Miller v. Kemna, 98-2867

• Decision Date: 15 March 2000
• Docket Number: No. 98-2867,98-2867
• Parties: (8th Cir. 2000) Clifford S. Miller, Appellant, v. Mike Kemna, Superintendent; Jeremiah (Jay) Nixon, Attorney General of the State of Missouri, Appellees. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1096

207 F.3d 1096 (8th Cir. 2000)

Clifford S. Miller, Appellant, v. Mike Kemna, Superintendent; Jeremiah (Jay) Nixon, Attorney General of the State of Missouri, Appellees.

No. 98-2867

United States Court of Appeals FOR THE EIGHTH CIRCUIT

Submitted: March 15, 2000

Decided: April 3, 2000

Appeal from the United States District Court for the Western District of Missouri.

Before HANSEN, HEANEY, and FAGG, Circuit Judges.

PER CURIAM.

Clifford S. Miller shot a woman while abducting her, raped her at gunpoint, and struck her in the head with his gun. The woman later identified Miller as her attacker and after a trial, a Missouri jury convicted him of forcible sodomy, assault, kidnaping, and armed criminal action. Miller filed a motion for postconviction relief, see Mo. S. Ct. R. 29.15, and the Missouri trial court denied the motion. In a consolidated proceeding, the Missouri Court of Appeals affirmed both Miller's conviction on direct appeal and the denial of postconviction relief. See State v. Miller, 935 S.W.2d 618, 619 (Mo. Ct. App. 1996). Miller next filed this federal habeas petition raising many claims of trial court error, prosecutorial misconduct, and ineffective assistance of trial counsel. Of the twenty-eight claims, the district court concluded twenty-seven of them were procedurally defaulted because Miller had failed properly to raise them in state court. The district court held Miller failed to show cause to excuse the default or his probable actual innocence to warrant consideration of the claims' merits. As for the preserved claim, Miller asserted his trial attorney's assistance was constitutionally deficient because the attorney failed timely to endorse an alibi witness for the defense, and the witness was not permitted to testify at Miller's trial. The district court rejected the claim on the merits because Miller gave the attorney the wrong last name for the witness. See id. at 624-25.

On appeal, Miller asserts the district court should have considered many of the issues the court deemed defaulted. According to Miller, his other ineffective assistance of trial counsel claims are not procedurally barred because his appellate attorney refused to raise the ineffective assistance of trial counsel claims on appeal, and Miller raised them in his pro se motion to recall the mandate in the only context appropriate there, the ineffective assistance of appellate counsel. See Nave v. Delo, 62 F.3d 1024, 1031 (8th Cir. 1995).

To preserve a claim for federal habeas review, a petitioner must raise both the factual and legal basis for each ineffectiveness of counsel claim in the state courts. See Flieger v. Delo, 16 F.3d 878, 884-85 (8th Cir. 1994). Here, the legal theories raised in the motion to recall the mandate (ineffective assistance of appellate counsel) and in the federal habeas petition (ineffective assistance of trial counsel) are different. Thus, Miller procedurally defaulted his ineffective assistance of trial counsel claims.

Although he did not raise his claims of ineffective assistance of appellate counsel in the district court, Miller contends we should consider them anyway because he filed his habeas petition without the help of an attorney. While we liberally construe a pro. se habeas petition, see Frey v. Schuetzle, 78 F.3d 359, 361 (8th Cir. 1996), we do not require a district court to recognize an unarticulated argument, see Mack v. Caspari, 92 F.3d 637, 640 (8th Cir. 1996). Miller's habeas petition contains no mention of appellate counsel, so we conclude the ineffective assistance of appellate counsel issue was not adequately raised in the district court to permit our review. See id. Miller also asserts he had a constitutional right to counsel in postconviction proceedings. This assertion is contrary to the Supreme Court's decision in Coleman v. Thompson, 501 U.S. 722, 752 (1991), and our decision in Lowe-Bey v. Groose, 28 F.3d 816, 818-19 (8th Cir. 1994). We thus...