Terrance Miles v. Scott Jordan ( 2021 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0045p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
TERRANCE MILES,
│
Petitioner-Appellant, │
> No. 19-5340
│
v. │
│
SCOTT JORDAN, Warden, │
Respondent-Appellee. │
┘
Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 3:17-cv-00558—Joseph H. McKinley, Jr., District Judge.
Argued: January 29, 2021
Decided and Filed: February 24, 2021
Before: COOK, GRIFFIN, and LARSEN, Circuit Judges.
_________________
COUNSEL
ARGUED: Ilana B. Gelfman, JONES DAY, Boston, Massachusetts, for Appellant. Thomas
A. Van De Rostyne, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort,
Kentucky, for Appellee. ON BRIEF: Louis K. Fisher, Kathryn Kimball Mizelle, JONES DAY,
Washington, D.C., for Appellant. James C. Shackelford, OFFICE OF THE KENTUCKY
ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.
No. 19-5340 Miles v. Jordan Page 2
_________________
OPINION
_________________
GRIFFIN, Circuit Judge.
Petitioner Terrance Miles claims that the Kentucky Supreme Court erred in adjudicating
his federal speedy-trial and ineffective-assistance claims. The district court disagreed and denied
his habeas corpus petition. Because the district court appropriately deferred to the Kentucky
Supreme Court’s reasonable resolutions of Miles’s claims, we affirm.
I.
A Kentucky jury convicted Miles of murder, wanton endangerment, tampering with
physical evidence, and being a persistent felony offender in the second degree. Miles v.
Commonwealth, No. 2007-SC-000298-MR, 2009 WL 160435, at *1 (Ky. Jan. 22, 2009). The
Kentucky Supreme Court summarized the facts of his crimes:
On the night of February 27, 2005, Michael Teasley, a bouncer at Club
502, was shot and killed outside the club as he attempted to clear the parking lot
after the club had closed. Earlier that same evening, after another bouncer had
removed Terrance Miles from the club for smoking marijuana, Miles and Teasley
got into a fight. Teasley’s wife, Crystal, who also worked at the club, testified
that after the fight, Miles grinned and said to her husband, “you might have
whipped my ass, but I’m going to get you.”
Officer Frank Hill of the Louisville Metro Police Department, who was
working extra security for the club while off duty, observed the fight between
Teasley and Miles. While Hill did not witness the actual shooting, he heard the
gunshots and then looked in the direction of the gunshots and saw a male running
across the parking lot dressed in all dark clothing and wearing a toboggan hat.
Officer Hill testified that the man he observed running across the parking lot was
the same man who had been fighting with Teasley earlier in the night. Hill gave
chase in his patrol car with the assistance of another bouncer and at one point
located the suspect behind a dumpster in back of the club. However, Hill
eventually lost sight of the suspect.
A number of items were collected from the crime scene, including a black
toboggan hat and a cell phone. The number of the cell phone matched the number
Miles gave to Enterprise Rent–a–Car when he switched his rental vehicle the day
after the murder.
No. 19-5340 Miles v. Jordan Page 3
Id. In March 2005, Miles was indicted for Teasley’s murder and other charges related to the
shooting. Id. At that time, he was already in custody on unrelated state charges. Eight months
after Miles’s indictment, law enforcement sent the toboggan hat recovered at the crime scene to a
lab for DNA testing. Id. at *2.
Before trial, the prosecutor requested, and the state trial court granted, several
continuances. The prosecutor asked for these delays because the lab had not yet returned the
DNA results for the hat. In the prosecutor’s view, these results were a “vital piece of evidence
which could prove to be either inculpatory or exculpatory.” Id. Miles’s counsel did not initially
object to the delay and at one point agreed that the results were a “crucial piece of evidence.” Id.
But Miles himself filed a speedy-trial motion and told the court that he viewed the DNA testing
as a “stall tactic.” The state court denied Miles’s pro se motion and others filed by his counsel as
the delay continued for about a year after Miles’s initial pro se objection. Eventually, the testing
results arrived and showed that the hat was “negative for Miles’ DNA.” Id. at *1.
Miles’s trial began approximately twenty-one months after he was indicted. Id. at *2.
