USA v. Miller

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
NICOLE MARIE MILLER, )
)
Petitioner, )
) CIV. A. NO. 21-00544-JB-MU
v. )
) CRIM. A. NO. 18-00035-JB-MU-1
UNITED STATES OF AMERICA, )
)
Respondent. )
REPORT AND RECOMMENDATION
This cause is before the Court on Petitioner Nicole Marie Miller’s motion to
vacate, set aside or correct her sentence pursuant to 28 U.S.C. § 2255 (Doc. 184) and
the response of the United States (Doc. 187). Petitioner had the opportunity to file a
reply, but did not do so. (See Doc. 185; Docket Sheet). This action has been referred to
the undersigned for entry of a report and recommendation pursuant to 28 U.S.C. §
636(b)(1)(B) and General Local Rule 72(a)(2)(R).
Following consideration of all relevant pleadings in this case, it is recommended
that Miller’s § 2255 motion be DENIED without an evidentiary hearing. See Rosin v.
United States, 786 F.3d 873, 878 (11th Cir.) (“It is well-settled that the district court is
not required to grant an evidentiary hearing when the defendant’s claims are
affirmatively contradicted by the record evidence, nor is a hearing required if the claims
are grounded upon generalizations that are unsupported by the record evidence.”), cert.
denied, 577 U.S. 959 (2015); Allen v. Secretary, Florida Dep’t of Corrections, 611 F.3d
740, 745 (11th Cir. 2010) (“A district court is not required to hold an evidentiary hearing
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if the claims ‘are merely conclusory allegations unsupported by specifics,’ . . . or ‘if the
record refutes the applicant’s factual allegations or otherwise precludes habeas
relief[.]’”), cert. denied, 563 U.S. 976 (2011).
I. PROCEDURAL HISTORY AND FINDINGS OF FACT
On May 29, 2019, a grand jury returned a two-count indictment against Nicole
Marie Miller, charging her with being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1), and possession of a firearm within a school zone, in violation of 18
U.S.C. § 922(q)(2)(A). (Doc. 80). On June 24, 2019, Miller’s first trial, where she was
represented by counsel Arthur Madden, ended in a mistrial following the jury’s inability
to reach a unanimous verdict. (Doc. 88). Following the mistrial, Madden moved to
withdraw. (Doc. 94). The district court granted his motion and appointed Ashley
Cameron as counsel for Miller. (Doc. 97).
Subsequently, Miller moved for a continuance, which was granted on July 23,
2019, and Miller’s second trial was continued to the October 2019 term. (Doc. 99). In its
order, the court noted that it “considered the factors set forth in 18 U.S.C. §
3161(h)(7)(B) and conclude[d] that the continuance [was] warranted.” (Id.). The court
also noted that “[f]or purposes of the Speedy Trial Act,” the period of delay was
excludable. (Id.). On July 25, 2019, the grand jury returned a second superseding
indictment, in which the government amended Count One to comply with Rehaif v.
United States, 588 U.S. 225 (2019). (Doc. 101). Miller waived a speedy trial on July 30,
2019. (Doc. 104).
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On October 16, 2019, Cameron moved to withdraw as counsel for Miller, and the
next day, the district court granted the motion and continued the trial to the December
2019 term. (Docs. 118, 120, 121). The court’s order stated that the court found the
continuance was warranted based on its consideration of § 3161(h)(7)(B) and that the
period of delay occasioned by the continuance was excludable. (Doc. 121). On October
17, 2019, after initially (and briefly) appointing Gordon Armstrong to represent Miller, the
court appointed Frederick Helmsing, Jr. as counsel for Miller. (Docs. 119, 122, 123).
Miller’s second trial began on December 9, 2019. (Doc. 175). Relevant testimony
and evidence introduced in the second trial, as summarized by the Eleventh Circuit, is
as follows:
The government called Valerie James who testified
that on February 2, 2017, she and some friends met Miller in
a parking lot to purchase Xanax. After James realized the
pills Miller gave her were not real, she took them without
paying and left in her car. Miller started to follow James in
her own car and the two pulled into the parking lot of a
Subway. They got into an argument and eventually James
got back in the car and tried to pull out of her parking spot.
Miller attempted to reach into James's vehicle and in doing
so dropped a cigar onto James's lap. James later provided
the cigar to law enforcement. James believes Miller fell to
the ground as James pulled off. As James drove away, she
heard gunshots and her car was hit by gunfire. On cross-
examination, James testified that she lied to the police about
what the fight between her and Miller was about because
she was on probation. James identified Miller in court.
Kim Barton also testified. She testified that on
February 2, 2017, she picked up her daughter from school to
take her to an appointment. While she was stopped at a
traffic light she saw someone hop out of a car in the Subway
parking lot, fall on the ground, then jump up with a gun and
start shooting. In court, Barton identified Miller as the person
she saw fire the gun. After her daughter's appointment,
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Barton returned to the scene where she gave police a
description of the shooter. She did not see Miller at this time,
but she did see someone in the back of a police car though
she was not sure who it was. Barton testified that she was
not asked to identify anyone at the scene and was asked
only for a description.
United States v. Miller, 857 F. App’x 563, 564 (11th Cir. 2021).
Evidence was also introduced that two schools – McGill-Toolen Catholic High
School (“McGill”) and St. Mary’s School (“St. Mary’s”) - are located at the intersection
of Lafayette Street and Old Shell Road, one block south of the Subway and across
the street from one another. (Doc. 175 at PageID. 1454-57, 1623-25; Doc. 176 at
PageID. 1640-46). An ATF task force officer testified that the Subway was located less
than one thousand feet from St. Mary’s school. (Doc. 175 at PageID. 1624-25).
