Jimmie Miller v. Judy Smith ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-1796
JIMMIE L. MILLER,
Petitioner-Appellant,
v.
JUDY SMITH, Warden,
Respondent-Appellee.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:09-cv-00335-CNC — Charles N. Clevert, Jr., Judge.
ARGUED APRIL 18, 2014 — DECIDED AUGUST 29, 2014
Before BAUER, EASTERBROOK, and HAMILTON, Circuit Judges.
BAUER, Circuit Judge. Jimmie L. Miller (“Miller”) was
charged in Wisconsin state court on June 7, 2004, with First
Degree Sexual Assault of a Child. Miller entered a plea of no
contest and was sentenced to ten years in prison followed by
twenty years of supervised release. In January 2006, Miller
filed a notice of intent to pursue post-conviction relief on the
basis that he failed to understand his original plea. The court
2 No. 13-1796
appointed Attorney John J. Grau (“Grau”) to represent Miller
in seeking post-conviction relief.
On January 12, 2007, Grau filed a post-conviction motion
seeking resentencing for Miller on the basis that Miller did not
understand the terms of his plea agreement. Miller, however,
withdrew the motion during a hearing on April 23, 2007.
On May 2, 2007, Grau sent Miller a letter informing him
that after reviewing the case file, Grau felt there was no legal
basis for pursuing post-conviction relief. At the end of the
letter, Grau told Miller he would “set up a call to discuss this
matter with you in the next week or so.”
Miller did not hear back from Grau for over two months.
On July 26, 2007, Miller wrote to Grau asking whether he had
prepared their next move. Miller again did not hear back
from Grau. On August 7, 2007, Miller wrote to Grau again and
told Grau to withdraw his plea of no contest because the state
violated the terms of his plea agreement and the plea was not
entered knowingly, voluntarily, or intelligently. Miller also
wrote that he suffered from a mental disease, was “incompe-
tent” at the time he entered his plea, and has ongoing mental
and personality disorders.
Grau called Miller on August 16, 2007, and explained that
because the time had expired on Miller’s appeal, there was
nothing more he could do. Several days later, Miller wrote to
the State Public Defender’s Office. He informed the office of
Grau’s inaction and expressed concerns that Grau would seek
to file a no-merit report without Miller’s consent in order to
avoid the consequences of his failure to adequately represent
No. 13-1796 3
Miller.1 Miller also wrote that “competency was an issue”
throughout his trial.
Kenneth Lund (“Lund”), the attorney manager for the State
Public Defender’s Office, wrote to Grau on August 28, 2007,
relaying Miller’s concerns and requesting that Grau respond to
Miller within ten days. Lund also asked Grau to send a copy of
the letter to the State Public Defender’s Office. On Septem-
ber 12, 2007, Miller wrote to the State Public Defender’s Office
again, informing them that he had yet to hear from Grau and
asked, “Will you take my case?”
Grau eventually responded to Miller in a letter dated
September 7, 2007.2 Miller responded several weeks later,
writing that Grau failed to call after he said he would in his
original letter on May 2, and that Grau was “making excuses
for [his] actions and inactions.”
Lund reviewed the correspondence between Miller and
Grau and wrote back to Miller on October 10, 2007. Lund
stated that the State Public Defender’s Office “will not appoint
successor counsel when a defendant disagrees with the legal
conclusions of appointed counsel or wants a second opinion as
to the merits of an appeal.” Lund informed Miller that if he
disagreed with Grau, he could choose one of three options:
(1) release Grau as his attorney and proceed pro se with the
1
A no-merit report, also called an “Anders Brief,” is a procedure for
criminal defense lawyers who conclude that no non-frivolous arguments
are available for the defendant. Anders v. California, 386 U.S. 738 (1967).
2
Miller admitted that he received Grau’s letter dated September 7, but
asserted that the letter was not actually sent until September 21.
4 No. 13-1796
understanding that “[n]o other attorney will be appointed to
represent you for this appeal” (emphasis in original), (2) hire
a different attorney at his own expense, or (3) direct Grau to
file a no-merit report. The letter concluded with the repeated
warning that “[t]he Office of the State Public Defender will not
appoint a different attorney for you in this matter.” Miller
directed Grau to file a no-merit report; Grau failed to do so.
