United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
L. MILLER, JR. JUDGE
found Tyrone Miller guilty of illegal possession of a firearm
by a convicted felon in violation of 18 U.S.C. §
922(g)(1) and the court sentenced him to a term of 87
months' imprisonment and two years' supervised
release. Mr. Miller appealed. The court of appeals held there
was sufficient evidence to support Mr. Miller's
conviction but remanded for resentencing. On remand, the
court resentenced Mr. Miller to a term of 84 months'
imprisonment and two years' supervised release. Mr.
Miller's appeal of that sentence was voluntarily
dismissed, and he is now before the court requesting that the
court vacate his conviction and sentence under 28 U.S.C.
§ 2255. [Doc. No. 107]. For the following reasons, the
court denies Mr. Miller's motion.
Bend police officers dispatched to an accident scene found
Mr. Miller unconscious in a car that had crashed into a pole.
After an officer handcuffed Mr. Miller but before the officer
was able to complete a pat down, Mr. Miller pulled away and a
scuffle ensued. After another officer helped subdue Mr.
Miller, the officers picked him up, placed him in a squad
car, and transported him to the St. Joseph County Jail for
booking on outstanding warrants. When the officers got Mr.
Miller out of the squad car at the jail, they found a handgun
with an extended magazine where Mr. Miller had been seated. A
jury found him guilty of unlawful possession of a firearm.
Miller presents two arguments in his petition: that the
government didn't give Mr. Miller or his lawyer an
opportunity to view the unedited version of a video played
for the jury at trial and that he received ineffective
assistance of counsel. The rules governing petitions filed under
28 U.S.C. § 2255 provide that once a motion is filed:
The motion, together with all the files, records,
transcripts, and correspondence relating to the judgment
under attack, shall be examined promptly by the judge to whom
it is assigned. If it plainly appears from the face of the
motion and any annexed exhibits and the prior proceedings in
the case that the movant is not entitled to relief in the
district court, the judge shall make an order for its summary
dismissal and cause the movant to be notified.
Rule 4(b) of the Rules Governing Section 2255 Proceedings for
the United States District Courts. Mr. Miller's motion
can be resolved without a hearing. See Bruce v.
United States, 256 F.3d 592, 597 (7th Cir. 2001);
Daniels v. United States, 54 F.3d 290, 293 (7th Cir.
Miller first argues that the court should vacate his
conviction because the government didn't give Mr. Miller
or his lawyer an opportunity to view the unedited version of
a video played for the jury at trial. Mr. Miller also argues
that the version he and his lawyer viewed was tampered with
because the word “enhanced” was displayed while
the video played. Because Mr. Miller didn't move to
suppress the video before trial, object to its admission as
evidence, or raise this issue on direct appeal, the court
can't reach the merits of his argument.
Miller believed the video was tampered with, he should have
filed a motion to suppress before trial. See Fed. R.
Crim. P. 12(b)(3)(c). And upon questioning from the court,
Mr. Miller's counsel said he had no objection to the
admission at trial of the redacted version of the video.
Because he didn't file a motion to suppress before trial,
he waived any suppression argument unless he can show good
cause. Fed. R. Crim. P. 12(c)(3); United States v.
Cardena, 842 F.3d 959, 988 (7th Cir. 2016). And because
Mr. Miller didn't pursue an appeal on this issue, he
can't raise it “on collateral review unless [he]
shows cause and prejudice, ” Massaro v. United
States, 538 U.S. 500, 504 (2003), or actual innocence.
Delatorre v. United States, 847 F.3d 837, 843 (7th
Cir. 2017). Mr. Miller offered no cause for not moving to
suppress the video before trial or pursuing an appeal on that
issue and doesn't argue actual innocence, so he is barred
from raising this issue in a collateral attack. See
Massaro v. United States, 538 U.S. at 504;
Delatorre v. United States, 847 F.3d at 843;
United States v. Cardena, 842 F.3d at 988.
Miller next argues that his conviction and sentence should be
vacated because his counsel provided him ineffective
assistance of counsel. In support of this claim, Mr. Miller
argues that his counsel agreed with the government not to
introduce evidence that would have been favorable to him at
trial: inconclusive results of a DNA analysis on the firearm.
He also argues that his counsel allowed the government to
play an edited video for the jury without allowing him or the
jury to see the full video.
prevail on an ineffective assistance of counsel claim, Mr.
Miller must show both that his attorney's performance
“fell below an objective standard of
reasonableness” and that there is a reasonable
probability that, but for his attorney's errors, the
result would have been different. Strickland v.
Washington, 466 U.S. 668, 688-693 (1984). This is a
difficult standard to meet; to prevail, Mr. Miller must show
both “that counsel made errors so serious that
‘counsel' was not functioning as the counsel
guaranteed the defendant by the Sixth Amendment” and
“that counsel's errors were so serious as to
deprive [Mr. Miller] of a fair [result].”
Strickland v. Washington, 466 U.S. at 687.
recognize a strong presumption that counsel performed
effectively. See Berkey v. United States, 318 F.3d
768, 772 (7th Cir. 2003). “A court's scrutiny of an
attorney's performance is ‘highly deferential'
to eliminate as much as possible the distorting effects of
hindsight, and we ‘must indulge a strong presumption
that counsel's conduct falls within the wide range of
reasonable professional assistance.' ” Vinyard
v. United States, 804 F.3d at 1225 (quoting
Strickland v. Washington, 466 U.S. at 687). Because
reviewing courts shouldn't second-guess counsel's
strategic choices, the burden of showing that counsel's
decisions fell outside the wide range of reasonable strategic
choices “rest[s] squarely on the defendant.”
Burt v. Titlow, 571 U.S. 12, 22-23 (2013).
if counsel's performance was deficient, a petitioner must
also show that ‘there is a reasonable probability that,
but for counsel's unprofessional errors, the result of
the proceeding would have been different,' meaning
‘a probability sufficient to undermine confidence in
the outcome.' ” Eckstein v. ...