Constable Terry Marshall testified, in relevant part, as follows: While he was
directing traffic at St. Mary’s on Lafayette Street on the afternoon of February 2, 2017,
he heard gunfire from the direction of the Subway and, a few seconds later, he saw a
black car come from that direction. The lady in the black car pulled up and told him that
she was being shot at by someone in an SUV and then sped off. He then saw an SUV
coming from the Subway. Once the SUV passed him, he got behind her in his vehicle
and “did [his] air horn.” The female driver of the SUV, who he identified as Miller, made
a right onto Old Shell Road and at the next intersection made another right onto
Catherine. She then turned in the McGill parking lot. He blocked the entrance to the
parking lot to prevent the SUV from leaving. (Doc. 175 at PageID. 1479-87).
Sergeant Michael James of the Mobile Police Department, who worked security
at McGill, testified, in relevant part as follows: On February 2, 2017, he heard a call
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come out that shots were fired at the Subway near McGill so he alerted the school and
moved toward the corner of Lafayette and Old Shell. He heard that a car had been
stopped by one of the constables in one of the parking lots, so he drove to that parking
lot in his police vehicle. Upon arriving at the parking lot, he saw a woman and a green
SUV. While waiting for other officers to arrive, he checked around the area and found a
pistol on school property in a grassy area near a drainage ditch in the parking lot. He and
the McGill constable watched the firearm to ensure that no one touched it. (Doc. 175 at
PageID. 1503-12).
Additional evidence relevant to this motion is as follows: Testing of the seven
bullet casings that were found at the Subway indicated that the casings were fired from
the firearm discovered by James and recovered at the McGill parking lot. (Doc. 175 at
PageID. 1559-60, 1620-21). Dennis Owens, an ATF task force officer, testified that
Miller had a prior felony conviction that prohibited her from possessing a firearm. (Doc.
175 at PageID. 1622-23).
After the Government rested, Miller moved for a judgment of acquittal, which was
denied. (Doc. 135). Miller renewed her motion after the close of all evidence, and it was
again denied. (Doc. 137). On December 10, 2019, the jury found Miller guilty on both
counts of the superseding indictment. (Doc. 138).
Evidence relevant to Miller’s sentencing was set forth by the Eleventh Circuit as
follows:
Pursuant to United States Sentencing Guideline §
2K2.1(a)(2), Miller’s Presentence Investigation Report
(“PSR”) assigned a base offense level of 24 because she
possessed a firearm after having been convicted of at least
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two felonies. Four points were added to the offense level
under Guideline § 2K2.1(b)(6)(B) because Miller possessed a
firearm in connection with another felony offense, which
resulted in a total offense level of 28. With a criminal history
category of IV, her guideline range was 110 to 137 months’
imprisonment.
Prior to the sentencing hearing, Miller filed a
sentencing memorandum. Her memorandum explained that
Miller had experienced severe childhood trauma and abuse
that continued to impact her. She asked the district court to
consider her history in this regard and impose a below-
guidelines sentence. She further argued that a below-
guidelines sentence was warranted because she had been in
custody during the COVID-19 pandemic and had contracted
COVID-19 while incarcerated.
At the sentencing hearing, the district court stated that
it had considered the PSR, the testimony and evidence
presented at trial, the parties’ arguments, as well as the
sentencing factors in 18 U.S.C. § 3553(a) and the
sentencing guidelines. The court also said it had considered
Miller’s personal history and characteristics and the nature
and circumstances of her offense. It expressed concern
about her prior felony convictions and the fact that one
involved a firearm and the other involved Xanax, both of
which were again involved in the offense for which she was
now being sentenced. Given these considerations, the
district court sentenced Miller to 120 months’ imprisonment,
with 110 months on Count 1 and 10 months on Count 2 to be
served consecutively. The court noted that this sentence
addressed the seriousness of the offense, the objectives of
punishment, deterrence, and incapacitation.
Miller, 857 F. App’x at 564-65; Doc. 180 at PageID. 1749-50.
Miller, through counsel, filed a Notice of Appeal on August 27, 2020. (Doc. 167).
Miller made two arguments on appeal: 1) she argued that the Government presented
insufficient evidence to establish that she actually possessed a firearm and 2) she
argued that her 120-month sentence was substantively unreasonable. Miller, 857 F.
App’x at 565; Doc. 180 at PageID. 1747. In an unpublished per curiam opinion based on
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the summary of evidence previously set forth above, a panel of the Eleventh Circuit, on
May 24, 2021, affirmed Miller’s conviction. Miller, 857 F. App’x at 563.
As to her insufficiency of the evidence argument, the Eleventh Circuit found:
The evidence here was sufficient for a jury to find Miller guilty
beyond a reasonable doubt. Based on the evidence
presented at trial, the jury could have found that Miller
possessed a firearm on the date in question. James testified
that after she and Miller got into an argument and she tried
to drive away, Miller reached into her car, fell, and then
James began to hear gunshots and her car was hit by
gunfire. And Barton testified that she witnessed a woman
fall, spring up, then start shooting. Critically, Barton identified
Miller as the shooter in court. Although Miller argues Barton’s
testimony is unreliable because she did not identify Miller
when she spoke to police officers at the scene, Barton
testified that she was not asked to provide an identification at
that time. Nothing rendered Barton’s testimony “incredible as
a matter of law” and we conclude that was a sufficient basis
for the jury to believe Miller possessed a firearm. Flores, 572
F.3d at 1263 (quotation marks omitted). There was thus
sufficient evidence to convict Miller on both counts.
