Miller v. Houston

Filing 19

MEMORANDUM AND ORDER that this matter is dismissed with prejudice, and a separate judgment will be entered in accordance with this Memorandum and Order. The court will not issue a certificate of appealability in this matter. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROBERT E. MILLER,

)
)
Petitioner,
)
)
v.
)
)
ROBERT HOUSTON, Director,
)
Nebraska Department of Correctional )
Services,
)
)
Respondent.
)

CASE NO. 4:13CV3128

MEMORANDUM
AND ORDER

This matter is before the court on Petitioner Robert Miller’s (“Petitioner” or “Miller”)
Petition for Writ of Habeas Corpus. (Filing No. 1.) For the reasons set forth below, the
court finds that a grant of a writ of habeas corpus is not warranted on any of the issues set
forth in Miller’s habeas corpus petition.
Liberally construed, Miller argues that he is entitled to a writ of habeas corpus based
on the following claims:
Claim One: Petitioner was denied the effective assistance of counsel in violation of the
Sixth and Fourteenth Amendments because his trial counsel (1) failed to
advise the court of conflicts of interest, (2) coerced and “bullied” Petitioner
to plead guilty to the charges against him, and (3) refused to investigate
relevant facts and evidence.
Claim Two: Petitioner was denied the effective assistance of counsel in violation of the
Sixth and Fourteenth Amendments because his appellate counsel failed to
assign trial counsel’s ineffectiveness as error on appeal.
(Id.)
I. BACKGROUND
A.

Conviction
The State of Nebraska (“State”) charged Miller by information in the District Court

of Thayer County, Nebraska (“state district court”), with terroristic threats, false

imprisonment, possession of a deadly weapon by a prohibited person, use of a deadly
weapon to commit a felony, and unlawful discharge of a weapon. (Filing No. 4-1 at
CM/ECF p. 15.) As part of a plea agreement, the State amended the original information
to charge Miller only with the crimes of possession of a deadly weapon by a prohibited
person and unlawful discharge of a weapon. (Id. at CM/ECF pp. 19-21.) On January 6,
2011, Miller pled guilty to the amended information. (Id.) On April 7, 2011, the state
district court sentenced Miller to a period of not less than 10 nor more than 15 years’
imprisonment. (Id. at CM/ECF p. 25.)
B.

Direct Appeal
Miller filed a direct appeal of his conviction and sentence. Miller was represented

by trial counsel on appeal. (Id. at CM/ECF p. 1.) On direct appeal, Miller argued that he
received an excessive sentence, and that the state failed to provide a factual basis for the
crime of unlawful discharge of a firearm. (Id. at CM/ECF pp. 32-49.)
On November 30, 2011, the Nebraska Court of Appeals affirmed Miller’s conviction
and sentence by sustaining the State’s motion for summary affirmance. (Filing No. 4-4 at
CM/ECF p. 8.) Miller did not file a petition for further review in the Nebraska Supreme
Court. (See id.)
C.

Post-Conviction Motion
Miller filed a motion for post-conviction relief in the state district court on January 19,

2012. (Filing No. 4-2 at CM/ECF pp. 94-101.) Miller argued that his attorney had been
ineffective during the trial and appellate court proceedings. He argued that his attorney
failed to interview witnesses on Miller’s behalf, advise Miller of possible defenses, and

2

advise Miller of his right to be served a copy of the amended information. Miller also
argued that his attorney had acted as a prosecutor in one of Miller’s prior felony
convictions, which created a conflict of interest. Finally, Miller argued that his attorney had
not filed a timely direct appeal. (Id.) On February 21, 2012, the state district court denied
Miller’s post-conviction motion in all respects except for his claim that counsel had failed
to file Miller’s direct appeal on time. (Filing No. 4-3 at CM/ECF pp. 22-27.) Miller did not
appeal the state district court’s February 21, 2012, order. The state district court denied
Miller’s post-conviction motion in its entirety on May 10, 2012. (Id. at CM/ECF p. 37.)
D.

