Miller v. Hepp

Filing 31

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus filed by John J Miller Recommending that petition be denied signed by Magistrate Judge Nancy Joseph on 9/26/2018. (cc: all counsel)(llc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

JOHN J. MILLER,
Petitioner,
v.

Case No. 15-CV-166

RANDALL HEPP,
Respondent.
REPORT AND RECOMMENDATION
John J. Miller, a prisoner in Wisconsin custody, seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Miller was convicted of operating while under the influence
of an intoxicant as a seventh offense and was sentenced to four years initial confinement
and five years extended supervision to be served consecutive to prior sentences. (Docket #
1.) Miller alleges that his conviction and sentence are unconstitutional. For the reasons
stated below, I recommend that Miller’s petition for writ of habeas corpus be denied.
BACKGROUND
The police clocked Miller going ninety-one miles per hour on the interstate highway.
(State v. Miller, Appeal No. 2013AP2488 (Wis. App. August 13, 2014), Docket # 10-7 at 2.)
After being stopped by the police, Miller refused to consent to a blood draw. (Id.) The police
restrained Miller and the blood draw was completed. (Id.) Miller was charged with OWI as
a seventh offense, operating with a prohibited blood alcohol concentration as a seventh
offense, and operating after revocation. Miller entered a guilty plea to the OWI charge and

the other charges were dismissed as read-ins. (Id.) He was sentenced to four years of initial
confinement and five years extended supervision to be served consecutive to prior sentences.
Miller’s appellate counsel filed a no merit report before the Wisconsin Court of
appeals. Appellate counsel addressed two issues in the no-merit report. Counsel first
addressed whether Missouri v. McNeeley, 569 U.S. 141 (2013), decided after Miller’s plea and
sentencing, provided a basis for Miller to withdraw his plea. Additionally, counsel
addressed whether Miller’s sentence was unduly harsh.
In his response to the no-merit report, Miller argued the circuit court judge
miscounted his prior OWI convictions for the penalty enhancement. Miller’s appellate
counsel filed a supplemental no-merit report addressing why Miller’s prior OWI convictions
were correctly counted.
Miller filed additional responses in which he raised Fourth Amendment challenges
to both his arrest and the nonconsensual blood draw without a warrant. He also argued that
his trial, post- conviction, and appellate counsel provided ineffective assistance.
The Wisconsin Court of Appeals affirmed Miller’s conviction finding no arguable
merit to any issue that could be raised. Miller petitioned the Wisconsin Supreme Court. The
supreme court denied Miller’s petition. Subsequently, Miller timely filed this petition for
writ of habeas corpus.
STANDARD OF REVIEW
Miller’s petition is governed by the Antiterrorism and Effective Death Penalty Act
(“AEDPA”). Under the AEDPA, a writ of habeas corpus may be granted if the state court
decision on the merits of the petitioner’s claim (1) was “contrary to, or involved an
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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) “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).
A state court’s decision is “contrary to . . . clearly established Federal law as
established by the United States Supreme Court” if it is “substantially different from
relevant [Supreme Court] precedent.” Washington v. Smith, 219 F.3d 620, 628 (7th Cir. 2000)
(quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)). The court of appeals for this circuit
recognized the narrow application of the “contrary to” clause:
[U]nder the “contrary to” clause of § 2254(d)(1), [a court] could grant a writ of
habeas corpus . . . where the state court applied a rule that contradicts the governing
law as expounded in Supreme Court cases or where the state court confronts facts
materially indistinguishable from a Supreme Court case and nevertheless arrives at a
different result.
Washington, 219 F.3d at 628. The court further explained that the “unreasonable application
of” clause was broader and “allows a federal habeas court to grant habeas relief whenever
the state court ‘unreasonably applied [a clearly established] principle to the facts of the
prisoner’s case.’” Id. (quoting Williams, 529 U.S. at 413).
To be unreasonable, a state court ruling must be more than simply “erroneous” and
perhaps more than “clearly erroneous.” Hennon v. Cooper, 109 F.3d 330, 334 (7th Cir. 1997).
Under the “unreasonableness” standard, a state court’s decision will stand “if it is one of
several equally plausible outcomes.” Hall v. Washington, 106 F.3d 742, 748-49 (7th Cir.
1997). In Morgan v. Krenke, the court explained that:

