Miller, Anthony v. Van Hollen, J.B.

Filing 20

ORDER denying 1 Petition for Writ of Habeas Corpus and dismissing this matter. A certificate of appealability is also denied. Signed by District Judge William M. Conley on 5/3/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
ANTHONY TODD MILLER,
v.

Petitioner,

OPINION AND ORDER
14-cv-887-wmc

JON E. LITSCHER,1
Respondent.
In 2009, petitioner Anthony Todd Miller pleaded guilty to two counts of
possession of child pornography in St. Croix County Case No. 08CF418.

He was

sentenced to five years of initial confinement followed by a ten-year term of extended
supervision. Miller then filed and lost a direct appeal, as well as a subsequent motion for
post-conviction relief under Wis. Stat. § 974.06. He now seeks a writ of habeas corpus
under 28 U.S.C. § 2254, arguing that his guilty plea should be withdrawn for a variety of
reasons. After the state filed an answer, along with records from the relevant state court
proceedings, both parties submitted briefing, making the petition ripe for decision. For
the reasons set forth below, the court concludes that Miller’s petition is barred by the
doctrine of procedural default. Accordingly, his petition will be denied.
FACTS2
In St. Croix County Case No. 08CF418, Miller was charged with two counts of
possessing child pornography.

The “probable cause” section of the original criminal

1 The court has substituted the current Secretary of the Department of Corrections, Jon E.
Litscher, as the respondent in this matter. Fed. R. Civ. P. 25(d).
The following facts are taken from the petition and the state court records provided by
petitioner and the state.
2

1

complaint stated that Miller’s residence was identified during an investigation of child
pornography by the United States Immigration and Customs Enforcement (“ICE”). In
particular, computer analysis showed that someone at Miller’s residence had traded
images of child pornography with the subject of the ICE investigation.

After the

investigation of Miller’s residence was referred to state authorities, a special agent was
able to review chat logs and images of contacts between Miller’s residence and the ICE
subject, including 448 pictures. According to the criminal complaint, the pictures
“consisted of depictions of naked pre-pubescent females whose genitalia were prominently
displaced and the focal point of the pictures.”

Additionally, “[m]any of the images

depicted were of naked pre-pubescent females performing oral sex on naked males.” (See
Crim. Cpt., dkt. #14-9, at 9.)
The criminal complaint further states that special agents obtained a search warrant
for Miller’s residence and, during the execution of the search warrant, Miller “admitted
that he had engaged in downloading and trading images of child pornography for
approximately the past two years.” (Id. at 10.) Miller also admitted to searching “the
internet for child pornography using selected specific search terms such as ‘pre-teen and
pre-teen hardcore,’” and he estimated the age of the females depicted as “typically
between 9 and 15 years of age.”

Finally, the criminal complaint noted that Miller

confirmed that the images of child pornography and the chat logs obtained by ICE agents
during their investigation were consistent with his own recollection of communications he
had with images he had displayed on his computer. (Id.)

2

After he was arrested and charged, Miller filed a motion to suppress statements he
made to the special agents during the execution of the search warrant. Before the court
ruled on that motion, however, Miller entered a guilty plea to both counts.
A plea hearing was held on June 18, 2009. The court first noted that the state
had filed an amended information that morning, asking Miller whether he’d had the
opportunity to review and sign the plea questionnaire and waiver of rights with his
attorney.

(See Trans. Plea Hrg., dkt. #12.)

Miller responded in the affirmative. 3

Miller also acknowledged receiving a copy of the amended information and his
understanding that it contained two counts for possession of child pornography. He next
acknowledged his understanding that both felonies carried a 3-year minimum sentence,
unless the judge made a finding that the public interest would be best served with a lesser
sentence, and a maximum penalty of a $100,000 fine and 25 years’ imprisonment.
Miller finally confirmed that he understood his right to a trial by jury, at which each
element of the offenses would have to be proved beyond a reasonable doubt.
Miller then pleaded guilty to both counts. (Id. at 16.) Miller went on to confirm
that his pleas were voluntary; he understood he was giving up all of the rights set forth in
the plea questionnaire; he knew the judge would likely order a presentence investigation

3 While neither Miller nor the state included a copy of the actual plea questionnaire in the record,
briefing by the parties to the Court of Appeals indicates that the plea questionnaire stated:
“These elements have been explained to me by my attorney or are as follows: having reached the
age of 18, did knowingly possess photographs of child engaging in sexually explicit conduct and
knew the child was under 18.” The plea questionnaire further stated that, “I understand that if
the judge accepts my plea, the judge will find me guilty of the crime(s) to which I am pleading
based upon the facts in the criminal complaint and/or the preliminary examination and/or as
stated in court.” (See dkt. #14-2, Petitioner’s Appeal Br. at 4 (describing plea questionnaire);
dkt. #14-9 at 15 (circuit court decision describing plea questionnaire).)