Habeas Corpus Petition
Miller filed his habeas corpus petition in this court on June 28, 2013. (Filing No. 1.)

In response to the petition, Respondent filed an answer, a brief in support of the answer,
and the relevant state court records. (Filing Nos. 4, 5, 7, and 8.) Thereafter, Miller filed
a brief, an affidavit, and a document entitled “Points and Authorities in Support of
Petitioner’s Response” in support of his petition. (Filing Nos. 11, 14, and 15.) The court
deems this matter fully submitted.
II. STANDARD OF REVIEW
A.

Standard Under 28 U.S.C. § 2254(d)
When a state court has adjudicated a habeas petitioner’s claim on the merits, there

is a very limited and extremely deferential standard of review both as to the law and the
facts. See 28 U.S.C. § 2254(d). Section 2254(d)(1) states that a federal court may grant
a writ of habeas corpus if the state court’s decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the

3

Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). As explained by the
Supreme Court in Williams v. Taylor, 529 U.S. 362 (2000), a state court acts contrary to
clearly established federal law if it applies a legal rule that contradicts the Supreme Court’s
prior holdings or if it reaches a different result from one of that Court’s cases despite
confronting indistinguishable facts. 529 U.S. at 405-406. Further, “it is not enough for [the
court] to conclude that, in [its] independent judgment, [it] would have applied federal law
differently from the state court; the state court’s application must have been objectively
unreasonable.” Rousan v. Roper, 436 F.3d 951, 956 (8th Cir. 2006).
With regard to the deference owed to factual findings of a state court’s decision,
Section 2254(d)(2) states that a federal court may grant a writ of habeas corpus if a state
court proceeding “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.” 28 U.S.C. §
2254(d)(2). Additionally, a federal court must presume that a factual determination made
by the state court is correct, unless the petitioner “rebut[s] the presumption of correctness
by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
As the Supreme Court noted, “[i]f this standard is difficult to meet, that is because
it was meant to be.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011). The deference due
state court decisions “preserves authority to issue the writ in cases where there is no
possibility fairminded jurists could disagree that the state court’s decision conflicts with
[Supreme Court] precedents.” Id. In short, “[i]t bears repeating that even a strong case
for relief does not mean the state court’s contrary conclusion was unreasonable.” Id.
However, this high degree of deference only applies where a claim has been adjudicated
on the merits by the state court. See Brown v. Luebbers, 371 F.3d 458, 460 (8th Cir.

4

2004), (“[A]s the language of the statute makes clear, there is a condition precedent that
must be satisfied before we can apply the deferential AEDPA standard to [the petitioner’s]
claim. The claim must have been ‘adjudicated on the merits’ in state court.”).
The Eighth Circuit clarified what it means for a claim to be adjudicated on the merits,
finding that:
AEDPA’s requirement that a petitioner’s claim be adjudicated on the merits
by a state court is not an entitlement to a well-articulated or even a correct
decision by a state court. . . . Accordingly, the postconviction trial court’s
discussion of counsel’s performance–combined with its express
determination that the ineffective-assistance claim as a whole lacked
merit–plainly suffices as an adjudication on the merits under AEDPA.
Worthington v. Roper, 631 F.3d 487, 496-97 (8th Cir. 2011), (internal quotation marks and
citations omitted). The court also determined that a federal court reviewing a habeas claim
under AEDPA must “look through” the state court opinions and “apply AEDPA review to
the ‘last reasoned decision’ of the state courts.” Id. at 497. A district court should do “so
regardless of whether the affirmance was reasoned as to some issues or was a summary
denial of all claims.” Id. The Supreme Court agrees, stating:
There is no text in the statute requiring a statement of reasons. The statute
refers only to a “decision,” which resulted from an “adjudication.” As every
Court of Appeals to consider the issue has recognized, determining whether
a state court’s decision resulted from an unreasonable legal or factual
conclusion does not require that there be an opinion from the state court
explaining the state court’s reasoning.
Harrington, 131 S. Ct. at 784.
B.