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Unreasonableness is judged by an objective standard, and under the “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.”
32 F.3d 562, 565-66 (7th Cir. 2000) (quoting Williams, 529 U.S. at 411), cert. denied, 532 U.S.
951 (2001). Accordingly, before a court may issue a writ of habeas corpus, it must determine
that the state court decision was both incorrect and unreasonable. Washington, 219 F.3d at
627.
ANALYSIS
Miller raises several grounds for habeas relief. First, Miller argues that he was
illegally arrested without probable cause. (Docket # 1 at 6.) Second, Miller argues that he
was arrested without reasonable suspicion. (Id. at 7.) Third, Miller argues his trial counsel
was ineffective for giving him false advice about the admission of the blood advice. (Id. at
8.) Fourth, Miller argues that his trial and appellate counsel were ineffective for failing to
challenge the constitutionality of the warrantless blood draw. (Docket # 13 at 3.) Finally,
Miller argues that the trial court erred in concluding that he had six prior OWI convictions
for penalty enhancement purposes. (Id. at 4.)
1.

Fourth Amendment Claims

Miller’s first two arguments are Fourth Amendment claims. Under Stone v. Powell,
428 U.S. 465, 486 (1976) there is no federal habeas review for Fourth Amendment
violations. Accordingly, Miller cannot get relief based on his allegations that he was
illegally arrested.

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2.

Ineffective Assistance of Counsel Claim

In his petition for habeas relief, Miller argues that his counsel was ineffective for
giving him false advice and seems to argue that but for the false advice about the blood
draw, he would not have pled guilty. (Docket #1 at 8.) Second, in his brief, Miller argues
that his trial, postconviction, and appellate counsel were ineffective for failing to challenge
the warrantless blood draw. (Docket #13 at 2.) I will address both arguments.
2.1.

Legal Standard

The clearly established Supreme Court precedent for ineffective assistance of counsel
claims is set forth in Strickland v. Washington, 466 U.S. 668 (1984). To establish ineffective
assistance of counsel, Miller must show both “that counsel’s performance was deficient”
and “that the deficient performance prejudiced the defense.” Id. at 687. To satisfy
Strickland’s performance prong, the defendant must identify “acts or omissions of counsel
that could not be the result of professional judgment.” United States ex rel. Thomas v. O’Leary,
856 F.2d 1011, 1015 (7th Cir. 1988) (citing Strickland, 466 U.S. at 690). “The question is
whether an attorney’s representation amounted to incompetence under ‘prevailing
professional norms,’ not whether it deviated from best practices or most common custom.”
Harrington v. Richter, 131 S.Ct. 770, 788 (2011) (quoting Strickland, 466 U.S. at 689). A
reviewing court must seek to “evaluate the conduct from counsel’s perspective at the time.”
Strickland, 466 U.S. at 689. We “must indulge a strong presumption that counsel’s conduct
falls within a wide range of reasonable professional assistance,” id., and “strategic choices
made after thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable,” id. at 690.

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To establish prejudice, it is “not enough for the defendant to show that his counsel’s
errors had some conceivable effect on the outcome of the [trial].” Hough v. Anderson, 272
F.3d 878, 891 (7th Cir. 2001). A petitioner must show “that there is a reasonable probability
that, but for counsel’s errors, the result of the [trial] would have been different.” Strickland,
466 U.S. at 694. This does not mean that the defendant must show that “counsel’s deficient
conduct more likely than not altered the outcome in the case.” Id. at 693. Rather, a
“reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Id. at 694. Making this probability determination requires consideration of the totality of the
evidence before the jury. Id. at 695. A “verdict or conclusion only weakly supported by the
record is more likely to have been affected by errors than one with overwhelming record
support.” Id. at 696.
A court deciding an ineffective assistance claim need not approach the inquiry “in
the same order or even to address both components of the inquiry if the defendant makes an
insufficient showing on one.” Id. at 697. “[A] court need not determine whether counsel’s
performance was deficient before examining the prejudice suffered by the defendant as a
result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade
counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, which we expect will often be so, that course should be
followed. Courts should strive to ensure that ineffectiveness claims not become so
burdensome to defense counsel that the entire criminal justice system suffers as a result.” Id.
2.2

