Miller v. Anderson

• Decision Date: 29 June 2001
• Docket Number: No. 00-2979,RESPONDENT-APPELLEE,PETITIONER-APPELLANT,00-2979
• Citation: 255 F.3d 455
• Parties: (7th Cir. 2001) PERRY STEVEN MILLER,, v. RONDLE ANDERSON,
• Court: U.S. Court of Appeals — Seventh Circuit

Page 455

255 F.3d 455 (7th Cir. 2001)

PERRY STEVEN MILLER, PETITIONER-APPELLANT, v. RONDLE ANDERSON, RESPONDENT-APPELLEE.

No. 00-2979

IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Argued May 8, 2001

June 29, 2001

Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 99 C 258--Allen Sharp, Judge.

Eric Koselke, Poore, Wurster, Sullivan, Fairman, Sobel & Strunk, Brent Westerfeld (argued), Indianapolis, IN, for Petitioner-Appellant.

James B. Martin (argued), Office of the Attorney General, Indianapolis, IN, for Respondent-Appellee.

Before Posner, Easterbrook, and Ripple, Circuit Judges.

Posner, Circuit Judge

Miller was convicted in an Indiana state court of the rape, torture, and murder of a young woman and was sentenced to death. After exhausting his state remedies in Miller v. State, 623 N.E.2d 403 (Ind. 1993), and Miller v. State, 702 N.E.2d 1053 (Ind. 1998), he sought habeas corpus in federal district court, it was denied, and he appeals, arguing that his trial counsel was ineffective and so he is entitled to a new trial. The Indiana Supreme Court ruled that Miller's counsel had not been ineffective, and we must decide whether the ruling was an unreasonable application of federal constitutional law as declared by the U.S. Supreme Court, 28 U.S.C. sec. 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 404-05 (2000); Denny v. Gudmanson, 252 F.3d 896, 898(7th Cir.2001); Tenner v. Gilmore, 184 F.3d 608, 610, 614-16 (7th Cir. 1999); Mask v. McGinnis, 252 F.3d 85, 88(2d Cir. 2001) (per curiam)--specifically whether the Indiana court was unreasonable to reject Miller's claim that his lawyer's representation of him at trial fell below the minimum level of competence required in the representation of a criminal defendant and, if so, whether with minimally competent representation Miller would have had a significant, not merely a theoretical, chance of acquittal.

The victim, who worked at an all-night convenience store, was seized late at night from the otherwise empty store, taken to a secluded spot, tortured, raped, and then killed by a shot from a shotgun at close range. There were no witnesses. Two teenagers, Wood and Harmon, who lived with Miller, were arrested the next day. Wood confessed, implicating both Harmon and Miller--the last, Wood stated, having orchestrated the entire atrocious crime, as well as participating in it, although Harmon had been the one who shot the victim. Wood testified against Miller at Miller's trial, pursuant to a plea agreementwhereby Wood's sentence was capped at 60 years. (Harmon, who was also prosecuted and convicted, did not testify at Miller's trial.) Wood's testimony was the centerpiece of the state's case, but it was not entirely satisfactory. It contained some contradictions; it had been induced, in part anyway, by the state's promise not to seek the death penalty for him; and despite his youth he was already an accomplished criminal when the rape and murder occurred. The state wanted corroboration and found it in the testimony of its expert witness that a pubic hair found on the victim's thigh almost certainly was Miller's. The prosecution harped on this evidence in closing argument. Miller's lawyer did not consult with a hair expert, let alone call one as a witness, but was content to cross-examine the state's expert. In the post-conviction proceedings, however, new counsel for Miller retained a far more experienced hair expert than the state's and this expert testified that the hair was like the victim's hair and unlike Miller's. The prosecution at Miller's trial had also presented DNA evidence that it admitted was inconclusive and had not presented tire-tread and footprint evidence that it had said in opening argument it would present. Had Miller's lawyer called his own DNA, tiretread, and footprint experts, they would have testified not that the evidence was inconclusive but that it provided absolutely no basis for supposing Miller present at the scene of the crime.

Of course Miller's trial lawyer, even if he had searched conscientiously for expert witnesses to testify about hair, DNA, tiretreads and footprints, might not have found experts that would give impressive testimony favorable to Miller, even if such experts existed. The fact that Miller's post-conviction counsel was able to find a highly experienced hair expert to testify in Miller's favor doesn't mean that minimally competent trial counsel, shopping for an expert whom the court would appoint (since Miller could not afford to hire an expert in the market for high-priced expert witnesses), could have found as effective a witness to counter the prosecution's expert evidence. But the government makes nothing of this point; it is content to argue that Miller's lawyer was entitled to rely on cross-examination to undermine the prosecution's experts, and to make no effort to obtain his own experts. This argument would be convincing in some cases, but not in this one; cross-examination alone could weaken the prosecution's expert evidence, but not to the point of denying it the essential corroborative value for which the prosecutor was using it.

A hardware clerk testified that Miller had purchased shotgun shells the day before the murder. She based this testimony in part on her recollection of having received a check in Miller's name, and the state sought to corroborate her recollection by introducing a check and cash register record with the name "Miller" on it. The check was numbered 1204 and the witness testified that she was positive that "Miller 1204" was the defendant. In fact the check was from a different person, as Miller's lawyer would have discovered had he subpoenaed the bank's records from the bank. He did obtain Miller's copy of those records, which contained no trace of such a check; and while the prosecutor argued that Miller might have had another bank account on which he had written the check--an argument with no basis in the evidence--the prosecutor could have made the same argument had Miller's lawyer obtained bank records, since the lawyer could not have obtained the records of every bank in which Miller might have had another account. But only with the bank's records could the lawyer have shown that "Miller 1204" was a different Miller from the defendant.

The lawyer further failed to point out to the jury that while the clerk testified that she had sold Miller Remington shotgun shells, the shells found at the scene of the crime were of another make. The lawyer did elicit from Miller's wife testimony that Miller had not written the check; but since in closing argument the lawyer stated that Miller's wife would lie for him, the testimony was unlikely to have helped Miller--and incidentally that...