Miller v. Francis

• Decision Date: 12 June 2001
• Docket Number: No. 00-3327,00-3327
• Citation: 269 F.3d 609
• Parties: (6th Cir. 2001) Henry C. Miller, Petitioner-Appellant, v. Rod Francis, Warden, Respondent-Appellee. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 609

269 F.3d 609 (6th Cir. 2001)

Henry C. Miller, Petitioner-Appellant, v. Rod Francis, Warden, Respondent-Appellee.

No. 00-3327

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: June 12, 2001

Decided and Filed: October 11, 2001

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 99-00257, George C. Smith, District Judge.

David H. Bodiker, Susan M. Roche, PUBLIC DEFENDER'S OFFICE, OHIO PUBLIC DEFENDER COMMISSION, Columbus, Ohio, for Appellant.

Jonathan R. Fulkerson, OFFICE OF THE ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

Before: MARTIN, Chief Judge; NORRIS, Circuit Judge; QUIST, District Judge^*.

OPINION

GORDON J. QUIST, District Judge.

Petitioner, Henry C. Miller, is serving a prison sentence imposed after he was convicted of three counts of gross sexual imposition and one count of raping a minor under the age of thirteen. He appeals the district court's dismissal of his 2254 habeas petition. Miller alleges in his petition that his trial counsel was ineffective for failing to challenge a biased juror and that the state court of appeals improperly applied a de novo standard rather than the abuse of discretion standard when it reversed the trial court's decision that he had been denied the effective assistance of counsel. We find that the state court of appeals' rejection of Miller's claim of ineffective assistance of counsel was not an unreasonable application of clearly established federal law as determined by the Supreme Court. Accordingly, we AFFIRM.

I.

The state prosecution arose from allegations that Miller sexually molested a thirteen-year-old boy that he had befriended. An Ohio grand jury indicted Miller on three counts of gross sexual imposition and three counts of rape of a minor under the age of thirteen. The investigation began when the county Department of "Children's Services" received an anonymous phone call on August 13, 1992, stating that Miller was "sleeping with" a boy who was staying at his residence. The anonymous phone caller disclosed that she received the information from Petitioner's wife, Phyllis Miller. Children's Services contacted Phyllis Miller and obtained additional information about the allegations and the name of the alleged child victim. The allegations were unknown to the victim's mother, Cordia Williamson, until she was contacted by a Children's Services caseworker in August 1992. Williamson was called as a witness by the state. She testified regarding her son's relationship with Miller and his family. Williamson testified that when she was contacted by Children's Services, the boy initially denied that anything had taken place, but a few days later he admitted that the allegations were true and told her everything. Williamson did not testify regarding the content of her son's statements.

During voir dire, Juror Number Twelve, Patricia Furrow, indicated that she had some prior knowledge of the case by virtue of her employment with the Logan County Department of Human Services, but Furrow did not want to discuss the prior knowledge in open court because she was concerned about violating the "Privacy Act." The trial court conducted an in camera examination of Furrow, attended by the court reporter, the prosecuting attorney, and Miller's attorney, William Shirk. During the examination, Furrow stated that she was aware of the case because she was currently serving as a welfare (apparently ADC) caseworker to the victim's mother, Cordia Williamson. Furrow stated that "[Williamson] had called me very upset and said that this had happened. But no names were used. But I was aware it had happened." During the phone conversation, Williamson told Furrow "that she was having a very hard time. J-- had been raped, and that she was trying to go through it with him." Williamson did not tell Furrow the details of the rape or the criminal investigation. Furrow expressed concern that her presence on the jury would be uncomfortable for both her and Williamson. Furrow was also worried that Williamson would try to telephone her during trial to talk about the case. She explained, "I guess I just know Cordia. I know she's going to call me as soon as, if I'm on there, I know she's going to call me and, you know, be talking about it and those kinds of things just because Cordia's like that. I know Cordia." When asked by the prosecutor whether she could be fair, Furrow responded, "I -- it's tough. I think I could be fair." When later asked by Shirk whether her professional relationship with Williamson lent more credence to the charges against his client, Furrow answered, "No, I don't really think that I would be biased. Just uncomfortable." Furrow indicated that should a problem arise with Williamson as a result of her participation as a juror, Williamson could be reassigned to a new caseworker. Attorney Shirk declined to challenge Furrow for cause or to use a peremptory challenge to remove her from the jury. The defense had two peremptory challenges remaining at the end of jury selection.

