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Miller v. Kirkegard

United States District Court, D. Montana, Billings Division

May 2, 2018

JOHN O. MILLER, Petitioner,
v.
LEROY KIRKEGARD, Respondent.

          FINDINGS AND RECOMMENDATIONS OF UNITED

          Timothy J. Cavan United States Magistrate Judge

         On 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.

         Following 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.

         I. Procedural History

         In the 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 8-4).

         i. Trial court proceedings

         Throughout 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[1] 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).

         A 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.

         In 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.[2] 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.

         The 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 17.[3] Judgment was entered on November 13, 1991. (Doc. 8-16). Miller did not file a direct appeal.

         ii. Initial postconviction proceedings

         In 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). Id.

         Goetz 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, ¶¶ 4-5.

         Miller 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. 8-26).

         The 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.

         Additionally, 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.

         As to 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.

         iii. Postconviction Appeal

         Miller, 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).

         As to 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 the defendant:
(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)

         The 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. Id.

         With 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.

         Further, 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.

         iv. Second postconviction proceedings

         In 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).

         In 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.

         In an 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, 2003).

         v. Miller's appearance before the parole board

         Miller 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).[4] Miller claims this act was "exactly the opposite to [Jones's] original position as negotiated in 1991." (Doc. 2 at 5).

         vi. Motion to withdraw plea

         Following 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 ...


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