raises three grounds of ineffective trial counsel: 1) failing to
investigate Petitioner’s criminal history; 2) failing to make a record regarding Petitioner’s criminal
history during the plea hearing and 3) failing to adequately inform Petitioner of his rights under
the plea agreement. Petitioner’s final ground for relief is ineffective appellate counsel on the basis
that appellate counsel failed to raise an issue on appeal.
A claim of ineffective assistance of counsel in violation of the Sixth Amendment1 requires
petitioner to show that 1) his counsel's performance fell below an objective standard of

1

Although Petitioner’s application references “Due Process” on each ground, Petitioner’s reference to Due Process
does not change the standard of this court’s review under Strickland as Petitioner makes no allegations in his asserted
grounds for review that would implicate a standard other than the one required by Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

7

reasonableness; and 2) but for his counsel's unreasonable errors, there is a reasonable probability
that the outcome of the proceeding would have been different. Williams v. Taylor, 529 U.S. 362,
390-91, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000); Strickland v. Washington, 466 U.S. 668, 688,
694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “These two prongs may be addressed in any order,
and failure to satisfy either is dispositive.” Grant v. Royal, 886 F.3d 874, 903 (10th Cir. 2018).
In evaluating the performance of counsel, the Supreme Court provided the following:
A fair assessment of attorney performance requires that every effort be made to eliminate
the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the
difficulties inherent in making the evaluation, a court must indulge a strong presumption
that counsel's conduct falls within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.
...
Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of
counsel's challenged conduct on the facts of the particular case, viewed as of the time of
counsel's conduct. A convicted defendant making a claim of ineffective assistance must
identify the acts or omissions of counsel that are alleged not to have been the result of
reasonable professional judgment. The court must then determine whether, in light of all
the circumstances, the identified acts or omissions were outside the wide range of
professionally competent assistance. In making that determination, the court should keep
in mind that counsel's function, as elaborated in prevailing professional norms, is to make
the adversarial testing process work in the particular case. At the same time, the court
should recognize that counsel is strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional judgment.
Strickland, 466 U.S. at 689-90, 104 S. Ct. at 2065-66 (internal citations omitted).
The Supreme Court has held that the Strickland test is “applicable to ineffective-assistance
claims arising out of the plea process.” Hill v. Lockhart, 474 U.S. 52, 57, 106 S. Ct. 366, 370, 88
L. Ed. 2d 203 (1985).
In reviewing the decisions by the state court in Milo I and Milo II as to Petitioner’s claims
of ineffective assistance of trial counsel, it is difficult to determine which allegations were

8

reviewed on the merits and which claims were denied on procedural grounds. See Milo II, 2016
WL 7178341;. Milo I, 2013 WL 5507288. The Tenth Circuit has held that a court may proceed
directly to a merits review where analysis of an issue on the merits is more efficient than addressing
the level of deference owed or issues of procedural bar. See Smith v. Mullin, 379 F.3d 919, 927
(10th Cir. 2004) (“We need not determine the level of deference owed the [state court’s]
conclusions as to these various misconduct claims or which [claims] are barred on independent
and adequate state grounds. Where an issue may be more easily and succinctly affirmed on the
merits, judicial economy counsels in favor of such a disposition.”) (internal citations omitted). The
court finds that it is more efficient to conduct an analysis of Petitioner’s claims of ineffective
assistance of trial counsel on the merits. With respect to the claim for ineffective assistance of
appellate counsel, the Kansas Court of Appeals reviewed this claim on the merits and applied the
Strickland standard. See Milo II, 2016 WL 7178341 at *7. That decision is entitled to deference.
Because the trial court conducted an evidentiary hearing on the issues relating directly to
trial counsel’s performance when considering Petitioner’s motion to set aside his plea agreement,
the court finds that an evidentiary hearing is not warranted. Petitioner has not identified what
testimony would be presented at a hearing nor has he raised any issue which may be addressed
that was not already covered in the evidentiary hearing held by the state trial court. See Davis v.
Workman, 695 F.3d 1060, 1076-77 (10th Cir. 2012) (“We have said that district courts are not
required to hold evidentiary hearings in collateral attacks without a firm idea of what the testimony
will encompass and how it will support a movant's claim.”)
A. Failure to Investigate Petitioner’s Criminal History
Petitioner contends that his trial counsel was ineffective for failing to “adequately and
reasonably investigate Milo’s criminal history score prior to Milo’s no-contest plea. There is a