Failure to Challenge Warrantless Blood Draw

Here, Miller’s claim that his trial counsel was ineffective in not challenging his
warrantless blood draw is based on the Supreme Court’s decision in Missouri v. McNeely, 569
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U.S. 141 (2013). In McNeely, the Supreme Court held that in drunk-driving investigations,
the natural dissipation of alcohol in the bloodstream does not constitute an exigency in
every case sufficient to justify conducting a blood test without a warrant. In addressing
whether Miller had an ineffective assistance of counsel claim based on McNeely, the
Wisconsin Court of Appeals noted that prior to McNeely the law in Wisconsin was that the
natural dissipation of blood-alcohol evidence alone constituted a per se exigency excepting it
from the warrant requirement. (Docket #10-7 at 4.) Consequently, the court determined that
trial counsel was not ineffective for failing to file a suppression motion because it would
have been unsuccessful. (Id.)
Again, under Strickland, to show prejudice, Miller must show that there is a
reasonable probability but for his attorney failing to file a motion to suppress, the result of
the proceeding would have been different. The Wisconsin Court of Appeals’ finding that
trial counsel was ineffective because the motion would have been unsuccessful under then
existing Wisconsin law is a finding that Miller was not prejudiced. This analysis and
conclusion is consistent with and not an unreasonable application of Strickland. Miller is,
therefore, not entitled to habeas relief on the ground that his trial attorney was ineffective in
failing to challenge his warrantless blood draw.
Miller also cannot prevail on the ground that his postconviction and/or appellate
counsel were ineffective. The Wisconsin Court of Appeals rejected this claim as meritless.
(Docket # 10-7 at 4 n.5.) Although the court did not elaborate, their conclusion was not
contrary to nor an unreasonable application of Strickland. As respondent recognizes,
McNeely applied to Miller retroactively. Griffith v. Kentucky, 479 U.S. 314, 328 (1987). But
that fact does not answer the prejudice inquiry under Strickland. Even though the law
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applied retroactively, Miller would still need to show a reasonable probability that the
outcome would have been different.
Miller cannot meet this standard because although his blood draw was done without
a warrant, it was done based on reliance on binding case law at the time. See Davis v. United
States, 564 U.S. 229, 241 (2011) (“Evidence obtained during a search conducted in
reasonable reliance on binding precedent is not subject to the exclusionary rule.”). Again,
prior to McNeely, the law in Wisconsin was that the natural dissipation of blood-alcohol
evidence alone constituted a per se exigency excepting if from the warrant requirement.
Accordingly, because the police relied on then existing law not requiring a warrant,
postconviction or appellate counsel’s challenge would have been unsuccessful. As such,
Miller cannot show Strickland prejudice based on postconviction or appellate counsel’s
failure to challenge the warrantless blood draw. Miller is not entitled to habeas relief based
on ineffective assistance of trial, postconviction, or appellate counsel.
2.3