On appeal, two evidentiary aspects of the trial—a gun and Miles’s nicknames—are at issue.
Regarding the gun, the prosecutor told the jury in his opening statement that, during a search of
Miles’s apartment, the police “found a gun under [his] mattress, which . . . was not the same gun
used in the murder, but [Miles] did, in fact, have a gun.” Moreover, during trial, the prosecutor
repeatedly referenced this gun, but also reiterated that it was not connected to the nightclub
shooting. For example, when the police officer in charge of the investigation testified, the
following exchange occurred:
Q. Well, let’s talk about that hand gun real quick. Was that hand gun sent off
for testing?
A. Yes, it was.
Q. And did it match the bullets?
A. No, it did not.
...
Q. That is not the gun that was used to shoot Michael Teasley?
A. No, it was not.
No. 19-5340 Miles v. Jordan Page 4
Defense counsel also emphasized that the gun was not used in the murder. During his cross
examination of the officer-in-charge, he asked “[D]oes that gun have anything, anything to do
with this case?” The officer responded, “It doesn’t now, no.” And during his closing argument,
defense counsel reiterated that the gun was “[c]ompletely unrelated to the case.” Although
defense counsel did not object to the prosecutor’s references to the gun, he successfully opposed
a motion to admit a picture of the gun into evidence.
With respect to the nicknames, the prosecutor’s closing argument repeatedly referenced
Miles’s two nicknames, “Cat Daddy” and “Old Gangsta,” which he had elicited from a defense
witness during cross-examination.1 Defense counsel did not object to the prosecutor’s use of the
nicknames. All told, the prosecutor used “Cat Daddy” six times and “Old Gangsta” four times.
The prosecutor used both nicknames when arguing that Miles had killed Teasley because
Teasley had “disrespected” him by throwing him out of “his” club:
• “They’re not going to kick him out. This is his club. This is Cat Daddy, Old
Gangsta. . . . He’s angry.”
• “That night, he was embarrassed in front of a lot of people on his turf. Okay.
What’s his state of mind? He’s known as Cat Daddy there. He’s known by
Old Gangsta.”
• “[This case is] about Mike Teasley. He’s a loving father, husband, and son.
And he was killed because Cat Daddy got his feelings hurt.”
He also used both nicknames to downplay the significance of the hat’s negative DNA test:
• “He wants to make a big deal about that hat. Saying we want to distance
ourselves from the hat. I would, if I thought the hat played any role at all. . . .
It’s covered in leaves. It’s covered in crusty old dirt. Do you think the Old
Gangsta Cat Daddy’s going to be wearing this thing to the club?”
Finally, the prosecutor used both nicknames to generically refer to Miles:
• “What do you know about Cat Daddy? You know he’s 5, 10. You know he’s
got a lean build.”
1
The prosecutor mischaracterized part of the witness’s testimony. The witness actually testified that
Miles’s nickname was “O.G.” and that these initials stand for “Original Gangster,” not “Old Gangsta.”
No. 19-5340 Miles v. Jordan Page 5
• “The evidence points to the man with the black on, the man that had the
motive, the man that fits the identification to a tee. Points to Cat Daddy. It
points to the Old Gangsta. Who done it? He’s sitting right there.”
After a two-and-a-half-day trial, the jury convicted Miles of all charges. Id. Miles
appealed to the Kentucky Supreme Court, arguing, among other things, that the 21-month delay
between his indictment and trial violated his Sixth Amendment right to a speedy trial. Applying
the four-factor test established in Barker v. Wingo, 407 U.S. 514 (1972), the Kentucky Supreme
Court “adjudge[d] that Miles was not denied his right to a speedy trial in this case,” and affirmed
his convictions. Miles, 2009 WL 160435, at *3, *7.2
Miles then sought relief in collateral proceedings. In a habeas corpus petition filed in
Kentucky state court, Miles argued that his trial counsel was ineffective for failing to object to
the prosecutor’s references to the gun found at his apartment and to the prosecutor’s use of his
nicknames. After an evidentiary hearing, the trial court denied his petition. The Kentucky Court
of Appeals reversed, concluding that these failures—collectively and in conjunction with other
errors—constituted ineffective assistance of counsel. Miles v. Commonwealth, No. 2012-CA-
001240-MR, 2014 WL 4177446 (Ky. Ct. App. Aug. 22, 2014). The Kentucky Supreme Court
granted discretionary review and reversed the Kentucky Court of Appeals, concluding that there
was not a reasonable probability that the verdicts would have been different if his counsel had
objected to the gun or nickname references. Commonwealth v. Miles, Nos. 2014-SC-000580-DG
& 2015-SC-000321-DG, 2017 WL 5504212, at *3–5 (Ky. Mar. 23, 2017). After exhausting
state-court remedies, Miles unsuccessfully petitioned the District Court for the Western District
of Kentucky for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
II.