(Id. at 565-66; Doc. 180 at PageID. 1751-52).
As to the reasonableness of her sentence, the Eleventh Circuit held:
Miller argues her 120-month sentence is substantively
unreasonable because it is excessive based on the
sentencing factors in 18 U.S.C. § 3553(a). Specifically, Miller
says the district court should have given greater weight to her
history and characteristics in light of her severe childhood
trauma and abuse.
We review the substantive reasonableness of a sentence for
abuse of discretion. We vacate a sentence as substantively
unreasonable only if “we are left with the definite and firm
conviction that the district court committed a clear error of
judgment in weighing the § 3553(a) factors by arriving at a
sentence that lies outside the range of reasonable sentences
dictated by the facts of the case.”
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We are not left with that “definite and firm conviction” here.
The district court did consider the factor emphasized by Miller
(personal history and characteristics) in addition to the other
§ 3553(a) factors. The court also expressed concern about
Miller’s prior felony convictions and the fact that one involved
a firearm and the other involved Xanax. The court ultimately
decided that, given these considerations, a midrange
sentence of 120 months’ imprisonment was appropriate. The
district court explained that even though the evidence at trial
would justify a sentence at the high-end of the guidelines, it
was not going to impose a high-end sentence. We cannot say
this constituted a “clear error of judgment in weighing the §
3553(a) factors.” Therefore Miller’s midrange sentence of 120
months’ imprisonment is not substantively unreasonable.
(Id. at 566; Doc. 180 at PageID. 1752-53) (internal citations omitted).
Miller timely filed her motion to vacate in this Court on December 7, 2021, under
the mailbox rule. (Doc. 184). In her motion to vacate, Miller asserts five grounds in
support of her request that her convictions be vacated or that she be granted a new
trial. First, Miller argues that she was denied her constitutional right to face her
accusers. (Docs. 184 at 4; 184-1 at 3, 4). Second, Miller again argues that the evidence
at trial was insufficient to support her conviction. (Doc. 184 at 5; 184-1 at 3). Third, she
contends that she was denied her right to a speedy trial. (Doc. 184 at 6). Fourth, Miller
asserts several instances of ineffective assistance of counsel, including arguments that
trial counsel failed to conduct a proper investigation and failed to call certain witnesses
to testify at trial. (Doc. 184 at 8-9; Doc. 184-1 at 2-3). Finally, Miller claims that law
enforcement did not conduct a proper lineup. (Doc. 184-9; Doc. 184-1 at 1-3).
The United States filed its response to the motion to vacate, arguing that is
should be denied as to all claims asserted by Miller. (Doc. 187). Miller did not file a
reply. (See Docket Sheet).
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II. CONCLUSIONS OF LAW
Section 2255 reads, in relevant part, as follows: “A prisoner in custody under
sentence of a court established by Act of Congress claiming the right to be released
upon the ground that the sentence was imposed in violation of the Constitution or laws
of the United States, or that the court was without jurisdiction to impose such sentence,
or that the sentence was in excess of the maximum authorized by law, or is otherwise
subject to collateral attack, may move the court which imposed the sentence to vacate,
set aside or correct the sentence.” 28 U.S.C. § 2255(a). Thus, as the language of §
2255(a) makes clear, “the grounds for collateral attack on a final judgment . . . are
limited[,]” Gayle v. United States, 2020 WL 4339359, *3 (S.D. Fla. July 28, 2020) and
are “reserved for transgressions of constitutional rights and for that narrow compass of
other injury that could not have been raised in direct appeal and would, if condoned,
result in a complete miscarriage of justice.” Lynn v. United States, 365 F.3d 1225, 1232
(11th Cir.) (citations and internal quotation marks omitted), cert. denied, 543 U.S. 891
(2004).
A. Right to Confront Accusers
Miller’s argument that she is entitled to § 2255 relief because she was denied her
constitutional right to confront her accusers fails because this claim is both procedurally
defaulted and fails on the merits.
1. Procedural Default
As the Eleventh Circuit has recognized, “a defendant generally must advance an
available challenge to a criminal conviction or sentence on direct appeal or else the
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defendant is barred from presenting that claim in a § 2255 proceeding.” Lynn v. United
States, 365 F.3d 1225, 1234 (11th Cir. 2004), quoted in McKay v. United States, 657
F.3d 1190, 1196 (11th Cir. 2011); see also Massaro v. United States, 538 U.S. 500, 504
(2003) (“The background for our discussion is the general rule that claims not raised on
direct appeal may not be raised on collateral review unless the petitioner shows cause
and prejudice.”); McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011) (“Under
the procedural default rule, ‘a defendant generally must advance an available challenge
to a criminal conviction or sentence on direct appeal or else the defendant is barred
from presenting that claim in a § 2255 proceeding.’”), cert. denied, 568 U.S. 830 (2012).
Indeed, to adequately preserve an issue for collateral review, a federal prisoner must
timely raise the claim at both trial and on direct appeal. See Wainwright v. Sykes, 433
U.S. 72, 85-86 (1977). As noted above, Miller never challenged her conviction in the
Eleventh Circuit on this ground. Accordingly, this claim is procedurally defaulted.
Miller may avoid procedural default if she can satisfy one of two exceptions: (1) if
she can establish cause for not raising the error and actual prejudice from the asserted
error; or (2) if she can establish that she is actually innocent. Lynn, 365 F.3d at 1234.
Miller cannot establish either exception. She simply has not argued that the cause and
prejudice exception applies here – she did not raise this issue in her original motion and
she did not file a reply to the Government’s response to her motion. She has, thus, set
forth no reason for not raising these assertions of error when she appealed her
conviction on other grounds. Therefore, the Court need “not address this exception.”