3

before sentencing; and he understood the various sentencing options available to the
judge. (Id. at 18-20.) Accordingly, the court accepted Miller’s plea and found that the
“report attached to the original complaint” contained “sufficient facts to find [him]
guilty.”

(Id. at 21.)

At the same time, the court did not ask Miller whether he

understood the elements of the charged offenses; whether he could explain them in his
own words; or whether he had read or agreed with the facts in the criminal complaint.
The court also did not ask the state to explain what it would have proven had the case
gone to trial, and it did not ask Miller to explain, in his own words, his conduct that
formed the basis of the offenses.
On August 17, 2009, the circuit court sentenced Miller to serve a 15-year sentence,
including 5 years of initial confinement followed by a 10-year term of extended
supervision.

On February 18, 2011, Miller filed a post-conviction motion through

counsel, which sought a hearing and an order permitting withdrawal of his guilty pleas.
The motion argued that the plea colloquy was defective because Miller was not told all of
the elements of the offense of child pornography. More specifically, Miller claimed that
at the time he pleaded guilty, he believed Wisconsin law prohibited any nude photos of
minors, and he did not understand the legal definition of “sexually explicit conduct.” If
he had known the legal definition of “sexually explicit conduct” required for the offense of
possession of child pornography, Miller further claimed that would not have pleaded
guilty because the state would have found nothing on his computers that included
“sexually explicit conduct.” Miller also argued that his counsel was ineffective because
she failed to explain that his guilty plea would waive his right to contest the admissibility
4

of his statements. Alternatively, the motion sought resentencing on the grounds that the
court relied on inaccurate information at sentencing.
After a hearing, the circuit court issued a decision concluding that, although Miller
had shown a defect in the plea colloquy, the state had shown that the plea was still
knowing, intelligent and voluntary. The court also concluded that Miller’s counsel was
not ineffective, relying on counsel’s testimony that her “usual practice” would have been
to discuss with her client the elements of the offense by “printing out the relevant
statute(s) and/or jury instructions for the charged crimes.” Based on counsel’s testimony
regarding her “usual practice,” the court further concluded that counsel likely explained to
Miller that he would be waiving his right to appeal the admissibility of the statements.
On direct appeal, Miller, through counsel, renewed all of the grounds raised in his
post-conviction motion. In particular, he argued that he was entitled to withdraw his
guilty plea because: (1) it was not knowingly, voluntarily and intelligently given because
he did not understand the elements of the offense at the time of his plea; and (2) his trial
counsel was ineffective for failing to make clear that he was waiving his right to challenge
admissibility of statements by pleading guilty before the trial court ruled on his motion to
suppress.

(See Petitioner’s Appeal Br., dkt. #14-2.)

He also raised challenges to the

circuit court’s sentencing decision.
On August 14, 2012, the Wisconsin Court of Appeals rejected all of Miller’s
arguments and affirmed the conviction in an unpublished opinion. See State v. Miller,
2012 WI App 106, 344 Wis. 2d 297, 821 N.W.2d 412. Miller did not file a petition for
review with the Wisconsin Supreme Court.
5

