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Miller v. United States

United States District Court, N.D. Indiana, South Bend Division

July 23, 2019

TYRONE MILLER, Petitioner
v.
UNITED STATES OF AMERICA, Respondent

          OPINION AND ORDER

          ROBERT L. MILLER, JR. JUDGE

         A jury 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.

         I. Background

         South 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.

         II. Discussion

         Mr. 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.[1] 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. 1995).

         Mr. 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.

         If Mr. 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.

         Mr. 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.

         To 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.

         Courts 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).

         “Even 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. ...


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