Miller v. Webb
| Decision Date | 22 September 2004 |
| Docket Number | No. 02-5907.,02-5907. |
| Citation | 385 F.3d 666 |
| Parties | Kenny Roy MILLER, Petitioner-Appellant, v. Patti WEBB, Warden, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Appeal from the United States District Court for the Western District of Kentucky, Joseph H. McKinley, Jr., J Kenny Roy Miller (briefed), Green River Correctional Complex, Central City, KY, Petitioner-Appellant.
Courtney J. Hightower, Office of the Attorney General, Frankfort, KY, for Respondent-Appellee.
Before: KEITH, CLAY, and GIBBONS, Circuit Judges.
KEITH, J., delivered the opinion of the ourt, in which Clay, J., joined. GIBBONS, J. (pp. 678-83), delivered a separate dissenting opinion.
Petitioner-Appellant Kenny Roy Miller ("Miller") is currently serving a life sentence after a state conviction for intentional murder, criminal attempt to commit murder, first-degree burglary, and being a first-degree persistent felony offender. Miller appeals from the district court's denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his habeas petition, Miller alleges that his trial counsel was ineffective for failing to challenge a biased juror during voir dire. Miller argues that the Kentucky Court of Appeals denial of his ineffective assistance of counsel claim was contrary to, and an unreasonable application of, clearly established federal law. For the reasons set forth below, we REVERSE the district court's order and REMAND for proceedings consistent with this opinion.
On November 14, 1990, a grand jury in Warren County, Kentucky indicted Miller for intentional murder, criminal attempt to commit murder, first-degree burglary, and being a first-degree persistent felony offender. The indictment charged Miller for shooting and killing Leon Gray and shooting and seriously wounding Linda Cline in their bed at an apartment in Bowling Green, Kentucky.
On August 17, 1992, a jury trial commenced against Miller in the Warren Circuit Court. During voir dire, one prospective juror, Yvonne Bell ("Juror Bell"), in response to the prosecutor's voir dire question, stated that she was a minister and that she had known Linda Cline for two or three years through Bible study. Linda Cline, the woman who was shot and seriously wounded, was one of the prosecution's key witnesses and the only eyewitness to the crime. At this point of the voir dire, Miller's trial counsel, William Skaggs ("Skaggs"), did not ask Juror Bell any follow-up questions. Towards the end of the voir dire, however, the trial court asked the members of the jury panel if they wanted to reveal further information. The following dialogue took place:
Judge: Okay, one final thing.... [D]uring the course of this proceeding there may have been something that was asked that you let go by. Something that you thought you weren't sure but now its bothering you. Anybody have anything they need, feel like they need to bring up with the court, I'll be happy to take it up here at the bench, that you would feel would in any way would cause you any difficulty in sitting as a juror in this case. Yes, ma'am, come on up. [bench conference]
Ms. Bell: I'm Yvonne Bell.
Ms. Bell: I feel like I would kind of be partial to Linda Cline because, when she was in my classes (inaudible) she seemed like she really wanted to do better and I kind of have sympathy for her in this case, with her being the victim.
Judge: Do you believe the fact that you had her, you indicated, in Bible studies, and will appear as a witness in this case and is alleged to be one of the victims in this case, do you believe that would influence your thinking here and cause you to be more sympathetic for her side as such as you couldn't sit and be fair and impartial?
Ms. Bell: I think I could be fair. I think I could be fair. I ministered in the women's section for about four years. She was kind of in and out, but she seemed like she wanted to do better, but I believe I could be fair and whether she's guilty or not guilty I believe I could be fair about it all. But I do have some feelings about her.
Judge: Okay, ma'am. I'm going to ... go back and take your seat, I'm going to hear from the lawyers.
Mr. Skaggs: Judge, may I ask her a question?
Mr. Skaggs: The women's section. The women's section of what?
Ms. Bell: The Warren County Jail.
Mr. Skaggs: Okay, and how many years ago was this, or was it recent?
Ms. Bell: From '80 ... about four years, up until last year.
Mr. Skaggs: Okay, and so you have seen her since this happened?
Ms. Bell: No, I haven't[.] I haven't been coming to the (inaudible) for about a year now.
Mr. Skaggs: Well, this happened 18 months ago.