Exhaustion Requirement
As set forth in 28 U.S.C. § 2254(b)(1):
(b)(1) An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
unless it appears that–

5

(A)

the applicant has exhausted the remedies available in
the courts of the State; or

(B)

(i)
(ii)

there is an absence of available State corrective
process; or
circumstances exist that render such process
ineffective to protect the rights of the applicant.

28 U.S.C. § 2254(b)(1).
The United States Supreme Court has explained the habeas exhaustion
requirement as follows:
Because the exhaustion doctrine is designed to give the state courts a full
and fair opportunity to resolve federal constitutional claims before those
claims are presented to the federal courts . . . state prisoners must give the
state courts one full opportunity to resolve any constitutional issues by
invoking one complete round of the State’s established appellate review
process.
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). A state prisoner must therefore “fairly
present” the substance of each federal constitutional claim to the state courts before
seeking federal habeas relief. Id. at 844. In Nebraska, “one complete round” ordinarily
means that each § 2254 claim must have been presented in an appeal to the Nebraska
Court of Appeals, and then in a petition for further review to the Nebraska Supreme Court
if the Court of Appeals rules against the petitioner. See Akins v. Kenney, 410 F.3d 451,
454-55 (8th Cir. 2005).
Moreover, where “no state court remedy is available for the unexhausted claim—that
is, if resort to the state courts would be futile—then the exhaustion requirement in §
2254(b) is satisfied, but the failure to exhaust ‘provides an independent and adequate
state-law ground for the conviction and sentence, and thus prevents federal habeas corpus
review of the defaulted claim, unless the petitioner can demonstrate cause and prejudice
6

for the default.’” Armstrong v. Iowa, 418 F.3d 924, 926 (8th Cir. 2005), (quoting Gray v.
Netherland, 518 U.S. 152, 162 (1996)). Stated another way, if a claim has not been
presented to the Nebraska appellate courts and is now barred from presentation, the claim
is procedurally defaulted, not unexhausted. Akins, 410 F.3d at 456 n. 1.
Under Nebraska law, “[a]n appellate court will not entertain a successive motion for
postconviction relief unless the motion affirmatively shows on its face that the basis relied
upon for relief was not available at the time the movant filed the prior motion.” State v.
Ortiz, 670 N.W.2d 788, 792 (Neb. 2003). Additionally, “[a] motion for postconviction relief
cannot be used to secure review of issues which were or could have been litigated on
direct appeal.” Hall v. State, 646 N.W.2d 572, 579 (Neb. 2002). In such circumstances,
where a Nebraska state court rejects a claim on state procedural grounds, and issues a
“‘plain statement’ that it is rejecting petitioner’s federal claim on state procedural grounds,”
a federal habeas court is precluded from “reaching the merits of the claim.” Shaddy v.
Clarke, 890 F.2d 1016, 1018 (8th Cir. 1989); see also Greer v. Minnesota, 493 F.3d 952,
957 (8th Cir. 2007), (reiterating that “when a state court declined to address a prisoner’s
federal claims because the prisoner had failed to meet a state procedural requirement,”
federal habeas is barred because “[i]n such instances, the state prisoner forfeits his right
to present his federal claim through a federal habeas corpus petition”) (quotations omitted).
However, the state court procedural decision must “rest[] on independent and adequate
state procedural grounds.” Barnett v. Roper, 541 F.3d 804, 808 (8th Cir. 2008) (quotation
omitted). “A state procedural rule is adequate only if it is a firmly established and regularly
followed state practice.” Id. (quotation omitted).

