Michael Miller v. Dushan Zatecky , 820 F.3d 275 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1869
MICHAEL MILLER,
Petitioner-Appellant,
v.
DUSHAN ZATECKY, Superintendent, Pendleton Correctional
Facility,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:13-cv-913-SEB-TAB — Sarah Evans Barker, Judge.
____________________
ARGUED APRIL 18, 2016 — DECIDED APRIL 26, 2016
____________________
Before EASTERBROOK and SYKES, Circuit Judges, and
ADELMAN, District Judge.*
EASTERBROOK, Circuit Judge. Michael Miller was convicted
in Indiana of three counts of child molestation and sentenced
to three consecutive 40-year terms. The sexual abuse, includ-
* Of the Eastern District of Wisconsin, sitting by designation.
2 No. 15-1869
ing anal intercourse, began when the victim was nine and
continued for six years. When imposing the lengthy term (ef-
fectively life in prison), the state judge relied not only on the
nature of Miller’s conduct but also on his four prior convic-
tions, his failure to reform after stretches of imprisonment,
and the absence of any mitigating factors.
The convictions were affirmed on direct appeal, see Mil-
ler v. State, No. 34A02-0307-CR-563 (Ind. App. June 8, 2004).
Miller then filed a collateral attack, contending that his ap-
pellate lawyer furnished ineffective assistance by failing to
contest the length of his sentence. (Miller made many other
arguments, but all except the sentencing issue have been
abandoned.) The state’s court of appeals eventually conclud-
ed that appellate counsel should have raised this issue, but
that its omission did not result in prejudice under the stand-
ard of Strickland v. Washington, 466 U.S. 668, 694–96 (1984),
and equivalent state decisions, which ask whether the peti-
tioner has demonstrated a “reasonable probability” that the
outcome of the direct appeal would have been different.
The court observed that the substantive standard for ap-
pellate review in Indiana is whether the sentence is “inap-
propriate in light of the nature of the offense and the charac-
ter of the offender.” Ind. App. R. 7(B). (Miller does not con-
tend that his sentence violates the Cruel and Unusual Pun-
ishments Clause or any other rule of federal law.) After re-
viewing the evidence, the appellate court held “that Miller
has not established that his 120-year aggregate sentence is
inappropriate in light of the nature of the offense and the
character of the offender.” Miller v. State, 2013 Ind. App. Un-
pub. LEXIS 377 (Mar. 16, 2013) at *19.
No. 15-1869 3
This means that, if Miller’s appellate lawyer had contest-
ed the sentence, the argument would have failed on the mer-
its. Because, in the state court’s view, the chance of success
was zero, it necessarily followed that Miller had not shown a
“reasonable probability” that a better appellate lawyer could
have obtained a lower sentence for him. A federal district
judge then denied Miller’s petition for a writ of habeas cor-
pus under 28 U.S.C. §2254. Miller v. Zatecky, No. 1:13-cv-913-
SEB-TAB (S.D. Ind. Mar. 26, 2015).
Because Indiana addressed on the merits the question
whether Miller has established prejudice, we must decide
whether the state’s decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States”.
28 U.S.C. §2254(d)(1).
Miller recognizes that Indiana’s judiciary articulated the
legal standard the same way the Supreme Court does, so he
contends that the state court’s decision was an “unreasona-
ble application” of the governing standard. But, as far as we
can see, the decision was not based on federal law at all, let
alone federal law “clearly established” by the Supreme
Court. It rests on a conclusion that, as a matter of state law, it
would have been futile to contest the sentence’s length on
appeal, because a 120-year sentence is not “inappropriate in
light of the nature of the offense and the character of the of-
fender.” A federal court cannot disagree with a state court’s
resolution of an issue of state law. See, e.g., Bradshaw v. Rich-
ey, 546 U.S. 74 (2005); Estelle v. McGuire, 502 U.S. 62 (1991).
Shaw v. Wilson, 721 F.3d 908, 914–15 (7th Cir. 2013),
shows that a defendant may use ineffective-assistance doc-
trine to gain the benefit of state law when a lawyer’s error
4 No. 15-1869
prevented the state judiciary from recognizing the force of a
potential state-law defense (or other advantage secured by
state law). Doing that does not use §2254 to override a state
court’s conclusion that state law does not provide the peti-
tioner with the benefit he sought. But that’s exactly what
Miller needs. A lawyer’s blunder has not led Indiana’s judi-
ciary to overlook the possibility that Miller may have been
entitled to a lower sentence. Instead the state’s court of ap-
peals addressed that subject directly and concluded that ap-
pellate review of his sentence in 2004 would have done him
no good—as a matter of state law. That’s the sort of decision
§2254 leaves to the state judiciary.
Miller maintains that the state court’s decision was “un-
reasonable” because, when considering dispositions of simi-
lar cases, the court of appeals did not discuss any opinion
issued after June 8, 2004, the date Miller’s direct appeal was
decided. Later decisions, according to Miller, look more fa-
vorably on contentions that sentences in sex-offense cases
are too long, and had the court of appeals used them as
comparisons this would have demonstrated a “reasonable
probability” of appellate success. But the court of appeals
considered only decisions that were “available as precedent
during Miller’s direct appeal” (Miller v. State at *17).
