Miller v. Smith

• Decision Date: 29 August 2014
• Docket Number: No. 13–1796.,13–1796.
• Citation: 765 F.3d 754
• Parties: Jimmie L. MILLER, Petitioner–Appellant, v. Judy SMITH, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

765 F.3d 754

Jimmie L. MILLER, Petitioner–Appellant,

v.Judy SMITH, Warden, Respondent–Appellee.

No. 13–1796.

United States Court of Appeals,Seventh Circuit.

Argued April 18, 2014.

Decided Aug. 29, 2014.

George C. Lombardi, Kurt A. Mathas, Winston & Strawn LLP Chicago, IL, for Petitioner–Appellant.

Sara Lynn Larson, Office of the Attorney General Wisconsin Department of Justice,Madison, WI, for Respondent–Appellee.

Before BAUER, EASTERBROOK, and HAMILTON, Circuit Judges.

BAUER, Circuit Judge.

Jimmie L. Miller (“Miller”) was charged in Wisconsin state court on June 7, 2004, with First Degree Sexual Assault of a Child. Miller entered a plea of no contest and was sentenced to ten years in prison followed by twenty years of supervised release. In January 2006, Miller filed a notice of intent to pursue post-conviction relief on the basis that he failed to understand his original plea. The court appointed Attorney John J. Grau (“Grau”) to represent Miller in seeking post-conviction relief.

On January 12, 2007, Grau filed a post-conviction motion seeking resentencing for Miller on the basis that Miller did not understand the terms of his plea agreement. Miller, however, withdrew the motion during a hearing on April 23, 2007.

On May 2, 2007, Grau sent Miller a letter informing him that after reviewing the case file, Grau felt there was no legal basis for pursuing post-conviction relief. At the end of the letter, Grau told Miller he would “set up a call to discuss this matter with you in the next week or so.”

Miller did not hear back from Grau for over two months. On July 26, 2007, Miller wrote to Grau asking whether he had prepared their next move. Miller again did not hear back from Grau. On August 7, 2007, Miller wrote to Grau again and told Grau to withdraw his plea of no contest because the state violated the terms of his plea agreement and the plea was not entered knowingly, voluntarily, or intelligently. Miller also wrote that he suffered from a mental disease, was “incompetent” at the time he entered his plea, and has ongoing mental and personality disorders.

Grau called Miller on August 16, 2007, and explained that because the time had expired on Miller's appeal, there was nothing more he could do. Several days later, Miller wrote to the State Public Defender's Office. He informed the office of Grau's inaction and expressed concerns that Grau would seek to file a no-merit report without Miller's consent in order to avoid the consequences of his failure to adequately represent Miller.¹ Miller also wrote that “competency was an issue” throughout his trial.

Kenneth Lund (“Lund”), the attorney manager for the State Public Defender's Office, wrote to Grau on August 28, 2007, relaying Miller's concerns and requesting that Grau respond to Miller within ten days. Lund also asked Grau to send a copy of the letter to the State Public Defender's Office. On September 12, 2007, Miller wrote to the State Public Defender's Office again, informing them that he had yet to hear from Grau and asked, “Will you take my case?”

Grau eventually responded to Miller in a letter dated September 7, 2007. ² Miller responded several weeks later, writing that Grau failed to call after he said he would in his original letter on May 2, and that Grau was “making excuses for [his] actions and inactions.”

Lund reviewed the correspondence between Miller and Grau and wrote back to Miller on October 10, 2007. Lund stated that the State Public Defender's Office “will not appoint successor counsel when a defendant disagrees with the legal conclusions of appointed counsel or wants a second opinion as to the merits of an appeal.” Lund informed Miller that if he disagreed with Grau, he could choose one of three options: (1) release Grau as his attorney and proceed pro se with the understanding that “[n]o other attorney will be appointed to represent you for this appeal” (emphasis in original), (2) hire a different attorney at his own expense, or (3) direct Grau to file a no-merit report. The letter concluded with the repeated warning that “[t]he Office of the State Public Defender will not appoint a different attorney for you in this matter.” Miller directed Grau to file a no-merit report; Grau failed to do so.