“This Court reviews de novo the legal conclusions involved in the district court’s
decision to deny the writ under § 2254, and reviews for clear error its findings of fact.” Reiner v.
Woods, 955 F.3d 549, 554 (6th Cir. 2020) (citation omitted). Under the Antiterrorism and
2
The Warden moved for us to take judicial notice of an unsuccessful motion to supplement the record that
Miles filed with the Kentucky Supreme Court on direct appeal. In view of our disposition of this appeal, we dismiss
this motion as moot.
No. 19-5340 Miles v. Jordan Page 6
Effective Death Penalty Act of 1996 (“AEDPA”), we can overturn a state conviction for an issue
adjudicated on the merits only if the relevant state-court decision was (1) “contrary to . . . clearly
established Federal law, as determined by the Supreme Court of the United States;” (2) “an
unreasonable application of[] clearly established Federal law, as determined by the Supreme
Court of the United States;” or (3) “based on an unreasonable determination of the facts in light
of the evidence presented.” 28 U.S.C. § 2254(d).
To prevail under the “contrary to” clause, Miles must show that the state court “arrive[d]
at a conclusion opposite to that reached by [the Supreme] Court on a question of law” or that it
“confront[ed] facts that are materially indistinguishable from a relevant Supreme Court
precedent and arrive[d] at a result opposite” to that reached by the Court. Williams v. Taylor,
529 U.S. 362, 405 (2000). To prevail under the “unreasonable application” clause, Miles must
show that “the state court identifie[d] the correct governing legal principle from th[e] Court’s
decisions but unreasonably applie[d] that principle to the facts of [his] case.” Id. at 413. To
prevail under the “unreasonable determination of the facts” clause, Miles must show an
unreasonable determination of fact and “that the state court decision was ‘based on’ that
unreasonable determination.” Rice v. White, 660 F.3d 242, 250 (6th Cir. 2011).
Under AEDPA, “unreasonable” is not equivalent to “incorrect.” See Renico v. Lett, 559
U.S. 766, 773 (2010). Indeed, “[a] state court’s determination that a claim lacks merit precludes
federal habeas relief so long as fairminded jurists could disagree on the correctness of the state
court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (internal quotation marks
omitted). And, “the more general the rule at issue—and thus the greater the potential for
reasoned disagreement among fair-minded judges—the more leeway state courts have in
reaching outcomes in case-by-case determinations.” Renico, 559 U.S. at 776 (brackets and
internal quotation marks omitted). In short, AEDPA imposes a “highly deferential standard for
evaluating state-court rulings,” and “demands that state-court decisions be given the benefit of
the doubt.” Id. at 773 (quotations omitted).
In this appeal, Miles raises three issues adjudicated on the merits by the Kentucky
Supreme Court: (1) whether his Sixth Amendment right to a speedy trial was violated by the 21-
month delay between his indictment and trial; (2) whether his trial counsel was ineffective for
No. 19-5340 Miles v. Jordan Page 7
failing to object to the prosecution’s reference to the gun; and (3) whether his trial counsel was
ineffective for failing to object to the prosecution’s use of his nicknames.3 We address each in
turn.
III.
First, Miles argues that the Kentucky Supreme Court’s adjudication of his speedy-trial
claim was contrary to, and an unreasonable application of, the Supreme Court’s holdings in
Barker and Doggett v. United States, 505 U.S. 647 (1992). We disagree.
