781 Fed.Appx. 745 (10th Cir. 2019), 19-5024, Miller v. Bear

Docket Nº:19-5024
Citation:781 Fed.Appx. 745
Opinion Judge:Scott M. Matheson, Jr., Circuit Judge
Party Name:Floyd Lee MILLER, Petitioner-Appellant, v. Carl BEAR, Respondent-Appellee.
Attorney:David B. Autry, Oklahoma City, OK, James Patrick Quillian, Phillips, Coventon, Quillian & Banner, Oklahoma City, OK, for Petitioner-Appellant Diane L. Slayton, Office of the Attorney General for the State of Oklahoma, Litigation Department, Oklahoma City, OK, for Respondent-Appellee
Judge Panel:Before MATHESON, McKAY, and BACHARACH, Circuit Judges.
Case Date:July 22, 2019
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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781 Fed.Appx. 745 (10th Cir. 2019)

Floyd Lee MILLER, Petitioner-Appellant,


Carl BEAR, Respondent-Appellee.

No. 19-5024

United States Court of Appeals, Tenth Circuit

July 22, 2019

Editorial Note:

UNPUBLISHED OPINION (See Fed. Rule of Appellate Procedure 32.1. See also U.S.Ct. of App. 10th Cir. Rule 32.1.)

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(D.C. No. 4:15-CV-00700-TCK-FHM) (N.D. Oklahoma)

David B. Autry, Oklahoma City, OK, James Patrick Quillian, Phillips, Coventon, Quillian & Banner, Oklahoma City, OK, for Petitioner-Appellant

Diane L. Slayton, Office of the Attorney General for the State of Oklahoma, Litigation Department, Oklahoma City, OK, for Respondent-Appellee

Before MATHESON, McKAY, and BACHARACH, Circuit Judges.


Scott M. Matheson, Jr., Circuit Judge

An Oklahoma jury found Floyd Lee Miller guilty of manufacturing methamphetamine and resisting arrest. After unsuccessfully challenging his convictions in the Oklahoma Court of Criminal Appeals ("OCCA"), he filed for federal relief under 28 U.S.C. § 2254 in the Northern District of Oklahoma. The district court denied his petition and denied a certificate of appealability ("COA"). Mr. Miller has asked this court for a COA on whether (1) the evidence at trial was constitutionally sufficient to sustain his conviction for manufacturing methamphetamine, (2) Mr. Miller’s trial and appellate counsel were ineffective regarding how they handled the issue of the search of his backpack at the time of arrest, and (3) the district court erred in denying an evidentiary hearing on Mr. Miller’s ineffective assistance of counsel ("IAC") claim. Exercising jurisdiction under 28 U.S.C. § 1291, we deny his request for a COA and dismiss this matter.


A. Factual Background

In 2011, Miami, Oklahoma Police Sergeant Michael Kelly saw Mr. Miller walking down the street with a backpack around 2:00 a.m. Sergeant Kelly pulled his car over and began speaking with Mr. Miller. When Mr. Miller identified himself as "Punkin’ Miller," Sergeant Kelly recognized him and recalled there might be warrants for his arrest. He radioed for backup, Officer Kelly Johnson arrived at the scene, and dispatch confirmed Mr. Miller had warrants for his arrest.

Officer Johnson testified at trial that when he arrived, "Sergeant Kelly was talking to Mr. Miller like they were old friends

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... and told Mr. Miller that he had warrants out of the county that he needed to take care of." ROA, Vol. III at 192. Mr. Miller was still wearing his backpack. As Officer Johnson left his car, Mr. Miller placed the backpack on the ground next to him and continued talking to Sergeant Kelly.

Officer Johnson approached the two men and told Mr. Miller to "turn around and put his hands behind his back" so that he could be handcuffed. Id. at 193. Mr. Miller initially complied, but once Officer Johnson made physical contact with him, "he took off running." Id. at 194. Officer Johnson described what happened next: We went through, and I’m not sure exact distance, maybe a yard or two, and once he was trying to step up on a step I was able to— in the way my steps were working I was able to extend one of my steps to kick his back foot, and he turned around and faced me and we both fell to the ground. I actually tackled him to the ground at that point.

Id. at 194. The officers subdued and arrested Mr. Miller

The officers then searched Mr. Miller’s backpack, which was still sitting next to Sergeant Kelly’s car where Mr. Miller had placed it. Officer Johnson said they conducted the search "because [they were] going to have to take his property ... to the county to be booked in and I had to make sure there wasn’t any contraband or weapons in the backpack." Id. at 197. In the backpack, they found a 20-ounce partially melted plastic bottle that Officer Johnson "thought ... was a meth lab." Id.


