Michael Miller v. Dushan Zatecky, 7th Circuit Court of Appeals No. 15-1869, 4/26/2016
An Indiana state court sentenced Michael Miller to a total of 120 years in prison on three counts of child molestation. On direct appeal, his lawyer raised challenges to the sufficiency of the evidence and the admission of other-acts evidence, but did not contest the length of his sentence. Miller then filed a state collateral attack, alleging his original appellate counsel was ineffective for not attacking the sentence.
(Note for the Wisconsin practitioner: nothing after this is going to make any sense unless you can willingly suspend your disbelief and accept the following premise: in Indiana, the state appellate courts at least occasionally engage in meaningful review of sentences. Before 2003, such courts would revise a sentence if it was found to be “manifestly unreasonable”; but in that year, the state supreme court decided that this standard was too demanding and so directed appellate courts to revise sentences “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.” Feel free to take a break now. Have some coffee or whatever you need; come on back when you’re ready to explore this bizarro appellate regime.)
Ready? Ok, so on collateral appeal, a three-judge panel of the Indiana appellate court held that yes, Miller’s direct-appeal counsel should have raised a sentencing challenge. Because he didn’t, Miller has shown that counsel performed deficiently, the first prong of ineffective assistance under Strickland v. Washington, 466 U.S. 668 (1984). The court also concluded, however, that Miller’s sentence was not “inappropriate in light of the nature of the offense and the character of the offender,” so such a challenge would have failed. Thus, Miller could not show he was prejudiced by counsel’s error, failing the second Strickland prong.
Miller petitioned for habeas in the federal district court and lost; this appeal follows. Under AEDPA, of course, a federal habeas petitioner must generally show that a state court’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.” As the majority sees it, Miller’s claim that the Indiana courts unreasonably applied federal law in his collateral attack (by failing to consider cases issuing after his direct appeal ended in 2004) must fail because his quarrel is not with federal law, but with Indiana state law. (Slip op. at 4).
Pretty standard stuff so far. What’s interesting is the dissent, by Milwaukee’s own District Judge Lynn Adelman (sitting on the appellate court by designation). In Judge Adelman’s view, the case turns on the meaning of the Strickland prejudice formulation: whether the defendant can show a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” He notes that an Indiana appellate court’s review of sentencing is, in the state supreme court’s description, “unlike the usual appellate process, and is very similar to the trial court’s [exercise of discretion].” (Slip op. at 17 n.5). He further observes a number of occasions in which those courts have exercised this discretion to reduce sentences “in cases arguably more aggravated than” Miller’s. (Slip op. at 17). He finally notes that the Indiana court of appeals has 15 members who sit on rotating, three-judge panels, and that none of the judges who denied Miller collateral relief–who, that is, decided in something similar to their “discretion” that his case did not merit sentence reduction–were on the panel that decided his original appeal. The collateral relief panel’s “unreasonable application” of Strickland, per the dissent, lies in their conclusion tha because they wouldn’t modify his sentence, there was no “reasonable probability” that the direct appeal panel (or state supreme court) would have done so, had counsel raised it. (Slip op. at 16-20). Moreover, because the claims counsel did bring were “nigh frivolous,” a sentencing challenge was “clearly stronger,” see Shaw v. Wilson, 721 F.3d 908, 915 (7th Cir. 2013), making counsel ineffective. (Slip op. at 12-13).
The recognition that strategic choices (and their results) typically involve probabilities rather than certainties has implications for Strickland’s deficient performance prong as well. Consider Shaw. In that case, the habeas petitioner called counsel ineffective for not objecting to an amendment of the information. The state responded that no appellate decision had ever granted the relief petitioner sought (dismissal of the amended charge), so counsel could not have performed deficiently by failing to pursue it. While recognizing that “[d]efense attorneys, it is true, are generally not obliged to anticipate changes in the law” the Shaw court went on to cite several federal appellate cases for the proposition that “in some instances they are obliged to make an argument that is sufficiently foreshadowed in existing case law.” Id. at 917.
This position is clearly at odds (and in fact disproves) the Wisconsin saw that a lawyer can’t be ineffective for failing to argue an unsettled point: “‘the rule that an attorney is not liable for an error of judgment on an unsettled proposition of law is universally recognized.” State v. Maloney, 2005 WI 74, ¶23, 281 Wis. 2d 595, 698 N.W.2d 583. As any criminal defense lawyer knows, there’s pretty much no such thing as a “sure” winner; so can it really be that a competent lawyer is only required to go for the slam dunks?