Section 2254(d)(1) does not ask whether a decision was
reasonable in the abstract. It asks whether the state court
reasonably applied rules clearly established by the Supreme
Court of the United States. Miller does not point to any deci-
sion by that Court clearly establishing that a state must give
a petitioner the benefit of state-law precedent that comes af-
ter his conviction’s finality. That would amount to saying, as
a matter of federal law, that all state-law decisions must ap-
No. 15-1869 5
ply retroactively. That isn’t how federal courts apply their
own decisions. See Welch v. United States, No. 15–6418 (U.S.
Apr. 18, 2016) (explaining federal retroactivity doctrine). The
Supreme Court has never questioned the states’ ability to
choose whether to apply their own case law retroactively.
State courts must apply federal decisions retroactively when
federal doctrine so requires (if they entertain collateral at-
tacks at all), see Montgomery v. Louisiana, 136 S. Ct. 718, 727–
32 (2016), but they are free to decide when their own doctri-
nal changes apply to cases that have become final.
And why should a state be required, as a matter of either
state or federal law, to give Miller the benefit of decisions
released after the conclusion of his direct appeal? Miller does
not question the state judiciary’s conclusion that, if his law-
yer had contested the length of his sentence in 2004, he
would have lost. The goal of ineffective-assistance doctrine
is to give criminal defendants the benefit of the counsel to
which the Sixth Amendment says they are entitled. We
know from Indiana’s decision that, even if appellate counsel
had done exactly what Miller says counsel should have
done, this would not have helped him. It would be weird to
say that a defendant is better off having a lawyer who omits
a losing issue than if that lawyer had performed exactly as a
zealous and capable counsel should.
Nonetheless, Miller insists that Lockhart v. Fretwell, 506
U.S. 364 (1993), entitles him to the benefit of hindsight. That
isn’t what Lockhart holds. It did not concern §2254(d)(1)—not
only because it predates by three years the Antiterrorism
and Effective Death Penalty Act, which rewrote §2254 and
insulated many state decisions that might have led to relief
in earlier years, see Cullen v. Pinholster, 563 U.S. 170, 180–90
6 No. 15-1869
(2011), but also because Lockhart does not deal with an as-
serted change of state law. It does not make defendants with
poor lawyers better off than defendants with good ones.
Fretwell was convicted of a capital crime in Arkansas and
sentenced to death. The jury instructions permitted the ju-
rors to consider, as an aggravating factor, that the crime had
been committed for pecuniary gain. A few months before
Fretwell’s sentencing, a panel of the Eighth Circuit had held
that the Eighth Amendment forbids a state to use as an ag-
gravating factor any element of the substantive crime. Collins
v. Lockhart, 754 F.2d 258 (8th Cir. 1985). Fretwell’s lawyer did
not ask the Arkansas judge to apply Collins. By the time
Fretwell filed a collateral attack in federal court, Collins had
been overruled as inconsistent with Lowenfield v. Phelps, 484
U.S. 231 (1988). See Perry v. Lockhart, 871 F.2d 1384 (8th Cir.
1989). Another panel of the Eighth Circuit held that Fretwell
was entitled to the benefit of the holding in Collins, even
though that decision was wrong, but the Supreme Court re-
versed. It held that the Sixth Amendment does not entitle
litigants to gain from judicial errors.
Miller concludes from this that anyone who advances an
ineffective-assistance claim is entitled to the benefit of hind-
sight. Yet that was not the Court’s point. The case stands for
the proposition that a person seeking federal collateral re-
view must show that the state court committed an error of
federal law—not that it took a step mistakenly (and tempo-
rarily) thought to be an error, but that the state judiciary real-
ly was in error. Given Lowenfield and Perry, the instructions at
Fretwell’s sentencing trial were constitutionally valid; he
had no legitimate beef about them, and at any new sentenc-
No. 15-1869 7
ing hearing the instructions would have been repeated ver-
batim.
Later decisions have emphasized that Lockhart does not
redefine Strickland’s “prejudice” component. See, e.g., Lafler
v. Cooper, 132 S. Ct. 1376, 1386–87 (2012); Glover v. United
States, 531 U.S. 198, 202–04 (2001). Indeed, the Court has un-
derstood Lockhart as an anti-hindsight decision, warning
against the “natural tendency to speculate as to whether a
different … strategy might have been more successful.”
Maryland v. Kulbicki, 136 S. Ct. 2, 4 (2015), quoting from Lock-
hart, 506 U.S. at 372.
