Miller v. Martin

• Decision Date: 15 March 2007
• Docket Number: No. 05-3978.,05-3978.
• Parties: Keith MILLER, Petitioner-Appellant, v. Walter E. MARTIN,<SMALL><SUP>*</SUP></SMALL> Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

481 F.3d 468

Keith MILLER, Petitioner-Appellant, v. Walter E. MARTIN,^* Respondent-Appellee.

No. 05-3978.

United States Court of Appeals, Seventh Circuit.

Argued January 24, 2007.

Decided March 15, 2007.

As Amended March 19, 2007.

Maureen L. Rurka (argued), Winston & Strawn, Chicago, IL, for Petitioner-Appellant.

Steve Carter, Julie A. Hoffman (argued), Office of the Attorney General, Indianapolis, IN, for Respondent-Appellee.

Before RIPPLE, ROVNER, and WILLIAMS, Circuit Judges.

PER CURIAM.

Indiana prisoner Keith Miller, who is 71 years old, is serving a 48-year sentence for his convictions on 18 counts of state securities violations. Miller, who was convicted in absentia after failing to appear for trial, attended his sentencing hearing but remained silent throughout the proceedings on the advice of his attorney, Kevin McShane. McShane likewise refused to participate. After his convictions and sentence were upheld on appeal, Miller successfully petitioned for postconviction relief and was granted resentencing, but the Indiana Court of Appeals reversed that decision. Miller then filed a petition for a writ of habeas corpus in federal court, which was denied. On appeal Miller argues that the state appellate court unreasonably concluded that McShane's performance at sentencing was not deficient or prejudicial, and he further contends that United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), rather than Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), governs his claim. We conclude that Cronic is indeed the proper framework, but that, regardless of which standard we apply, Miller meets his burden. Accordingly, for the reasons set forth in the following opinion, we reverse the district court's decision and remand with instructions to grant the writ of habeas corpus.

I.

The State of Indiana charged Miller with six counts each of selling unregistered securities, failing to register as an agent, and securities fraud, after he and a business associate sold shares in a company they formed without making necessary disclosures to the investors. Miller did not appear for the trial scheduled for November 14, 1988. After satisfying himself that Miller had received notice of the trial date but deliberately absented himself, the trial judge decided to try Miller in absentia. The jury found Miller guilty on all counts.

Miller was apprehended shortly after the trial. He retained new counsel, McShane, and appeared for his sentencing hearing on June 9, 1989. According to Miller's later testimony, at the time of the hearing, he had not yet seen a copy of his presentence investigation report ("PSR") or had the opportunity to review it with McShane. McShane was certain that the appellate court would order a new trial because, he believed, the trial in absentia was "a nullity." He therefore told Miller not to speak at all during the sentencing hearing, lest he reveal that he had notice of his trial date. For his own part, McShane also remained mute, except to tell the sentencing court at the outset of the hearing that Miller "does not recognize" the validity of the trial or the "authority of the Court to proceed to disposition at this time." The State argued for double the presumptive sentence of four years' imprisonment on each count based on aggravating factors. McShane, as he testified during the state postconviction hearing, "did not make any sort of presentation or resist the State's presentation." The court imposed a sentence of eight years on each count of conviction, with the sentences on six counts to run consecutively and the remaining 12 to run concurrently.

McShane's prediction that Miller's convictions would surely be overturned on appeal proved wrong. The appellate court did, however, order a limited remand for a hearing on whether Miller had knowingly absented himself from trial (a necessary precondition to a trial in absentia). On remand, the trial court conducted a hearing and again concluded that Miller had knowingly failed to appear. The appellate court upheld this finding and therefore rejected Miller's argument that the trial in absentia was improper. Miller v. State, 593 N.E.2d 1247 (Ind.Ct.App.1992). The court affirmed the convictions and sentence, and shortly thereafter the Indiana Supreme Court denied Miller's petition for discretionary review.

