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Miller v. Kirkegard

United States District Court, District of Montana

February 20, 2014

MICHAEL MAX MILLER, Petitioner,
v.
LEROY KIRKEGARD; ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.

FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE

Keith Strong, United States Magistrate Judge

Mr. Miller was charged by the State of Montana with deliberate homicide and convicted after a jury trial in 2007. On February 6, 2013, Michael Max Miller filed a petition seeking a writ of habeas corpus under 28 U.S.C. § 2254. Respondents ("the State") filed portions of the state court's record on July 2, 2013. Mr. Miller is a state prisoner proceeding pro se.

I. Preliminary Screening

Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts requires courts to examine the petition before ordering the respondent to file an answer or any other pleading. The petition must be summarily dismissed "[i]f it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Id.

A petitioner "who is able to state facts showing a real possibility of constitutional error should survive Rule 4 review.” Calderon v. United States Dist. Court, 98 F.3d 1102, 1109 (9th Cir. 1996) (“Nicolaus”) (Schroeder, C.J., concurring) (referring to Rules Governing § 2254 Cases). Consideration under Rule 4 “may properly encompass any exhibits attached to the petition, including, but not limited to, transcripts, sentencing records, and copies of state court opinions. The judge may order any of these items for his consideration if they are not yet included with the petition.” Advisory Committee Note (1976), Rule 4, Rules Governing § 2254 Cases. “[I]t is the duty of the court to screen out frivolous applications and eliminate the burden that would be placed on the respondent by ordering an unnecessary answer.” Id.; see also 28 U.S.C. § 2243.

II. Background

Mr. Miller challenges his conviction for deliberate homicide in violation of Mont. Code Ann. § 45-5-102(1)(a) (2005). He is currently serving a 100-year sentence at Montana State Prison. He will not be eligible for parole for the first 25 years of his sentence. Judgment at 2 (Doc. 14-12 at 156).

The Court has reviewed the trial record in detail but will not set out the testimony here. In sum, Mr. Miller’s conviction arose from the disappearance of Lamar Windham, a longtime friend of Mr. Miller. On June 26, 2006, Mr. Miller, Mr. Windham, and one Christopher “Al” Johnson drove out to the Rainbow Dam overlook in the Giant Springs area outside Great Falls. Leaving Mr. Johnson in the van in the parking lot, Mr. Miller and Mr. Windham, who had been drinking, went down a steep, rocky trail. When Mr. Miller returned to the van, Mr. Windham was not with him. Mr. Miller and Mr. Johnson returned to Great Falls from the overlook without Mr. Windham. Mr. Miller took no action to find Mr. Windham. (Neither did Mr. Johnson, but he only met Mr. Windham the day before the visit to the overlook.) Several witnesses testified at trial that Mr. Miller’s statements and behavior concerning Mr. Windham’s disappearance ranged from callous to deliberately misleading to incriminating. But at least some of those witnesses’ own statements were shown to be inconsistent with their prior statements or inconsistent with the accounts of other witnesses. Weeks after Mr. Windham’s disappearance, his body was found at the foot of a cliff at the overlook. He had suffered multiple blunt-force blows. Forensic pathologists were unable to determine whether the death occurred by homicide, suicide, or accident.

The jury returned a guilty verdict on November 9, 2007. See 4 Trial Tr. at 973:15-977:11; 5 Trial Tr. at 980:1-981:5. Mr. Miller appealed, represented by new counsel. He challenged the denial of his motions to dismiss based on speedy trial and to compel production of Mr. Johnson’s mental health records, a jury instruction on witness credibility, and the prosecutors’ remarks in closing argument regarding witness credibility and Mr. Miller’s “silence” when Mr. Windham’s family asked him where Mr. Windham was. On September 23, 2009, the Montana Supreme Court rejected Mr. Miller’s claims and affirmed his conviction. Order at 13 ¶ 33, State v. Miller, No. DA 08-0091, 2009 MT 314N (Mont. Sept. 23, 2009) (unpublished).[1] Mr. Miller’s conviction became final ninety days later, on December 22, 2009. Gonzalez v. Thaler, ___ U.S. ___, 132 S.Ct. 641, 653-54 (2012).

On January 14, 2011, Mr. Miller, acting pro se, filed a petition for postconviction relief in the trial court. Case Register (Doc. 14-15) at 1 Entry 2. The petition was dismissed on August 12, 2011. Mr. Miller appealed. On June 19, 2012, the Montana Supreme Court affirmed the trial court’s denial of postconviction relief. Miller v. State, 280 P.3d 272, 282 ¶ 37 (Mont. 2012).

Mr. Miller signed his federal habeas petition and deposited it in the prison mail system on February 5, 2013. Pet. (Doc. 1) at 8, Pet’r Decl. ¶ C; Houston v. Lack, 487 U.S. 266, 270-71 (1988) (establishing prison mailbox rule).

