September 17, 2019
from the United States District Court for the Central
District of Illinois. No. 1:18-cv-1154 - James E. Shadid,
Flaum, Rovner, and Scudder, Circuit Judges.
SCUDDER, CIRCUIT JUDGE.
Miller cut a hole in his bathroom wall and secretly filmed
teenage girls-friends of his own children-undressing and
showering. Federal authorities learned of his conduct,
commenced an investigation, and, after extensive discussions,
offered to allow Miller to plead guilty to possessing child
pornography, an offense with a maximum penalty of ten
years' imprisonment. Miller rejected the offer and
instead chose to go to trial, where he was convicted of the
greater offense of producing child pornography and then
sentenced to 18 years. Having previously rejected
Miller's challenge to his conviction and sentence on
direct review, we now affirm the district court's denial
of his petition for post-conviction relief under 28 U.S.C.
§ 2255. The district court correctly concluded that
Miller failed to show that his trial counsel provided
ineffective assistance during plea negotiations.
2012, after receiving a tip about Miller's misconduct,
local authorities obtained a warrant to search his home,
where they found the rigging in his basement and his cell
phone. In time federal authorities became involved and
searched Miller's phone. The search uncovered so-called
thumbnail images-small, still photographs that serve as
footprints of videos that have been deleted-of naked teenage
girls. This initial search did not recover any video files on
Miller's phone, however.
federal agents approached and questioned Miller about his
conduct, he hired an attorney, Joel Brown, to represent him
in the investigation. The agents made clear from the outset
that Miller would be charged with a child pornography
offense. The only unresolved question was whether that charge
would be for simple possession or production. After
conferring with federal prosecutors, the agents informed
Brown that the government would permit a plea to the lesser
charge if Miller could show that his conduct was limited to
filming the teenage girls and did not extend to any sexual
contact with them. Miller sought to make this showing by
agreeing to meet with the agents to discuss his offense
conduct and to submit to a polygraph exam.
hung in the balance for Miller: if he was able to plead to a
possession offense, he faced a maximum penalty of ten
years' imprisonment. See 18 U.S.C. § 2252A(a)(5)(B),
(b)(2). But if he failed the polygraph or otherwise was
unable to persuade the government of the scope of his
conduct, Miller would face the 15-year mandatory minimum
sentence that Congress prescribed for producing child
pornography. See id. § 2251(a), (e).
passed the polygraph and proffered successfully, only then to
decline the government's plea offer. The government
reacted as it told Miller it would-by seeking an indictment
charging him with producing child pornography. By this same
time, and in response to learning that Miller opted to go to
trial, the U.S. Secret Service had conducted a renewed
forensic examination of Miller's phone and managed to
recover the videos he made of the teenage girls undressing or
showering in his basement bathroom. The indictment the grand
jury returned against Miller contained 22 production counts,
with each count tracking each of the 22 video files found on
trial followed and ended in the district court finding Miller
guilty on all counts. The court then sentenced Miller to 18
years' imprisonment and 15 years' supervised release.
We affirmed on direct review. See United States v.
Miller, 829 F.3d 519, 530 (7th Cir. 2016).
then turned his attention to post-conviction relief. In his
petition to vacate his sentence under 28 U.S.C. § 2255,
he claimed that his trial counsel, Joel Brown, provided
ineffective assistance during the pre-indictment plea
negotiations. With Miller and Brown offering polar opposite
versions of what transpired ...