Miller observes that our opinion in Shaw remarks in pass-
ing that “hindsight is permissible.” 721 F.3d at 918. That’s so
in the sense that, under Lockhart, federal law must favor the
petitioner when the collateral attack is resolved, as well as
when the state’s decision became final. Nothing in Lockhart
justifies any general resort to hindsight. Immediately after
the langue we have quoted, our opinion in Shaw cites 506
U.S. at 372, where Lockhart condemns resort to hindsight to
disparage the performance of counsel. And we cannot forget
that Strickland asks whether there is a reasonable probability
that “but for counsel's unprofessional errors, the result of the
proceeding would have been different.” 466 U.S. at 694. That
has the same temporal focus as the state’s court of appeals in
Miller’s case, asking whether a better performance by coun-
sel could have affected the outcome then and there.
If Shaw meant more by its remark, it still cannot control
the outcome in a proceeding under §2254(d)(1). That statute
limits the federal courts’ role to applying law clearly estab-
lished by the Supreme Court of the United States. The Justic-
es insist that district and circuit judges disregard their own
8 No. 15-1869
decisions. See, e.g., Lopez v. Smith, 135 S. Ct. 1, 4 (2014) (“Cir-
cuit precedent cannot ‘refine or sharpen a general principle
of Supreme Court jurisprudence into a specific legal rule that
this Court has not announced.’”); Marshall v. Rodgers, 133 S.
Ct. 1446, 1450 (2013). Lockhart itself does not “clearly estab-
lish” that state courts must consider state-law decisions that
postdate counsel’s deficient performance; it has nothing to
say about how state courts determine the temporal scope of
their own decisions. And Kulbicki holds federal law does not
require the use of hindsight in ineffective-assistance cases.
Miller has not shown that the state judiciary made an er-
ror of federal law, so he is not entitled to collateral relief.
AFFIRMED
No. 15-1869 9
ADELMAN, District Judge, dissenting. Because appellate
counsel provided ineffective assistance by failing to chal-
lenge Michael Miller’s 120-year prison sentence, I would
conditionally grant the writ. The majority concludes that
Miller fails to show that the state judiciary made any error of
federal law in rejecting this claim. For the reasons that fol-
low, I respectfully dissent.
I.
A jury convicted Miller of three counts of child molesta-
tion, and the trial court sentenced him to 40 years in prison
on each count running consecutively for a total of 120 years.1
1 The majority notes that the sexual abuse, including anal intercourse,
began when the victim was nine and continued for six years, and that the
state court in imposing an effective life term considered not only the na-
ture of Miller’s conduct but also his four prior convictions, his failure to
reform after stretches of imprisonment, and the absence of mitigating
factors. While it isn’t necessary to address the facts at length, I do note
that the victim in this case came forward years after the alleged abuse,
first disclosing it during a psychiatric hospitalization. During Miller’s
trial, the victim testified that he was drunk and high on marijuana dur-
ing the alleged assaults. He did not know how old he was when the as-
saults occurred (although he did know he was under the age of 14, an
element of the charges). He was not sure of the dates of, or the addresses
where, the assaults took place. The “only thing that [he was] a hundred
percent sure of is that man [Miller] had sex with [him].” At the sentenc-
ing hearing, Miller presented testimony from numerous witnesses as to
his good character. Several of the witnesses had children of their own;
none expressed concern about Miller acting inappropriately. One wit-
ness indicated that Miller had taken her 15-year-old son under his wing,
turning his life around. “I can’t thank Mike enough for what he’s done
for my son.” The victim, apparently incarcerated at the time of Miller’s
sentencing, did not appear to make a statement. Finally, while Miller had
prior felony convictions, they were for drug offenses, not sexual miscon-
duct.
10 No. 15-1869
On direct appeal, Miller’s counsel raised two nigh frivolous
challenges—to the sufficiency of the evidence and the ad-
mission of other-acts evidence; he also noted a clerical error
in the written judgment, which did not affect the length of
Miller’s sentence. Counsel failed to raise a challenge to Mil-
ler’s virtual life sentence, despite the fact that Miller asked
him to and counsel in a letter to Miller said “it probably will
be” one of the issues he raised. The Indiana court of appeals
remanded for correction of the clerical error but quickly re-
jected the evidentiary challenges.
Miller then petitioned for post-conviction relief in state
court, arguing, inter alia, that his appellate counsel provided
ineffective assistance. The state trial court held a hearing, at
which appellate counsel testified he did not have any inde-
pendent recollection of or knowledge why he did not raise
the sentencing issue on direct appeal. The trial court denied
relief, and the Indiana court of appeals affirmed.
The state court of appeals found that counsel should
have raised the sentencing issue on direct appeal and thus
considered whether there was a reasonable probability that
the outcome of the appeal would have been different had he
done so. In analyzing this issue, the court distinguished two
cases “available as precedent during Miller’s direct appeal,”
opining that Miller’s case was more aggravated. The court
noted that Miller acted as a father figure to the victim and
found the nature of the offense particularly contemptible be-
cause Miller had significant time to reflect upon the heinous
nature of his actions between the dates on which the crimes
occurred. The court also found that Miller’s prior criminal
history, which included three Class D felony drug convic-
tions and a Class A misdemeanor conviction, and the fact
No. 15-1869 11
that he molested the victim over a six-year time span
demonstrated his inability to lead a law abiding life and his
depraved character. The court concluded:
that Miller has not established that his 120-year aggregate sen-
tence is inappropriate in light of the nature of the offense and the
character of the offender. Consequently, Miller cannot establish
that there is a reasonable probability that his sentence would
have been revised pursuant to Appellate Rule 7(B) if appellate
counsel had raised the issue on direct appeal. We therefore af-
firm the trial court’s finding that Miller’s appellate counsel was
not ineffective.