On December 26, 2012, Miller filed a pro se motion for post-conviction relief
pursuant to § 974.06, asserting the following grounds for relief:
(1) no evidence exists, and none was introduced to support a conviction for
the offense charged; (2) the failure of the court to establish a factual basis,
on the record, thereby failing to meet the constitutional standard required;
(3) an element was missing from the plea questionnaire and charging
documents; (4) no waiver was obtained of my right to appeal, thus violating
the Constitution; (5) the violation of my 6th Amendment right to a jury
trial on the missing element; (6) the court was without jurisdiction to
impose sentence because the complaint was void and filing of the complaint
without sufficient evidence to support a conviction violates due process; (7)
the infringement of my right against self-incrimination under the United
States and Wisconsin Constitutions; (8) the search warrant issued by a
court without jurisdiction to do so; and (9) the abridgment of rights
guaranteed by the constitutions and laws of this state and the United
States, including a right that was not recognized as existing at the time of
the original action.
In an order entered May 14, 2013, the circuit court denied Miller’s motion,
rejecting his challenge to the factual basis for his guilty pleas on the merits. (See Dkt.
#14-9 at 14.) The court stated that it “need not address Mr. Miller’s precise argument
[that the plea and Complaint lacked sufficient evidence] because he did in fact stipulate
to use both the Complaint and preliminary hearing transcript to provide the factual basis
for his plea.” (See dkt. #14-9 at 15.) The court also found sufficient evidence within
the Complaint and the record of the plea hearing to sustain a conviction.
Additionally, the court found that Miller had waived his right to challenge the
validity of the search warrant by pleading guilty. Applying settled Wisconsin law, the
court noted that a valid guilty plea waives all non-jurisdictional defects and defenses,
including alleged violations of constitutional rights before the plea. See State v. Riekkoff,

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112 Wis. 2d 119, 123, 332 N.W.2d 744 (1983) (citing Hawkins v. State, 26 Wis. 2d 443,
448, 132 N.W.2d 545 (1965)).
Finally, the court found that Miller’s remaining claims, including a challenge to the
search-warrant, were procedurally barred under State v. Escalona-Naranjo, 185 Wis. 2d
168, 181-82, 517 N.W.2d 157 (1994).4 The court explained that, “a defendant is barred
from pursuing claims in a subsequent appeal that could have been raised in a prior
post-conviction motion or direct appeal unless the defendant provides ‘sufficient reason’
for failing to do so.” In particular, the court noted that the Wisconsin Court of Appeals
also addressed the following issues on direct appeal:

“(1) plea withdrawal; (2) plea

colloquy; (3) ineffective assistance of counsel; and (4) sentencing discretion.” The court
further found that Miller had not shown a “sufficient reason” for failing to raise the 9
issues presented in his § 974.06 motion during his direct appeal. (See dkt. #14-9 at 17.)
After the circuit court denied relief, Miller filed a motion for reconsideration,
asserting that (1) there was no evidence to support his conviction; (2) the state failed to
meet its burden to establish every element of the offense; and (3) there was no factual
basis for his guilty pleas. On October 7, 2013, the circuit court denied Miller’s motion
for reconsideration.

(See dkt. #14-9 at 130.)

The court concluded that the motion

presented no new arguments but, rather had “merely reformulate[d] arguments that he
raised during this court’s initial consideration of his original § 974.06 motion.”

4

In Escalona-Naranjo, the Wisconsin Supreme Court held that “due process for a convicted
defendant permits him or her a single appeal of that conviction and a single opportunity to raise
claims of error.” State ex rel. Macemon v. Christie, 216 Wis. 2d 337, 343, 576 N.W.2d 84 (Ct.
App. 1998). Thus, claims that could have been raised on direct appeal or by prior motion are
barred from being raised in a post-conviction motion absent a sufficient reason for not raising the

7

On September 3, 2013, Miller filed a notice of appeal from the order denying his
motion for post-conviction relief under § 974.06.

The Wisconsin Court of Appeals

determined that it lacked jurisdiction to review the order denying Miller’s § 974.06
motion because he failed to timely file his notice of appeal in compliance with Wis. Stat.
Rule 809.10(1)(e). See State v. Miller, 2014 WI App 83, ¶ 6, 355 Wis. 2d 579, 851
N.W.2d 472 (unpublished), dkt. #14-12.

Accordingly, jurisdiction was “limited to

reviewing the order denying reconsideration, and only to the extent that Miller’s
reconsideration motion raised

issues

not addressed in the order from which

reconsideration was sought.” Id. (citing Silverton Enters., Inc. v. General Cas. Co., 143 Wis.
2d 661, 665, 422 N.W.2d 154 (Ct. App. 1988) (appeal cannot be taken from order
denying reconsideration motion that presents same issues as those determined in order
sought to be reconsidered)).
Noting that Miller’s motion for reconsideration “merely repackaged some of the
same arguments” determined in the order sought to be reconsidered, the court of appeals
rejected his appeal for lack of jurisdiction. See id., 2014 WI App 83, ¶ 7 (citing Silverton
Enters., 143 Wis. 2d at 665). Observing further that any “new” claims raised by Miller
were procedurally barred under Escalona-Naranjo, the court of appeals declined to consider
the merits of his claims and affirmed the underlying conviction on June 10, 2014. See id.
at ¶ 8.