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III. DISCUSSION OF PROCEDURAL DEFAULT
Miller argues in his habeas corpus petition that he was denied the effective
assistance of counsel because his trial counsel failed to advise the court of conflicts of
interest, coerced him into pleading guilty, refused to investigate possible defenses, and
refused to raise various claims on direct appeal. (See generally Filing No. 1.) Miller’s first
opportunity to raise these arguments was in his post-conviction motion because the same
attorney represented Miller at trial and on direct appeal. See State v. Dunster, 769 N.W.2d
401, 410-411 (Neb. 2009) (reiterating that, in Nebraska, claims of ineffective assistance
of counsel raised on direct appeal by the same counsel who represented defendant at trial
are premature and will not be addressed on direct appeal). Respondent argues, and the
court agrees, that all of Miller’s claims are procedurally defaulted.
As discussed above, a prisoner must “fairly present” the substance of each of his
federal constitutional claims to the state courts before seeking federal habeas relief.
O’Sullivan, 526 U.S. at 844. In Nebraska, “one complete round” ordinarily means that each
§ 2254 claim must have been presented in an appeal to the Nebraska Court of Appeals,
and then in a petition for further review to the Nebraska Supreme Court if the Court of
Appeals rules against the petitioner. Akins, 410 F.3d 451 at 454-55.
Here, Miller raised his claims to the state district court in his post-conviction motion.
(Filing No. 4-2 at CM/ECF pp. 94-101.) However, he did not “fairly present” these claims
to Nebraska’s appellate courts. First, Miller did not properly raise his claims in the
Nebraska Court of Appeals because Miller did not appeal the state district court’s order
from February 21, 2012, which denied the claims Miller now raises in his habeas corpus

8

petition. See State v. Timmens, 282 Neb. 787, 793-94 (2011) (“Within a postconviction
proceeding, an order granting an evidentiary hearing on some issues and denying a
hearing on others is a final [appelable]order as to the claims denied without a hearing.”).
Second, Miller did not raise any of his claims in the Nebraska Supreme Court. (See
appellate court docket sheet at Filing No. 4-4 at CM/ECF 2.) For these reasons, the court
finds that Miller did not raise any of his claims in one complete round in the Nebraska state
courts as required by 28 U.S.C. § 2254(b)(1). Moreover, he cannot now raise the
arguments in a successive motion for post-conviction relief. See Ortiz, 670 N.W.2d at 792.
As such, Miller’s claims are procedurally defaulted.
Miller argues that he should be excused from the procedural default of his claims
under the United States Supreme Court’s decision in Martinez v. Ryan, 132 S. Ct. 1309
(2012). The Court held in Martinez that:
Where, under state law, claims of ineffective assistance of trial counsel must
be raised in an initial-review collateral proceeding, a procedural default will
not bar a federal habeas court from hearing a substantial claim of ineffective
assistance at trial if, in the initial-review collateral proceeding, there was no
counsel or counsel in that proceeding was ineffective.
Martinez, 132 S. Ct. at 1320. The Supreme Court elaborated on and expanded this cause
exception in Trevino v. Thaler, 133 S. Ct. 1911 (2013). The court held that Martinez is
applicable not only in circumstances where a state requires a defendant to raise a claim
of ineffective assistance of trial counsel in a state collateral proceeding, but also when a
state maintains a procedural regime that amounts to such a requirement (i.e., when it is
“virtually impossible” for an ineffective assistance claim to be raised on direct review).
Trevino, 133 S. Ct. at 1914-15.

9

Assuming, without deciding, that Martinez applies to federal habeas corpus cases
arising from Nebraska convictions, the holding in Martinez does nothing to excuse the
procedural default of Miller’s claims. In Martinez, the Court reasoned that a federal habeas
court should “hear a claim of ineffective assistance of trial counsel when an attorney’s
errors (or the absence of an attorney) caused a procedural default in an initial-review
collateral proceeding . . . .” Martinez, 132 S. Ct. at 1318 (emphasis added). Here, the
default of Miller’s claims did not occur because Miller failed to raise them in the initialreview collateral proceeding (i.e., the post-conviction proceedings before the state district
court). Rather, as set forth above, the default occurred because, after raising them in his
post-conviction motion, he failed to properly raise them on appeal. In Martinez, the Court
was concerned that “when an attorney errs in initial-review collateral proceedings, it is likely
that no state court at any level will hear the prisoner’s claim.” Id. at 1316. That concern
is not present here where the issues were actually raised in the initial-review collateral
proceeding, and then actually considered and rejected by the state district court.
For the foregoing reasons, the court finds that Miller’s claims are procedurally
defaulted and he has not shown cause and prejudice to excuse the default of his claims.
In the alternative, as set forth below, the court finds that Miller’s claims have no substantive
merit.
IV. DISCUSSION OF MERITS
A.