On January 17, 2008, Miller filed a pro se petition for a writ
of habeas corpus in the Wisconsin Court of Appeals, arguing
that he received ineffective assistance of appellate counsel. The
court granted Miller’s petition, finding that even though Miller
directed his counsel to file a no-merit report, Grau ignored
his request. The court reinstated Miller’s appeal rights and
ordered Grau to file either a notice of appeal or a no-merit
report. The court stated that “[b]y reinstating Miller’s appeal
rights, we return Miller to the position he enjoyed before
appellate counsel ignored his request for a no-merit report.”
In regard to Miller’s request for new counsel the court advised
Miller to seek such relief from the State Public Defender. Miller
never did so.
Miller petitioned the Wisconsin Supreme Court to review
the Wisconsin Court of Appeals’ denial of his request for new
counsel; the petition for review was denied. Miller then filed a
motion in the Wisconsin Court of Appeals, expressing his
desire to discharge Grau by objecting to Grau’s ability to file
documents on his behalf in any court and claiming a conflict of
interest with Grau. The Wisconsin Court of Appeals denied the
motion on December 17, 2008. The court found that because
Miller’s rights to appeal were reinstated, “he is no longer
No. 13-1796 5
prejudiced by Attorney Grau’s conduct.” The court ordered
Grau to file a no-merit report no later than January 30, 2009.
On January 8, 2009, Miller wrote to Grau:
I am directing you not to file any papers (legal docu-
ments) in my case on my behalf. You are also directed
to provide me with any and all papers you have involv-
ing my case, as your representation of my case has
ended. I do not want you as my appellate counsel
(emphasis in original).
The next day, the Wisconsin Court of Appeals entered an
order recognizing Miller’s desire to discharge Grau and
proceed pro se. The court advised Miller that if he discharged
Grau, the court “cannot guarantee that new counsel will be
appointed.” The court explained,
Before this court grants Miller’s motion to discharge
counsel, we will require Miller to confirm that he
understands the consequences of asking his counsel to
withdraw, including the difficulties and disadvantages
of self-representation, and the fact that discharging
counsel can constitute a waiver of the right to counsel
for postconviction and appellate proceedings.
The court mentioned some of the obligations that Miller
would face proceeding pro se, such as writing and filing copies
of briefs on time, supporting arguments with legal authority,
and complying with Wisconsin statutes. As an alternative to
self-representation, the court reminded Miller he could take
advantage of the no-merit process by having Grau comply
with the court’s previous order to file a no-merit report; this
would allow Miller to then file a response to the no-merit
6 No. 13-1796
report raising any matters he finds to have arguable merit for
appeal. Finally, the court suggested Miller “carefully consider
this order” and “advise the clerk of this court in writing
whether he desires to discharge counsel and waive the right to
counsel for postconviction and appellate proceedings.” The
order stated that Grau would remain counsel of record and
Miller would not proceed pro se until the court was confident
that Miller fully understood the consequences of his request.
Miller was required to respond to the court’s order in writing
by January 30, 2009.
Miller filed a response on January 21, 2009, again arguing
that he was entitled to new counsel. Miller wrote that he “does
not want Attorney John Grau’s ineffective representation” and
that he “just wants his case file from Attorney John Grau
and he will proceed as he has, without Attorney Grau for over
a year.” On February 11, 2009, the court discharged Grau
because it found that Miller, based on his response, waived his
right to counsel and sought to proceed pro se. While the court
acknowledged that Miller claimed he should be appointed new
counsel, it said that the issue had already been decided and
that “we will not revisit it.” The court ordered Miller to file a
post-conviction motion or a notice of appeal within seventy-
five days; Miller did neither. Instead, Miller wrote to the
Wisconsin Court of Appeals stating that he did not intend to
proceed pro se on his first appeal as of right because he was
entitled to new counsel.3
3
Miller also petitioned the United States Supreme Court for a writ of
certiorari on January 6, 2009; the petition was denied.