The Wisconsin Supreme Court summarily denied his petition for review on

November 13, 2014.

claims earlier. See State v. Lo, 2003 WI 107, ¶ 44, 264 Wis. 2d 1, 665 N.W.2d 756.

8

OPINION
In his pending habeas corpus petition, Miller contends that he is entitled to relief
pursuant to 28 U.S.C. § 2254 for the following reason: (1) the state had no evidence to
support his conviction and, in particular, never found any photographs in Miller’s
possession that qualified as “child pornography”; (2) the plea hearing failed to establish a
sufficient factual basis to support his guilty plea; and (3) the criminal complaint was
defective for failing to allege all the elements of the offense. On February 25, 2015, this
court reviewed the petition and determined that Miller’s claims were likely barred by the
doctrine of procedural default.

The court nevertheless gave Miller an opportunity to

supplement his petition explaining why his claims were not barred. (Dkt. #5.) After
receiving his supplements (dkt. ## 4, 9), the court concluded that Miller had made at
least colorable arguments regarding procedural default. Accordingly, the court ordered a
response from the state and the case proceeded with briefing. Miller has now filed three
briefs in support of his petition, to which the state has responded by arguing that all three
of Miller’s claims are barred by the doctrine of procedural default. The state did not
address the merits of Miller’s claims.
I.

Procedural Default.
Federal courts may not review a habeas petition unless the prisoner has fairly

presented his claims “throughout at least one complete round of state-court review,
whether on direct appeal of his conviction or in post-conviction proceedings.” Richardson
v. Lemke, 745 F.3d 258, 268 (7th Cir. 2014); 28 U.S.C. § 2254(b)(1). This requirement

9

has two components: (1) the petitioner’s claims must be exhausted, meaning that there
is no remaining state court with jurisdiction; and (2) the exhaustion must not be
attributable to the petitioner’s failure to comply with the state court system’s procedural
rules. Johnson v. Foster, 786 F.3d 501, 504 (7th Cir. 2015); Perruquet v. Briley, 390 F.3d
505, 514 (7th Cir. 2004).
When the petitioner has already pursued his state court remedies but failed to
properly present his claims to the state courts along the way, his claims are barred by the
doctrine of procedural default.

Perruquet, 390 F.3d at 514.

The procedural default

doctrine precludes a federal court from reaching the merits of a habeas claim if the
petitioner either: (1) failed to present his claim to the state courts, and it is clear that
those courts would now hold the claim procedurally barred; or (2) presented his claim to
the state courts but the state court dismissed the claim on a state procedural ground
independent of the federal question and adequate to support the judgment. Perruquet,
390 F.3d at 514; Moore v. Bryant, 295 F.3d 771, 774 (7th Cir. 2002); Chambers v.
McCaughtry, 264 F.3d 732, 737-38 (7th Cir. 2001).
Here, Miller’s claims are procedurally defaulted for at least two reasons. As an
initial matter, any claim he raised on direct appeal is procedurally defaulted because he
failed to petition the Wisconsin Supreme Court for review within 30 days of the court of
appeals’ decision dismissing his direct appeal, and it is now too late to do so. See Wis.
Stat. §§808.10(1); 809.62.

Specifically, on direct appeal to the Wisconsin Court of

Appeals, Miller’s primary claim was that his plea was involuntary, arguing that he did not
understand that elements of the offense to which he was pleading. In support of this
10

claim, Miller pointed to the lack of any description of “sexually explicit conduct” in the
criminal complaint, as well as his attorney’s failure to review the relevant jury instructions
with him. This same argument encompasses Claim 3 of Miller’s federal habeas petition -namely, that the criminal complaint was defective for failing to allege all the elements of
the offense.
In other words, Miller made the same argument in the court of appeals on direct
appeal that he is attempting to make to this court. Because Miller failed to petition the
Wisconsin Supreme Court for review of the court of appeals’ decision rejecting the claim,
however, Miller procedurally defaulted on the claim and cannot raise it in this habeas
case. See Boerckel, 526 U.S. at 848 (a petitioner who fails to present his claims in a
petition for discretionary review to a state court of last resort has not properly presented
or exhausted his claims, and those claims are procedurally defaulted); Jenkins v. Gramley, 8
F.3d 505, 507 (7th Cir. 1993).
Claims 1 and 2 of Miller’s federal habeas petition are slightly different than the
claims raised during his direct state appeal, but the outcome is still the same. These
claims assert that: (1) the state had no evidence to support the conviction; and (2) the
plea hearing failed to establish a sufficient factual basis to support his guilty plea. Both
of these claims are essentially arguments about sufficiency of the evidence itself, whereas
the arguments in his direct appeal concerned whether he understood the elements of the
offense to which he was pleading. Nonetheless, Miller now attempts to argue that the
argument made in his direct appeal encompassed the sufficiency of the evidence
arguments because his brief on appeal mentioned the lack of evidence of child
11