The Sixth Amendment guarantees that, “[i]n all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial[.]” U.S. Const. amend. VI. The speedy-trial right is
“amorphous,” “slippery,” and “necessarily relative,” so any claimed violation must be evaluated
on an “ad hoc basis.” Barker, 407 U.S. at 522, 530. In Barker, the Supreme Court established
four factors for courts to consider when evaluating a speedy-trial claim: (1) whether the delay
was uncommonly long; (2) the reason for the delay; (3) whether the defendant asserted his right
to a speedy trial; and (4) whether prejudice to the defendant resulted. 407 U.S. at 530. “No one
factor is dispositive. Rather, they are related factors that must be considered together with any
other relevant circumstances.” United States v. Sutton, 862 F.3d 547, 559 (6th Cir. 2017) (citing
Barker, 407 U.S. at 533).
The first factor is a “threshold” requirement. Doggett, 505 U.S. at 652. The rationale
here is that judicial examination of a speedy trial claim is needed only where the delay crosses
the line dividing the “ordinary” from the “presumptively prejudicial.” Id. at 651–52. The
Supreme Court has never clearly drawn that line, but has noted that “[d]epending on the nature
of the charges, the lower courts have generally found postaccusation delay ‘presumptively
prejudicial’” once the delay “approaches one year.” Id. at 652 n.1, 658. Although “presumptive
prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker
criteria, it is part of the mix of relevant facts, and its importance increases with the length of the
delay.” Id. at 656 (internal citation omitted).
3
The district court also granted a certificate of appealability on a fourth issue: whether Miles’s counsel was
ineffective for failing to object to certain hearsay testimony. Miles, however, waived this claim on appeal.
No. 19-5340 Miles v. Jordan Page 8
The second Barker factor looks at “whether the government or the criminal defendant is
more to blame for th[e] delay.” Id. at 651. “Governmental delays motivated by bad faith,
harassment, or attempts to seek a tactical advantage weigh heavily against the government, while
neutral reasons such as negligence are weighted less heavily, and valid reasons for a delay weigh
in favor of the government.” United States v. Robinson, 455 F.3d 602, 607 (6th Cir. 2006)
(citing Barker, 407 U.S. at 531). Thus, “different weights should be assigned to different
reasons.” Barker, 407 U.S. at 531.
The third factor relates to “the defendant’s responsibility to assert his right,” and its effect
will depend on the other factors. Id. “The strength of his efforts will be affected by the length of
the delay, to some extent by the reason for the delay, and most particularly by the personal
prejudice, which is not always readily identifiable, that he experiences. The more serious the
deprivation, the more likely a defendant is to complain.” Id.The fourth and final Barker factor is actual prejudice to the accused. “Prejudice ‘should
be assessed in the light of the interests of defendants which the speedy trial right was designed to
protect,’ of which there are three: ‘(i) to prevent oppressive pretrial incarceration; (ii) to
minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense
will be impaired.’” United States v. Ferreira, 665 F.3d 701, 706 (6th Cir. 2011) (quoting
Barker, 407 U.S. at 532).
Although the Kentucky Supreme Court correctly identified the four Barker factors, Miles
takes issue with its analysis of the second and fourth factors.4 We agree with the district court
that Miles cannot overcome AEDPA deference.
4
Miles also faults the state court for not “stating whether, and to what degree, each of the factors weigh in
favor or against a conclusion that the Commonwealth violated [his] speedy-trial right.” But as the Warden correctly
notes, the United States Supreme Court has never required courts to so precisely define the weighing of the Barker
factors. Thus, he cannot show that the Kentucky Supreme Court’s failure to do so was contrary to, or an
unreasonable application of, law established in the holdings of the Supreme Court. 28 U.S.C. § 2254(d).
No. 19-5340 Miles v. Jordan Page 9
A.