No. 13-1796 7
On March 27, 2009, Miller filed a pro se petition in the
United States District Court for the Eastern District of Wiscon-
sin for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Miller argued that the Wisconsin Court of Appeals’ refusal to
appoint new counsel violated his Sixth Amendment rights and
that since his guilty plea was not entered intelligently, volun-
tarily, and knowingly, it violated his Fourteenth Amendment
rights. The district court denied the petition, finding that Miller
“failed to show that the Wisconsin Court of Appeals’ adjudica-
tion of his claim resulted in a decision that was clearly contrary
to established federal law as determined by the United States
Supreme Court.” The district court reasoned that Miller’s
appeal rights were appropriately reinstated after the court
deemed Grau ineffective, curing any prejudice, and that the
Wisconsin Court of Appeals did not need to appoint new
appellate counsel. Although Miller claimed that the court
“forced” him to discharge Grau and proceed pro se, the court
reminded Miller that “the right to counsel of choice does not
extend to indigent defendants” and that he “refused the benefit
of the no-merit process by discharging his appellate counsel
voluntarily and proceeding pro se on an appeal after being
warned by the court of the advantages and disadvantages of
self-representation.”
Miller appealed to this court.
DISCUSSION
A federal court may consider habeas relief for a petitioner
in state custody “only on the ground that he is in custody
in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a). Under the Antiterrorism
and Effective Death Penalty Act (“AEDPA”), we may only
8 No. 13-1796
grant federal habeas relief if the state court’s adjudication of his
claim was either (1) “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States,” or (2) “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).
A state court decision is contrary to federal law if the state
court applied a rule that is opposite from the law established
by the United States Supreme Court or the state court decided
the case differently than the United States Supreme Court did
in another case with materially indistinguishable facts. Williams
v. Taylor, 529 U.S. 362, 405–06, 413 (2000). A state court’s
application of federal law is deemed unreasonable if it cor-
rectly states the controlling legal principle as established by a
United States Supreme Court decision but unreasonably
applies that principle to the facts of the case. Id. at 407–409, 413.
We review a district court’s denial of a habeas petition
de novo and its findings of fact for clear error. Rittenhouse v.
Battles, 263 F.3d 689, 695 (7th Cir. 2001).
A. Miller’s Right to Effective Assistance of Counsel
Miller fails to identify any established federal law that is
contrary to the decision of the Wisconsin Court of Appeals. We
therefore turn to whether the Wisconsin Court of Appeals
unreasonably applied clearly established federal law when it
refused to appoint new appellate counsel after it deemed Grau
ineffective and reinstated Miller’s right of appeal.
The controlling question in our analysis is whether the state
court’s conclusion was objectively unreasonable, not whether
No. 13-1796 9
the conclusion was correct. Williams, 529 U.S. at 409–10. Even
a clearly erroneous state court decision is not necessarily an
unreasonable one. Badelle v. Correl, 452 F.3d 648, 654–55 (7th
Cir. 2006) (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). The
state prisoner is required to show that the ruling in state court
“was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Harrington v. Richter,
131 S. Ct. 770, 786–87 (2011).
The United States Supreme Court clarified in United States
v. Gonzalez-Lopez, 548 U.S. 140 (2006), that there is a substantial
difference between the right to effective counsel and the right
to counsel of choice. The right to effective counsel is a baseline
requirement that a trial court appoint a competent attorney to
an indigent defendant. Id. at 150. The right to counsel of choice,
however, deals with the ability to select a particular lawyer
and ”does not extend to defendants who require counsel to be
appointed for them.” Id. at 151.
It is undisputed that the Wisconsin Court of Appeals found
Grau ineffective because he allowed Miller’s appeal rights to
expire when he failed to file a timely no-merit report on
Miller’s behalf. In light of its finding, the court reinstated
Miller’s appeal rights and ordered Grau to file a no-merit
report. This remedy cured any prejudice to Miller and placed
him in the position he enjoyed prior to Grau’s ineffective
assistance; an appropriate remedy given the circumstances.
However, instead of allowing Grau to comply with the court’s
order, Miller wrote to the Wisconsin Court of Appeals express-
ing his desire to discharge Grau.
10 No. 13-1796
Miller points to our holding in Betts v. Litscher, 241 F.3d 594(7th Cir. 2001), and the Wisconsin Supreme Court’s holding in
State ex rel. Seibert v. Macht, 627 N.W.2d 881 (Wis. 2001), to
show that courts appoint new appellate counsel for an indigent
defendant when his previous counsel abandoned him. These
cases are distinguishable from Miller’s and merely establish
that federal courts have the discretion to choose an appropriate
remedy for a defendant who was denied the right to effective
assistance of appellate counsel.
