354 F.3d 1288 (10th Cir. 2004), 02-6199, Miller v. Mullin

Docket Nº:02-6199
Citation:354 F.3d 1288
Party Name:Miller v. Mullin
Case Date:January 21, 2004
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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354 F.3d 1288 (10th Cir. 2004)

George James MILLER, Plaintiff-Appellant,


Mike MULLIN, Warden, Oklahoma State Penitentiary, Respondent-Appellee.

No. 02-6199.

United States Court of Appeals, Tenth Circuit

January 21, 2004

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[Copyrighted Material Omitted]

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Robert W. Jackson (Steven M. Presson, with him on the briefs), Jackson & Presson, P.C., Norman, OK, for Plaintiff-Appellant.

Robert L. Whittaker, (W.A. Drew Edmundson, Attorney General of Oklahoma, with him on the brief), Assistant Attorney General, Criminal Division, Oklahoma City, OK, for Defendant-Appellee.

Before SEYMOUR, HENRY, and O'BRIEN, Circuit Judges.


George James Miller, a state prisoner, appeals the district court's decision denying him habeas relief from his Oklahoma first-degree malice aforethought murder convictions for the September 17, 1994 death of Kent Dodd. On appeal, Mr. Miller contends that (1) the prosecution engaged in prosecutorial misconduct when it concealed until final closing its theory that Mr. Dodd identified his killer by writing the letters "JAy" in smeared blood; (2) his trial and appellate counsel were ineffective; (3) the Oklahoma Court of Criminal Appeals' application of the heinous, atrocious, or cruel aggravating factor was vague and overbroad; and (4) cumulative error entitles Mr. Miller to relief. We affirm the denial of habeas relief under 28 U.S.C.§ 2254.


We reiterate the facts of this tragic homicide, drawing largely from the Oklahoma Court of Criminal Appeals' summary in Miller v. State, 977 P.2d 1099, 1103-04 (Okla.Crim.App.1999).

Kent Dodd, a twenty-five year old night auditor at the Central Plaza Hotel, which is located at the intersection of I-40 and Martin Luther King Drive in Oklahoma City, registered, as he typically did, as a guest at 3:15 a.m. on September 17, 1994. Shortly thereafter an assailant attacked Mr. Dodd, stabbed him repeatedly, beat him with hedge shears and a paint can, and poured muriatic acid on him and down his throat. Two and a half hours later, a hotel housekeeper arrived for her morning shift. She called for Mr. Dodd when she saw he was not at the front desk. In response she heard moans from the restaurant area of the hotel. She ran to a nearby restaurant and had the police called. When the officers arrived, Mr. Dodd was still alive. There were several blood trails and signs of struggle in various parts of the hotel.

Mr. Dodd was able to respond to police questioning, but his responses were mostly unintelligible. The police understood him to say his attacker was an African-American man who wore grey trousers. Mr. Dodd died later that day from blunt force trauma to his head.

The hotel cash drawer was open and empty when the police investigated the crime scene. Hotel policy requires each shift to begin with $250 in the drawer. At the end of the shift, the desk clerk places any amount in excess of the deposit in an envelope and drops it into the hotel safe. Only desk clerks knew the amount of cash in the drawer.

Mr. Dodd was known to be an exemplary employee who carefully followed the accounting procedures and whose money count was always correct. After the murder, the hotel manager discovered a deposit envelope containing $100 hidden behind registration forms in a separate drawer.

All of the evidence presented against Mr. Miller at the trial for Mr. Dodd's

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murder was circumstantial. Mr. Miller had worked as a maintenance man at the Central Plaza Hotel for two weeks about a month before the murder. Mr. Dodd knew Mr. Miller, but knew him under another name, Jay Elkins.

Apparently, the night before the murder, Mr. Miller was broke and tried unsuccessfully to borrow money from several different friends. According to Mr. Miller, he, accompanied by Chris Carriger and Jeremy Collman, went to the Central Plaza on September 16, 1994, at approximately 10:00 p.m. Mr. Miller attempted to cash a check written by Mr. Carriger to Mr. Miller; the visit lasted about five minutes. Mr. Miller indicated to authorities that he was then taken back to his apartment where he remained until mid-morning the following day. After trying to cash the check at other locations, Mr. Carriger returned home and asked his wife, Stephanie Carriger, to write a check to Mr. Miller for $75, and she complied. Mr. Carriger and Mr. Collman gave similar renditions of these events to Mr. Miller's counsel.