pornography on his personal computer. (See Petitioner’s Br., dkt. #4, at 2.) Obviously,
given this mere “mention,” there is a strong argument that Miller failed to raise his
sufficiency of the evidence arguments fairly on direct appeal. Even if the court accepted
this argument, however, it would not help Miller, since his habeas claims would again be
barred by procedural default because he failed to petition the Wisconsin Supreme Court
for review of the court of appeals’ decision.
Of course, Miller’s habeas claims are procedurally defaulted for additional reasons.
For example, assuming that he first raised his sufficiency of the evidence challenge in his
post-conviction motion brought under § 974.06, those claims would still be procedurally
defaulted because:

(1) Miller failed to file a timely notice of appeal from the order

denying his § 974.06 motion; and (2) the Wisconsin Court of Appeals concluded that
Miller had defaulted under the rule in State v. Escalona-Naranjo, 185 Wis. 2d 168, 181-82,
517 N.W.2d 157 (1994), by failing to raise his § 974.06 claims fairly in his earlier motion
for post-conviction relief or on direct appeal.

Miller’s failure to file a timely appeal

means that he failed to exhaust his claims in state court, and it is once again too late to do
so. Finally, the Seventh Circuit has recognized that the holding in Escalona-Naranjo is an
independent and adequate state procedural rule sufficient to bar federal habeas corpus
review. See Warren v. Baenen, 712 F.3d 1090, 1104 (7th Cir. 2013); Perry v. McCaughtry,
308 F.3d 682, 692 (7th Cir. 2002).

Thus, Miller already procedurally defaulted his

claims in state court and this procedural default bars federal review unless he establishes
that an exception applies.

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II.

Exceptions to Procedural Default.
If a petitioner has procedurally defaulted a claim, a federal court might yet reach

the merits of that claim if the petitioner demonstrates either that: (1) he has cause for
the default and actual prejudice from failing to raise the claim as required; or (2) enforcing
the default would lead to a “fundamental miscarriage of justice.” Steward v. Gilmore, 80 F
.3d 1205, 1211-12 (7th Cir. 1996) (quoting Wainwright v. Sykes, 433 U.S. 72, 87 (1977)).
Petitioner Miller, however, fits under neither prong.
A petitioner can demonstrate cause for his default by pointing to some objective
factor external to the defense that blocked his ability to comply with the procedural rule.
Murray v. Carrier, 477 U.S. 478, 488 (1986). To show actual prejudice, he must present
evidence that the errors at trial “worked to his actual and substantial disadvantage,
infecting his entire trial with error of constitutional dimensions.” Perruquet v. Briley, 390
F.3d 505, 515 (7th Cir. 2004) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)
(emphasis in original). Here, Miller argues that his procedural default, which stemmed
from his failure to file a petition for review with the Wisconsin Supreme Court, should be
excused under the “cause” and “prejudice” exception because: (1) he was unrepresented
at the time the notice of appeal was due, and he had to spend time determining whether
he could afford new counsel; and (2) he did not receive the file from his attorney in time
to file a notice of appeal. Unfortunately for Miller, these arguments are not sufficient to
show cause.
Whether or not it should be, it is Seventh Circuit (indeed, every circuit’s) law that
a petitioner’s pro se status and limited understanding of the legal system are not sufficient
13

to establish cause for procedural default. See Harris v. McAdory, 334 F.3d 665, 668-69
(7th Cir. 2003). With respect to not receiving information from his attorney, Miller still
provides no specific allegations to suggest that any delay by the attorney made it
impossible for him to file a petition for review on his own. On the contrary, Miller had
30 days from the date of the court of appeals’ decision to file his petition for review.
While Miller now alleges that he received notice of the court of appeals’ decision from his
attorney one week after it was issued, meaning that he still had three weeks to draft a
petition for review, he identifies no particular documents withheld from him that he
needed to prepare a timely petition for review. Nor does he state that he demanded
specific documents from the court or his attorney that were denied to him. Without
such specific allegations, Miller has not shown cause for his procedural default stemming
from his failure to file a petition for review with the Wisconsin Supreme Court.
Miller also has not shown good cause for his procedural default with respect to
those claims raised in his § 974.06 motion. While Miller argues that he failed to file a
timely appeal of the circuit court’s denial of the motion because he misunderstood the
statutes relating to appeal, as discussed above, lack of legal knowledge is not sufficient
cause to excuse procedural default.

