Miller v. United States, 040114 FED6, 11-3914

Docket Nº:11-3914
Opinion Judge:LUDINGTON, District Judge.
Party Name:MARVIN MILLER, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee.
Judge Panel:BEFORE: CLAY, ROGERS, Circuit Judges; and LUDINGTON, District Judge.
Case Date:April 01, 2014
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

MARVIN MILLER, Petitioner-Appellant,


UNITED STATES OF AMERICA, Respondent-Appellee.

No. 11-3914

United States Court of Appeals, Sixth Circuit

April 1, 2014



BEFORE: CLAY, ROGERS, Circuit Judges; and LUDINGTON, District Judge. [*]

LUDINGTON, District Judge.

Petitioner Marvin Miller was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The district court found that Miller had three previous convictions for violent felony offenses and was therefore subject to the mandatory sentence enhancement under the Armed Career Criminal Act ("ACCA"). The district court sentenced Miller to the ACCA's 180-month statutory minimum.

Following his unsuccessful direct appeal, Miller filed a 28 U.S.C. § 2255 petition to vacate his sentence, which the district court denied. The district court also denied Miller's pro se motion to amend his § 2255 petition to include an additional claim for ineffective assistance of counsel. On appeal, Miller asserted that his sentencing counsel was ineffective for (1) failing to argue that Miller's 1990 juvenile conviction does not qualify as a predicate violent felony under the ACCA and (2) failing to object to the district court's reliance on evidentiary hearings rather than Shepard documents to make that determination. Miller also challenges the district court's denial of his motion to amend, which would have permitted him to advance an additional claim: that he rejected a favorable plea agreement that the government was willing to offer because counsel advised him that the ACCA's mandatory sentence enhancement would not apply if he proceeded to trial and lost. For the following reasons, we uphold the district court's denial of Miller's ineffective assistance of counsel claims in part but REMAND one ineffective assistance claim to the district court for an evidentiary hearing.


The facts underlying Miller's conviction as a felon in possession of a firearm are both simple and undisputed. On September 7, 2007, police officers executed a search warrant at Bella's Gentlemen's Club in Toledo, Ohio. Officers observed Miller reach into his waistband, remove a handgun, and throw it near a table on the club patio. After officers arrested Miller as he tried to climb over the club's fence, they recovered the handgun from underneath the table.


On November 30, 2007, Miller was arraigned in federal district court. Counsel was appointed to represent Miller, who entered a plea of not guilty. The district court conducted a bench trial on April 30, 2008, and found Miller guilty of being a felon in possession of a firearm.

At sentencing, Miller's presentence report ("PSR") classified him as an armed career criminal under the ACCA. The PSR explained that Miller's record contained three previous violent felonies: involuntary manslaughter with a firearm specification, attempted felonious assault, and felonious assault. The conviction for felonious assault was a juvenile adjudication, and the district court requested supplemental briefing on whether the juvenile adjudication could be used for the sentence enhancement under the ACCA. After two evidentiary hearings, the district court concluded that the juvenile conviction comported with due process and therefore qualified as a predicate violent felony. Miller thus had three prior qualifying felonies under the ACCA, and he received the minimum sentence—180 months' imprisonment.

On direct appeal, Miller challenged the district court's conclusion that the 1990 juvenile conviction was "procedurally sound" as required by due process. On April 7, 2010, we affirmed the district court's decision, concluding that the prior juvenile adjudication for felonious assault qualified as a predicate offense for the mandatory enhancement of Miller's sentence under the ACCA. United States v. Miller, 371 F.App'x 646, 654 (6th Cir. 2010) ("We agree with the district court that the 1990 juvenile proceeding sufficiently comported with due process to count as a predicate offense for purposes of the Armed Career Criminal Act.").


On April 26, 2011, Miller filed a pro se § 2255 petition to vacate in the district court, alleging that his attorney was ineffective because: (1) she failed to investigate Miller's prior convictions, resulting in his classification as an armed career criminal subject to a 180-month mandatory minimum sentence; (2) she misinformed Miller that she would file a motion to dismiss, and this was the reason Miller agreed to a bench trial instead of a jury trial; and (3) at sentencing, she "simply let the federal government and the court 'make phone-calls' in order to determine this petitioner was qualified as an armed career criminal—which isn't a matter of law." Pet'r's Mot. Under 28 USC § 2255, at 7, Miller v. United States, No. 11-00820 (Apr. 26, 2011), R.I. 1.

About three months later, on July 27, 2011, Miller filed a Rule 15(d) motion for leave to supplement his § 2255 petition "to perfect an otherwise imperfected § 2255 prepared without the benefit of [all] transcripts needed in which to prepare a meaningful post-conviction proceeding."1The next day, the district court denied Miller's § 2255 petition and his motion to supplement the petition. Miller appealed the district court's decision denying his § 2255 petition, and this Court granted a partial certificate of appealability limited to Miller's claims that sentencing counsel provided ineffective assistance.

On May 9, 2012, Miller—proceeding pro se— filed an appellant brief challenging the district court's denial of his petition for habeas corpus. His brief asserted a single claim: that his trial counsel was ineffective for failing to investigate whether his prior convictions would result in a sentence enhancement under the ACCA. Following a round of briefing, Miller filed a motion for appointment of counsel on July 9, 2012. Miller then filed a supplemental pro se brief on October 12, 2012, that sought review of the district court's denial of his motion to supplement his original habeas petition.

On March 7, 2013, we granted Miller's motion for appointment of counsel and appointed an attorney to represent him on appeal. Before Miller's appointed counsel filed any briefs, Miller filed a pro se motion requesting a different attorney because counsel would not put forth the argument from his pro se supplemental brief. After we denied Miller's request to remove his appointed counsel, Miller retained a private attorney.

Miller's retained counsel then filed a brief asserting that Miller was denied effective assistance when his trial counsel failed to investigate his prior convictions—the same argument Miller asserted in his pro se appellant brief. Miller's counsel did not, however, argue the issue Miller advanced in his supplemental pro se brief: that the district court erred when it denied Miller leave to amend his habeas petition.


Parties have the right to plead and conduct their own cases in federal courts. 28 U.S.C. § 1654. However, "courts enjoy broad discretion to determine who shall practice before them." United States v. Dinitz, 538 F.2d 1214, 1219 (5th Cir. 1976).

Sixth Circuit caselaw is clear that a criminal defendant does not have a constitutional right to "hybrid representation." United States v. Mosely, 810 F.2d 93, 98 (6th Cir. 1987). A defendant has a constitutional right to be represented by counsel or to represent himself during his criminal proceedings, but not both. Id. at 97 (citing Faretta v. California, 422 U.S. 806 (1975)). The Sixth Circuit explained: "The right to defend pro se and the right to counsel have been aptly described as two faces of the same coin, in that waiver of one constitutes a correlative assertion of the other." Id. at 97–98 (quoting United States v. Conder, 423 F.2d 904, 908 (6th Cir. 1970)) (internal quotation marks omitted). Hybrid representation is generally prohibited because it increases the risk of undue delay, jury confusion, and conflicts as to trial strategy. Id. at 98. When counsel has "performed in a highly competent and professional manner" and the defendant has been "given ample time to consult with his counsel over strategy, " it is not an abuse of a court's discretion to prohibit hybrid representation. Id.

A habeas petitioner has neither a constitutional right nor a statutory right to hybrid representation. See 28 U.S.C. § 1654 ("In all courts of the United States the parties may plead and conduct their own cases personally or by counsel . . . .") (emphasis added). However...

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