United States District Court, D. Montana, Billings Division
JOHN O. MILLER, Petitioner,
LEROY KIRKEGARD, Respondent.
FINDINGS AND RECOMMENDATIONS OF UNITED
Timothy J. Cavan United States Magistrate Judge
March 3, 2017, Petitioner John O. Miller (Miller) filed this
action under 28 U.S.C. § 2254. Miller was convicted of
two counts of deliberate homicide in the Twenty-Second
Judicial District Court, Stillwater County, and is currently
serving two concurrent life sentences. Miller is a state
prisoner proceeding pro se.
an initial review of Miller's petition, the Court ordered
the State to file documents from the state court record.
(Doc. 6). The State timely complied. (Docs. 8-1 through
8-62). For reasons discussed below, it is recommended that
Miller's petition be denied, because it does not survive
deferential review under the Antiterrorism and Effective
Death Penalty Act of 1996.
early morning hours of September 14, 1990, a resident of
Columbus, Montana observed a burning vehicle on a country
road approximately four miles outside of town. The Sheriff
and the Columbus Volunteer Fire Department responded. Once
the fire was extinguished, two bodies were discovered inside
the vehicle burned beyond recognition. Forensic testing
ultimately identified the men as Kirk William Aberle and
Garrison Shupe. It was also determined that both victims had
been shot prior to the car being set on fire. Miller was
ultimately charged with two counts of deliberate homicide for
the deaths of Aberle and Shupe. See (Docs. 8-3 and
Trial court proceedings
the trial court proceedings, Miller was represented by
retained counsel, James H. Goetz (Goetz). On August 2, 1991,
Miller entered into a plea agreement and agreed to plead
guilty to the homicide of Shupe and to enter an
Afford plea to the homicide of Aberle. (Doc. 8-12 at
8-19). Miller signed an Acknowledgment of Waiver of Rights by
Plea of Guilty, wherein he acknowledged the State had agreed
to recommend two concurrent life sentences and to withdraw
its Notice of Intention to Seek Death Penalty. (Docs. 8-9;
8-11). During the change of plea hearing, the trial court
advised Miller that it was not bound by the parties' plea
agreement. (Doc. 8-12 at 8).
sentencing hearing was held on November 8, 1991. Pursuant to
the plea agreement, the State made its recommendation of two
concurrent life sentences, and advised the trial court it had
agreed to waive the death penalty. (Doc. 8-15 at 8). Defense
counsel concurred in the State's recommendation, and
acknowledged that the agreement between the parties was not
binding upon the trial court. Id. at 9. Neither
party made a direct recommendation to the court as to parole
restrictions. But defense counsel indirectly asked the court
to allow Miller to be parole eligible, imploring the court
not to "snuff out that last ember of hope" when
discussing the length of the sentence to be imposed.
Id. at 12.
imposing sentence, the trial court noted that even though
Miller would be serving a life sentence, he could be parole
eligible in seventeen years with the allowance for good time
credit. Id. at 14. Due to the trial
court's assessment of Miller's dangerousness,
however, the court restricted his parole eligibility for a
period of 24 years. Id. The court found the
restriction was necessary for the protection of society.
Id. The court also ordered that prior to a grant of
parole or supervised release, Miller would need to undergo an
updated psychological evaluation to determine whether he
could safely be released into the community. Mat 14-15.
court noted that it was giving Miller a slight
"light" or "ember" at the end of the
tunnel, as urged by defense counsel, in allowing for the
possibility of parole after 24 years. Id. at
Judgment was entered on November 13, 1991. (Doc. 8-16).
Miller did not file a direct appeal.