III. Procedural Posture of the Case

Mr. Miller’s case is in the Rule 4 prescreening stage. Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts requires courts to examine the petition before ordering the respondent to file an answer or any other pleading. The screening court’s task is to determine whether further proceedings are warranted, such as the ordering of a responsive pleading, appointment of counsel, or an evidentiary hearing.

A petitioner “who is able to state facts showing a real possibility of constitutional error should survive Rule 4 review.” Calderon v. United States Dist. Court, 98 F.3d 1102, 1109 (9th Cir. 1996) (“Nicolaus”) (Schroeder, C.J., concurring) (referring to Rules Governing § 2254 Cases). But the petition must be summarily dismissed “[i]f it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Id. Rule 4 screening “may properly encompass any exhibits attached to the petition, including, but not limited to, transcripts, sentencing records, and copies of state court opinions.” “The judge may order any of these items for his consideration if they are not yet included with the petition.” Advisory Committee Note (1976), Rule 4, Rules Governing § 2254 Cases; see also Order to State to File Documents (Doc. 10). “[I]t is the duty of the court to screen out frivolous applications and eliminate the burden that would be placed on the respondent by ordering an unnecessary answer.” Id.; see also 28 U.S.C. § 2243.

As to the claims described below in Parts IV.A and IV.B.1, Mr. Miller fails to show a real possibility of constitutional error. The following claims should be denied.

IV. Claims and Analysis

A. Claims Decided on the Merits by the Montana Supreme Court

The Montana Supreme Court adjudicated the merits of some of the claims Mr. Miller presents in this Court. Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), where a state court has denied relief on the merits, a state prisoner may obtain federal habeas relief only if the state court’s denial of his claims “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” or if the state court’s denial was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2).

These standards impose heavy burdens on state habeas petitioners. “[A] state prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement.” Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 786-87 (2011).

“[R]eview under § 2254(d)(1) is limited to the record that was before the state court.” Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1398 (2011).

Under the § 2254(d) standards, the following claims lack merit.

1. Speedy Trial

“[T]he right to a speedy trial is a more vague concept than other procedural rights. It is . . . impossible to determine with precision when the right has been denied.” Barker v. Wingo, 407 U.S. 514, 521 (1972). Consequently, there is no federal rule setting forth a specific period of time within which a trial must commence. Courts consider the conduct of both the prosecution and the defense and employ a balancing test weighing the length of the delay between charge or arrest and trial, the reason for the delay, whether the defendant asserted his right to a speedy trial, and whether he was prejudiced as a result of the delay. Id. at 530.

Mr. Miller disagrees with the trial court’s characterization of a three-month period of delay as institutional delay as well as its weighing that delay “moderately against the State.” See Order at 7 ¶ 16, Miller, No. DA 08-0091; Hr’g Tr. at 165:25-166:24 (Doc. 14-12 at 122-23); Appellant Br. at 18-41 (Doc. 14-12 at 27-50); Pet. at G1 (Doc. 1-4 at 18); Final Add’l Claims (Doc. 20) at 3-7. Other than his disagreement, Mr. Miller does not identify any flaw in the trial court’s factual findings.[2] Thus, 28 U.S.C. § 2254(e)(1) applies, and the trial court’s findings are presumed correct. Taylor v. Maddox, 366 F.3d 992, 999-1000 (9th Cir. 2003).

A reasonable court could find that an understaffed crime lab is equivalent to a crowded trial docket – acceptable, within limits, as institutional delay. A reasonable court could also find the State’s delay in sending a pair of shoes to the crime lab occurred early in the case and did not materially extend the overall delay. Finally, a reasonable court could also find, despite intensification of the presumption of prejudice to the defense over time, see Doggett v. United States, 505 U.S. 647, 652 (1992), Mr. Miller’s legitimate need to obtain independent expert analysis of the body justified the delay occurring after April 2007. See Hr’g Trs. (Docs. 14-3, 14-4, 14-5). The standards of § 2254(d) are not met. See Order at 6-7 ¶¶ 14-17, Miller, No. DA 08-0091. This claim should be denied.

2. Jury Instruction on Witness Credibility

Mr. Miller contends the trial court erred in instructing the jury that it could consider, among other things, “[w]hether the witnesses have an interest in the outcome of the case or any motive, bias, or prejudice.” He asserts that the instruction adversely affected his choice as to testifying. Pet. at F2 (Doc. 1-4 at 15) (referring to Mont. Crim. Instr. No. 1-003 (Doc. 14-12 at 152)). A reasonable court could find such an instruction appropriate. See, e.g., 9th Cir. Jury Instr. (Crim.) No. 1.8 (2003) (instructing jury it may consider, among other things, “the witness’s interest in the outcome of the case and any bias or prejudice”); 9th Cir. Jury Instr. (Crim.) No. 1.7 (2010) (same). The standards of § 2254(d) are not met. See Order at 7-8 ¶¶ 18-21, Miller, No. DA 08-0091. This claim should be denied.