Bad Advice Regarding Admissibility of Blood Draw

Miller also argues that his trial counsel gave him false advice regarding the
admissibility of the test result. (Docket # 1 at 8.) In her no-merit report, Miller’s counsel
considered whether in light of McNeely Miller should be allowed to withdraw his guilty plea
because the blood draw was without a warrant. (Docket #10-7 at 3.) Counsel concluded that
such a claim lacked merit because the test result was not needed for a conviction since
Miller was convicted of operating under the influence, not operating with a prohibited blood
content. (Id.) The court of appeals rejected counsel’s reasoning stating that counsel did not
account for the possibility that Miller’s plea was influenced by the addition of the charge of
operating with a prohibited blood concentration, which carried a higher penalty. (Id.)
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Nonetheless, the court of appeals concluded that Miller’s claim that he was given bad advice
and therefore his plea was not knowing, intelligent, or voluntary was without merit. (Id. at 4
n.5.)
A review of the record supports the court of appeals’ conclusion. During the plea
colloquy, the judge established and Miller stated that he understood his right to a jury trial.
(Guilty Plea Transcript, Docket # 10-10 at 4.) Miller also stated that he understood the right
to remain silent and not testify at trial if he did not want to. (Id. at 5.) The record also shows
that Miller stated that he understood that he was pleading guilty to operating under
influence of an intoxicant as a seventh offense and that he understood the elements the
prosecutor would have to prove at trial. (Id. at 4.) Miller also stated that he understood the
penalties that the charge carried. (Id. at 3.) On this record, Miller has not shown that the
court of appeals’ conclusion was contrary to or an unreasonable application of Strickland.
Miller is also not entitled to habeas relief on this argument.
3.

Penalty Enhancement

Finally, Miller argues that the trial court erred in concluding that he had six prior
OWI convictions for penalty enhancement purposes. The state argues that Miller has
procedurally defaulted this claim.
A claim for writ of habeas corpus should be dismissed if state remedies have not been
exhausted as to any one of the petitioner’s federal claims. See Rhines v. Weber, 544 U.S. 269,
277-78 (2005); Cruz v. Warden of Dwight Corr. Ctr., 907 F.2d 665, 667 (7th Cir. 1990). For a
constitutional claim to be fairly presented to a state court, both the operative facts and the
controlling legal principles must be submitted to that court. Verdin v. O’Leary, 972 F.2d 1467,
1474 (7th Cir. 1992). Also, the petitioner must invoke one complete round of the normal
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appellate process, including seeking discretionary review before the state supreme court.
McAtee v. Cowan, 250 F.3d 506, 508-09 (7th Cir. 2001).
In this case, a review of the record shows that Miller did not raise this claim in his
petition for review in the Wisconsin Supreme Court. (Docket #10-8 at 1.) Additionally, the
State is correct that the counting of prior convictions for the purpose of the penalty
enhancement is a question of the application of state law, not a federal question. (Docket #
10-7 at 5.) Accordingly, Miller is not entitled habeas relief on this claim.
CONCLUSION
None of Miller’s claims present any basis to grant relief under 28 U.S.C. § 2254.
Accordingly, I recommend that his petition be denied and this case be dismissed.
CERTIFICATE OF APPEALABILITY
According to Rule 11(a) of the Rules Governing § 2254 Cases, the court must issue
or deny a certificate of appealability “when it enters a final order adverse to the applicant.”
A certificate of appealability may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make a
substantial showing of the denial of a constitutional right, the petitioner must demonstrate
that “reasonable jurists could debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues presented were ‘adequate
to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(quoting Barefoot v. Estelle, 463 U.S. 880, 893, and n.4).
Jurists of reason would not debate that Miller fails to raise any cognizable grounds
for habeas relief. Thus, I will recommend denying Miller a certificate of appealability. Of

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course, Miller retains the right to seek a certificate of appealability from the Court of
Appeals pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure.
NOW, THEREFORE, IT IS RECOMMENDED that the petitioner’s petition for
writ of habeas corpus (Docket # 1) be DENIED.
Your attention is directed to General L.R. 72(c), 28 U.S.C. § 636(b)(1)(B) and
Federal Rules of Criminal Procedure 59(b), or Federal Rules of Civil Procedure 72(b) if
applicable, whereby written objections to any recommendation or order herein, or part
thereof, may be filed within fourteen days of the date of service of this recommendation or
order. Objections are to be filed in accordance with the Eastern District of Wisconsin’s
electronic case filing procedures. Courtesy paper copies of any objections shall be sent
directly to the chambers of the district judge assigned to the case. Failure to file a timely
objection with the district court shall result in a waiver of a party’s right to appeal. If no
response or reply will be filed, please notify the Court in writing.

Dated at Milwaukee, Wisconsin this 26th day of September, 2018.
BY THE COURT
s/Nancy Joseph
NANCY JOSEPH
United States Magistrate Judge

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