O.V. Mills v. John Motley, Warden

Filing 25

ORDER : 1. The Petitioner's Objections to the Magistrate's Report and Recommendation [R. 24 ] are OVERRULED ; 2. adopting 23 Report and Recommendations. 3. The Petitioner's Petition [R. 1 ] is DISMISSED WITH PREJUDICE; 4. The Pe titioner's request for a Certificate of Appealability is DENIED; 5. JUDGMENT in favor of the Defendant will be entered contemporaneously herewith. Signed by Gregory F. VanTatenhove on 3/30/12.(SYD)cc: COR, Removed text-mailed to pro se filer--on 3/30/2012 (SYD).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON

O.V. MILLS,
Petitioner,
V.
JOHN MOTLEY, Warden,
Respondent.

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Civil No. 8-315-GFVT

ORDER

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This matter is before the Court upon the pro se Petition for Writ of Habeas Corpus [R. 1]
pursuant to 28 U.S.C. § 2254 filed by O.V. Mills. Consistent with local practice, this matter was
referred to Magistrate Judge Robert E. Wier for initial screening and preparation of a report and
recommendation. Judge Wier filed his Recommended Disposition [R. 23] on November 15,
2010. Therein, he recommends that Mills’ petition be denied because the Kentucky courts did
not unreasonably apply federal law when adjudicating his ineffective assistance of counsel
claims. [Id.]
Mills filed timely objections to the Recommended Disposition. [R. 24]. Therein, Mills
specifically objected to Judge Wier’s findings on three grounds. First, Mills argues that his trial
counsel’s decision to not seek a lesser included jury instruction was deficient under Strickland v.
Washington. 466 U.S. 668 (1984). Second, Mills argues that trial counsel failed to satisfy a duty
to inform and consult with his client concerning the “important decision” of whether to seek a
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lesser included offense instruction, and that this failure to instruct also amounts to ineffective
assistance of counsel. Mills’ final objection is that Judge Wier reached an erroneous conclusion
when he determined that this case does not warrant the issuance of a certificate of appealability.
Those objections trigger this Court’s obligation to conduct a de novo review. See 28
U.S.C. § 636(b)(1)(c). The Court has satisfied that duty, reviewing the entire record, including
the pleadings, the parties’ arguments, relevant case law and statutory authority, as well as
applicable procedural rules. For the following reasons, Petitioner’s objections will be overruled.
I.
Judge Wier’s Recommended Disposition accurately sets out the factual and procedural
background of the case and the applicable standard of review for granting habeas relief pursuant
to § 2254(d). Except for what the Court supplements in its discussion below, the Court has
nothing to add and therefore incorporates his discussion of the record and the standard of review
into this order.
II.
Mills was convicted in 1998 of wanton murder and first-degree robbery in Knox County,
Kentucky. At trial, Mills pursued an innocence defense and blamed the murder and robbery
entirely on his co-defendant. Mills’ counsel did not seek a lesser-included-offense jury
instruction for second-degree manslaughter that may have been appropriate given the evidence.
It is this decision to not seek the instruction that Mills challenges as ineffective assistance of
counsel.
Under Strickland v. Washington, one seeking to prove ineffective assistance of counsel
must prove two occurrences: deficient performance and prejudice. 466 U.S. at 687-88. Mills’
specific objection goes to the deficient performance prong. The Knox Circuit Court conducted
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an evidentiary hearing on this exact question, considered Mills’ argument that “the failure to
request the lesser included instruction was based on trial counsel’s misunderstanding of the law,
and was not based on trial strategy,” and rejected said argument. [R. 8-4 at 19-20]. That court
found that it was indeed a strategic decision based on trial counsel’s testimony that the entire
theory was that Mills did not actually kill the victim. Thus, the request of a jury instruction that
allowed the jury to find that Mills had killed the victim, albeit to a lower degree of culpability,
would undermine the theory. It is appropriate to state, then, that Mills was effectively pursuing
an “all or nothing” strategy. This has been upheld as a valid strategy that, when implemented,
does not violate Strickland. Tinsley v. Million, 399 F.3d 796, 808 (“[I]t was a permissible
exercise of trial strategy not to request these instructions given that [counsel’s] primary line of
defense was that [the defendant] was not the shooter”).
Mills argues that counsel did not forgo the instruction as part of a broader strategy but
instead, that he did not ask for it because he mistakenly thought it could not be gotten. Mills
argument is fairly characterized as an “unreasonable application of clearly established federal
law” challenge under 28 U.S.C. § 2254(d). It attacks the state courts’ determination that counsel
did in fact make a permissible strategic decision under Strickland. The Supreme Court has stated
that, “[f]or purposes of § 2254(d)(1), an unreasonable application of federal law is different from
an incorrect application of federal law. A state court must be granted deference and latitude that
are not in operation when the case involves review under the Strickland standard itself.”
Harrington v. Richter, 131 S.Ct. 770, 785 (2011) (internal citation omitted). Thus, “[a] state
court’s determination that a claim lacks merit precludes federal habeas relief so long as
‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Id. at 786.