The Kentucky Supreme Court addressed the second Barker factor as follows:
As for reason for the delay, the Commonwealth argued that the toboggan
hat was vital evidence in the case and that they could not go forward with the trial
without the DNA testing being completed. Nevertheless, after the testing came
back negative, the Commonwealth still proceeded with the trial and obtained a
conviction against Miles. In fact, at trial the prosecutor elicited testimony from
the lead investigator on the case, Detective Chris Ashby, that the hat had no
relevance in the case and argued such in his closing argument. Miles asserts that
this demonstrates that the testing on the hat was not a legitimate reason for the
delay in this case and that the prosecutor intentionally misled the court as to the
importance of the hat to the case.
The black toboggan hat in question was found and collected by the police
as potential evidence at the scene. Officer Hill and two other witnesses testified
at trial that the man who shot Teasley was wearing a toboggan hat. Simply
because the testing came back negative on the hat and the prosecution
subsequently argued at trial that the hat was not significant to the case, does not
mean that the Commonwealth acted in bad faith in seeking DNA testing on the
hat. After the hat tested negative for Miles’ DNA, the Commonwealth had no
choice but to minimize the evidentiary value of the hat at trial. In reviewing the
record, there is no indication that the Commonwealth acted in bad faith. At the
pre-trial hearings wherein the status of the testing on the hat was discussed, the
prosecutor reported that he was regularly calling the lab to inquire about the status
of the testing. Defense counsel admitted that the hat was crucial evidence and
stated no objection to having the hat tested, although he sought to have their own
expert present for testing.
Miles, 2009 WL 160435, at *2–3. Miles takes issue with this analysis, arguing that it failed to
answer “the relevant legal question”: “whether the government or the criminal defendant is more
to blame for th[e] delay.” In his view, the Kentucky Supreme Court reduced this factor to an
inquiry of whether the government acted in bad faith and failed to consider whether the
government exercised “reasonable diligence” in waiting to test the hat and allowing the hat to
languish at the lab.
The state court’s treatment of this issue was not contrary to, or an unreasonable
application of, a clearly established holding of the Supreme Court. Despite Miles’s attempt to
challenge the framing of this issue, state courts are not required to use specific language in
addressing the Barker factors. See Barker, 407 U.S. at 530 (“[S]ome might express [the Barker
No. 19-5340 Miles v. Jordan Page 10
factors] in different ways.”) And the Kentucky Supreme Court clearly did not limit its analysis
to just a bad-faith inquiry5 or ignore the question of who bore responsibility for the delay.
It noted that “[d]efense counsel admitted that the hat was crucial evidence.” Miles, 2009 WL
160435, at *3. Given the representations from both sides that the hat could be decisive either
way, the court could have reasonably concluded that there was a valid reason for the delay. See
Barker, 407 U.S. at 531 (providing the example of a “missing witness” as a valid reason for
delay). Such a reason weighs in favor of the government and “justif[ies] appropriate delay.” Id.The Kentucky Supreme Court also noted that Miles’s counsel did not initially object to
the testing (even though the testing process started months after indictment), and the prosecutor
was regularly calling the lab to inquire about the status of the results. This recognition supports
the reasonable conclusions that testing was at first agreeable to both sides; that the government
was diligent once the hat was sent to the lab, see Doggett, 505 U.S. at 656; and that the resulting
delay was appropriate, Barker, 407 U.S. at 531.
In sum, the Kentucky Supreme Court’s decision is not contrary to, or an unreasonable
application of, Barker’s second factor.
B.
The Kentucky Supreme Court provided the following analysis of the fourth Barker
factor:
As for prejudice to Miles as a result of the delay, Miles alleges that he lost
a key witness for trial, Steven Edwards, who died on June 25, 2006 in a
motorcycle accident. Upon review of the record, the only references to Edwards
were in a March 2007 motion to dismiss indictment for speedy trial violation and
as an alias for Miles. According to the record, no subpoenas were issued for
Edwards’ appearance at either of the two trial dates prior to Edwards’ death.
Further, Miles does not allege what Edwards’ testimony would have been and
why he was so crucial to his case.
5
We note, moreover, that the only argument Miles presented to the Kentucky Supreme Court was that the
prosecution had acted in bad faith by sending the hat for testing. He made no argument, as he does now, related to
prosecutorial negligence. As such, the Kentucky Supreme Court was not treating a lack of bad faith as dispositive; it
was responding to Miles’s only argument on this issue.