Mr. Miller told police he was home with his wife at the time of the murder. Mr. Miller and his wife separated shortly after the murder, and he went to stay with his mother in Sherman, Texas. Mr. Miller's ex-wife, whom he divorced prior to trial, testified he was not at home at the time of the murder and that he had taken her car keys from where she hid them and left. She testified that on the day following the murder, when Mr. Miller returned in her car, he attempted to give her $120. She testified that she found sand in the car and that after the murder, she noticed that a pair of Mr. Miller's khaki shorts and a silk shirt had disappeared. She identified two buttons found at the crime scene to be similar to buttons on the missing shirt.

When police questioned Mr. Miller about the $120 he gave to his wife, he claimed he had cashed a paycheck. When the police reminded Mr. Miller that he was not working at the time, he then denied giving his wife the money. See Miller, 977 P.2d at 1104.

There is little physical evidence connecting Mr. Miller to the crime scene. According to testimony of the State's forensic scientist, Mr. Miller's sandals could have made the footprints found at the scene, but she could not exclusively identify the sandals. A microscopic drop of blood on Mr. Miller's sandal was "consistent" with Mr. Dodd's blood, but this too could not be exclusively identified. The sample revealed a positive DNA reading, indicating the blood on the shoe was the same type as the blood type of the victim.


A jury found Mr. Miller guilty of first degree murder. At the capital sentencing proceeding, the jury then found four aggravating factors: (1) Mr. Miller had a prior violent felony conviction; (2) this murder was especially heinous, atrocious, or cruel; (3) Mr. Miller had killed the night clerk to avoid arrest or prosecution for the robbery; and (4) Mr. Miller was a continuing threat to society. After considering the mitigating evidence, the jury sentenced Mr. Miller to death.

The Oklahoma Court of Criminal Appeals affirmed Mr. Miller's conviction on direct appeal and also denied him post-conviction relief. The federal district court denied Mr. Miller habeas relief on eight claims, but granted Mr. Miller a certificate of appealability (COA) on three of those claims: (1) whether the prosecutor engaged in misconduct through its calculated concealment, until the closing argument, of its theory that the victim wrote "JAy," Mr. Miller's alias, in blood at the crime scene; (2) ineffective assistance of trial and appellate counsel; and (3) cumulative error. We granted review of these three claims, and we also granted a COA

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on the issue of whether the Oklahoma Court of Criminal Appeals' application of the heinous, atrocious, or cruel aggravating factor has eroded to a vague unconstitutional standard. We affirm the district court's denial of habeas relief as to each claim.

A. Standard of Review under AEDPA

Because Mr. Miller's habeas petition was filed after the effective date of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), AEDPA governs whether Mr. Miller may obtain relief from his death sentence. Under AEDPA, because Mr. Miller's claim was adjudicated on the merits in state court, he is entitled to federal habeas relief only if he can establish that the state court 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).

In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), Justice O'Connor's opinion for the Court stated:

Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Id. at 412-13, 120 S.Ct. 1495. "In Williams, the Supreme Court declined to refine the meaning of the term 'reasonable' as it is used in the AEDPA, other than to note that while it is 'difficult to define,' it is 'a common term in the legal world and, accordingly, federal judges are familiar with its meaning.' " Cook v. McKune, 323 F.3d 825, 830 (10th Cir. 2003) (quoting Valdez v. Ward, 219 F.3d 1222, 1230 (10th Cir. 2000) (quoting Williams, 529 U.S. at 410, 120 S.Ct. 1495)).

" 'Unreasonableness' is gauged by an objective standard." Id. "An unreasonable application of federal law denotes some greater degree of deviation from the proper application than a merely incorrect or erroneous application." Id. (internal citations omitted). The Supreme Court recently stated that "[w]e have made clear that the 'unreasonable application' prong of § 2254(d)(1) permits a federal habeas court to 'grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts' of petitioner's case." Wiggins v....

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