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When reviewing the state courts’ decision, it is plain that it rises, at the very least, to the
low bar required by the standard. Mills latches onto counsel’s statement in the hearing that if he
thought the instruction was warranted, then he “would have requested it.” [See R. 24 at 3].
While one interpretation of this statement is that counsel was unaware that the instruction may
have been available legally, when it is read in the broader context of the entire hearing, the
statement is more easily interpreted as meaning that counsel “would have requested it” if he
thought it fit with his strategy and overall theory of the case. Counsel indicated that he was
definitely pursuing an “all or nothing” defense and that if the jury believed his theory, “they
would turn him loose.” [R. 22 at 10:32:00]. He stated that the broader theory was that Mills was
not the killer and that he actually felt threatened by his co-defendant during the murder. [Id. at
10:25:28].
Thus, counsel was attempting to paint a picture that Mills was not involved in the actual
killing in any way, but was rather a victim of sorts himself. Asking for a jury instruction that
allowed the jury to find that Mills was actually a less culpable killer would undermine this
theory; counsel’s statement that he “would have requested it” can then be more appropriately
interpreted as a statement that “he would have requested it” had it made sense to given the
theory. This reasoning was employed by the circuit court when it found that counsel deemed the
instruction inappropriate “based on Mills’ contention that he did not murder the victim [so] there
was no evidence or reason to request the lesser offense in jury instructions.” [R. 8-4 at 20]. This
exact argument was also considered by the Kentucky Court of Appeals before it concluded that,
“Mills has not provided any evidence to persuade us that failure to request the lesser included
instruction was anything but trial strategy.” Mills v. Commonwealth, 2007 WL 2069819, *2
(Ky.App. 2007). Because the Court cannot conclude that the state courts’ reasoning and
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application was contradictory to that of all “fairminded jurists,” see Harrington, 131 S.Ct. at 786,
the Court must overrule the objection.
Mills’ second and third objections must also be overruled. Judge Wier aptly
characterized the argument constituting the second objection as “a passing and undeveloped
reference to . . . Strickland’s consultation duty.” [R. 23 at 13]. Strickland imposes a “duty to
consult with the defendant on important decisions.” 466 U.S. at 688. These important decisions
include the decision “whether to plead guilty, waive a jury, testify in his or her own behalf, or
take an appeal.” Florida v. Nixon, 543 U.S. 175, 187 (2004). Further, the obligation to consult
“does not require counsel to obtain the defendant’s consent to ‘every tactical decision.’” Id.
(citing Taylor v. Illinois, 484 U.S. 400, 417-18 (1988)).
Mills argues that the decision to seek or not seek a certain jury instruction is one of those
“important decisions” and trial counsel’s admitted failure [See R. 22 at 10:30:39] to consult with
Mills constitutes deficient performance. The Court disagrees. Mills has cited no compelling
authority to support his position, instead relying on dicta in a Supreme Court opinion addressing
the ethical duties of lawyers to consult with their clients. This argument is unavailing. The
Court will not proffer an opinion as to whether trial counsel complied with his ethical duties, but
it will note that ethical duties are not the same as Constitutional requirements. Thus, given the
lack of authority to support the argument that consultation on jury instructions is required, the
Court will overrule the objection on the grounds that it is not a “decision[] regarding the exercise
or waiver of [a] basic trial right.” Nixon, 543 U.S. at 187.
Mills’ final objection is to the Magistrate’s conclusion that the district court should not
issue a certificate of appealability. Because the Court reviewed the constitutional claims and
rejected them on the merits, a certificate should be issued only if Mills has “demonstrate[d] that
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reasonable jurists would find the district court’s assessment of the constitutional claims debatable
or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Mills does nothing to argue how this
standard has been met other than to quote the standard and state that it has been met. [See R. 24
at 5]. The Court is not convinced. As the Court reviewed above, the state courts of Kentucky
applied the Strickland test properly. The Court agrees with Judge Wier who concluded that “the
grounds for relief offered by Mills do not present a close constitutional issue meriting a
Certificate.” [R. 23 at 15]. Therefore, a reasonable jurist would not find the Court’s
determination debatable and it is not appropriate to issue a certificate of appealability.
III.
Accordingly, and the Court being sufficiently advised, it is hereby ORDERED as
follows:
1.

The Petitioner’s Objections to the Magistrate’s Report and Recommendation

[R. 24] are OVERRULED;
2.

The Magistrate Judge’s Recommended Disposition [R. 23] is ADOPTED as and for

the opinion of this Court;
3.

The Petitioner’s Petition [R. 1] is DISMISSED WITH PREJUDICE;

4.

The Petitioner’s request for a Certificate of Appealability is DENIED;

5.

JUDGMENT in favor of the Defendant will be entered contemporaneously

herewith.
This the 30th of March, 2012.

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