In Betts, appointed counsel felt that the defendant’s appeal
lacked merit. Instead of filing a no-merit brief, counsel falsely
informed the appeals court that the defendant declined the
opportunity to file a no-merit report and requested to proceed
pro se. Id. at 595. The defendant asserted that he never told
counsel he wished to proceed pro se and nothing in the record
aside from counsel’s statement indicated that the defendant
wanted to represent himself. Id. at 596. In addition, no evidence
in the record revealed that the defendant knew of his options
regarding the filing of a no-merit report versus firing his
counsel and proceeding pro se. Id. The state court, however,
allowed counsel to withdraw and refused to appoint new
counsel, asserting that the defendant waived his right to
counsel. Id. On appeal, this court determined that the defen-
dant did not waive his right to counsel because he “did not
have a chance to discharge [his counsel]; she quit on him.” Id.We found that the defendant was abandoned by counsel and
“must be restored to the position he would have occupied”
had the state court not denied him the assistance of counsel on
appeal. Id. at 597. We remanded with instructions to provide
No. 13-1796 11
the defendant a new appeal with the assistance of new counsel.
Id.Miller’s case is distinguishable from Betts for three primary
reasons. First, Grau did not leave Miller completely without
counsel and was in contact with Miller throughout his appeal
process: he prepared a post-conviction motion for Miller in
January 2007; appeared at the hearing on the motion in April
2007; wrote to Miller in May 2007, informing him that there
appeared to be no basis for pursuing the appeal further; called
Miller in August 2007, to explain why he had not been in
contact; and again wrote to Miller in September 2007. Grau
never refused to represent Miller, or renounced their attorney-
client relationship, or falsely informed the court that Miller
wished to discharge him and proceed pro se. Simply lacking
a good rapport with one’s appointed counsel does not amount
to the contention that a criminal defendant was completely
deprived of counsel; the Supreme Court in Morris v. Slappy,
461 U.S. 1, 14 (1983), rejected the argument that the Sixth
Amendment guarantees this sort of “meaningful relationship.”
Second, unlike the defendant in Betts, Miller expressly told
both Grau and the court that he wished to proceed without
Grau. And third, the court adequately informed Miller of his
options moving forward, as well as the hardships of discharg-
ing Grau and proceeding without representation.
This court determined that the appropriate remedy for a
defendant deprived of his right to effective counsel was “an
opportunity to cure … whatever procedural gaffes [he]
committed when he lacked legal assistance.” Id. at 597. This is
precisely the remedy and opportunity that the Wisconsin
Court of Appeals gave Miller when it reinstated his appeal
12 No. 13-1796
rights and ordered Grau to file a no-merit report, placing him
in the position he enjoyed prior to the inadequate representa-
tion.
Seibert is distinguishable on similar grounds. In Seibert, the
Supreme Court of Wisconsin recognized that defendant-
appellant Seibert was denied his “constitutional right of
counsel—including the right to effective assistance of
counsel—on his first appeal as a matter of right.” Id. at 886, 889.
The court explained that counsel “left petitioner completely
without representation during the appellate court’s actual
decision process” which made his case “quite different from a
case in which it is claimed that counsel’s performance was
ineffective.” Id. at 888. The court found that Seibert’s right to
appeal should be reinstated due to the “denial of counsel” and
so remanded the case to the Wisconsin Court of Appeals, with
instructions to “appoint Seibert new appellate counsel.” Id. at
889.
Here, Miller was not left “completely without representa-
tion” during his appeal process: Grau was deemed ineffective
only because of his failure to timely file a no-merit report.
However, even had the court determined Miller’s constitu-
tional right to counsel was denied, the Wisconsin Supreme
Court explained in Seibert, that the appropriate remedy was to
reinstate the petitioner’s right to appeal. That is precisely what
the Wisconsin Court of Appeals did here: reinstated the appeal
rights and ordered Grau to file a no-merit report. Moreover,
upon reinstating his appeal rights, the court specifically told
Miller that if he sought new counsel, he would have to seek
such relief from the State Public Defender’s Office. Miller did
No. 13-1796 13
not attempt to make a request to the State Public Defender’s
Office for new counsel.
