Miller v. Young

• Decision Date: 21 August 2019
• Docket Number: 4:18-CV-04137-KES
• Parties: CHRIS ALLEN MILLER, Movant, v. DARIN YOUNG, Warden, and MARTY J. JACKLEY, Attorney General, Respondents.
• Court: U.S. District Court — District of South Dakota

CHRIS ALLEN MILLER, Movant, v. DARIN YOUNG, Warden, and MARTY J. JACKLEY, Attorney General, Respondents.

4:18-CV-04137-KES

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

August 21, 2019

ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING MOTION

Petitioner, Chris Allen Miller, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254.Docket 1.Respondents, Darin Young and Marty Jackley, filed a motion to dismiss.Docket 11.The matter was referred to Magistrate Judge Veronica L. Duffy for a report and recommendation under 28 U.S.C. § 636(b)(1)(B) and this court's October 16, 2014 standing order.Magistrate Judge Duffy recommends that Miller's petition be dismissed.Docket 14.Miller timely filed his objections to the report and recommendation.Docket 15.Miller also moved to proceed in forma pauperis, for the court to appoint counsel, and to quash the motion to dismiss.Dockets 5, 8, and 12.For the following reasons, the court adopts Magistrate Judge Duffy's report, and denies Miller's motions to proceed in forma pauperis, to appoint counsel, and to quash the motion to dismiss.

PROCEDURAL HISTORY

A full procedural history was provided by the magistrate judge in her report and recommendation.Docket 14at 1-10.Thus, the court will only give a simple explanation and point to the magistrate judge's report and recommendation for the full procedural history.

Miller was indicted for second-degree murder, first-degree manslaughter, and aggravated assault in connection with the death of his infant son.State v. Miller, 851 N.W.2d 703, 705(S.D.2014).At trial, the court used a mandatory strike down jury selection process that allowed each party two more peremptory challenges than were permitted by SDCL § 23A-20-20.Miller v. Young, 911 N.W.2d 644, 647(S.D.2018).A court error resulted in an additional juror being seated and then passed for cause.Id. at 646.Because of this error, the court gave the government an extra peremptory challenge.Id.Also, during deliberations, the jury asked to listen to the 911 call that had been admitted into evidence and its request was denied.Docket 16at 46.Miller was convicted of second-degree murder and aggravated assault.State v. Miller, 851 N.W.2d at 705.He was sentenced to life in custody on the second-degree murder conviction and fifty years in custody on the assault conviction.Id.The sentences were to run consecutively.Id.Attorneys Tim Whalen and Scott Podhradsky represented Miller at trial, but only Podhradsky represented him at sentencing.Docket 1at 3.

Miller appealed.State v. Miller, 851 N.W.2d at 706.The South Dakota Supreme Court affirmed the verdict.Id. at 711.Podhradsky represented Miller on direct appeal.Docket 1at 3.

Miller filed a habeas petition in state court raising several claims.Miller v. Young, 911 N.W.2d at 647.Miller was appointed attorney Jason Ravnsborg to represent him in his state habeas proceedings.SeeDocket 16at 83.The state court habeas judge denied relief on all claims.Id. at 35-71;Miller v. Young, 911 N.W.2d at 647-48.Miller's first application for a certificate of probable cause was dismissed for being untimely.SeeDocket 16at 15.Miller then sought a motion to vacate in order to reapply for a certificate of probable cause.Seeid. at 77.This motion was granted.Id. at 76, 82.Miller then applied for a certificate of probable cause on: (1)the trial court's method of selecting a jury; (2) the trial counsel's failure to object to the jury selection issue; and (3)the trial court's denial of the jury's request to listen to the recording of the 911 call during deliberations.Id. at 99-101.The state habeas court granted the certificate of probable cause on the two jury selection claims but not on the 911 call claim.Id. at 85.Miller did not separately seek a certificate of probable cause from the South Dakota Supreme Court on the 911 call claim.SeeMiller v. Young, 911 N.W.2d at 648(stating that the only claims before the South Dakota Supreme Court were the jury selection claims).The South Dakota Supreme Court denied habeas relief on the merits.Id. at 651.

On October 24, 2018, Miller filed a pro se federal habeas petition under 28 U.S.C. § 2254.Docket 1.Miller asserts the following claims in this petition:

1.The trial court judge violated Federal Rule of Criminal Procedure 24 by using an amended process for jury selection.