On January 17, 2008, Miller filed a pro se petition for a writ of habeas corpus in the Wisconsin Court of Appeals, arguing that he received ineffective assistance of appellate counsel. The court granted Miller's petition, finding that even though Miller directed his counsel to file a no-merit report, Grau ignored his request. The court reinstated Miller's appeal rights and ordered Grau to file either a notice of appeal or a no-merit report. The court stated that “[b]y reinstating Miller's appeal rights, we return Miller to the position he enjoyed before appellate counsel ignored his request for a no-merit report.” In regard to Miller's request for new counsel the court advised Miller to seek such relief from the State Public Defender. Miller never did so.

Miller petitioned the Wisconsin Supreme Court to review the Wisconsin Court of Appeals' denial of his request for new counsel; the petition for review was denied. Miller then filed a motion in the Wisconsin Court of Appeals, expressing his desire to discharge Grau by objecting to Grau's ability to file documents on his behalf in any court and claiming a conflict of interest with Grau. The Wisconsin Court of Appeals denied the motion on December 17, 2008. The court found that because Miller's rights to appeal were reinstated, “he is no longer prejudiced by Attorney Grau's conduct.” The court ordered Grau to file a no-merit report no later than January 30, 2009.

On January 8, 2009, Miller wrote to Grau:

I am directing you not to file any papers (legal documents) in my case on my behalf. You are also directed to provide me with any and all papers you have involving my case, as your representation of my case has ended. I do not want you as my appellate counsel (emphasis in original).

The next day, the Wisconsin Court of Appeals entered an order recognizing Miller's desire to discharge Grau and proceed pro se. The court advised Miller that if he discharged Grau, the court “cannot guarantee that new counsel will be appointed.” The court explained,

Before this court grants Miller's motion to discharge counsel, we will require Miller to confirm that he understands the consequences of asking his counsel to withdraw, including the difficulties and disadvantages of self-representation, and the fact that discharging counsel can constitute a waiver of the right to counsel for postconviction and appellate proceedings.

The court mentioned some of the obligations that Miller would face proceeding pro se, such as writing and filing copies of briefs on time, supporting arguments with legal authority, and complying with Wisconsin statutes. As an alternative to self-representation, the court reminded Miller he could take advantage of the no-merit process by having Grau comply with the court's previous order to file a no-merit report; this would allow Miller to then file a response to the no-merit report raising any matters he finds to have arguable merit for appeal. Finally, the court suggested Miller “carefully consider this order” and “advise the clerk of this court in writing whether he desires to discharge counsel and waive the right to counsel for postconviction and appellate proceedings.” The order stated that Grau would remain counsel of record and Miller would not proceed pro se until the court was confident that Miller fully understood the consequences of his request. Miller was required to respond to the court's order in writing by January 30, 2009.

Miller filed a response on January 21, 2009, again arguing that he was entitled to new counsel. Miller wrote that he “does not want Attorney John Grau's ineffective representation” and that he “just wants his case file from Attorney John Grau and he will proceed as he has, without Attorney Grau for over a year.” On February 11, 2009, the court discharged Grau because it found that Miller, based on his response, waived his right to counsel and sought to proceed pro se. While the court acknowledged that Miller claimed he should be appointed new counsel, it said that the issue had already been decided and that “we will not revisit it.” The court ordered Miller to file a post-conviction motion or a notice of appeal within seventy-five days; Miller did neither. Instead, Miller wrote to the Wisconsin Court of Appeals stating that he did not intend to proceed pro se on his first appeal as of right because he was entitled to new counsel.³

On March 27, 2009, Miller filed a pro se petition in the United States District Court for the Eastern District of Wisconsin for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Miller argued that the Wisconsin Court of Appeals' refusal to appoint new counsel violated his Sixth Amendment rights and that since his guilty plea was not entered intelligently, voluntarily, and knowingly, it violated his Fourteenth Amendment rights. The district court denied the petition, finding that Miller “failed to show that the Wisconsin Court of Appeals' adjudication of his claim resulted in a decision that was clearly contrary to established federal law as determined by the United States Supreme Court.” The district court reasoned that Miller's appeal rights were appropriately reinstated after the court deemed Grau ineffective, curing any prejudice, and that the Wisconsin Court of Appeals did not need to appoint new appellate counsel. Although Miller claimed that the court “forced” him to discharge Grau and proceed pro se, the court reminded Miller that “the right to counsel of choice does not extend to indigent defendants” and that he “refused the benefit of the no-merit process by discharging his appellate counsel voluntarily and proceeding pro se on an appeal after being warned by the court of the advantages and...