Strickland Standard
The court will discuss the merits of Miller’s claims under the two-pronged standard

of Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires that the petitioner

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demonstrate both that his counsel’s performance was deficient, and that such deficient
performance prejudiced the petitioner’s defense. Id. at 687. The first prong of the
Strickland test requires that the petitioner demonstrate that his attorney failed to provide
reasonably effective assistance. Id. at 687-88. In conducting such a review, the courts
“indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Id. at 689. The second prong requires the petitioner
to demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694. A court need not address
the reasonableness of the attorney’s skills and diligence if the movant cannot prove
prejudice under the second prong of this test. United States v. Apfel, 97 F.3d 1074, 1076
(8th Cir. 1996). Further, as set forth in Strickland, counsel’s “strategic choices made after
thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable” in a later habeas corpus action. Strickland, 466 U.S. at 690.
Additionally, the Supreme Court has emphasized that the deference due the state
courts applies with vigor to decisions involving ineffective assistance of counsel claims.
Knowles v. Mirzayance, 556 U.S. 111 (2009). In Knowles, the Justices stressed that under
the Strickland standard, the state courts have a great deal of “latitude” and “leeway,” which
presents a “substantially higher threshold” for a federal habeas petitioner to overcome. As
stated in Knowles:
The question is not whether a federal court believes the state court’s
determination under the Strickland standard as incorrect but whether that
determination was unreasonable–a substantially higher threshold. . . . And,
because the Strickland standard is a general standard, a state court has
even more latitude to reasonably determine that a defendant has not
satisfied that standard.
Id. at 123 (internal quotation marks and citations omitted).
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B.

Claim One, Part (1)
Miller argues he is entitled to habeas corpus relief because his trial counsel, Joseph

Casson, acted as a prosecutor in one of his prior felony convictions. (Filing No. 1 at
CM/ECF p. 16.) Miller argues that his trial counsel appeared against him in 1990 in the
District Court of Jefferson County, Nebraska, on charges of terroristic threats, use of a
firearm to commit a felony, and burglary. (See Filing No. 15.)
The state district court considered and rejected Miller’s claim in its order denying
post-conviction relief. It wrote:
In regard to the issue that Mr. Casson prosecuted the Defendant on cases
which are reflected on the pre-sentence report, the Defendant does not show
how this in any way prejudiced him. Even assuming that Mr. Casson
prosecuted him on the underlying felony on Count III, there is no showing
how this alleged conflict of interest prejudiced the Defendant in any manner.
This claim is without merit.
(Filing No. 4-3 at CM/ECF p. 23.)
The state district court’s findings of fact and conclusions of law on this issue are
entitled to deference under the statutory standard of review that applies to factual and legal
conclusions reached by the state courts. The state district court reviewed the evidence
and determined that based on Strickland, and other applicable law, that Miller was not
entitled to relief on this claim. Miller has not established that the state court’s 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 that
the state court reached “a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding,” 28 U.S.C. §
2254(d)(2).
12

Miller correctly argues that the United States Supreme Court has held that a criminal
defendant has a constitutional right to assistance of conflict-free counsel. See Strickland,
466 U.S. at 688. However, to establish a Sixth Amendment violation based on a conflict
of interest, Petitioner must show: (1) his trial counsel actively represented conflicting
interests; and (2) that an actual conflict of interest adversely affected his performance.
Cuyler v. Sulllivan, 446 U.S. 335, 348 (1980). The Supreme Court has stated that “an
actual conflict of interest mean[s] precisely a conflict that affected counsel’s
performance—as opposed to a mere theoretical division of loyalties.” Mickens v. Taylor,
535 U.S. 162, 171 (2002).
Here, Petitioner does not explain why the asserted conflict adversely affected his
attorney’s work. Indeed, the record reflects that Casson did not prosecute Petitioner on
the felony underlying Miller’s conviction for possession of a deadly weapon by a prohibited
person. (See offer of factual basis at Miller’s plea proceedings at Filing No. 4-5 at CM/ECF
p. 19 (“Mr. Miller is a convicted felon[] having been convicted in Case No. CR96-4584 in
the District Court of Jefferson County, Nebraska . . .”).) In addition, Miller does not
establish how the outcome of the trial court proceedings would have been different if
counsel had not be adversely impacted by the alleged conflict. Because Miller has
demonstrated neither an actual conflict on the part of his counsel nor any adverse effects
of a potential conflict of interest, this court concludes that Petitioner has not shown that the
state court’s adjudication of this claim was contrary to or an unreasonable application of
federal law as determined by the Supreme Court. Petitioner is not entitled to habeas
corpus relief on this ground.