9

reasonable [sic] Milo would have insisted on going to trial if this was done.” (Doc. 15 at 7.) At
no point, however, does Petitioner identify what more trial counsel should have done to investigate
his criminal history and locate a juvenile adjudication. The facts surrounding Petitioner’s guilty
plea, including trial counsel’s investigation of Petitioner’s criminal history score, were detailed in
Milo II. Trial counsel asked Petitioner about his criminal history and was informed that he had a
prior forgery conviction in Jackson County. Trial counsel reviewed the NCIC report and it showed
two forgery convictions and misdemeanors with unknown disposition. Trial counsel then called
Petitioner’s Missouri public defender who confirmed that he was only aware of the two forgery
convictions. Trial counsel testified that Petitioner never informed him of a juvenile robbery
adjudication; otherwise, trial counsel would have informed Petitioner that he would have a
criminal history score of “C” instead of “F.” Milo II, 2016 WL 7178341 at *2. Trial counsel
informed Petitioner that he thought his criminal history score was an “F,” and as long as his
criminal history only consisted of the two forgeries, Petitioner would likely receive a sentence of
214 months. Id. at *3.
Although the Kansas Court of Appeals did not consider trial counsel’s performance under
Strickland, the court’s review on direct appeal determined that trial counsel’s performance was
competent and that he “made more than due diligent inquiries into Milo's criminal history.” Id. at
*3. Under Strickland, the court must apply “a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance....” 466 U.S. at 689. “For counsel's
performance to be constitutionally ineffective, it must have been completely unreasonable, not
merely wrong.” Id.
Although the Supreme Court has yet to address under what circumstances an attorney may
be deficient under Strickland due to erroneous sentencing calculations, the Tenth Circuit has

10

repeatedly held that “a miscalculation or erroneous sentence estimation by defense counsel is not
a constitutionally deficient performance arising to the level of ineffective assistance of counsel.”
United States v. Parker, 720 F.3d 781, 787 n. 9 (10th Cir. 2013) (quoting United States v. Gordon,
4 F.3d 1567, 1570 (10th Cir. 1993)). In United States v. Rhodes, the Tenth Circuit held that a
failure to investigate did not fall short of Strickland’s standard. 913 F.2d 839, 844 (10th Cir. 1990).
“The reasonableness of an attorney's decision not to conduct an investigation is directly related to
the information the defendant has supplied.” Id. “A claim of ineffective assistance of counsel
cannot be charged when the essential and foundational information required to trigger such an
investigation is withheld from the defendant's attorney by the defendant himself.” Id. Such is the
case here, where Petitioner essentially argues that his counsel was constitutionally deficient for
failing to uncover the juvenile conviction that Petitioner hid from him.
Upon learning that Petitioner’s criminal history was more than the one forgery charge
which was disclosed to trial counsel by Petitioner, trial counsel then investigated by reviewing the
NCIC and contacting Petitioner’s prior defense counsel in Missouri. Given the fact that trial
counsel conducted inquiries into Petitioner’s criminal history and reasonably relied on the NCIC
report, the court finds that trial counsel’s conduct was objectively reasonable and in good faith.
See Gardner v. McKune, 242 F. App'x 594, 597–98 (10th Cir. 2007) (reasonable for attorney to
rely on criminal history report and not perform independent investigation). Petitioner has failed
to “overcome the presumption that trial counsel rendered reasonable professional assistance” and
the court finds that trial counsel’s conduct “does not rise to the level of ineffective assistance of
counsel.” Hooks v. Roberts, No. 09-3090-JWL, 2009 WL 3855682, at *12 (D. Kan. Nov. 17,
2009) (failing to uncover juvenile conviction was not deficient performance under Strickland).

11

Moreover, Petitioner cannot establish prejudice. In the context of a guilty plea, this
requires Petitioner to “show that he would not have pled guilty had his attorney performed in a
constitutionally adequate manner.” Gardner, 242 F. App'x at 597. Petitioner’s application makes
the conclusory statement that Petitioner would have gone to trial if he had known that his criminal
history category was a “C.” Prior to accepting his plea, the trial court conducted a thorough
colloquy. In that colloquy, Petitioner stated that he understood that the trial court could sentence
him to a minimum of 147 months and a maximum of 653 months. At no point did Petitioner state
that he had been guaranteed a sentence of 214 months. Rather, Petitioner stated that he was not
made any promise outside of the plea agreement and understood that the trial court could impose
any penalty allowed under law. Milo II, 2016 WL 7178341 at *2.
Petitioner was fully advised by the trial court that he could be sentenced in a range that
included the sentence he actually received. Petitioner stated that he understood that he could be
sentenced up to 653 months and proceeded to enter his plea. Because Petitioner was aware that
he could receive a sentence greater than he actually did, Petitioner cannot establish that he would
not have pled guilty had he known that his criminal history was a category “C.” United States v.
Gordon, 4 F.3d 1567, 1570-71 (10th Cir. 1993); Gardner, 242 F. App'x at 597–98.
Therefore, Petitioner’s application for relief on this ground is denied.
B. Failing to Make a Record of Petitioner’s Criminal History at the Plea Hearing
Petitioner also contends that his trial counsel was ineffective for failing to make a record
of his criminal history during the plea hearing. The “proper measure of attorney performance
remains simply reasonableness under prevailing professional norms.” Wiggins v. Smith, 539 U.S.
510, 521, 123 S. Ct. 2527, 2535, 156 L. Ed. 2d 471 (2003). The court has already determined that
counsel’s performance in investigating Petitioner’s criminal history was reasonable and did not