Miller v. State, 2013 Ind. App. Unpub. LEXIS 377, at *19–20
(Ind. Ct. App. Mar. 26, 2013) (internal citations omitted).
Miller then sought habeas relief in federal court. The dis-
trict court denied his petition, but we granted a certificate of
appealability on the issue of whether appellate counsel pro-
vided ineffective assistance and sua sponte appointed coun-
sel to represent Miller on this appeal.
II.
Because his case is governed by the Antiterrorism and Ef-
fective Death Penalty Act (“AEDPA”), in order to obtain re-
lief Miller must show that the decision of the last state court
to address his claim on the merits was contrary to, or in-
volved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States. See 28 U.S.C. § 2254(d). The standard is a de-
manding one, but I believe that Miller satisfies it.
In order to establish a claim of ineffective assistance, a
defendant generally must show (1) that counsel’s perfor-
mance was deficient, and (2) that the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668,
12 No. 15-1869
687 (1984). The present case involves the performance of
counsel on direct appeal. An appellate lawyer performs defi-
ciently if he abandons a non-frivolous claim that was both
obvious and clearly stronger than the claims he actually pre-
sented. Shaw v. Wilson, 721 F.3d 908, 915 (7th Cir. 2013). The
court evaluates performance from the perspective of a rea-
sonable attorney at the time of the appeal, avoiding the dis-
torting effects of hindsight. Id.To determine prejudice in this context, the court asks
whether there is a reasonable probability that, but for coun-
sel’s unprofessional errors, the result of the direct appeal
would have been different. Id. at 918. As this court stated in
a similar case involving appellate counsel’s failure to raise
an issue of Indiana law on direct appeal:
In assessing prejudice, we must bear in mind once again that we
are making a comparative inquiry about counsel’s choices; we
are not resolving any issue of state law, and we are not telling
the Indiana judiciary how it should approach this issue. Preju-
dice exists, however, if counsel bypassed [a] nonfrivolous argu-
ment that, if successful, would have resulted in the vacation of
[the petitioner’s] conviction. … And when evaluating prejudice,
unlike when evaluating attorney performance, hindsight is per-
missible. Lockhart v. Fretwell, 506 U.S. 364, 372 (1993); Hemstreet v.
Greiner, 491 F.3d 84, 91 (2d Cir. 2007); Eddmonds v. Peters, 93 F.3d
1307, 1326 n.5 (7th Cir. 1996). This means that the Indiana Su-
preme Court’s [later decisions are] relevant to whether the ar-
gument [counsel] jettisoned was both nonfrivolous and stronger
than the sufficiency argument he presented.
Id.There can be little doubt that counsel performed defi-
ciently by failing to raise the sentencing issue on Miller’s di-
rect appeal. The evidentiary challenges counsel raised were
all but doomed to fail, given the standards of review Indiana
No. 15-1869 13
appellate courts apply, and the clerical correction did Miller
no good.
On the other hand, Indiana appellate courts are author-
ized to independently “review and revise” sentences. Ind.
Const. Art. 7, § 4; Pierce v. State, 949 N.E.2d 349, 352 (Ind.
2011). This authority is implemented through Indiana Ap-
pellate Rule 7(B), which provides that the appellate court
may revise a sentence if after due consideration of the trial
court’s decision the appellate court finds the sentence is in-
appropriate in light of the nature of the offense and the char-
acter of the offender. Pierce, 949 N.E.2d at 352. As Miller
shows in his brief, Indiana appellate courts have not hesitat-
ed to use this authority; he cites no less than 11 cases in
which Indiana appellate courts shortened sentences in simi-
lar cases.2
2Pierce v. State, 949 N.E.2d 349 (Ind. 2011) (revising 124 year sentence
on four counts of child molestation to 80 years); Sanchez v. State, 938
N.E.2d 720 (Ind. 2010) (revising total sentence of 80 years on three counts
of child molestation to 40 years); Harris v. State, 897 N.E.2d 927 (Ind.