No. 19-5340 Miles v. Jordan Page 11
Finally, although Miles was convicted, the negative test results on the hat
were favorable to Miles’ case at trial. The negative DNA results on the hat were a
large part of Miles’ defense and were repeatedly referred to by defense counsel at
trial as proof that Miles was not the shooter.
Miles, 2009 WL 160435, at *3. Miles argues that the state court erred by requiring him to show
“affirmative proof of particularized prejudice” when he had established presumptive prejudice
under the first Barker factor. Miles also contends that the court failed to consider this
presumptive prejudice in its Barker analysis and failed to account for the other forms of
prejudice that Miles suffered—oppressive pretrial incarceration and anxiety and concern.
Miles’s arguments are meritless. Finding actual prejudice based on length of delay alone
is the exception, not the rule. See Doggett, 505 U.S. at 655; see also Robinson, 455 F.3d at 608(“In the absence of particularized trial prejudice, delay attributable to the government’s
negligence has typically been shockingly long to warrant a finding of prejudice.” (internal
quotation marks omitted)). And when the government acted with reasonable diligence or the
delay was for a valid reason, a speedy-trial claim fails “no matter how great the ensuing delay.”
Robinson, 455 F.3d at 608 (citation omitted); see Doggett, 505 U.S. at 656. Even if the
government acted negligently, we have declined to conclude that presumptive prejudice resulting
from delays similar to that experienced by Miles justified an inference of actual prejudice. See
United States v. Jackson, 473 F.3d 660, 667–68 (6th Cir. 2007) (collecting cases and holding that
a nearly two-year delay between a defendant’s indictment and his arrest, attributable to the
government’s negligence, did not satisfy the actual prejudice factor of Barker); see also Barker,
407 U.S. at 533–34 (finding that “prejudice was minimal” despite delay “well over five years”).
Nor can we conclude that the state court failed to consider presumptive prejudice in its
weighing of the Barker factors. Applying the first Barker factor, the Kentucky Supreme Court
concluded that the 21-month delay in this case was “presumptively prejudicial.” Miles, 2009 WL
160435, at *2. The court then held that “[u]pon consideration of all of the above factors in
Barker, we adjudge that Miles was not denied his right to a speedy trial.” Id. at *3. We take the
Kentucky Supreme Court at its word and conclude that the state court considered presumptive
prejudice in its Barker decision.
No. 19-5340 Miles v. Jordan Page 12
Finally, Miles’s other prejudice concerns are not sufficient to invalidate the state court’s
conclusion. For one, AEDPA requires “deference to be given even in cases, such as this one,
where the state court’s reasoning is . . . abbreviated.” Holder v. Palmer, 588 F.3d 328, 341 (6th
Cir. 2009); see Johnson v. Williams, 568 U.S. 289, 300 (2013). That the state court did not
expressly weigh the two less “serious” forms of actual prejudice, Barker, 407 U.S. at 532, does
not mean that it “arrive[d] at a conclusion opposite to that reached by [the Supreme Court] on a
question of law,” Williams, 529 U.S. at 405. Indeed, to receive AEDPA deference, a state court
does not even have to “explicitly address the factors outlined in Barker” at all, “as long as the
court does not apply a test or standard that is contrary to federal law.” Brown v. Bobby, 656 F.3d
325, 330 (6th Cir. 2011). In any event, Miles was already incarcerated on other state charges
while he awaited trial on his murder charges. We have held that being “ineligible for certain
placements and programs in the state prison” because of the charges underlying a speedy-trial
claim is “not the type of prejudice cognizable under the Sixth Amendment.” Robinson, 455 F.3d
at 609. And Miles did not provide any indication to the Kentucky Supreme Court that his
anxiety was “beyond that which is inevitable in a criminal case.” Hakeem v. Beyer, 990 F.2d
750, 762 (3d Cir. 1993) (internal quotation marks omitted); see Smith v. Commonwealth, 361
S.W.3d 908, 918 (Ky. 2012); Norris v. Schotten, 146 F.3d 314, 328 (6th Cir. 1998).
For these reasons, the Kentucky Supreme Court’s decision was not contrary to, or an
unreasonable application of, Barker’s fourth factor.