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C.

Claim One, Parts (2) and (3)
Miller argues he is entitled to habeas corpus relief because he felt “bullied” into

pleading guilty as a result of his trial counsel’s refusal to investigate and interview
witnesses. (Filing No. 1 at CM/ECF pp. 17-20.) Miller raised substantially the same
argument to the state district court in his motion for post-conviction relief. He argued that
his trial counsel failed to investigate possible defenses to the charges, and also that the
facts were insufficient to support his guilty plea. (Filing No. 4-2 at CM/ECF pp. 94-101.)
The state district court considered and rejected these arguments in its order denying postconviction relief. It wrote:
In regard to his claim that there were insufficient facts to support his
conviction on Count V, Defendant states in paragraph 11 of his motion, “the
facts show that I was inside the house and knew where the shots were being
fired and that it was not at any person, but into a wall or ceiling.” Thus he
admits he fired a weapon into a building.
§28-1212.02. Unlawful discharge of firearm; penalty. Any
person who unlawfully and intentionally discharges a firearm
at an inhabited dwelling house, occupied building, occupied
motor vehicle, occupied aircraft, inhabited motor home as
defined in section 71-4603, or inhabited camper unit as
defined in section 60-1801 shall be guilty of a Class ID felony.
The Defendant misperceives the meaning of the statute. To be guilty
of this offense, one needs to discharge a firearm into a building where there
are people; one need not fire AT a person in a building. There was a
sufficient factual basis to support this conviction, especially given the
admission made by the Defendant in his motion. This claim is without merit.

....
[Miller also argues] that he was set up by the victim to fire the shots
into the dwelling, because she used “reversed psychology” on her exhusband to get him sent to prison by contriving a similar factual situation. He
argues that his attorney failed to talk to witnesses who heard the victim brag
about what she did to her husband. The Defendant also argues that what he
14

did was justifiable or in self-defense. This seems, at least at the surface,
somewhat contradictory to his admission that he fired into the house and
knew where he was aiming (at the walls or ceiling). He says that had counsel
properly investigated the facts, he would have had a reasonable defense and
would have gone to trial.
In the written plea agreement, the Defendant stated that he received
a copy of all police reports and a deposition of the victim’s testimony. He also
states that he is satisfied with the advice of his attorney; further, that the
attorney advised him of all elements of the charges. In colloquy with the
Court, he confirms these statements as follows:
COURT: Have you told your attorneys everything that you
know about this case?
DEFENDANT: I have, Your Honor.
COURT: Are you satisfied with the job that they have done for
you?
DEFENDANT: Yes, Your Honor.
COURT: Insofar as this case is concerned, do you believe your
attorneys are competent and know what they are doing?
DEFENDANT: I do.
COURT: Everything that you and I just talked about, sir, have
you talked over with your attorneys?
DEFENDANT: I have, Your Honor.
COURT: And are you ready to proceed?
DEFENDANT: Yes, Your Honor.
At no time did he advise the Court that he believed his counsel had
failed to properly investigate either the victim or other witnesses. He was also
advised by the Court that by taking a plea agreement, he was waiving any
potential defenses (justification and self-defense are, to state the obvious,
defenses).
The record is devoid of any evidence that would suggest that the
Defendant’s plea was made without an investigation of the facts by his
attorney, even more importantly, the record does not show that either of
15

