Miller v. Keeney

• Decision Date: 15 August 1989
• Docket Number: No. 88-4262,88-4262
• Citation: 882 F.2d 1428
• Parties: Norman Elmer MILLER, Petitioner-Appellant, v. J.C. KEENEY, Superintendent, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1428

882 F.2d 1428

Norman Elmer MILLER, Petitioner-Appellant, v. J.C. KEENEY, Superintendent, Respondent-Appellee.

No. 88-4262.

United States Court of Appeals Ninth Circuit.

Argued May 2, 1989.

Submitted May 18, 1989.

Decided Aug. 15, 1989.

Kenneth Lerner, Asst. Federal Public Defender, Portland, Or., for petitioner-appellant.

Linda DeVries Grimms, Asst. Atty. Gen., Salem, Or., for respondent-appellee.

Before TANG, BOOCHEVER and KOZINSKI, Circuit Judges.

KOZINSKI, Circuit Judge:

On a bright warm spring Wednesday morning in downtown Portland, Oregon, nearly a decade ago, Lownsdale Park was crowded with people out walking or sitting on benches. One of the more active was Norman Elmer Miller, who had left his car near the park and was seen by the police leaving a telephone booth and walking quickly through the park in a dark overcoat and sunglasses. Also in the park were a number of Portland police officers, engaged in what would prove to be an unsuccessful race against time: They had received an anonymous telephone call threatening that a bomb would go off somewhere in the downtown area sometime that morning. As the police officers scanned the downtown telephone booths for signs of the caller; as Miller left the park and reached his car to discover that he had been followed by two officers, who patted him down, advised him of his Miranda rights, and began to question him; as other police officers frantically tried to clear the unsuspecting public out of the park; a bomb exploded in an unoccupied restroom in one corner of the park and blew the restroom to bits. The police arrested Miller, who was subsequently convicted in Oregon state court of two counts of arson and one count of criminal mischief, and was given concurrent sentences of twenty years in prison, where he remains today.

But while the shock wave of the blast dissipated a fraction of a second after the restroom was destroyed, the explosion of April 23, 1980, still resonates through our legal system. Today, it provides the occasion for us to delineate one of the frontiers of the constitutional right to the effective assistance of counsel.

I

Miller was taken to the police station after his arrest. A police officer again advised him of his constitutional rights; Miller indicated that he wished to consult an attorney. Respecting his request, the police properly refrained from interrogating Miller until the following day, when counsel was provided.

Soon after Miller was taken into custody, however, the police seized his clothing, attempted to take handwriting samples, and swabbed his hands for chemical residues that would suggest Miller had recently handled explosives. While an officer was swabbing his right hand, Miller wiped his left hand on his trousers. No incriminating chemicals were detected on Miller's hands.

The officer who had performed the swabbing testified at trial about the hand wiping incident. Although neither the prosecutor nor the officer ever said so explicitly, Miller's conduct gave rise to the clear inference that he was attempting to wipe chemical residues off his left hand. Defense counsel objected strenuously to the officer's testimony, arguing that it infringed Miller's right to counsel and privilege against self-incrimination. The court overruled the objection. Miller was convicted.

Appellate counsel, a Deputy Public Defender, raised only one issue on direct appeal: She contended that Miller's arrest was invalid, and that evidence seized after he was arrested should accordingly have been suppressed. She did not assign error to the admission of evidence that Miller had wiped his hand on his trousers. Miller filed a pro se supplemental brief that raised a number of other issues, but also did not include discussion of the hand wiping incident. The Oregon Court of Appeals affirmed Miller's conviction. State v. Miller, 54 Or.App. 323, 634 P.2d 1361 (1981). The Oregon Supreme Court denied review. State v. Miller, 292 Or. 450, 644 P.2d 1128 (1982).

Appellate counsel informed Miller of the Oregon Supreme Court's decision in a letter that also informed him of the possibility of further review of his conviction. Counsel advised:

As you are probably aware, you have 60 days from January 26 in which to petition for a writ of certiorari to the United States Supreme Court should you wish to pursue that option. It is not necessary to file such a petition in order to protect your post-conviction rights. I do believe, however, that you can go directly to federal court on a habeas corpus petition concerning those issues which have already been litigated by the Oregon appellate courts.

