Miller v. Champion

Decision Date21 August 2001
Docket NumberNo. 00-6138,00-6138
Citation262 F.3d 1066
Parties(10th Cir. 2001) ARTHUR DONNELL MILLER, JR., Petitioner-Appellant, v. RON CHAMPION, Respondent-Appellee
CourtU.S. Court of Appeals — Tenth Circuit

Appeal from the United States District Court for the Western District of Oklahoma. (D.C. No. 97-CV-867-A) [Copyrighted Material Omitted] Susan M. Otto, Federal Public Defender (Paul Antonio Lacy, Assistant Federal Public Defender, with her on the briefs), Oklahoma City, Oklahoma, for Petitioner-Appellant.

Patrick T. Crawley, Assistant Attorney General (W.A. Drew Edmondson, Attorney General, Seth S. Branham, Assistant Attorney General, with him on the brief), Oklahoma City, Oklahoma, for Respondent-Appellee.

Before EBEL, Circuit Judge, MCWILLIAMS, Senior Circuit Judge, and BALDOCK,Circuit Judge.

EBEL, Circuit Judge.

Petitioner-Appellant Arthur Donnell Miller, Jr. ("Miller") appeals the district court's order denying his petition for habeas corpus pursuant to 28 U.S.C. 2254. Specifically, Miller challenges the district court's finding that he was not prejudiced by his attorney's ineffective assistance in advising him to plead guilty to a second-degree murder charge in Oklahoma state court without advising him of the proper elements of that offense. We hold that when a defendant alleges that his attorney's ineffective assistance led him to plead guilty, the test for prejudice is whether he can show that he would not have pled guilty had his attorney performed in a constitutionally adequate manner. It is not necessary for the defendant to show that he actually would have prevailed at trial, although the strength of the government's case against the defendant should be considered in evaluating whether the defendant really would have gone to trial if he had received adequate advice from his counsel. Applying this standard in light of the factual determinations made by the district court below, we AFFIRM.

I. BACKGROUND

The facts surrounding Miller's petition are essentially undisputed. Miller and his nephew, Todd O'Shea Coburn, were both charged with first-degree murder in Kay County, Oklahoma for the May 6, 1995, shooting death of Dominic Hamilton. Hamilton died of a single gunshot wound which entered his back and exited through his chest.

On the day of the shooting, Miller attended a family fish-fry at his father's home in Ponca City, Oklahoma. Miller, an alcoholic, drank heavily during the course of the day. Eventually, Miller, his wife Pam and brother Donald Ray went to a club known as "the Bucket." Miller encountered Hamilton, a long-term acquaintance, on the club's porch and began making jokes about Hamilton's weight. Hamilton took offense, and a fight ensued.

Miller's brother, Donald Ray Miller ("Donald Ray"), went for help, and Miller later told police that he was attacked, hit with a baseball bat, and cut with a knife in his brother's absence. A short time later, Donald Ray returned with Miller's sister, Rose Hodge Burgess ("Burgess"); Miller's nephew, Coburn, arrived soon thereafter with a .38 caliber semi-automatic pistol. Miller and his family members soon spotted Hamilton and two additional men, Ty Jones ("Jones") and Napoleon Elston ("Elston"), approaching with baseball bats. Jones threw a bat that narrowly missed Burgess, and Miller then took Coburn's gun. At this point, an onlooker shouted a warning that Miller had a gun, and everyone present, including Hamilton, turned to run. Miller fired once in the air, and then fired two more shots in the direction of Hamilton. Hamilton dropped to the ground in a vacant lot across from the Bucket. The shooting occurred approximately ten minutes after Miller was first attacked.

Miller turned himself in to the Ponca City Police Department approximately three hours after the shooting and gave a statement to Police Lieutenant Barbara White. Lt. White testified that she confronted Miller with witness statements placing him at the scene with a gun and identifying him as the shooter, and that Miller confessed to killing Hamilton, alleging that he fired in self-defense.

Lt. White testified that she examined Miller, found no physical evidence that he had been hit with a bat, and concluded that wounds he attributed to a knife attack were minor. A second officer who observed Miller that night agreed. Witness statements given to police also undermined Miller's claim that he acted in self-defense. Witnesses told police that Hamilton was moving away from Miller and that he was at least twenty feet from Miller at the time of the shooting. Further, an autopsy report concluded that Hamilton was shot in the back from some distance away.

