NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 16, 2010
Decided December 16, 2010
Before
JOHN L. COFFEY, Circuit Judge
JOEL M. FLAUM, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 10‐1577
DAVID MIRANDA, Appeal from the United States District
Petitioner‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 03 C 7309
NEDRA CHANDLER,
Respondent‐Appellee. Joan B. Gottschall,
Judge.
O R D E R
David Miranda, an Illinois state prisoner, appeals the denial of his petition for a writ
of habeas corpus under
28 U.S.C. § 2254. The district court granted a certificate of
appealability on two issues: whether trial counsel was ineffective for coercing him not to
testify at trial, and whether counsel’s decision also violated his right under the Fifth
Amendment to testify in his own defense. We affirm.
After a jury trial Miranda was found guilty of the first degree murder of his
employer Jose Aroca, as well as attempted murder and attempted armed robbery. At trial
witnesses testified that Miranda, Aroca, and other employees were drinking and celebrating
at Aroca’s meat market on the day of the murder because Aroca had just acquired a large
No. 10‐1577 Page 2
sum of money as part of a loan to expand his business. Aroca placed the money in the safe
at the market. After several hours of celebrating, Miranda briefly left the market and
returned with a gun. He then tried to rob Aroca and ended up killing him and seriously
wounding another employee. The state presented testimony from a number of witnesses
who were present at the store and saw the shooting. These witnesses also testified that
Miranda did not appear intoxicated. Miranda did not testify at trial. He was sentenced to
70 years’ imprisonment.
Miranda appealed his conviction and the Illinois Appellate Court remanded the case
for an evidentiary hearing to determine whether the jury had been properly empaneled.
The trial court found that the jury had been properly empaneled, the appellate court
affirmed, and the Illinois Supreme Court denied leave to appeal.
Miranda then petitioned for state postconviction relief, see 725 ILCS 5/122‐1, raising
allegations of ineffective assistance of trial and appellate counsel. One principal allegation
was that trial counsel “coerced” him not to testify in his defense about his long history of
alcoholism accompanied by blackout spells. Before trial, Miranda asserts, trial counsel
agreed to allow him to testify about drinking heavily and blacking out on the night of the
murder; by the time of his case‐in‐chief, however, trial counsel expressed concern that
Miranda’s Hispanic ethnicity and broken English would damage his case, and refused to
allow him to testify. The state trial court dismissed the petition as meritless.
Miranda appealed, again arguing that he was denied effective assistance of trial and
appellate counsel. The state appellate court affirmed. In relevant part, it found no evidence
of improper coercion; reviewing Miranda’s colloquy with the trial judge, the appellate court
noted Miranda’s explicit acknowledgment that the decision not to testify was his own. The
court also rejected Miranda’s argument that his 70‐year sentence violated Apprendi v. New
Jersey,
530 U.S. 466 (2000), in that a judge, rather than the jury, found his crimes
exceptionally brutal and heinous. The court found no Apprendi violation because Miranda’s
extended‐term sentence did not exceed the statutory maximum of death.
Miranda then petitioned in federal court for a writ of habeas corpus, raising the same
claims that he pressed in state court. The district court denied the petition, agreeing with
the state appellate court’s determination that the record showed that Miranda
“affirmatively and clearly waived his right to testify.” Without evidence of coercion, the
court added, Miranda could not show that his trial counsel was ineffective in this regard.
The district court also agreed with the state appellate court’s conclusion that Miranda’s 70‐
year sentence was less than the statutory maximum and thus did not violate Apprendi.
No. 10‐1577 Page 3
On appeal Miranda argues that the district court erred in denying his right‐to‐testify
and ineffective‐assistance‐of‐counsel claims. He maintains that trial counsel prevented him
from testifying and that, if he testified, he would have qualified for a voluntary‐intoxication
defense that might have changed the outcome of the trial. Miranda concedes that an
unsubstantiated assertion that his lawyer forbade him from testifying is insufficient to
warrant further investigation, see Underwood v. Clark,
939 F.2d 473, 475‐76 (7th Cir. 1991), but
argues that an evidentiary hearing is necessary so that he can question his attorney about
their prior conversations and thereby substantiate his claim that he was improperly coerced.
Since the state appellate court considered his claims on the merits, we can overturn
its decision only if it is contrary to or involves an unreasonable application of clearly
established federal law, or was based on an unreasonable determination of the facts. See
28
U.S.C. §§ 2254(d)(1), (2); Griffin v. Pierce,
622 F.3d 831, 841 (7th Cir. 2010). Miranda cannot
make such a showing. At trial he waived his right to testify and assured the trial judge that
the decision not to testify was his own. Defendants who waive their right to testify and
later claim coercion must provide some form of substantiation, such as an affidavit from
their lawyer, see Thompson v. Battaglia,
458 F.3d 614, 619 (7th Cir. 2006); Underwood,
939 F.2d
at 475‐76, and Miranda provided only his own affidavit. The state appellate court
dismissed Miranda’s claims because he provided no substantiated evidence of coercion, and
thus could not show that he was denied his right to testify or that his counsel’s performance
fell below an objective standard of reasonableness. See Strickland v. Washington,
466 U.S.
668, 687‐88, 694 (1984). Miranda’s petition adds nothing new to the arguments he made to
the state court. We agree with the district court that the state court’s decision was not
contrary to or an unreasonable application of clearly established federal law.
Miranda also reasserts that the state trial court violated Apprendi when the judge,
rather than the jury, found that the murder was committed in an exceptionally brutal and
heinous manner. The district court did not grant a certificate of appealability on this issue,
so we construe Miranda’s argument as a request to expand the certificate of appealability.
See Sandoval v. United States,
574 F.3d 847, 852 (7th Cir. 2009). We decline to do so. As we
have noted, his 70‐year sentence did not exceed the statutory maximum, and he has not
shown the denial of a constitutional right. See
28 U.S.C. § 2253(c); Sandoval,
574 F.3d at 852.
Accordingly, we AFFIRM the judgment of the district court.