2.Ineffective assistance of counsel in violation of Miller's Sixth Amendment right to counsel in the following seven respects:

a. Failure to move to strike the entire jury panel after a potential juror made comments about a potential witness's honesty;

b. Failure to call witnesses on Miller's behalf;

c. Failure to object when the trial court allowed the jury to continue to deliberate instead of sequestering the jury;

d. Failure to request a sentence of time served;

e. Failure to raise on appeal the trial court's jury selection process;

f. Failure to raise on appeal the admission of prior bad acts;

g. Failure to present alternate theories on how injuries to the victim could have occurred at trial;

h. Failure to object when the trial court refused to allow the jury to re-listen to the recording of the 911 call during deliberations.

3.The trial court erred by denying the jury's request to re-listen to the recording of the 911 call during deliberations.

4.Ineffective assistance of state habeas counsel in failing to raise the claim of the jury's request to re-listen to the 911 call.

5.The state court habeas judge was biased and had stated she was friends with the trial court judge who presided over Miller's jury trial and that she would recuse herself if the trial court judge were called as a witness in the habeas proceedings.

6.The trial court was biased as evidenced by giving advantage to the prosecutor altering the path of the trial, giving the jury advance notice they were about to be sequestered, knowingly breaking laws to keep the trial moving forward, and willfully excluding evidence.

Id. at 4-8.

STANDARD OF REVIEW

The court's review of a magistrate judge's report and recommendation is governed by 28 U.S.C. § 636andRule 72 of the Federal Rules of Civil Procedure.The court reviews de novo any objections to the magistrate judge's recommendations as to dispositive matters that are timely made and specific.28 U.S.C. § 636(b)(1)(B);Fed. R. Civ. P. 72(b).In conducting its de novo review, this court may then "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge."28 U.S.C. § 636(b)(1)(C);United States v. Craft, 30 F.3d 1044, 1045(8th Cir.1994).

DISCUSSION

I.Exhaustion of Claims

A petitioner cannot pursue a federal habeas petition on an underlying state court conviction without first exhausting his claims in state court.28 U.S.C. § 2254(b)-(c);see alsoO'Sullivan v. Boerckel, 526 U.S. 838, 842(1999).To exhaust an available state post-conviction remedy, the petitioner must "use the State's established appellate review procedures[.]"O'Sullivan, 526 U.S. at 845.The federal habeas court must defer action until the claim is exhausted when a state court remedy is available for a state prisoner's unexhausted claim.Armstrong v. Iowa, 418 F.3d 924, 926(8th Cir.2005).But

if no state court remedy is available for the unexhausted claim—that is, if resort to the state courts would be futile—then the exhaustion requirement in § 2254(b) is satisfied, but the failure to exhaust "provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim, unless the petitioner can demonstrate cause and prejudice for the default"(or actual innocence . . . ).

Id.(quotingGray v. Netherland, 518 U.S. 152, 162(1996)).

Magistrate Judge Duffy correctly determined that the only claims that Miller fully exhausted were whether the trial court violated his constitutional rights during jury selection and whether counsel was ineffective for failing to raise the jury selection claim on direct appeal.Docket 14at 16.Because Miller did not seek a certificate of probable cause from the South Dakota Supreme Court on the 911 call claim, it is not exhausted.The remaining claims were either not raised in Miller's state habeas petition or not contained in Miller's request for certificate of probable cause, so they are not exhausted as well.It is now too late for Miller to properly exhaust these claims in state court.SeeSDCL § 21-27-18.1.Thus, these claims are procedurally defaulted.

II.Procedurally Defaulted Claims

When a petitioner asserts a claim that is procedurally defaulted, the claim can only proceed if the petitioner can show: (1) cause for the default and actual prejudice to the petitioner or (2) actual innocence.Bousley v. United States, 523 U.S. 614, 622(1998).A successful claim of actual innocence requires the petitioner to support his allegations with new reliable evidence.Weeks v. Bowersox, 119 F.3d 1342, 1351(8th Cir.1997).

A. Miller's Defaulted Trial Court Error Claims

Claims 3 and 6 were not raised before the South Dakota Supreme Court and are defaulted.For claim 6, trial court bias, Miller made no showing of cause for the default or actual prejudice in his § 2254 petition.Also, Miller introduced no new reliable evidence, so he cannot successfully claim actualinnocence.SeeWeeks, 119 F.3d at 1351.Magistrate Judge Duffy correctly recommended granting respondents' motion to dismiss this claim.Docket 14at 21.

Miller argues that because his state habeas counsel was ineffective, this serves as cause for the default on his third claim that the trial court erred in denying the jury's request to re-listen to the 911 call during deliberation."[T]he right to appointed counsel extends to the first appeal of right, and no further."Pennsylvania v. Finley, 481 U.S. 551, 555(1987).A narrow exception to this rule exists only for...