12

rise to the level of ineffective assistance. Petitioner now asserts that trial counsel was ineffective
for “failing to make a record regarding Milo’s criminal history, which formed the basis of Milo’s
plea agreement with the state. The court of appeals of Kansas and the Supreme Court of Kansas
REVERSE decisions when a proper record of the presumptions are [not] made.” (Doc. 15 at 6.)
First, this court does not reexamine state-court determinations on questions of state law.
See Gardner, 242 F. App'x at 597-98. Rather, the court is “bound by a state court's interpretation
of its own law.” Id. (citing Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 116 L.Ed.2d
385 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions. In conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”).
Therefore, Petitioner’s argument that Kansas state law would require a reversal for failing to make
a record of presumptions is not appropriate for review.
Petitioner wholly fails to cite to any federal authority which requires a record of a criminal
defendant’s criminal history to be made during a plea hearing. The court finds there is no such
requirement under federal law. Moreover, although Petitioner claims that his criminal history was
a factor in his plea agreement, the plea agreement itself does not confirm this statement. Rather,
the plea agreement was for a mid-box plea, but the actual box was not included in the plea
agreement. Although all parties believed that Petitioner’s criminal history was a category “F,” the
plea agreement does not contain any pertinent terms regarding Petitioner’s criminal history
category.
As federal law does not require a record of a defendant’s criminal history to be made at the
plea hearing and the record does not support a finding that Petitioner’s criminal history category
was a term of the plea agreement, trial counsel was not ineffective for failing to make a record at

13

the plea hearing. Moreover, Petitioner cannot establish prejudice under Strickland for the reasons
discussed above.
Petitioner’s application for relief on this ground is accordingly denied.
C. Failing to Adequately Inform Petitioner of His Rights Under the Plea Agreement
Petitioner asserts that trial counsel was ineffective for failing to “competently explain
Milo’s rights to withdraw his no-contest plea.” (Doc. 15 at 9.) Petitioner does not expand the
basis for this ground. The court reviewed Petitioner’s appellate brief to determine Petitioner’s
argument in state court on this issue.2 Petitioner asserted that trial counsel failed to investigate the
criminal history score, explain how an investigation may uncover additional convictions, explain
that Petitioner could not withdraw the plea if a more serious criminal history was determined and
failed to explain that Petitioner would be permitted to withdraw his plea if there had been a record
of his criminal history at the plea hearing which later contradicted his actual criminal history.
(Case No. 16-115584, Brief of App. at 23.) Petitioner’s brief further argued that Petitioner was
prejudiced by these failures because Petitioner would have rejected a plea that resulted in a 272month sentence. (Id. at 24.)
Petitioner’s arguments do not rise to the level of ineffective counsel. The court has already
determined that trial counsel’s investigation was reasonable and that trial counsel was not required
to create a record of Petitioner’s criminal history at the plea hearing. With respect to trial counsel’s
advice regarding criminal history, trial counsel informed Petitioner that his sentence would be 214
months, as long as his criminal history only included the two felony forgeries. Moreover, trial
counsel sent Petitioner a letter regarding the significance of his criminal history:
Additionally, the matter of your possible sentence will undoubtedly arise during our future
contact, discussions, and planning of your case. Any possible sentence will be computed
2

An argument not presented to the state court would be waived on federal habeas review. See Grant v. Royal, 886
F.3d 874, 891 (10th Cir. 2018).