McKay, 657 F.3d at 1196 (noting that “[b]ecause McKay does not argue on appeal that
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the cause and prejudice exception applies - nor for that matter did he do so at the
district court – we do not address this exception”).
Miller has also not asserted nor established that she is actually innocent. “The
actual innocence exception is ‘exceedingly narrow in scope,’ and the petitioner must
demonstrate that he is factually innocent rather than legally innocent.” San Martin v.
McNeil, 633 F.3d 1257, 1268 (11th Cir.), cert. denied, 565 U.S. 843 (2011). A claim of
actual innocence “requires petitioner to support his allegations of constitutional error
with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence—that was not presented at trial.”
Schlup v. Delo, 513 U.S. 298, 324 (1995). In addition, “[t]o establish the requisite
probability, the petitioner must show that it is more likely than not that no reasonable
juror would have convicted him in the light of the new evidence.” Id. at 327. See also
McQuiggin v. Perkins, 569 U.S. 383, 386 (2013) (“[T]enable actual-innocence gateway
pleas are rare: ‘[A] petitioner does not meet the threshold requirement unless he
persuades the district court that, in light of the new evidence, no juror, acting
reasonably, would have voted to find him guilty beyond a reasonable doubt.’”). Miller
has presented no new evidence supporting a claim that she is factually innocent.
Rather, Miller has simply reiterated her argument that the evidence presented was
insufficient. Therefore, the actual innocence exception does not save her procedural
default of this claim.
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2. Merits
Even if Miller’s claim was not procedurally defaulted, her confrontation clause
challenge fails on the merits. The Sixth Amendment guarantees that a criminal
defendant has “the right . . . to be confronted with the witnesses against him.” U.S.
CONST. amend. VI. The Confrontation Clause is a “bedrock procedural guarantee” that
applies to both in-court testimony and out-of-court testimonial statements that are
admitted at trial. Crawford v. Washington, 541 U.S. 36, 42 (2004). The clause bars the
admission of testimonial witness statements at a criminal trial unless the declarant is
unavailable and the defendant had a prior opportunity to cross-examine the declarant.
Id. at 59. “Testimonial statements are ones ‘that declarants would reasonably expect to
be used prosecutorially.’” United States v. Wilson, 788 F.3d 1298, 1316 (11th Cir. 2015)
(quoting Crawford, 541 U.S. at 51). They include testimony at a preliminary hearing,
before a grand jury, at a prior trial, or a police interrogation. Crawford, 541 U.S. at 68. In
turn, “[t]estimony is ‘a solemn declaration or affirmation made for the purpose of
establishing or proving some fact.’” Wilson, 788 F.3d at 1316 (quoting United States v.
Charles, 722 F.3d 1319, 1322 (11th Cir. 2013)).
a. Wallace
Miller cannot establish a violation of her right to confrontation as to Detective
Wallace because the United States did not admit any of his out-of-court testimonial
statements. She has not identified anything in the trial transcript that would support a
contrary conclusion. At Miller’s first trial, Valerie James testified that she spoke with
Detective Wallace and knew him “from back in the day” and Leo Bullock testified that
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Wallace took some photographs at the crime scene. (Doc. 92 at 32, 34, 37, 45, 113;
PageID. 835, 837, 840, 848, 916). The only reference to Detective Wallace at Miller’s
second trial was during the testimony of Sergeant Charles Welch, who stated that
Wallace was present when he processed one of the crime scenes. (Doc. 175 at 173;
PageID. 1570). The Government never sought to introduce any statements by Detective
Wallace. Therefore, the Confrontation Clause was not implicated.
b. Witnesses who testified at first trial
Miller’s claim that witnesses who testified at her first trial did not testify at her
second trial likewise does not raise constitutional concerns under the Sixth Amendment.
She has not identified these witnesses or any of the out-of-court statements that were
admitted at any of her trials. “The Confrontation Clause is concerned with ‘testimonial
statements made out of court by a declarant whom the defendant has a constitutional
right to confront through cross-examination.’” Wilson, 788 F.3d at 1316 (citation
omitted). The fact that the same witnesses did not testify at her second trial is not a
constitutional violation.
c. Barton
Similarly, Kim Barton’s testimony at Miller’s second trial presents no
confrontation right violation. Miller has not identified any testimony that was inconsistent
with Barton’s prior testimony or that any of Barton’s prior statements were admitted at
Miller’s second trial. Regardless, assuming Barton’s testimony was inconsistent or that
her prior statements were introduced at Miller’s second trial, it was not a violation of
constitutional magnitude. As the Supreme Court has explained, “when the declarant
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appears for cross-examination at trial, the Confrontation Clause places no constraints at
all on the use of his prior testimonial statements.” Crawford, 541 U.S. at 59 n.9. Here,
defense counsel cross-examined Barton at length at Miller’s second trial and, therefore,
Miller had the opportunity to confront the witness offering testimony against her.
Counsel specifically questioned Barton about her testimony at a prior court proceeding.
(Doc. 175 at 74; PageID. 239). Consequently, Miller was not denied her right to confront
Barton, but instead, actually exercised her right under the Confrontation Clause.
B. Insufficiency of the Evidence
Although she entitled her second ground “Evidence Tampering,” Miller is clearly
challenging the sufficiency of the evidence. (Doc. 184 at 5). She claims there was no
scientific evidence supporting the charges against her, that no bullets were found, that there
was no gunshot residue on her, that there was no eyewitness testimony, and that there
was no direct evidence linking the gun to her. (Id. at 5, 9; Doc. 184-1 at 4; PageID.