On May 8, 1995, Miller filed a petition for postconviction relief in which he advanced nine grounds for relief, including the argument that McShane provided ineffective assistance of counsel at sentencing. More than six years later—the reasons for this unconscionable delay are not clear from the record—a hearing was finally held, and both Miller and McShane testified. Miller testified that his PSR contained numerous errors, most relating to the facts of his offense, that went uncorrected at the sentencing hearing.¹ When asked if he made any presentation to the sentencing court, McShane stated, "None whatsoever, other than to advise the Court that we would not be making a presentation." He explained that at the time of sentencing, it was his "firm opinion" that a new trial would be ordered on appeal, and he did not want Miller to be questioned about whether he had actual notice of his trial date. When asked specifically if he had cross-examined witnesses, commented on exhibits, or otherwise participated, he stated that he "did nothing." Ultimately, the court concluded that Miller had to be resentenced because he was denied the effective assistance of counsel at his sentencing hearing. Finding that McShane "did not present any mitigating evidence," did not rebut any evidence presented by the State, and did not correct "material factual errors" in the PSR, the court concluded that McShane's performance rendered the proceedings "fundamentally unfair."

The State appealed, and the Indiana Court of Appeals reversed. State v. Miller, 771 N.E.2d 1284 (Ind.Ct.App.2002). Applying Strickland, the appellate court noted that McShane's choice to stand mute, while "unorthodox," was a clear-cut example of a "purely strategic decision" that was not unreasonable based on prevailing professional norms. See id. at 1288-89. The court also concluded that Miller could not establish that McShane's decision prejudiced him. Focusing only on Miller's claim that errors in the PSR went unchallenged, the court concluded that Miller had not established that correcting those errors would have changed the sentence. Id. at 1289. The court reasoned that the length of Miller's sentence was due almost entirely to his criminal history, which no amount of participation by McShane could have changed. Id.

After the Indiana Supreme Court denied transfer, Miller filed a petition under 28 U.S.C. § 2254 in federal district court. Miller raised several claims, but the only one relevant to this appeal is his argument that the Indiana Court of Appeals acted contrary to clearly established law in concluding that counsel provided constitutionally sufficient representation at sentencing. The district court concluded that the state appellate court's decision was reasonable and denied Miller's petition and his subsequent request for a certificate of appealability. Miller filed a notice of appeal, and we granted a certificate of appealability on the ineffective-assistance claim.

II.

We review the district court's denial of a habeas corpus petition de novo. See Montgomery v. Uchtman, 426 F.3d 905, 909-10 (7th Cir.2005). Under the Antiterrorism and Effective Death Penalty Act of 1996, a federal court may not grant a writ of habeas corpus on any claim adjudicated on its merits in state court unless the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d).

Miller first argues that the state appellate court improperly applied Strickland rather than Cronic to his ineffective-assistance claim. Counsel's failure to participate in the sentencing hearing was so complete that, according to Miller, prejudice should have been presumed. If Miller is correct that the state appellate court applied the wrong legal standard to his ineffective-assistance claim, then the resulting decision is contrary to Supreme Court precedent. See Van Patten v. Deppisch, 434 F.3d 1038, 1043 (7th Cir.2006), vacated on other grounds sub nom. Schmidt v. Van Patten, ___ U.S. ___, 127 S.Ct. 1120, 166 L.Ed.2d 888 (2007); Patrasso v. Nelson, 121 F.3d 297, 305 (7th Cir.1997).

Some uncertainty exists with regard to the appropriate standard for evaluating claims of ineffective assistance of counsel when counsel's efforts appear particularly lacking. Ordinarily, ineffective-assistance claims are governed by the two-part inquiry articulated in Strickland. To prevail, the defendant must demonstrate that counsel's performance was so deficient that it fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052; Montgomery, 426 F.3d at 913. He must also establish that he was prejudiced by the deficient performance, i.e., that but for counsel's errors there is a reasonable probability that the outcome would have been different. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052. However, in certain types of cases, prejudice is "so likely that case-by-case inquiry into prejudice is not worth the cost," and so it is presumed. Id. at 692, 104 S.Ct. 2052. This occurs when (1) the defendant "is denied counsel at a critical stage"; (2) counsel "entirely fails to subject the prosecution's case to meaningful adversarial testing"; or (3) counsel is called upon to represent a client in circumstances under which no lawyer could provide effective assistance. Cronic, 466 U.S. at 659-61, 104 S.Ct. 2039.

Miller argues that the second Cronic exception applies to his case. Indeed, we have held that the effective abandonment of a...