See Harris, 334 F.3d at 668-69. With respect to

those claims found to be barred under Escalona-Naranjo, Miller’s only argument is that he
did in fact raise all of the claims here in his § 947.06 motion on direct appeal. Not only
does this argument not help him, given his failure to file a petition for review with the
Wisconsin Supreme Court, but it is not persuasive.

14

To “fairly present” a claim in state court, a petitioner must present “both the
operative facts and controlling law” relevant to his claim, as well as an analysis of the
“constitutional nature of the claim.”

Anderson v. Benik, 471 F.3d 811, 815 (7th Cir.

2006). Nowhere in Miller’s direct appeal briefing did he develop arguments regarding
the sufficiency of the evidence, let alone an argument that his constitutional rights had
been violated by the state’s failure to produce sufficient evidence. Instead, Miller’s direct
appeal focused on arguments regarding the voluntariness of his plea, the criminal
complaint and the effectiveness of his counsel. Thus, Miller did not raise his sufficiency
of the evidence arguments on direct appeal.
Finally, Miller has not shown that the “fundamental miscarriage of justice”
exception applies, which requires a showing that “a constitutional violation has ‘probably
resulted’ in the conviction of one who is ‘actually innocent’ of the substantive offense.”
Dretke v. Haley, 541 U.S. 386, 393 (2004) (quoting Carrier, 477 U.S. at 496); accord Schlup
v. Delo, 513 U.S. 298, 327 (1995). More specifically, “prisoners asserting innocence as a
gateway to defaulted claims must establish that, in light of new evidence, ‘it is more likely
than not that no reasonable juror would have found petitioner guilty beyond a reasonable
doubt.’” Thomas v. Williams, 822 F.3d 378, 386-87 (7th Cir. 2016) (quoting Schlup v.
Delo, 513 U.S. 298, 319-322 (1995)).
Here, Miller points to no new evidence suggesting his innocence.

Instead, he

simply insists that the state lacked any evidence to convict him. This is simply not true.
The original complaint in this case identified evidence relevant to the charges against
Miller, including evidence that Miller had exchanged pornographic photographs of
15

children with the subject of an ICE investigation. But even if it were true, an argument
regarding the sufficiency of the evidence is not the same as presenting new evidence that
would prove his innocence. See Schlup, 513 U.S. at 865 (examples of “new evidence”
would be “exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence” that was not available or presented before). Miller has pointed to
nothing that would qualify as “new evidence” under the relevant standard. Accordingly,
the “fundamental miscarriage of justice” exception does not apply either.
III.

Certificate of Appealability.
Under Rule 11 of the Rules Governing Section 2254 Cases, the court must issue or

deny a certificate of appealability when entering a final order adverse to petitioner. A
certificate of appealability will not issue unless the petitioner makes “a substantial
showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), which requires a
petitioner to demonstrate “that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Tennard v. Dretke, 542 U.S.
274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

Under the

controlling standard, this requires a petitioner to show “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.’” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotations
and citations omitted).

Where denial of relief is based on procedural grounds, the

petitioner must show not only that “jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right,” but also that they
16

“would find it debatable whether the district court was correct in its procedural ruling.”
Slack, 529 U.S. at 484.
Although the rule allows a court to ask the parties to submit arguments on whether
a certificate should issue, it is not necessary to do so in this case. For the reasons already
stated, the court concludes that petitioner’s claims are barred by procedural default.
Because reasonable jurists would not otherwise debate whether a different result was
required, no certificate of appealability will issue.

ORDER
IT IS ORDERED that petitioner Anthony Todd Miller’s petition for a writ of
habeas corpus under 28 U.S.C. § 2254 is DENIED, and this matter is DISMISSED. A
certificate of appealability is also DENIED.

If petitioner wishes, he may seek a

certificate from the court of appeals under Fed. R. App. P. 22.
Entered this 3rd day of May, 2017.
BY THE COURT:
/s/
________________________
WILLIAM M. CONLEY
District Judge

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