1771, 1775,1783). She also contends that “[n]o one questioned whether Kim Barton could
even identify [her].” (Id. at 9; PageID. 1775). Miller argues that, therefore, there was no
evidence to show she possessed a firearm when prohibited to do so and in a school
zone. (Id at 5; PageID. 1771).
Because Miller litigated her claim of insufficiency of the evidence on appeal to the
Eleventh Circuit, she cannot raise it in a § 2255 motion. “[O]nce a matter has been
decided adversely to a defendant on direct appeal it cannot be re-litigated in a collateral
attack under section 2255.” United States v. Natelli, 553 F.2d 5, 7 (2d Cir. 1977), quoted
in United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000). Before the Eleventh
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Circuit, as in this motion, Miller argued there was a lack of forensic evidence to support her
convictions and that Kim Barton’s identification testimony was unreliable. The Eleventh
Circuit rejected Miller’s argument. See Miller, 857 F. App’x at 565-66. The Court of Appeals
concluded that, based on the evidence presented at Miller’s trial, a jury could have found her
guilty of both offenses. Id. Miller’s present claim is, therefore, procedurally barred. See
Stoufflet v. United States, 757 F.3d 1236, 1239, 1242 (11th Cir. 2014) (finding a § 2255
claim procedurally barred because it was raised on direct appeal).
C. Speedy Trial Claim
Miller alleges as her third ground for relief that her constitutional right to a speedy
trial was violated based on the seven-month delay between her first and second trials.
(Doc. 184 at 6; PageID. 1772). Miller does not specify whether this ground is based on the
Speedy Trial Act, 18 U.S.C. §§ 3161-74, or the Speedy Trial Clause of the Sixth
Amendment. Because Miller does not allege a pre-arrest or pre-indictment delay, the Due
Process Clause of the Fifth Amendment is inapplicable. See United States v. MacDonald,
456 U.S. 1, 7 (1982).
1. Procedural Default
Regardless of the basis, Miller procedurally defaulted this claim because she did not
raise it in the district court or in her direct appeal. See Lynn, 365 F.3d at 1234; see also Coble
v. United States, CR 1:15-00285-KD-B, 2019 WL 7038266, at *7 (S.D. Ala. Dec. 20, 2019)
(speedy trial claim procedurally defaulted where it was not raised in the direct appeal).
Miller has not asserted nor shown that the claim was not available to raise in her prior
court proceedings, and she has not alleged nor demonstrated cause and actual prejudice to
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excuse her procedural default or actual innocence. See Lynn, 365 F.3d at 1234. The claim
is, as a result, procedurally barred.
2. Merits.
Moreover, Miller cannot show a violation of her statutory or constitutional rights to a
speedy trial. Under 18 U.S.C. § 3161(e), a retrial following a mistrial must begin “within
seventy days from the date the action occasioning the retrial becomes final.” A declaration
of a mistrial “reset[s] the trial clock to zero.” United States v. Neal, 27 F.3d 1035, 1042 (5th
Cir. 1994). Any delay resulting from a continuance granted to the defendant is excluded
from the computation of time if, after considering the factors set forth in subsection §
3161(h)(7)(B), the district court finds a continuance serves “the ends of justice.” 18 U.S.C.
§ 3161(h)(7)(A).
If Miller’s argument is based on the Speedy Trial Act, there was no violation of her
statutory right to a speedy trial. Miller’s first trial ended in a mistrial on June 26, 2019. (Doc.
88). Thus, the speedy trial clock was reset and began to run the day after the mistrial and
would have expired on September 5, 2019. See Fed. R. Crim. P. 45(a) (the computation of
time excludes the day of the event that triggers the time period); see also Bramlett v. United
States, 405 F. App’x 363, 367 (11th Cir. 2010) (finding that Rule 45(a) applies to the 70-day
period); United States v. Twitty, 107 F.3d 1482, 1487 (11th Cir. 1997). Miller, however,
subsequently had two changes of counsel that necessitated the granting of a
continuance in each instance. (Docs. 97, 118). After the district court granted attorney
Arthur Madden’s motion to withdraw and appointed new counsel, Miller requested, and
was granted, a continuance. (Docs. 99). The district court, after considering the 18 U.S.C.
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§ 3161(h)(7)(B) factors, concluded that a continuance was warranted and found that any
delay was “excludable.” (Id.). Miller signed a speedy trial waiver that stated she elected to
extend the time period for her trial to commence “until at least the October 2019 trial term,”
to provide her new attorney time to review the case and discuss it with her. (Doc. 104).
She has not asserted that counsel failed to explain what the forms were or that she did not
understand the right she was waiving.
When the October term came, attorney Ashley Cameron moved to withdraw due
to a newly discovered conflict of interest, and the district court granted her motion.
(Docs. 118, 120). The court, considering the § 3161(h)(7)(B) factors, found that a
continuance would serve the ends of justice because Miller’s new attorney needed time to
familiarize himself with the case and prepare for trial. (Doc. 121). Miller’s case was
continued until the December 2019 trial term and the district court found the delay was
excludable. (Id.). The periods of delay were excludable from the 70 days under 18 U.S.C. §
3161(h)(7)(A).
One hundred sixty-five (165) days elapsed between the district court’s granting of a
mistrial and the selection of the jury for Miller’s second trial. A total of 120 days was
excludable from that period (July 23, 2019, to September 30, 2019, and October 17, 2019,
to December 9, 2019) because of the two continuances granted by the district court. In all,
45 of the 70-day speedy trial period elapsed. Thus, Miller’s statutory right to a speedy trial
was not violated.