On March 24, 1993, the jury, with Furrow acting as foreperson, found Miller guilty of three counts of gross sexual imposition and one count of rape. The trial court sentenced Miller to terms of imprisonment of one year, one-and-a-half years, and two years for the gross sexual imposition convictions, and eight to twenty-five years for the rape conviction. All sentences were set to run consecutively for a total definite term of four-and-a-half years followed by an indefinite term of eight to twenty-five years. Miller's conviction was affirmed by the Ohio Court of Appeals on October 23, 1993.

Thereafter, Miller filed a petition for post-conviction relief with the trial court. For reasons unimportant to this appeal, the original trial judge recused himself. At the evidentiary hearing before the new judge, Miller presented the expert testimony of Don Schumacher, an experienced local criminal defense attorney. Schumacher testified that, in his opinion, Shirk's decision to leave Furrow on the jury was unreasonable under prevailing professional standards. Shirk was the only witness called by the state. Shirk testified that he and Miller discussed whether Furrow should be kept on the jury. According to Shirk, they had formed the opinion that Williamson was prone to exaggerate, was less than truthful, and difficult to deal with. Shirk believed that if Furrow knew Williamson well, she would have the same opinion of her. He testified, "And we thought if she knew her pretty well, she wouldn't particularly give a lot of credence to what she [Williamson] said because that's the way we look at her." Weighing Furrow against other prospective jurors that had not yet been questioned, Shirk thought she would be a good juror. In fact, he perceived her as someone who would "perhaps bend over backwards to be fair to Henry." Shirk could not recall whether he consulted with his client about Furrow before, during, or after the in camera interview.

In an affidavit submitted with his post-hearing brief, Miller stated that he was not present during the in camera examination of Furrow. Miller further stated that when Shirk returned from the judge's chambers, Miller asked if the juror in question was going to stay. According to Miller, Shirk responded that Furrow "would be good for [him]." There was no further discussion regarding the content of Furrow's statements during the in camera examination. Miller contended that he was not aware that Furrow had counseled Williamson or that Williamson had discussed the case with her before trial.

After reviewing the evidence, the trial court concluded that counsel was ineffective for failing to challenge Furrow. Relying on the voir dire transcript, the trial court found that Furrow had "a close connection with the alleged victim's family, prior knowledge of the case, mind set concerning the facts of the case [i.e. that the victim had been raped], and inability to state positively that she could be fair and impartial." Notwithstanding the presumption that Shirk acted competently, the trial court found that his failure to discuss these issues more thoroughly with Furrow and to challenge her either for cause or peremptorily, fell below an objective standard of reasonableness. Accordingly, the trial court vacated Miller's convictions and granted a new trial. The State of Ohio appealed the trial court's decision. The Ohio Court of Appeals reversed the decision of the trial court on June 25, 1998, and Miller's conviction and sentence were reinstated. The court of appeals found that Shirk's decision to leave Furrow on the jury "bore a reasonable relationship to a defense trial strategy." The court of appeals further held that the trial court abused its discretion by not giving due deference to trial counsel's trial tactics. Miller timely appealed to the Ohio Supreme Court, which declined jurisdiction to hear the case and dismissed the appeal on October 7, 1998, as not involving any substantial constitutional question.

Represented by the public defender, Miller filed an application for habeas corpus relief on March 24, 1999, in the United States District Court for the Southern District of Ohio. Miller presented two grounds for relief. First, Miller claimed that his trial counsel was ineffective for failing to remove Furrow from the jury on account of bias. Second, he claimed that the Ohio Court of Appeals improperly applied a de novo standard, instead of the more deferential abuse of discretion standard, in reviewing the decision of the trial court. On February 10, 2000, the district court issued an opinion and order denying Miller's claims on the merits and dismissing the action. On habeas review, the district court concluded that the record did not reveal any indication of juror bias, that trial counsel's voir dire was not inadequate, and that trial counsel had articulated a reasonable strategic rationale for leaving the juror...