Initial postconviction proceedings
January 1995, Miller, represented by attorney Edmund Sheehy,
filed his first petition for postconviction relief in Montana
State District Court. (Doc. 8-17). Among other claims, he
argued the trial court erred by not instructing him, pursuant
to statute, of the maximum penalty provided by law, including
any special parole restrictions. Id. at 2. Miller
claimed he was unaware at the time of his change of plea
hearing that he was not eligible for parole until he served
30 years, less any good time, under MCA §46-23-201(4).
filed an Affidavit in response to Miller's petition for
postconviction relief. (Doc. 8-25). Goetz refuted
Miller's claim that he was never advised that he could
not be paroled with a life sentence until he had served 30
years, less good time. Goetz attached a letter he had sent to
Miller that addressed the relevant statute, MCA §
46-23-201(3). Along with this letter, Goetz also provided
Miller with a copy of the statute discussing "good time
allowance, " MCA § 53-30-105. (Doc. 8-25 at 2,
¶ 3). Goetz explained he and Miller had extensive
discussions regarding the calculation of good time credit and
"what that translated to in terms of actual time
served." Id. Goetz further stated that he made
it clear to Miller that the trial court was not obligated to
accept the plea agreement reached by the parties, and that
the parties' recommendation was merely a factor for the
court to consider. These representations were supported by
three separate letters Goetz wrote to Miller during the
course of his representation. Id. at 3, ¶¶
then filed an Amended Petition and Brief in Support. In his
amended petition, Miller abandoned his original claims
relative to parole restrictions. See (Docs. 8-26
& 8-27). Instead, Miller alleged he had been denied
effective assistance of counsel because he was not advised of
his right to appeal his sentence. He also alleged the trial
court failed to inform him of the specific statutory
provisions that governed the sentencing hearing, and failed
to advise him that he should consider the most severe
punishment allowable under the law as required by Mont. Code
Ann. 46-12-204(3)(b) (1989). See generally, (Doc.
state court rejected Miller's claim of ineffective
assistance based on the alleged failure to inform him of his
appellate rights for several reasons. First, it held that
because the issue of ineffective assistance could have been
raised on direct appeal, it was procedurally barred from
consideration in postconviction. (Doc. 8-30 at 2-3). The
court next cited the transcript of the sentencing hearing
wherein the trial court and Miller discussed the rights he
was giving up by pleading guilty, including the right to
appeal. Id. at 3. Finally, the court took judicial
notice of a civil matter in which Miller had sued his father
and step-mother, wherein one of the claims was that
Miller's father refused to pay for Miller's
"legal fees to appeal his conviction." Id.
at 3-4. The court determined Miller voluntarily and
intelligently waived his right to appeal, and that his
ineffective assistance of counsel claim was procedurally
barred. Id. at 4.
the state court held Miller could not make a showing of
prejudice under Strickland v. Washington (1984), 466
U.S. 668, 104 S.Ct. 2052. Id. at 4-5. In this
regard, the state court found Miller had made no showing that
he would have succeeded on appeal. Id. at 5.
Miller's second claim, the state court noted the trial
court never specifically informed Miller of the specific
statutory provisions governing the plea proceeding, or that
he should consider the most severe punishment allowed by law.
Id. at 5. Nevertheless, Miller was advised of the
maximum possible penalty provided by law by informing Miller
that consecutive terms of life imprisonment could be imposed.
Id. at 6. Therefore, although the trial court did
not use the exact language from the statute, it did
appropriately inform Miller of the maximum possible sentence.
Id. Accordingly, the state court found Miller was
properly advised of his potential punishment. Id.
The court also held that Miller was not prejudiced by the
trial court's failure to advise him of the statutory
title and chapter which governed sentencing, finding that
information, standing alone, would have been of no aid or
benefit to Miller. Id. at 6-7. Therefore,
Miller's petition was denied.
represented by counsel, appealed the denial of this
postconviction petition arguing: (1) his guilty plea was
invalid because the trial court did not strictly comply with
a Montana plea statute, MCA §46-12-204(3)(b); (2) the
trial court's failure to strictly comply with the statute
gave Miller a right to appeal; (3) Goetz provided ineffective
assistance by not advising Miller of his right to appeal.