As for Miller’s constitutional right to a speedy trial, “compliance with the Speedy Trial
Act does not bar Sixth Amendment speedy trial claims[.]” Twitty, 107 F.3d at 1490. But as
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the Eleventh Circuit has recognized, a Sixth Amendment violation where there was no
violation under the Speedy Trial Act would be “unusual.” Id. In determining whether a delay
passes constitutional muster, a court must consider the factors detailed in Barker v.
Wingo, 407 U.S. 514 (1972). Those factors include the length of the delay, the reason for
the delay, whether the defendant asserted a right to a speedy trial, and prejudice to the
defendant. Id. at 530. A court is not required to consider the latter three factors unless the
length of the delay is “presumptively prejudicial.” United States v. Schlei, 122 F.3d 944,
987 (11th Cir. 1997). “A delay is considered presumptively prejudicial as it approaches
one year.” Id.
Here, the delay between the granting of the mistrial and Miller’s retrial was 165 days, or
slightly more than five months, a delay that is not presumptively prejudicial. See, e.g., United
States v. Perez-Perez, 337 F.3d 990, 995 (8th Cir. 2003) (five-month delay); United States v.
Varella, 692 F.2d 1352, 1359 (11th Cir. 1982) (four-month delay) (collecting cases);
United States v. Elorduy, 612 F.2d 986, 988 (5th Cir.1980) (five-month delay). Because the
delay was not presumptively prejudicial, this Court need not consider the latter three
factors. Notably, however, the record establishes that continuances were granted due to
the withdrawal of two of Miller’s attorneys, that Miller did not assert her right to a speedy
trial, and that Miller has not alleged or demonstrated actual prejudice. Consideration of
the Barker factors establishes that Miller was not denied her Sixth Amendment right to a
speedy trial.
Based on the foregoing, Miller’s speedy trial claim is procedurally defaulted and,
alternatively, without merit, and should thus be denied.
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D. Ineffective Assistance of Counsel
To establish a claim of ineffective assistance of counsel, a petitioner is required
to show (1) that the attorney’s representation fell below “an objective standard of
reasonableness” and (2) that a reasonable probability exists that but for counsel’s
unprofessional conduct, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687 (1984). “The petitioner bears the burden of
proof on the ‘performance’ prong as well as the ‘prejudice’ prong of a Strickland claim,
and both prongs must be proved to prevail.” Johnson v. Alabama, 256 F.3d 1156, 1176
(11th Cir. 2001), cert. denied sub nom. Johnson v. Nagle, 535 U.S. 926 (2002).1
The performance prong of the ineffective assistance standard
entails a deferential review of counsel’s conduct. In assessing the
reasonableness of counsel’s performance, courts must indulge a strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance. Thus, the Sixth Amendment does
not require criminal defense attorneys to take a nothing to lose approach
and raise every available nonfrivolous defense.
With respect to prejudice, courts ask whether there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.
Means v. Secretary, Dep’t of Corrections, 433 F. App’x 852, 855 (11th Cir. 2011)
(internal quotation marks and citations omitted), cert. denied, 565 U.S. 1217 (2012).
“Moreover, judicial review of an attorney’s performance is ‘highly deferential,’ and
the court must ‘eliminate the distorting effects of hindsight’ and evaluate performance
1 It is proper in considering claims made by a federal prisoner under § 2255 to look for
guidance from cases discussing claims raised by state prisoners under 28 U.S.C. §
2254. See Hagins v. United States, 267 F.3d 1202, 1205 (11th Cir. 2001) (citing
Holladay v. Haley, 209 F.3d 1243 (11th Cir. 2000)), cert. denied, 537 U.S. 1022 (2002).
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from the attorney’s perspective at the time the challenged conduct occurred.” Pair v.
Cummins, 373 F. App’x 979, 982 (11th Cir. 2010) (quoting Strickland, 446 U.S. at 689).
“In doing so, the court must ‘indulge a strong presumption’ that the attorney’s conduct
was objectively reasonable.” Id. “A petitioner fails to overcome that presumption if the
challenged conduct ‘might be considered sound trial strategy.’” Id. Indeed, to satisfy the
first prong, “the petitioner must establish that no competent counsel would have taken
the action that his counsel did take[.]” Hall v. Thomas, 611 F.3d 1259, 1290 (11th Cir.
2010) (quotation marks and citation omitted).
Given the two-prong nature of the test for adjudicating ineffective-assistance-of-
counsel claims, it can come as no surprise that “‘the cases in which habeas petitioners
can properly prevail on the ground of ineffective assistance of counsel are few and far
between.’” Johnson, supra, 256 F.3d at 1176 (citation omitted); see also Chandler v.
United States, 218 F.3d 1305, 1314 (11th Cir. 2000) (en banc) (“Given the strong
presumption in favor of competence, the petitioner’s burden of persuasion—though the
presumption is not insurmountable—is a heavy one.” (citations omitted)), cert. denied,
531 U.S. 1204 (2001). When applying the Strickland standard, it is clear that courts
“are free to dispose of ineffectiveness claims on either of its two grounds.” Oats v.
Singletary, 141 F.3d 1018, 1023 (11th Cir. 1998) (citation omitted), cert. denied, 527
U.S. 1008 (1999); see also Adamson v. United States, 288 F. App’x 591, 594 (11th Cir.
2008) (“The defendant must satisfy both prongs of this test to show a Sixth Amendment
violation; if the defendant fails to demonstrate one of these prongs sufficiently, we do
not need to address the other.”), cert. denied, 555 U.S. 1010 (2008); Butcher v. United
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States, 368 F.3d 1290, 1293 (11th Cir. 2004) (“[O]nce a court decides that one of the
requisite showings has not been made it need not decide whether the other one has
been.”).