these witnesses would have provided testimony relevant to his charges and
favorable to him. See State v. Dunkin, 283 Neb. 30 (2012) at 44. As in
Dunkin, there is no showing that counsel’s preparation for representation of
the defendant was unreasonable or inadequate, and there is no showing of
a reasonable probabilty that but for the alleged errors of counsel, he would
have insisted on going to trial. All of the Defendant’s claims in regard to
preparation prior to plea are without merit.
(Filing No. 4-3 at CM/ECF pp. 25-26.)
The state district court’s findings of fact and conclusions of law are entitled to
deference under the statutory standard of review that applies to factual and legal
conclusions reached by the state courts. Miller has not argued, much less established, that
the state court’s 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 that the state court reached “a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the State
court proceeding,” 28 U.S.C. § 2254(d)(2).
Miller offers no explanation for how additional investigation on the part of counsel
would have benefitted him, or what evidence existed that would have convinced a judge
or jury of his innocence had he gone to trial. Moreover, the Strickland standard is
particularly rigorous in the plea bargaining context. Because “[p]lea bargains are the result
of complex negotiations suffused with uncertainty . . . [in which] defense attorneys must
make careful strategic choices in balancing opportunities and risks,” “strict adherence to
the Strickland standard [is] all the more essential when reviewing the choices an attorney
made at the plea bargain stage.” Premo v. Moore, 131 S. Ct. 733, 741 (2011). Here, as
a result of the plea bargain secured by trial counsel, Miller avoided possible conviction for
three additional felonies. (See tender of plea document at Filing No. 4-1 at CM/ECF pp.
16

19-21.) Miller has not established that a grant of a writ of habeas corpus is warranted on
this issue.
D.

Claim Two
Miller argues that he was denied the effective assistance of counsel because his

appellate counsel refused to assign trial counsel’s ineffectiveness as error on appeal.
Miller’s claim has no merit. Miller was represented by the same attorney during the trial
court proceedings and on direct appeal. In Nebraska, claims of ineffective assistance of
counsel raised on direct appeal by the same counsel who represented defendant at trial
are premature and will not be addressed on direct appeal. See Dunster, 769 N.W.2d at
410-411. Thus, Miller cannot show that he was prejudiced by counsel’s failure to assign
his own ineffectiveness on direct appeal. Moreover, Miller raised his claims about trial
counsel’s ineffectiveness in his motion for post-conviction relief. Thus, he was not
prejudiced by the Nebraska state courts’ failure to consider the claims on direct appeal.
A grant of a writ of habeas corpus is not warranted on this issue.
V. CERTIFICATE OF APPEALABILITY
A petitioner cannot appeal an adverse ruling on his petition for writ of habeas corpus
under § 2254 unless he is granted a certificate of appealability. 28 U.S.C. § 2253(c)(1);
Fed. R. App. P. 22(b)(1). A certificate of appealability cannot be granted unless the
petitioner “has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). To make such a showing, “[t]he petitioner must demonstrate that
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).

17

In this case, Miller has failed to make a substantial showing of the denial of a
constitutional right. The court is not persuaded that the issues raised in the petition are
debatable among reasonable jurists, that a court could resolve the issues differently, or
that the issues deserve further proceedings. Accordingly, the court will not issue a
certificate of appealability in this case.
IT IS THEREFORE ORDERED that:
1.

This matter is dismissed with prejudice, and a separate judgment will be
entered in accordance with this Memorandum and Order; and

2.

The court will not issue a certificate of appealability in this matter.

DATED this 5th day of May, 2014.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S.
District Court for the District of Nebraska does not endorse, recommend, approve, or
guarantee any third parties or the services or products they provide on their Web sites.
Likewise, the court has no agreements with any of these third parties or their Web sites.
The court accepts no responsibility for the availability or functionality of any hyperlink.
Thus, the fact that a hyperlink ceases to work or directs the user to some other site does
not affect the opinion of the court.
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