Ms. Bell: Well, I don't know. I don't remember. I never ask any of them about why they're in for or any of their business. My whole concern was the word of God. I never talk to them about their cases or any of their personal business.
Mr. Skaggs: I see. That's all.
Judge: Okay, you may step down. Just take your seat back. [Juror departs.] Do either of you want me to consider striking this woman, this juror for cause?
Mr. Wilson: Well. She said she could be fair. She does know the person but she did answer the question that she could be fair.
Mr. Skaggs: I have no motion.
In addition to not challenging Juror Bell for cause, Miller's trial counsel did not use a peremptory challenge to remove the prospective juror. Therefore, Juror Bell remained on the jury.
On August 19, 1992, the jury, which included Juror Bell, convicted Miller on all charges of the indictment. On September 2, 1992, the trial court sentenced Miller to life and to two twenty-year terms of imprisonment, to run consecutively. Miller filed a direct appeal to the Kentucky Supreme Court concerning the judgment of conviction and sentence. On September 29, 1994, the Kentucky Supreme Court affirmed the conviction, but remanded the case for re-sentencing and directed the trial court to run Miller's life sentence concurrently with his forty-year sentence. On November 15, 1994, the trial court re-sentenced Miller in accordance with the Kentucky Supreme Court's order.
On October 26, 1995, with new court-appointed counsel, Miller filed a motion to vacate the judgment based upon ineffective assistance of counsel. Among his allegations, Miller argued that his trial counsel was ineffective when he allowed Juror Bell, a biased juror, to remain on the jury. On September 2, 1998, the Warren Circuit Court held an evidentiary hearing. The Warren Circuit Court heard testimony from Miller and his trial counsel, Skaggs. Skaggs testified that he did not seek to exclude Juror Bell from the jury because:
Most people do not understand the world of extreme hard core drug addicts and ... this case [involved] hard core drug addicts.... It is a different reality. Regular jurors do not understand that hard core drug addicts will lie ... [.] They will only tell the truth if they have no other opportunity. And, since this lady knew Linda Cline, knew she was completely unworthy of belief, I left her up.... Anyone who knew Linda Cline, knew that she could not be trusted, that was my thinking at the time.
On February 2, 1999, the Warren Circuit Court denied Miller's motion. Miller appealed to the Kentucky Court of Appeals. On January 19, 2001, the Kentucky Court of Appeals affirmed the Warren Circuit Court's decision holding that Miller failed to rebut the presumption that trial counsel's decision to not exclude the juror was sound trial strategy and, therefore, not deficient performance pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Miller filed a motion for discretionary review with the Kentucky Supreme Court. On October 17, 2001, the Kentucky Supreme Court denied Miller's motion.
After exhausting his remedies in the Kentucky state courts, on November 2, 2001, Miller filed a petition for a writ of habeas corpus, pro se, pursuant to 28 U.S.C. § 2254 in the United States District Court for the Western District of Kentucky. Miller raised five claims of ineffective assistance of counsel. Miller argued that: (1) his attorney failed to seek to exclude Juror Bell, who knew and admired the State's primary witness; (2) his attorney failed to investigate and subpoena witnesses to directly contradict the State's chief witness; (3) his attorney attempted to establish an alibi defense, which he knew he could not support by credible witnesses; (4) his attorney failed to move for a mistrial after a juror had prejudicial exposure to a spectator at trial; and (5) the cumulative effect of his counsel's errors constituted ineffective assistance.
On January 7, 2002, the district court referred the matter to a magistrate judge for a report and recommendation. On May 28, 2002, the magistrate judge entered findings of fact and conclusions of law, recommending that the district court deny the petition on the merits and issue a certificate of appealability on the first issue only, because reasonable jurists could find the assessment of the constitutional claim debatable or wrong. On June 10, 2002, Miller filed objections to the findings of fact. On June 19, 2002, the district court entered an order adopting the magistrate judge's report and recommendation. In denying the habeas petition on the first issue, the district court held that Miller failed to overcome the presumption that trial counsel's reason for allowing Juror Bell to remain on the jury was sound trial strategy. In addition, the district court held that Miller failed to show that Juror Bell was actually biased against him. Therefore, the district court ruled that Miller failed to show that the decision of the Kentucky Court of Appeals, which denied his ineffective assistance of counsel claim, was contrary to, or an unreasonable application of, clearly established federal law.
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