We have previously determined that “[d]efendants may
have an unconditional right to counsel on appeal, but they do
not have a right to counsel who pretend that frivolous argu-
ments actually are meritorious.” Speights v. Frank, 361 F.3d 962,
964 (7th Cir. 2004) (emphasis in original). Once Miller, an
indigent defendant, actively chose to discharge Grau, the state
court was not unreasonable in finding that Miller did not have
the right to receive another lawyer to represent him simply
because Grau’s assessment of his appeal was that it lacked
merit. The cases cited by Miller reveal just one of the possible
remedies a court may choose when dealing with a criminal
appellant who has been abandoned by counsel or suffered a
deprivation of rights due to ineffective counsel. See Evitts v.
Lucey, 469 U.S. 387, 399 (1985) (citing cases showing the various
remedies available to federal courts in accordance with
reasonable procedural rules). While courts may appoint new
counsel to defendants as a remedy, they are not required to do
so; there is no established federal law or United States Supreme
Court holding that guarantees an indigent defendant the right
to a choice of counsel.
B. Miller’s Waiver of Right to Counsel
The waiver of right to counsel must “not only be voluntary,
but must also constitute a knowing and intelligent relinquish-
ment or abandonment of a known right or privilege.” Edwards
v. Arizona, 451 U.S. 477, 482 (1981). In order for Miller to have
waived his right to counsel, Miller must have had knowledge
of his right through appropriate warnings from the court and
the record must show his voluntary intent to waive that right.
14 No. 13-1796
Id. We may determine whether a waiver was voluntary based
not only on a defendant’s words, but also on his conduct. Smith
v. Grams, 565 F.3d 1037, 1045 (7th Cir. 2009).
Miller claims that he did not waive his right to counsel
because he was faced with a “Hobson’s Choice” between
proceeding pro se or continuing with the attorney that was
deemed ineffective. Relying on our decision in Smith, Miller
argues that he did not actually have a choice at all when he
discharged Grau. In Smith, the trial court gave defendant the
choice to proceed to trial pro se or waive his right to a speedy
trial altogether. Id. at 1046. On appeal, this court found that the
defendant did not waive his right to counsel because he was in
fact given “no real options,” but rather only the option of self-
representation. Id. at 1045. Additionally, the defendant in Smith
“did not know, nor did the court warn him, that in [discharg-
ing his attorney] he was electing to proceed pro se.” Id. at 1046.
That is not the case here—Miller was given a viable option
that did not require him to waive any additional rights. Miller
was given the option to allow Grau to obey the Wisconsin
Court of Appeals’ order to file a no-merit report on Miller’s
behalf or proceed on his own. Defendants in Miller’s position
“cannot claim a constitutional entitlement to avoid making that
decision, even though from [his] perspective it amounts to a
choice among evils.” Speights, 361 F.3d at 964. Without giving
Grau the chance to comply with the court’s order to file a no-
merit report, Miller merely predicts that Grau will not perform
on time as he should have before.
The Wisconsin Court of Appeals clearly informed Miller
that discharging Grau would require him to proceed pro se and
the court warned him of the difficulties of self-representation.
No. 13-1796 15
“The requirement of voluntariness does not itself require
explanations and advice about the risks and benefits of each
choice” and “[t]he [United States] Supreme Court has never
held that waivers of counsel at any stage of the proceedings
other than trial require [] a give-and-take between the accused
and someone trying to educate him about counsel’s benefits.”
Id. at 964–65. While it may be insufficient to merely warn a
defendant of the possibility that he might have to proceed
without counsel, Patterson v. Illinois, 487 U.S. 285, 298 (1988),
Miller received abundantly more than a simple warning. The
court informed Miller of his rights on appeal, his options going
forward, and that proceeding pro se would require Miller to be
responsible for difficult tasks such as drafting and timely filing
motions and copies of briefs, making coherent arguments
supported by legal authority, presenting evidence, and
arranging for the appearance of necessary witnesses. The court
adequately explained to Miller the warnings and procedures
that accompany a voluntary waiver of the right to counsel.
As an added precaution, rather than assume Miller waived
his right to counsel when he told the court he wished to
proceed without Grau, the Wisconsin Court of Appeals
requested a written acknowledgment from Miller that he was
discharging Grau, proceeding pro se, and that he fully under-
stood the barriers and consequences that may accompany self-
representation. Miller submitted that acknowledgment on
January 21, 2009, writing that he “does not want Attorney John
Grau’s ineffective representation” and that “he will proceed as
he has, without Attorney Grau … .” This court has held that
such a “straightforward assent is enough on appeal” to
constitute voluntary waiver. Speights, 361 F.3d at 965.