Miller evidently interpreted the letter as advice to abandon his last possible stage of direct review and begin collaterally attacking his conviction: He refrained from filing a certiorari petition in the United States Supreme Court. Instead, he filed a petition for post-conviction relief in state court, which was denied at all levels of the state court system. Miller v. Cupp, 77 Or.App. 195, 712 P.2d 186 (1985), review denied, 300 Or. 704, 716 P.2d 758 (1986).

Miller then filed a petition in federal district court pursuant to 28 U.S.C. Sec. 2254 (1982). The petition, which raised four claims, was denied. Miller v. Keeney, No. CV-86-6228-E (D.Or. Sept. 15, 1988). We review de novo. Alford v. Rolfs, 867 F.2d 1216, 1218 (9th Cir.1989).

Miller presses only two claims on appeal. He alleges that he was denied the effective assistance of appellate counsel because his attorney: (1) incorrectly advised him not to file a certiorari petition in the United States Supreme Court; ¹ and (2) failed to raise the hand wiping incident on direct appeal. Both of these contentions lack merit, but for very different reasons.

II

A. Advice Not to File a Certiorari Petition

1. Appellate counsel's letter never expressly advised Miller not to file a certiorari petition, but Miller's interpretation was not unreasonable. The letter presents certiorari as an option Miller could elect to pursue or not, but which would have no effect on the availability of post-conviction remedies. The tone of the letter suggests that petitioning for certiorari is an unnecessary formal step on the way to post-conviction relief; indeed, counsel explicitly advises that Miller can proceed directly to federal court to file a habeas corpus petition raising those issues that had been raised before the Oregon appellate courts.

This advice was at best incomplete and may well have fallen below the constitutional standard of competence. ² Six years before counsel wrote this letter, the Supreme Court had held that a state prisoner may not be granted federal habeas relief on the ground that evidence obtained during an unconstitutional search was introduced at trial, where the prisoner had been afforded an opportunity for full and fair litigation of his claim in the state courts. Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct. 3037, 3052, 49 L.Ed.2d 1067 (1976). The one claim appellate counsel raised before the Oregon Court of Appeals had been precisely of this variety; she had alleged that evidence introduced at trial was the product of a search conducted incident to Miller's unlawful arrest, and should thus have been excluded. Powell precluded federal habeas review of this claim. ³ Accordingly, Miller had only one opportunity to have a federal court review the issue: He had to file a certiorari petition in the United States Supreme Court. This is what counsel advised him was unnecessary.

No doubt about it, Miller did not receive top-flight legal advice. But federal courts lack authority to afford habeas corpus relief to all victims of poor advice; a state prisoner must demonstrate "that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. Sec. 2254 (1982). Before we can determine whether Miller was deprived of the constitutional right to the effective assistance of counsel, we must ascertain whether he had such a right in the first place.

The due process clause of the fourteenth amendment guarantees a criminal defendant the right to the effective assistance of counsel on his first appeal as of right. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). ⁴ But the fourteenth amendment does not require a state to provide any counsel to a defendant seeking to file a certiorari petition in the United States Supreme Court. Ross v. Moffitt, 417 U.S. 600, 617-18, 94 S.Ct. 2437, 2447, 41 L.Ed.2d 341 (1974); see also Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987) ("the right to appointed counsel extends to the first appeal of right, and no further"). ⁵ Miller's assertion of a right to the effective assistance of counsel thus must rest on one of two premises: He must argue that either (1) a constitutional right to the effective assistance of counsel can exist even where there is no constitutional right to counsel, such as where a state voluntarily provides legal advice to potential certiorari petitioners; or (2) counsel's letter is properly characterized as advice in her continuing role as direct appellate counsel, not certiorari counsel.

We must reject the first of these arguments. In Wainwright v. Torna, 455 U.S. 586, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982) (per curiam), the Court made explicit what had been implicit in its prior opinions: The fourteenth amendment right to the effective assistance of appellate counsel is derived entirely from the fourteenth amendment right to appellate counsel, and the former cannot exist where the latter is absent. Torna held that a state criminal defendant has no fourteenth amendment right to the effective assistance of counsel when pursuing a discretionary state appeal. "Since respondent had no constitutional right to counsel," the Court observed, "he could not be deprived of the effective assistance of counsel." Id. at 587-88, 102 S.Ct. at 1301. The four-paragraph...