A third officer— Narcotics Detective Hicks— arrived on the scene after Mr. Miller’s arrest. He examined the bottle and concluded it showed "tell-tale" signs of methamphetamine manufacturing. ROA, Vol. III at 201-02. Testing on the bottle’s contents revealed methamphetamine and ephedrine residue. State witnesses testified that the bottle looked like it had been used as a "shake and bake" one-pot vessel for cooking methamphetamine. The officers also testified that they did not find any of the "fuel" necessary to make methamphetamine on Mr. Miller’s person or in his backpack.

B. Procedural Background

The State charged Mr. Miller with (1) manufacturing a controlled dangerous substance after a felony and (2) resisting arrest. An Oklahoma jury convicted him of both counts. He was sentenced to 17 years in prison, with two years suspended. Mr. Miller appealed to the OCCA, arguing the evidence was insufficient to support the methamphetamine conviction. The OCCA affirmed his conviction and sentence.

Mr. Miller then sought post-conviction relief in state court. He argued the officers’ warrantless search of his backpack violated the Fourth Amendment. He further argued he had not waived this issue because (1) his trial counsel was constitutionally ineffective for failing to file a motion to suppress and (2) his appellate counsel was ineffective for failing to argue the Fourth Amendment issue on direct appeal.

The Oklahoma district court denied Mr. Miller’s Fourth Amendment and I.A.C. claims, holding that Mr. Miller abandoned his backpack and that he "ha[d] no standing to object to the search of abandon [sic] property." ROA, Vol. I at 68.

Mr. Miller appealed, and the OCCA affirmed. Rejecting Mr. Miller’s arguments regarding the warrantless search of his backpack, the OCCA stated:

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Petitioner argues that the warrantless search of his backpack, which uncovered the evidence used to convict him, was not a valid search incident to arrest because he was removed from the backpack and thus it was not within his immediate reach and control. However, the District Court did not find the search was incident to Petitioner’s arrest. The District Court found, and the record provides ample support for the finding, that Petitioner placed the backpack on the ground and then fled from the arresting officers thereby abandoning the backpack. There can be no complaint of illegal search when police officers search without a warrant and seize abandoned property.

In attempting to establish that the District Court erred by finding Petitioner had abandoned the backpack, Petitioner argues that attempting to run a few yards when told he was being placed under arrest does not constitute abandonment of the property. However, if Petitioner’s actions were not an abandonment of the backpack, then the backpack was still within the area within Petitioner’s immediate control such that he could detonate a bomb or destroy evidence, and the officers had legitimate concern for their safety. The officers’ search would thus fall under the warrantless search exception of being incident to Petitioner’s arrest. Petitioner’s appellate counsel apparently realized the conundrum that, no matter which way he argued the facts of Petitioner’s case, the evidence would be admissible under an exception allowing the warrantless search. We do not find that Petitioner’s appellate counsel was unprofessional, or that the result of his appeal would have or should have been different.

ROA, Vol. II at 94-95 (citations omitted).[2] In short, the OCCA said the search was valid under either the abandonment or search-incident-to-arrest exceptions to the warrant requirement, and therefore rejected his I.A.C. claim.

Mr. Miller then filed a petition for federal habeas corpus relief under 28 U.S.C. § 2254 in the U.S. District Court for the Northern District of Oklahoma. He asserted three grounds for relief: (1) insufficiency of the evidence, (2) illegal search and seizure and IAC, and (3) newly discovered evidence. The district court rejected all three grounds and denied his request for a COA. Mr. Miller timely appealed, challenging the district court’s resolution of the first two issues.


Mr. Miller contends (1) the trial evidence was constitutionally insufficient to sustain his conviction for manufacturing methamphetamine, and (2) trial and appellate counsel were ineffective regarding the search issue.3 He asks for a COA on both issues.


We must grant a COA to review the district court’s denial of a § 2254 petition. See 28 U.S.C. § 2253(c)(1)(A);

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Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). To receive a COA, the petitioner must make "a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), and must show "that reasonable jurists could debate whether ... 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, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quotations omitted).

Under AEDPA, when a state court has adjudicated the merits of a claim, a federal district court cannot grant habeas relief on that claim unless 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 "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," id. § 2254(d)(2).

When the district court has denied habeas relief because the petitioner failed to overcome AEDPA, our COA decision requires us to determine whether reasonable jurists could debate the courts application of AEDPA to the state court...

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