2008) (revising consecutive sentences of 50 years on two counts of child
molesting to concurrent); Smith v. State, 889 N.E.2d 261 (Ind. 2008) (revis-
ing four consecutive sentences of 30 years each, a total of 120 years, to a
total of 60 years); Monroe v. State, 886 N.E.2d 578 (Ind. 2008) (reducing
sentence of 100 years to 50 years); Estes v. State, 827 N.E.2d 27 (Ind. 2005)
(revising sentence of 267 years on 14 counts of child molesting and sexu-
al misconduct with a minor to 120 years); Serino v. State, 798 N.E.2d 852(Ind. 2003) (revising sentence of 385 years on 26 counts of child molesta-
tion to 90 years); Kien v. State, 782 N.E.2d 398 (Ind. Ct. App. 2003) (revis-
ing consecutive sentences of 40 years on three counts, a total of 120 years,
to 80 years total); Ortiz v. State, 766 N.E.2d 370 (Ind. 2002) (revising 30
year consecutive sentences on child molesting counts to run concurrent-
ly); Haycraft v. State, 760 N.E.2d 203 (Ind. Ct. App. 2001) (revising 190
year sentence for child molesting and related offenses to 150 years);
14 No. 15-1869
The Indiana court of appeals found deficient perfor-
mance in this case. The warden does not argue otherwise in
this court. The issue is thus whether the state court’s preju-
dice finding was contrary to, or involved an unreasonable
application of, federal law as determined by the Supreme
Court.
The Indiana court correctly set forth the standards for
evaluating ineffective assistance of appellate counsel claims.
The court cited state rather than federal decisions, but there
is nothing wrong with that (so long as the state cases do not
contradict federal law as set forth by the Supreme Court).
See, e.g., Early v. Packer, 537 U.S. 3, 8 (2002).
As Miller notes, however, the state court limited its anal-
ysis to cases pre-dating Miller’s direct appeal, ignoring later
cases cited by the parties in which Indiana appellate courts
revised sentences in similar cases. Miller argues that this is
“contrary to” the holding of Lockhart v. Fretwell that, while
Walker v. State, 747 N.E.2d 536 (Ind. 2001) (revising consecutive sentences
of 40 years on two counts of child molesting to be concurrent). As dis-
cussed below, one of the issues in this case is whether the Indiana court
of appeals erred by failing to consider cases post-dating Miller’s direct
appeal. Five of the cases cited above pre-date the decision on Miller’s
direct appeal; six post-date the direct appeal. It is also important to note
that in January 2003 the Indiana supreme court modified the standard
for revising a sentence; formerly, appellate courts could revise a sentence
only if it was “manifestly unreasonable.” Serino, 798 N.E2d at 856. Find-
ing this barrier to review too high, the court modified the rule to allow
revision “if, after due consideration of the trial court’s decision, the
Court finds that the sentence is inappropriate in light of the nature of the
offense and the character of the offender.” Id. (quoting Ind. Appellate
Rule 7(B)). This more lenient standard applied at the time of Miller’s di-
rect appeal, but there were a limited number of cases applying it at that
time.
No. 15-1869 15
the performance prong is evaluated without the benefit of
hindsight, prejudice is measured based on the law as it exists
at the time the court adjudicates the ineffective assistance
claim. See 506 U.S. at 372; see also Shaw, 721 F.3d at 918
(“[W]hen evaluating prejudice, unlike when evaluating at-
torney performance, hindsight is permissible.”).
While the state court discussed only cases available at the
time of Miller’s direct appeal, it did not explicitly state that
later cases were irrelevant as a matter of law; as indicated,
the court set forth the correct standards earlier in its deci-
sion. We will not grant a writ simply because the state court
failed to cite all of the pertinent cases.3
3 The warden argues that Lockhart v. Fretwell has no applicability here
because that case is limited to situations in which the defendant would
receive a windfall if the court did not consider subsequent legal devel-
opments. In Lockhart, counsel failed to raise an objection supported by
case-law at the time of sentencing; however, by the time the defendant
sought habeas relief, the favorable case-law had been overruled. Under
these circumstances, the Supreme Court refused to focus “on mere out-
come determination, without attention to whether the result of the pro-
ceeding was fundamentally unfair or unreliable.” 506 U.S. at 369. Lock-
hart did not supplant the general prejudice rule set forth in Strickland,
e.g., a reasonable probability that, but for counsel’s unprofessional er-
rors, the result of the proceeding would have been different. Williams v.
Taylor, 529 U.S. 362, 391–93 (2000). Lockhart’s rule that the court also con-
sider unfairness only comes into play in the unusual circumstance where
the defendant attempts to demonstrate prejudice based on considera-
tions that, as a matter of law, ought not inform the inquiry, id. at 393
n.18, such as later rejected case-law, Shaw, 721 F.3d at 919. The warden
contends that the present case does not involve a change in the law.
However, after Lockhart, courts have held that prejudice is determined
with the benefit of hindsight in all cases, whether focused on the out-
come or unfairness. See, e.g., Lynch v. Dolce, 789 F.3d 303, 311 (2d Cir.
16 No. 15-1869
However, I would hold that the Indiana court of appeals
did unreasonably apply federal law. As indicated above, the
court stated:
that Miller has not established that his 120-year aggregate sen-
tence is inappropriate in light of the nature of the offense and the
character of the offender. Consequently, Miller cannot establish
that there is a reasonable probability that his sentence would
have been revised pursuant to Appellate Rule 7(B) if appellate
counsel had raised the issue on direct appeal.