16 No. 13-1796
Miller then argues that his waiver of the right to counsel
was not knowing or voluntary based upon his personal
characteristics. Miller graduated from high school, but states
that he was enrolled in special education classes. Miller also
claims to have “mental and personality disorders” and “the
reading and comprehension level of a fourth grader.” How-
ever, Miller never suggested that he was unable to understand
his choices. Miller is literate in English, has at least some
education, and was capable of reading, writing, and submitting
coherent letters and legal documents throughout the appellate
process. While Miller states that he received assistance in
writing his various letters and motions, the record adequately
demonstrates that Miller fully understood his choice.
A combination of the specific options described to Miller by
both the court and the State Public Defender’s Office, the
Wisconsin Court of Appeals’ clear warnings regarding the
dangers and disadvantages of proceeding pro se, and Miller’s
straightforward submission to the court that “he will proceed
as he has, without Attorney Grau” created a reasonable basis
for the court to find that Miller voluntarily and knowingly
confirmed his desire to waive his right to counsel. See, e.g.,
United States v. Traeger, 289 F.3d 461, 475 (7th Cir. 2002)
(“Because representation by counsel and self-representation
are mutually exclusive entitlements, the assertion of one right
constitutes a de facto waiver of the other.”); United States v.
Oreye, 263 F.3d 669, 670 (7th Cir. 2001) (“If you’re given several
options, and turn down all but one, you’ve selected the one
you didn’t turn down.”); United States v. Irorere, 228 F.3d 816,
828 (7th Cir. 2000) (“[T]he defendant had been given the
No. 13-1796 17
opportunity to proceed with counsel, but through his own
conduct had made that impossible.”).
C. Procedural Default of Miller’s Guilty Plea Challenge
Finally, the district court found that Miller cannot with-
draw his guilty plea because he failed to raise that claim at the
state court level and it is now procedurally defaulted. Miller
argues that he never had the chance to make this argument due
to Grau’s ineffective assistance. “We review de novo a district
court’s determination of procedural default.” Lee v. Davis, 328
F.3d 896, 899 (7th Cir. 2003).
A procedurally defaulted claim may only be reviewed by
the federal courts when the prisoner shows cause for his
procedural error and actual prejudice that resulted from that
error. Coleman v. Thompson, 501 U.S. 722, 749–50 (1991) (super-
ceded by statute on other grounds). To show cause, Miller
argues that Grau abandoned him; he contends that prejudice
is assumed when a defendant is abandoned.
Miller is responsible for the procedural default of his guilty
plea; when Grau was initially appointed to represent Miller,
Grau prepared and filed a post-conviction motion setting forth
Grau’s argument for resentencing. Miller made the voluntary
choice to withdraw that motion before it could be heard by the
state court. Then Miller told Grau to file a no-merit report, a
direction Grau failed to follow before time expired, which led
to the determination that Grau was ineffective. If the Wisconsin
Court of Appeals never reinstated Miller’s appeal rights at this
point, we would have a different case.
But that is not the end of the story. After the court deter-
mined that Grau was ineffective for failing to file a no-merit
18 No. 13-1796
report, it reinstated Miller’s appeal rights and ordered Grau to
file a no-merit report. The purpose of the no-merit process is to
give Miller the added protection of having the appellate court
review his record independently and determine whether
meritorious issues exist in order to directly appeal. See Anders
v. California, 386 U.S. 738, 744 (1967) (establishing the no-merit
process). Miller refused the opportunity for this added
protection when he informed the Wisconsin Court of Appeals
that he would continue his appeal pro se. Since Miller dis-
charged Grau before he could prepare a no-merit report
pursuant to the court’s order, Miller actively refused the
benefit of the no-merit process.
After Miller discharged his appointed counsel, the court
directed him to file either a post-conviction motion or a notice
of appeal, providing Miller with yet another opportunity to
raise his claim about the validity of his guilty plea. Miller failed
to file either, and the time to do so expired. Miller failed to
offer a reason that would excuse his failure to comply with the
state procedural requirements. Coleman, 501 U.S. at 753.
The Wisconsin Court of Appeals’ denial of Miller’s request
for new appellate counsel was not clearly contrary to or an
unreasonable application of clearly established federal law and
his challenge to the validity of his plea is procedurally de-
faulted. Accordingly, the district court order is AFFIRMED.