3. Motion for Mental Health Records

The trial court denied Mr. Miller’s motion to compel the State to produce Mr. Johnson’s mental health records. Mr. Miller alleges that his inability to obtain access to this evidence violated his right to due process because it prevented him from questioning Johnson’s credibility. Pet. at F3 (Doc. 1-4 at 16).

A State may not prohibit a defendant from “otherwise appropriate cross-examination” designed to “expose to the jury the facts from which jurors could appropriately draw inferences relating to the reliability of the witness.” Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986); see also Holmes v. South Carolina, 547 U.S. 319, 324-25 (2006). Assuming, solely for the sake of argument, mental health records might indicate some prospect of undermining a witness’s ability to perceive and remember facts, the jury had far more direct evidence on the point. It knew Mr. Johnson was taking Zyprexa at the time of the incident, 2 Trial Tr. at 513:13-515:5. The jury knew Mr. Johnson was using alcohol in combination with the Zyprexa, contrary to medical advice. Id. at 530:19-532:4.

Further, the jury knew of multiple issues with Johnson’s trial testimony. Mr. Johnson described Mr. Windham as shirtless and wearing cut-off blue jeans and white tennis shoes, 2 Trial Tr. at 526:21-528:4, but Mr. Windham’s body was found clothed in black full-length polyester-type pants with no shirt and no shoes, 3 Trial Tr. at 584:1-15, 585:11-12. A pair of Mr. Windham’s boots were found in the van, 3 Trial Tr. at 623:20-624:7, but no white tennis shoes were found. Mr. Johnson testified Mr. Miller returned to the van without Mr. Windham 30 to 45 minutes after they had left the van together, 2 Trial Tr. at 498:7-9, 498:21-23, but Mr. Johnson told Detective Phillips that Mr. Miller and Mr. Windham were gone for about an hour and 45 minutes and Mr. Johnson slept during that time, 2 Trial Tr. at 523:22-524:14, 3 Trial Tr. at 742:6-8. Mr. Johnson testified he did not think the keys were in the ignition when Mr. Miller and Mr. Windham left the van, 2 Trial Tr. at 502:20-503:3, 524:15-525:16, but he told Detective Phillips the key was in the ignition, 3 Trial Tr. at 741:18-742:5. Mr. Johnson testified he and Mr. Miller were at Mr. Dogtakinggun’s house the evening after the trip to the overlook, and when Mr. Dogtakinggun asked Mr. Miller where Mr. Windham was, Mr. Miller repeatedly said he did not want to talk about it and then left when Mr. Dogtakinggun became angry. 2 Trial Tr. at 504:16-506:22. But Mr. Dogtakinggun testified that he did not talk to Miller about Windham until weeks later, after police identified Mr. Dogtakinggun as a person of interest, picked him up, and interrogated him about Windham’s disappearance. Id. at 541:21-546:14. Mr. Johnson testified at trial that he asked Miller the next day whether Mr. Windham got back, and Mr. Miller responded that Mr. Windham “came back” and “it was okay” for Mr. Miller to use the van. 2 Trial Tr. at 507:4-508:25. But before trial, Mr. Johnson had said in one interview that Mr. Miller said Mr. Windham had not come home yet, 4 Trial Tr. at 900:18-25, and in another pretrial interview, Mr. Johnson did not say that he or Mr. Miller said anything at all about Mr. Windham having come home, id. at 915:8-10. Mr. Johnson testified that, when Mr. Windham’s family took him and Miller to the overlook to search for Mr. Windham, Mr. Johnson told the family Mr. Windham went over the embankment and down the trail, and Mr. Miller pointed in another direction. But Mr. Johnson also testified that he searched, with Eva, in the direction indicated by Mr. Miller. 2 Trial Tr. at 511:15-512:6, 528:18-529:8; see also Id . at 401:15-402:6. When Mr. Johnson went into the police station with Mr. Windham’s family to make a report, he reported that he, Mr. Miller, and Mr. Windham parked at the upper overlook, the Lewis and Clark overlook, rather than the lower Rainbow Dam overlook. 2 Trial Tr. at 528:12-17, 3 Trial Tr. at 733:13-735:3.

Given these contradictions, there is no reason to think Mr. Miller’s lack of access to Mr. Johnson’s mental health records prevented him from demonstrating “facts from which jurors could appropriately draw inferences relating to the reliability of the witness.” Van Arsdall, 475 U.S. at 680. The request was tantamount to requesting the medical records of a witness who wears contact lenses. There was simply no reason to think such a highly intrusive inquiry would be justified by the quality or extent of probative impeachment evidence it would produce. “[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on . . . cross-examination based on concerns about, among other things, harassment . . . or interrogation that is repetitive or only marginally relevant.” Id. at 679. Under the circumstances here, ...


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