The conclusion in the second sentence does not necessari-
ly follow from the premise in the first sentence. A court con-
sidering an ineffective assistance claim need not definitively
resolve in the defendant’s favor the merits of the arguments
counsel omitted, “for under Strickland [the defendant] need
show only a reasonable probability that, but for counsel’s un-
professional errors, the result of the proceeding would have
been different.” United States v. Weathers, 493 F.3d 229, 238
(D.C. Cir. 2007) (internal quote marks omitted, emphasis in
original); see also Shaw, 721 F.3d at 918 (rejecting the re-
spondent’s argument that the petitioner’s claim would have
failed under state law because his “theory does not turn on
the ultimate outcome in the state courts; it depends only on
the relative strength of this argument over the one counsel
chose”).
Given the numerous cases in which Indiana appellate
courts revised similar sentences, there is at least a reasonable
chance Miller may have obtained such relief on direct ap-
peal. That this panel of the Indiana court of appeals found
the sentence appropriate on post-conviction review does not
2015); Eddmonds, 93 F.3d at 1326 n.5. The warden cites no authority to the
contrary. Thus, this aspect of Lockhart applies in the present case.
No. 15-1869 17
foreclose the possibility that the Indiana supreme court (or
the different panel of the court of appeals that heard Miller’s
direct appeal)4 would have exercised independent authority
differently.5 Indeed, had counsel raised the sentencing issue
on direct appeal, there is every reason to believe that Miller’s
case would have been on the list set forth in note 2, above.
As Miller shows in his brief, the state supreme court has
on multiple occasions reduced sentences in cases arguably
more aggravated than his. In Serino v. State, for instance, a
jury found the defendant guilty of 26 counts of child molest-
ing and sexual misconduct with a minor.6 The defendant in
that case became a father figure to the victim, his girlfriend’s
son, but then repeatedly sexually abused the boy over a
three year period, beginning when the victim was 11, includ-
ing fondling, oral sex, and anal sex. 798 N.E.2d at 853. In im-
posing a 385-year sentence, the trial court noted that Serino
was in a position of trust with the victim and exploited that
trust, that Serino was not charged with all crimes committed
against the child, and that Serino had other pending charges
4The Indiana court of appeals has 15 members. The court’s three-
judge panels sit together for terms of four months, after which the judges
rotate. http://www.in.gov/judiciary/appeals/2347.htm (last visited Apr.
21, 2016). None of the judges who heard Miller’s direct appeal served on
the panel that decided his post-conviction appeal.
5It is important to note that appellate review under Rule 7(B) in-
volves “an exercise of judgment that is unlike the usual appellate pro-
cess, and is very similar to the trial court’s [exercise of discretion].”
Cardwell v. State, 895 N.E.2d 1219, 1223 (Ind. 2008). The Indiana supreme
court has described Rule 7(B) as “a standard leaving much to the uncon-
strained judgment of the appellate court.” Id. at 1224.
6Serino was decided on November 19, 2003, nearly seven months be-
fore the court of appeals decided Miller’s direct appeal.
18 No. 15-1869
for sex crimes against another child, in concluding that a
lesser sentence would depreciate the seriousness of the
crimes. Id. at 857. Based primarily on the testimony from
numerous witnesses attesting to Serino’s positive character
traits, the supreme court reduced the sentence to 90 years. Id.
at 858.
Miller also occupied a position of trust with the victim,
and his crimes also occurred over a several year period.
However, Miller was convicted of just three counts, he had
no other charges pending, and the record discloses no un-
charged conduct related to the same victim. As discussed in
note 1, supra, Miller also produced numerous positive char-
acter witnesses at his sentencing. Yet he is serving a sentence
30 years longer than Serino.
In Smith v. State, a jury convicted the defendant of four
counts of child molesting, based on his step-daughter’s re-
port that he had sexual intercourse with her when she was
10 years old and on three other occasions before she turned
14. 889 N.E.2d at 262. The trial court imposed four consecu-
tive sentences of 30 years, 120 years total, based on Smith’s
extensive criminal history, including two sex offenses; the
extended period of time over which Smith molested the vic-
tim; the heinous violation of trust represented by Smith’s
abuse of his step-daughter; and the additional psychological
abuse he inflicted on the girl. Id. at 263-64. Despite these ag-
gravated circumstances, the Indiana supreme court reduced
the sentence to a total of 60 years. Id. at 264. Miller sits in
prison for twice as long, despite the absence of prior sex of-
fenses on his record or any evidence of additional psycho-
logical abuse of the victim.
No. 15-1869 19
And in Sanchez v. State, the defendant sexually abused his
step-daughters, ages six and nine, resulting in three child
molestation convictions. 938 N.E.2d at 721. The trial court
imposed concurrent sentences of 40 years for the two counts
pertaining to the first child, and a consecutive sentence of 40
years for the count pertaining to the second child. Id. The
state supreme court, noting that Sanchez did not use signifi-
cant force on the girls or cause injury, and that he lacked an
extensive prior record, made the sentences concurrent, re-
ducing the total term to 40 years. Id. at 723. Miller was con-
victed of three counts involving the same victim, who testi-
fied that Miller never threatened him or inflicted any injury
(other than temporary pain from the intercourse). Yet Mil-
ler’s sentence is three times as long as Sanchez’s.7
Finally, while perhaps not an independent basis for
granting relief, the Indiana court’s rejection of Miller’s sen-
tencing claim is weakened by its failure to consider post-
2004 cases. As discussed above, in January 2003 the Indiana
supreme court made it easier for appellate courts to revise
sentences.8 It thus stands to reason that there would be more
case-law favorable to Miller’s position after 2003 than before.