C.
Barker’s “balancing test necessarily compels courts to approach speedy trial cases on an
ad hoc basis.” 407 U.S. at 530. Given the Barker inquiry’s generality, see Sutton, 862 F.3d at
559, we cannot conclude that the Kentucky Supreme Court’s decision “was so lacking in
justification” as to require habeas relief. Harrington, 562 U.S. at 103. We therefore reject
Miles’s speedy-trial claim.
No. 19-5340 Miles v. Jordan Page 13
IV.
Next, Miles asserts that his trial counsel was ineffective by failing to object to the
prosecutor’s references to the gun found in his apartment and to the prosecutor’s references to
his nicknames in closing. AEDPA, coupled with the Supreme Court’s decision in Strickland v.
Washington, 466 U.S. 668 (1984), provides the proper framework for assessing these claims.
Under Strickland, Miles must show that his counsel provided “deficient” performance that
“prejudiced the defense.” Id. at 687. Prejudice requires “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different,” id. at
694, and a reasonable probability is a “substantial, not just conceivable, likelihood of a different
result,” Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (internal quotation marks omitted). This
standard is “highly demanding,” Kimmelman v. Morrison, 477 U.S. 365, 382 (1986), and when,
as here, an ineffective-assistance-of-counsel claim is subject to AEDPA’s constraints, our review
is “doubly deferential,” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).
The Kentucky Supreme Court identified and applied Strickland, so the question is
whether its decision involved an “unreasonable application of” Strickland or was based on an
unreasonable determination of the facts. To meet that standard, Miles must show far more than
that the state court’s decision was “merely wrong” or “even clear error.” Virginia v. LeBlanc,
137 S.Ct. 1726, 1728 (2017) (per curiam) (internal quotation marks omitted). He must show that
the state court’s decision is so obviously wrong that its error lies “beyond any possibility for
fairminded disagreement.” Richter, 562 U.S. at 103. Congress “meant” this standard to be
“difficult to meet.” Id. at 102. And Miles has not satisfied that standard here.
A.
Miles argues that the Kentucky Supreme Court committed two legal errors in considering
the prejudice prong of his ineffective-assistance claim based on failure to object to the gun.
First, he contends that the court “set[] the bar higher” by applying a harmless-error standard
under its decision in Harris v. Commonwealth, 384 S.W.3d 117 (Ky. 2012), rather than
Strickland. This argument misreads the Kentucky Supreme Court’s opinion. The court cited
Harris only for the proposition that “[t]he Court of Appeals correctly noted that weapons
No. 19-5340 Miles v. Jordan Page 14
unrelated to the crimes charged are generally inadmissible.” Miles, 2017 WL 5504212, at *4.
And that is all that the cited portion of Harris stands for. See Harris, 384 S.W.3d at 123–24
(collecting cases where weapons with no connection to the crime were held to be inadmissible).
Although Harris confronted the issue of an unrelated gun in the context of harmless-error
review, the Kentucky Supreme Court clearly applied Strickland’s prejudice standard in Miles’s
case. Miles, 2017 WL 5504212, at *2–5.
Miles also faults the state court for failing to undertake a “probing and fact-specific”
prejudice inquiry. See Sears v. Upton, 561 U.S. 945, 955 (2010) (per curiam). But it noted that
the officer-in-charge had admitted that the gun was not connected to Teasley’s murder, that the
jury was repeatedly informed that the gun was unrelated to the murder, and that the gun itself
was not admitted into evidence. To be sure, the Kentucky trial court could have done more to
ensure that the gun did not factor into the jury’s decision, such as giving a specific curative
instruction. But the Kentucky Supreme Court clearly understood the facts of Miles’s case and
reasonably concluded that he had not met Strickland’s prejudice prong. This is all that is
required to satisfy AEDPA deference on this issue, so we reject this ineffective-assistance claim.
B.