In support of her claim for ineffective assistance of counsel, Miller claims that
her trial counsel failed to conduct an independent investigation of the witnesses at the
scene. (Doc. 184 at 8; PageID. 1774). Specifically, Miller alleges that trial counsel
failed to discover that Kim Barton had a felony record and that Valerie James was
never criminally charged with running over Miller with her vehicle. (Id.). Miller also
claims that her trial counsel failed to interview witnesses and call them to testify at trial.
(Id.).
This Court need not address whether counsel’s performance was deficient
because Miller has not alleged or demonstrated prejudice. See Strickland, 466 U.S. at 697
(explaining that “a court need not determine whether counsel’s performance was deficient
before examining the prejudice suffered by the defendant as a result of the alleged
deficiencies”). To prevail, Miller “must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. As the Strickland Court held, “[s]ome errors will have had a
pervasive effect on the inferences to be drawn from the evidence, altering the entire
evidentiary picture, and some will have had an isolated, trivial effect.” Id. at 696. The
reviewing court must consider the totality of the evidence to determine whether counsel’s
allegedly deficient performance caused the defendant prejudice. See id. at 695.
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First, the Court notes that Miller has not identified the felony of which Barton was
allegedly convicted nor has she shown that the alleged prior felony conviction would have
been admissible at trial. Moreover, Miller has not shown a reasonable probability that
impeachment of Barton on the basis of a prior felony conviction would have led to a
different trial outcome. See Strickland, 466 U.S. at 694. The jury heard that another
witness, Valerie James, was a convicted felon, and that testimony obviously had no effect
on the outcome. (Doc. 175 at 38; PageID. 841). Having considered the totality of the
evidence introduced at trial, this Court finds that such evidence regarding Barton would
have had “an isolated, trivial effect.”
As for Valerie James, the jury heard about the incident between her and Miller.
Witness testimony established that Miller either fell or James struck Miller with her car.
(Doc. 175 at 25, 61; PageID. 828, 864). The Government also published a video,
Government’s Exhibit 29, that showed Miller reaching into James’s vehicle and Miller then
on the ground. (Id. at 34; PageID. 836). The jury heard about this part of the incident but still
convicted Miller. Miller cannot show prejudice arising from the failure of her counsel to elicit
testimony that James was not charge criminally in connection with the incident at Subway.
Finally, Miller has not demonstrated ineffective assistance of counsel with respect
to witnesses she claims were at the crime scene and were not called to testify. (See Doc.
184-1 at 2, 4; PageID. 1781, 1783). As the Eleventh Circuit has explained, “[w]hich
witnesses, if any, to call, and when to call them, is the epitome of a strategic decision, and it
is one that we will seldom, if ever, second guess.” Waters v. Thomas, 46 F.3d 1506, 1512
(11th Cir. 1995). As discussed above, this Court must adhere to a strong presumption that
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counsel’s conduct was within the range of reasonable professional assistance. See
Strickland, 446 U.S. at 689. To prevail, “[t]he testimony of a putative witness must
generally be presented in the form of actual testimony by the witness or on affidavit. A
defendant cannot simply state that the testimony would have been favorable; self-serving
speculation will not sustain an ineffective assistance of counsel claim.” Estiven v. Sec’y,
Dept. of Corrections, 2017 WL 6606915, *4 (11th Cir. Sept. 28, 2017); see also Gilreath v.
Head, 234 F.3d 547, 552 n.12 (11th Cir. 2000) (citing Horsley v. State of Ala., 45 F.3d 1486,
1494-95 (11th Cir. 1995)) (petitioner must show the witness was available and willing to
testify at trial).
Miller specifically cites trial counsel’s failure to call Chad Darby and Detective Wallace.
(Docs. 184-1 at 2; 184-2 at 3). However, her claim is insufficient in that she fails to allege
whether these individuals were available and willing to testify or what their testimonies would
have been. Indeed, James testified that Darby refused to return to the Subway to make a
report to the police and that he was incarcerated at the time of the trial. (Doc. 175 at 44-46;
PageID. 847-49). The Court cannot presume that Detective Wallace’s testimony would have
been favorable to Miller, either.
Based on the foregoing and the applicable standard, the Court finds that Miller has
failed to meet her burden of showing that counsel’s performance was deficient or that she
suffered prejudice as a result thereof because of counsel’s failure to call certain witnesses.
See Dees v. United States, 789 F.2d 1521, 1522 (11th Cir. 1986) (no prejudice shown when
defendant failed to offer content of witness’s purported testimony); Bettis v. United States,
Civ. A. No. 10-0298-CG-M, 2010 WL 4064984, at *2 (S.D. Ala. Sept. 8, 2010), report and
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recommendation adopted, Civ. A. No. 10-0298-CG-M, 2010 WL 4063165 (S.D. Ala. Oct. 14,
2010) (indicating that movant must to identify the witness and/or the testimony they would
have given to prevail on an ineffective assistance of counsel claim); United States v. Phillips,
No. CIV.00-0081AHM, 2000 WL 360300, at *2 (S.D. Ala. Mar. 30, 2000) (movant’s failure to
identify substance of potential witnesses’ testimony or how they would have assisted defense
prevented movant from showing the requisite prejudice).
Because Miller cannot show that she was prejudiced by her counsel’s alleged ineffective
assistance of counsel, she cannot prevail on this claim.
E. Failure to Conduct Photo Lineup
Finally, Miller claims that law enforcement failed to conduct a proper lineup. (Doc.