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largely upon the nature of any crime you might be convicted of, and your prior criminal
history. I cannot over-emphasize the importance of your prior criminal record in
considering the outcome of your case.
You are in a better position than anyone to know your prior criminal history. You should,
therefore, begin immediately considering your prior record so that you can accurately and
fully inform me of it. Although we will do what we can to determine the nature and extent
of your record, it is your responsibility to see that I am accurately informed about it, so that
I can advise you about your case. Without this information I cannot fully advise you as to
any possible sentence.
(Pet’r’s K.S.A. 22-3210 Mot., Exh. B) (emphasis in original).
The trial court also fully advised Petitioner of the rights that he was giving up by pleading
guilty. Those rights included the right to go to trial, the right to remain silent, right to confront
witnesses, right to testify and the right to appeal. Petitioner stated that he understood those rights.
At no time did Petitioner state that he understood that his plea agreement was conditioned on a
specific sentence. Rather, Petitioner understood that he could be sentenced up to 653 months in
prison. Milo II, 2016 WL 7178341 at *1. The trial court also ensured that Petitioner was satisfied
with trial counsel’s services and that trial counsel had answered all of his questions. The trial court
determined that Petitioner voluntarily entered the no contest plea. (Plea Hrg. Tr. At 6-7.) The
record clearly demonstrates that the trial judge “undertook a constitutionally sufficient inquiry to
ensure the voluntariness of Petitioner's no contest plea.” Miles v. Dorsey, 61 F.3d 1459, 1472
(10th Cir. 1995). Moreover, trial counsel testified that he went through Petitioner’s plea agreement
with Petitioner line by line. Milo II, 2016 WL 7178341 at *3.
Based on the facts presented, the court finds that Petitioner was fully advised of the
consequences of entering a no contest plea and the implication of his criminal history on his
sentence. Therefore, Petitioner has not established that trial counsel’s performance fell below an
objective standard of reasonableness. Further, Petitioner’s allegation of prejudice is not sufficient.
Petitioner claims that he would not have pled guilty if he had known that he could be sentenced to
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272 months. This is an insufficient allegation of prejudice in light of Petitioner’s statement to the
trial court that he understood he could be sentenced up to 653 months. See Gordon, 4 F.3d at
1570-71; Gardner, 242 F. App'x at 597–98.
Petitioner’s application for relief on this ground is denied.
D. Ineffective Appellate Counsel for Failing to Raise an Issue
Finally, Petitioner contends that appellate counsel was ineffective for “failing to draw the
court of appeals of Kansas’ attention to the fact that the trial court applied an incorrect legal
standard, which is an abuse of discretion. The appellate court would likely have reversed if that
was done.” (Doc. 15 at 10.) Petitioner fails to identify the incorrect legal standard. The court
will presume that Petitioner is referring to his argument raised in state court that the trial court
incorrectly “shifted the burden to Milo to understand and report his criminal history.” Milo II,
2016 WL 7178341 at *7.
On review, the Kansas Court of Appeals rejected this claim.
The problem with Milo's argument is that this court considered this issue on direct appeal
even though the issue was not specifically raised by Milo's appellate counsel. In upholding
the denial of Milo's presentence motion to withdraw his plea, this court stated:
“The district court correctly found that Milo was represented by competent counsel
who made diligent inquiries into Milo's criminal history. There is also a lack of any
evidence of coercion, mistreatment, or unfair advantage. The court found Milo was
not misled, Milo's testimony that he told Magariel about the juvenile robbery
adjudication was not credible, and perhaps Milo hoped it would not be discovered.
The court concluded that Milo did not disclose full information about his criminal
past, which prevented Magariel from providing proper advice. Milo certainly did
not have a duty to disclose his criminal history. See State v. Garcia, 295 Kan. 53,
67, 283 P.3d 165 (2012) (Rosen, J., concurring) (‘It has never been the duty or
obligation of a criminal defendant to provide his or her criminal history.’).
However, we can take Milo's failure to disclose a known conviction into
consideration when contemplating a mutual mistake under the Edgar factors.
“Most importantly, the district court considered the circumstances giving rise to the
mutual mistake when the court essentially found that Milo was the only person who
realistically could have known about his juvenile record. This consideration
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affected each of the Edgar factors because it indicated that counsel was competent,
the State did not mislead or take advantage of Milo, and the plea was fairly and
understandingly made.” Milo, 2013 WL 5507288, at *4–5.
The district court did not improperly shift the burden to Milo to report his criminal history
score.
Milo II, 2016 WL 7178341 at *7.
Because the state court considered and rejected the same argument on appeal, Petitioner
cannot establish prejudice on the basis that appellate counsel failed to raise the argument.
Therefore, the court finds that the state court’s conclusion on this issue was neither contrary to,
nor an unreasonable application of, Strickland.
Petitioner’s application for relief on this ground is denied.
II.

Conclusion
Petitioner’s amended application for habeas corpus (Doc. 15) is DENIED.

IT IS SO ORDERED this 24th day of August, 2018.
___s/ John W. Broomes____________
JOHN W. BROOMES
UNITED STATES DISTRICT JUDGE

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