Finally, Miles alleges two points of error regarding the use of his nicknames. First, he
contends the Kentucky Supreme Court miscounted the number of times the prosecutor referred
to his nicknames, which means its no-prejudice conclusion was based on an unreasonable
determination of fact. In arguing the nickname issue before the Kentucky Supreme Court, Miles
relied on United States v. Farmer, 583 F.3d 131 (2d Cir. 2009), where the Second Circuit held
that the district court should not have allowed the Government to repeatedly reference the
defendant’s nickname when “identity was not an issue,” the nickname “had no legitimate
relationship to the crimes charged,” and it was “suggestive of a criminal disposition.” Id. at 146(internal quotation marks omitted). The Kentucky Supreme Court distinguished Farmer from
this case as follows:
Miles and the Court of Appeals cite cases that found the use of an alias
created so much prejudice that it created an unfair trial. For instance, United
States v. Farmer, in which the Second Circuit Court of Appeals found the use of
No. 19-5340 Miles v. Jordan Page 15
the defendant’s nickname “Murder” was overly prejudicial. In Farmer, the court
stated, “In our prior cases, the government’s use of a defendant’s nickname was
‘occasional’ or ‘brief and isolated.” But Farmer’s nickname was the main
rhetorical trope used by the prosecution to address the jury and was used no fewer
than thirty times.”
Miles’s facts are distinct from those in Farmer. Miles’s nickname was
used a total of three times after it was first mentioned in the testimony of a
defense witness. The present case is a far cry from the “rhetorical trope” in
Farmer.
Miles, 2017 WL 5504212, at *3 (footnotes, brackets, and ellipses omitted). Miles is correct that
the court miscounted the instances where the prosecutor used his nicknames—the prosecutor
used the name “Old Gangsta” four times, not three.6 Nonetheless it is immaterial.
Despite the state court’s miscalculation, Miles has not shown that its prejudice finding
was based on there being only three uses of “Old Gangsta,” or that its conclusion would have
been different had it properly considered the additional use. Even with four uses, the
prosecutor’s conduct remained a “far cry . . . from Farmer.” Id. There, the prosecution used the
nickname “no fewer than thirty times during the rebuttal summation in a presentation that
occupies only sixteen transcript pages.” Farmer, 583 F.3d at 147. In contrast, the prosecutor
here used “Old Gangsta” four times in a summation spanning eighteen transcript pages. As the
Kentucky Supreme Court recognized, this case is closer to instances where the prosecutor’s
misuse of a nickname was “occasional” or “brief and isolated” than it is to instances were a
nickname became a “rhetorical trope.” Id. (citations omitted). Thus, the Kentucky Supreme
Court’s prejudice decision was not based on an unreasonable determination of the facts in light
of the record before it. See Rice, 660 F.3d at 250.
Second, Miles again contends that the state court failed to undertake a “probing and fact-
specific” prejudice inquiry. See Sears, 561 U.S. at 955. We disagree. The court’s opinion
shows that it had reviewed the factual and procedural history of the case and concluded that the
6
We focus on “Old Gangsta” because “Cat Daddy” is not suggestive of criminal disposition. See Farmer,
583 F.3d at 146. Although it is unclear why Miles was called “Cat Daddy,” there is no indication that this nickname
has a criminal connotation, which is presumably why defense counsel was comfortable using it in his opening
statement. In addition, Miles never argued to the state courts that his counsel should have specifically objected to
the prosecution’s use of “Cat Daddy.” Nor did he do so below.
No. 19-5340 Miles v. Jordan Page 16
nickname references “in the context of [the] entire trial, were de minimis,” and that “[b]elieving
the reference to Miles’s nickname somehow would have changed the course of his verdict is
speculative.” Miles, 2017 WL 5504212, at *3. This approach and conclusion are consistent with
Strickland. Thus, the Kentucky Supreme Court’s treatment of the nickname references survives
AEDPA review, and Miles’s ineffective-assistance-of-counsel claim fails.7
V.
For these reasons, we affirm the district court’s judgment and deny the pending motions.
7
After Miles filed his appeal, prison officials transferred him from a prison located in the Western District
of Kentucky to a prison located in the Eastern District of Kentucky. We previously concluded that this transfer
“clearly violated” Federal Rule of Appellate Procedure 23(a) because the Warden did not obtain the district court’s
permission before initiating the transfer. We deny petitioner’s motion for a transfer without prejudice to its refiling
in the district court.