State v. Miller, 924 P.2d 690 (1996).
the first claim, the Montana Supreme Court found that Miller
was not prejudiced by failing to strictly adhere to the
Montana plea statute. The statute in effect at the time of
Miller's guilty plea provided, in relevant part, that:
(b) Before a judge accepts a plea of guilty, he must advised
(iii) that prior to entering a plea of guilty, the defendant
and his counsel should have carefully reviewed Title 46,
chapter 18, and considered the most severe sentence that can
be imposed for a particular crime.
Mont. Code Ann. § 46-12-204(3)(b) (1989)
Supreme Court found that while the trial court did not use
the statutory language of "most severe sentence, "
Miller was adequately informed of the maximum penalty
provided by law. Id. at 692. Thus, the trial court
did not deprive Miller of any essential information to which
he was entitled, and this "purely semantic
difference" did not amount to prejudicial error.
Id. The Court also agreed with the state district
court that the failure to specifically mention Title 46,
chapter 18 in the plea colloquy did not prejudice Miller.
respect to the ineffective assistance of counsel claim, the
Montana Supreme Court held that Miller could not establish
either prong of the test set forth in Strickland.
The Supreme Court stated that counsel is only required to
advise of the right to appeal after a guilty plea if the
defendant inquires about appeal rights, or if there are
circumstances that indicate that the defendant may benefit
from receiving such advice. Id. at 691. The Court
found no such circumstances existed in Miller's case.
because Miller could not have successfully appealed his
sentence based on the purported failure to recite the
statutory language verbatim, counsel was not ineffective for
failing to advise Miller of his right to appeal. Id.
at 692. In short, Miller was not prejudiced by the actions of
the trial court or defense counsel.
Second postconviction proceedings
2002, Miller, through an "anonymous, confidential next
friend" filed a second postconviction petition in
Montana State District Court, alleging his convictions were
constitutionally infirm because he suffered from severe
antisocial personality disorder during the commission of the
offense. Miller argued this mental defect prevented him from
(1) forming the requisite mental state during the commission
of the crime; (2) entering an intelligent and voluntary plea;
and (3) filing the petition at an earlier date. See
generally (Docs. 8-35 & 8-36).
denying his second petition, the state court found
Miller's petition to be untimely, and that Miller could
not establish a legitimate basis to excuse his untimeliness.
(Doc. 8-38 at 6-8). The court also held Miller's petition
to be barred as an unauthorized successive petition, and that
the claims Miller advanced could have been raised in his
prior petition. Id. at 8-10.
unpublished memorandum opinion, the Montana Supreme Court
affirmed the denial of Miller's second petition.
State v. Miller, 2003 MT 31 IN (Mont. Nov. 13,
Miller's appearance before the parole
made his first appearance before the Montana Board of Pardons
and Parole in November of 2015; his request to be released on
parole was denied. The Honorable Blair Jones, a current
Montana State District Judge who was the prosecuting attorney
on Miller's underlying criminal case, provided a letter
to the Parole Board opposing Miller's release.
See (Doc. 8-55 at 20-23). Miller claims this act was
"exactly the opposite to [Jones's] original position
as negotiated in 1991." (Doc. 2 at 5).
Motion to withdraw plea
the denial of parole, Miller filed a motion to withdraw his
guilty plea in Montana State District Court. (Doc. 8-54).
Generally, Miller argued that his pleas were involuntary
because they were induced by misrepresentations as to his
parole eligibility. Miller contended: (1) the State
"constructively misrepresented the value of its
commitment to [his] release" in the plea agreement, and
therefore his plea entered pursuant to the plea agreement was
not intelligently and knowingly entered; (Doc. 8-55 at 2-5);
(2) the trial court unlawfully participated in the plea
agreement process, and did not strictly follow the statutory
language in accepting his plea (id. at 5- 7); (3)
the trial court failed to follow the statutory language
governing pleas and sentencing in violation of Miller's
due process rights (id. at 7-9); and (4) Goetz
provided ineffective assistance ...