Miller and Coburn were both charged with first-degree malice murder. The trial court appointed Rob Galbraith, an attorney in private practice, to represent Miller. Galbraith testified that he conducted no formal investigation into the shooting, but said that he instead relied on Miller's description of the incident and that he had intended to use a preliminary hearing for discovery purposes. Midway through the hearing, however, Galbraith learned that Coburn had reached a plea agreement with the State and most likely would testify against Miller. A short time later, he advised Miller to accept the state's offer of second-degree murder with a recommended sentence of thirty-eight years. Galbraith did not inform Miller of the elements of second-degree murder. Rather, he told Miller that second-degree murder did not really fit the facts of the case, but he advised Miller that the plea represented Miller's best chance to avoid a life sentence. Galbraith predicted that Miller would probably be convicted of first-degree murder and receive a life sentence if he were to go to trial. Miller accepted Galbraith's advice, pled guilty to second-degree murder, and received a thirty-eight-year sentence.

After exhausting state post-conviction remedies,1 Miller filed the instant petition for habeas corpus under 28 U.S.C. 2254, alleging that Galbraith was ineffective for failing to inform him of the elements of second-degree murder. Specifically, Miller alleges that, had he known that a prosecutor is required to prove the defendant acted with a "depraved mind" in order to secure a conviction for second-degree murder, Miller would not have pled guilty and instead would have exercised his right to trial by jury. 2

The district court initially denied the petition on the ground that Miller failed to allege facts constituting inadequate performance by Galbraith. See Miller v. Champion, 161 F.3d 1249, 1252 (10th Cir. 1998) (hereinafter Miller I). This court reversed and remanded for an evidentiary hearing on Miller's claim. See id. at 1251. Specifically, we instructed the district court to determine whether: (1) Galbraith failed to inform Miller of the "depraved mind" element of Oklahoma's second-degree murder statute, and (2) whether the outcome of the state court proceedings would have changed had Miller known of the depraved mind element of the crime. See id. at 1259. The case was referred to a magistrate judge for initial proceedings pursuant to 28 U.S.C. 636(b)(1). Following evidentiary hearings, the magistrate issued a report and recommendation that found that Galbraith failed to inform Miller of all of the elements of second-degree murder, and that Miller's assertion that he would have pled not guilty but for Galbraith's ineffective assistance was not credible. In addition, the magistrate concluded that Miller would not have been acquitted if he had gone to trial. He therefore recommended that Miller's petition be denied. The magistrate relied heavily on the strength of the case the prosecution could have brought against Miller as evidence of whether Miller actually would have gone to trial if not for his counsel's errors.3 The district court adopted the report and recommendation in full. Miller then filed the present appeal.

II. DISCUSSION

We have jurisdiction over this appeal pursuant to 28 U.S.C. 2253 and the district court's grant of Miller's request for a Certificate of Appealability. Claims of ineffective assistance of counsel raise mixed questions of law and fact. See, e.g., Hale v. Gibson, 227 F.3d 1298, 1314 (10th Cir. 2000); Smith v. Gibson, 197 F.3d 454, 461 (10th Cir. 1999). Because Miller's claim has not previously been adjudicated by a state court, we review it de novo, granting due deference to the factual findings underlying the district court's determination. See, e.g., Battenfield v. Gibson, 236 F.3d 1215, 1220 (10th Cir. 2001) ("If a [habeas] claim was not decided on the merits by the state courts (and is not otherwise procedurally barred), we may exercise our independent judgment in deciding the claim."); Romero v. Furlong, 215 F.3d 1107, 1111 (10th Cir. 2000) (reviewing mixed questions of law and fact raised by ineffective assistance claim de novo, granting deference to underlying findings of fact); United States v. Prows, 118 F.3d 686, 691 (10th Cir. 1997) ("Whether a defendant received effective assistance of counsel is a mixed question of law and fact that we review de novo.").

This case presents two issues for appeal. First, we consider whether the magistrate and district court erred by apparently requiring Miller to prove that Galbraith would have prevailed at trial in addition to proving that he would have changed his plea and would have insisted on going to trial.4 Next, we review the district court's factual conclusions to determine whether Miller is entitled to habeas relief under the correct standard for demonstrating prejudice.

A. Standard for Showing Prejudice

The Supreme Court established the now familiar two-pronged test for proving ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668, 687 (1984). In order to establish a claim that his attorney was so ineffective as to require reversal of his conviction, Miller must show both that "counsel made errors so serious that counsel was...

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