The warden argues that, because the text of the rule did not
7I do not cite these cases to show that the Indiana court of appeals er-
roneously exercised its discretion under Appellate Rule 7(B) in Miller’s
case. The only issue we need to decide is whether Miller has shown a
reasonable probability, a better than negligible chance, see Harris v.
Thompson, 698 F.3d 609, 644 (7th Cir. 2012), of a different outcome. Be-
cause the Indiana supreme court has reduced sentences in cases arguably
more aggravated than Miller’s, I find that Miller has made the required
showing.
The Indiana court of appeals acknowledged the changed standard,
8
and that it applied to Miller’s sentence.
20 No. 15-1869
change, the court’s analysis was the same in 2013 as it would
have been in 2004. But given the vagueness of the rule surely
the Indiana supreme court’s application of it in similar cases
is important. Those cases offer insight into what might have
happened had counsel challenged Miller’s sentence on direct
appeal. It is true, as the warden notes, that the Indiana court
of appeals used the present tense—“Miller has not estab-
lished that his 120-year aggregate sentence is inappropriate.”
Miller, 2013 Ind. App. Unpub. LEXIS 377, at *19 (emphasis
added.) But this shows only that this panel found the sen-
tence appropriate; it does not show that another panel of the
court or the Indiana supreme court would not have revised
Miller’s sentence on direct appeal. Nor does the tense the
court used change the fact that it ignored post-2003 case-law.
III.
The majority says that the state court’s decision was not
based on federal law at all; rather, it rests on the conclusion
that, as a matter of state law, an appeal challenging the sen-
tence would have been futile. A federal court cannot disa-
gree with a state court’s resolution of an issue of state law.
We addressed a similar issue in Shaw, a case which also
involved counsel’s failure to raise an issue of Indiana state
law on direct appeal. In Shaw, the state amended the infor-
mation after the deadline set by the then-applicable proce-
dural rule (Section 35-34-1-5). 721 F.3d at 911. Although no
Indiana appellate court ever had invalidated an amendment
under that rule, the Indiana supreme court had stated that
tardy amendments, if substantive in nature, were impermis-
sible. Id. at 912 (citing Haak v. Indiana, 695 N.E.2d 944, 951
(Ind. 1998)). Trial counsel challenged the amendment, but
appellate counsel failed to renew the challenge on direct ap-
No. 15-1869 21
peal, instead raising a near frivolous challenge to the suffi-
ciency of the evidence. Id. Four years after Shaw lost his di-
rect appeal, the Indiana supreme court reversed a conviction
based on an untimely substantive amendment, confirming
what it had said in Haak. Id. (citing Fajardo v. Indiana, 859
N.E.2d 1201 (Ind. 2007)).9 Shaw then sought post-conviction
relief, arguing that his appellate lawyer provided ineffective
assistance by not raising the amendment issue. The Indiana
court of appeals denied relief, noting that while some deci-
sions of the state supreme court included dicta supporting
Shaw, prior to Fajardo no amendment had actually been in-
validated under the rule. Given the state of the law, the court
found that counsel’s performance was not deficient. Id. at
913. The court also found no prejudice because Shaw had
been granted a continuance to prepare for trial. Id.When Shaw sought habeas relief, the state argued that
the federal courts were entirely prohibited from evaluating
the Indiana court of appeals’ assessment of Shaw’s claim be-
cause the claim involved a question of state law. Id. at 914.
We rejected that contention:
The state’s argument, however, misses the point that Shaw is
making. Shaw is not asking (and has no reason to ask) that we
second-guess an Indiana court on the meaning of Section 35-34-
1-5. Shaw is making a simpler point: a competent lawyer in Indi-
ana should have recognized that there was a state statute under
which relief for his client was possible and would have pursued
that theory on appeal. An argument about the validity of the
state’s effort to amend the indictment would have been material-
ly stronger than the frivolous sufficiency-of-the-evidence point
that [counsel] raised. With that much accepted, there is no fur-
9 The Indiana legislature later changed the rule in response to Fajar-
do. Id. at 912–13.
22 No. 15-1869
ther role for the federal judiciary: whether the Indiana appellate
court would have been persuaded, or if not, whether the Indiana
Supreme Court would have granted transfer, is immaterial. The
state’s argument that even this kind of comparative assessment
is out of bounds, if accepted, would foreclose federal review of
almost any ineffectiveness claim that rests on an attorney's mis-
handling of a state-law issue, no matter how egregiously defi-
cient the attorney’s performance. It is well established that a de-
fense attorney’s failure to raise a state-law issue can constitute
ineffectiveness.
Id. at 914–15.