184 at 9; PageID. 1775). She seemingly basis this claim on her allegation that Kim Barton
was “never shown a six-pack of pictures” that included Miller and individuals who were
similar to Miller who were dressed the same way. (Doc. 184-1 at 2, 3; PageID. 1781-82).
Miller does not identify a constitutional error arising from this allegation; rather she seems
to relate it to her insufficiency of the evidence argument. However, regardless of whether
this error could be properly cognizable under § 2255, Miller has procedurally defaulted this
claim by failing to raise it in the district court or in her direct appeal. Lynn, 365 F.3d at 1234.
She has not alleged or established an exception to excuse her procedural default. Id.
Morevover, even if the Court were to consider her claim on the merits, any error in the
failure to conduct a photo lineup was harmless. See Brecht v. Abrahamson, 507 U.S. 619, 638
(1993); Ross v. United States, 289 F.3d 677, 682 (11th Cir. 2002). As determined by the
Eleventh Circuit on appeal, the government presented sufficient evidence supporting Miller’s
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guilt, including an eyewitness identification of Miller as the shooter. Thus, Miller cannot show
error based on the failure to conduct a particular form of identification of the accused that “had
substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S.
at 637.
As with the preceding claims, habeas relief on this ground is also due to be denied.
F. Certificate of Appealability
The Magistrate Judge recommends that the Court deny Miller’s motion to vacate,
set aside or correct his sentence under 28 U.S.C. § 2255. Moreover, pursuant to Rule
11(a) of the Rules Governing § 2255 Proceedings, the undersigned recommends that a
certificate of appealability in this case be denied. 28 U.S.C. foll. § 2255, Rule 11(a)
(“The district court must issue or deny a certificate of appealability when it enters a final
order adverse to the applicant.”). The habeas corpus statute makes clear that an
applicant is entitled to appeal a district court’s denial of his habeas corpus petition only
where a circuit justice or judge issues a certificate of appealability. 28 U.S.C. §
2253(c)(1). A certificate of appealability may issue only where “the applicant has made
a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2243(c)(2).
Where a habeas petition is being denied on procedural grounds without reaching the
merits of an underlying constitutional claim, “a COA should issue [only] when the
prisoner shows . . . that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). As discussed above, some of Miller’s claims were
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procedurally defaulted. Under the circumstances, a reasonable jurist could not conclude
that this Court is in error in invoking this procedural bar with respect to those claims.
See Slack, 529 U.S. at 484 (“Where a plain procedural bar is present and the district
court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude
either that the district court erred in dismissing the petition or that the petitioner should
be allowed to proceed further.”). The instant habeas petition is also being denied on the
merits of the alleged constitutional claim, such that a COA should issue only when the
petitioner demonstrates “that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529
U.S. 473, 484 (2000); see also Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (“Under
the controlling standard, a petitioner must ‘sho[w] that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were “adequate to deserve
encouragement to proceed further.”’”). In this case, a reasonable jurist could not
conclude that this Court is in error for denying Miller’s motion to vacate, nor could a
reasonable jurist conclude that Miller should be allowed to proceed further with respect
to her constitutional claims. Accordingly, Miller is not entitled to a certificate of
appealability.
Rule 11(a) further provides: “Before entering the final order, the court may direct
the parties to submit arguments on whether a certificate should issue.” If there is an
objection to this recommendation by either party, that party may bring this argument to
the attention of the district judge in the objections permitted to this report and
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recommendation. Brightwell v. Patterson, CA 11-0165-WS-C, Doc. 14 (Eleventh Circuit
order denying petitioner’s motions for a COA and to appeal IFP in a case in which this
Court set out the foregoing procedure); see also Castrejon v. United States, 2011 WL
3241817, *20 (S.D. Ala. Jun. 28, 2011) (providing for the same procedure), report and
recommendation adopted, 2011 WL 3241580 (S.D. Ala. Jul. 29, 2011); Griffin v.
DeRosa, 2010 WL 3943702, at *4 (N.D. Fla. Sept. 20, 2010) (providing for same
procedure), report and recommendation adopted sub nom. Griffin v. Butterworth, 2010
WL 3943699 (N.D.Fla. Oct. 5, 2010).
CONCLUSION
The undersigned Magistrate Judge is of the opinion that Miller’s rights were not
violated in this cause and that her request to vacate, set aside or correct her sentence
(Doc. 184) should be DENIED. Petitioner is not entitled to a certificate of appealability
and, therefore, she is not entitled to appeal in forma pauperis.
NOTICE OF RIGHT TO FILE OBJECTIONS
A copy of this report and recommendation shall be served on all parties in the
manner provided by law. Any party who objects to this recommendation or anything in it
must, within fourteen (14) days of the date of service of this document, file specific
written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
72(b); S.D. Ala. GenLR 72(c)(1) & (2). The parties should note that under Eleventh
Circuit Rule 3-1, “[a] party failing to object to a magistrate judge’s findings or
recommendations contained in a report and recommendation in accordance with the
provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district
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court’s order based on unobjected-to factual and legal conclusions if the party was
informed of the time period for objecting and the consequences on appeal for failing to
object. In the absence of a proper objection, however, the court may review on appeal
for plain error if necessary in the interests of justice.” 11th Cir. R. 3-1. To be specific, an
objection must identify the specific finding or recommendation to which objection is
made, state the basis for the objection, and specify the place in the Magistrate Judge’s
report and recommendation where the disputed determination is found. An objection
that merely incorporates by reference or refers to the briefing before the Magistrate
Judge is not specific.
DONE this the 26th day of December, 2024.
s/P. Bradley Murray
UNITED STATES MAGISTRATE JUDGE
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