The majority indicates that Shaw permits an ineffective
assistance claim where counsel’s error prevented the state
judiciary from recognizing the force of a potential state law
argument. Here, according to the majority, appellate coun-
sel’s mistake did not prevent the Indiana judiciary from
looking at Miller’s sentence; the Indiana court of appeals did
so on post-conviction review, concluding that a possible re-
view of the sentence in 2004 would have done him no
good—as a matter of state law. For two reasons, this misses
the mark.
First, because habeas petitioners must exhaust their state
court remedies before turning to the federal courts, it will
often be the case that the state post-conviction court ad-
dresses the merits of the argument counsel omitted. Indeed,
the Indiana court of appeals did so in Shaw. 721 F.3d at 913.10
We granted habeas relief, despite the fact that the omitted
claim may have failed as a matter of state law; we declined
Specifically, the Indiana court of appeals noted the absence of au-
10
thority supporting a challenge to the amendment at the time of the direct
appeal. Because state law did not support the claim at the time, the court
found that counsel’s performance was not deficient. Id.
No. 15-1869 23
to be drawn into the content of state law, noting that “it is
necessary only to conclude that the amendment issue was
clearly stronger than the sufficiency argument. Id. at 916. We
said the same thing assessing prejudice:
[W]e are making a comparative inquiry about counsel’s choices;
we are not resolving any issue of state law, and we are not tell-
ing the Indiana judiciary how it should approach this issue.
Prejudice exists, however, if counsel bypassed an nonfrivolous
argument that, if successful, would have resulted in the vacation
of Shaw’s conviction (just as the conviction in Fajardo later was).
Id. at 918.
Second, the majority makes the same mistake as the Indi-
ana court of appeals, equating one panel’s discretionary re-
jection of Miller’s sentencing claim (based solely on pre-2004
case-law), with a finding that there is no reasonable proba-
bility that the state supreme court or another panel of the
court of appeals would have modified the sentence on direct
appeal. As indicated above, review under Rule 7(B) involves
“an exercise of judgment that is unlike the usual appellate
process.” Cardwell, 895 N.E.2d at 1223. The Indiana supreme
court has explained that:
whether we regard a sentence as appropriate at the end of the
day turns on our sense of the culpability of the defendant, the
severity of the crime, the damage done to others, and myriad
other factors that come to light in a given case. Individual judg-
ments as to the proper balance to be struck among these consid-
erations will necessarily vary from person to person, and judges,
whether they sit on trial or appellate benches, are no exception.
There is thus no right answer as to the proper sentence in any
given case. As a result, the role of an appellate court in review-
ing a sentence is unlike its role in reviewing an appeal for legal
error or sufficiency of evidence.
24 No. 15-1869
Id. at 1224. Because there is no “right” or “wrong” answer
under Appellate Rule 7(B), it is incorrect to say, as the major-
ity does, that the Indiana court of appeals definitively re-
solved the issue as a matter of state law in finding the sen-
tence appropriate. See id. at 1225 (explaining that the goal of
appellate review is “not to achieve a perceived ‘correct’ re-
sult in each case”).11
The majority notes that Miller cites no Supreme Court
decision holding that a state must give a petitioner the bene-
fit of state law precedent that comes after his conviction be-
came final. This, too, misses the mark. I agree that, while it
would have been permissible for the Indiana court of appeals
to cite post-2004 cases, no rule of federal law required it to do
so. But Miller’s point is that those cases are available to us in
evaluating the state court’s prejudice determination. Consid-
ering later cases does not, as the majority suggests, effective-
ly require that all state law decisions apply retroactively. The
operative rule in Indiana was the same in 2004 as in 2013;
Miller does not seek benefit of a new, more lenient standard,
he simply directs our attention to cases applying the rule
which support his position that there is a reasonable proba-
bility his sentence would have been modified had his lawyer
raised the issue.
The majority contends that Lockhart does not entitle Mil-
ler to the benefit of hindsight. While it is true that Lockhart, a
pre-AEDPA case, applied case-law post-dating the petition-
er’s direct appeal to deny habeas relief, we have not under-
It would be different if Miller had argued, say, that Indiana law
11
prohibited consecutive sentences in cases like his, and the court of ap-
peals rejected that contention under state law
No. 15-1869 25
stood the case to be limited to those circumstances. See Shaw,
721 F.3d at 918. In Shaw, for instance, we considered the In-
diana supreme court’s post-direct-appeal decision in Fajardo
in evaluating prejudice. Id. The majority correctly notes that
Lockhart did not change Strickland’s prejudice component, see
note 3, supra, but the Supreme Court’s later decisions do not,
as the majority suggests, understand Lockhart as an anti-
hindsight decision. Maryland v. Kulbicki, 136 S. Ct. 2, 4 (2015),
cited by the majority, quoted Lockhart in assessing perfor-
mance, not prejudice. The Court explicitly declined to ad-
dress prejudice in that case. Id. at 5.
IV.
For these reasons, I would vacate the district court’s deci-
sion and remand with instructions to grant the writ unless
Indiana affords Miller a new appeal.