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Miller v. Litscher

United States District Court, W.D. Wisconsin

May 3, 2017

JON E. LITSCHER, [1]Respondent.


          WILLIAM M. CONLEY District Judge.

         In 2009, petitioner Anthony Todd Miller pleaded guilty to two counts of possession of child pornography in St. Croix County Case No. 08CF418. He was sentenced to five years of initial confinement followed by a ten-year term of extended supervision. Miller then filed and lost a direct appeal, as well as a subsequent motion for post-conviction relief under Wis.Stat. § 974.06. He now seeks a writ of habeas corpus under 28 U.S.C. § 2254, arguing that his guilty plea should be withdrawn for a variety of reasons. After the state filed an answer, along with records from the relevant state court proceedings, both parties submitted briefing, making the petition ripe for decision. For the reasons set forth below, the court concludes that Miller's petition is barred by the doctrine of procedural default. Accordingly, his petition will be denied.


         In St. Croix County Case No. 08CF418, Miller was charged with two counts of possessing child pornography. The “probable cause” section of the original criminal complaint stated that Miller's residence was identified during an investigation of child pornography by the United States Immigration and Customs Enforcement (“ICE”). In particular, computer analysis showed that someone at Miller's residence had traded images of child pornography with the subject of the ICE investigation. After the investigation of Miller's residence was referred to state authorities, a special agent was able to review chat logs and images of contacts between Miller's residence and the ICE subject, including 448 pictures. According to the criminal complaint, the pictures “consisted of depictions of naked pre-pubescent females whose genitalia were prominently displaced and the focal point of the pictures.” Additionally, “[m]any of the images depicted were of naked pre-pubescent females performing oral sex on naked males.” (See Crim. Cpt., dkt. #14-9, at 9.)

         The criminal complaint further states that special agents obtained a search warrant for Miller's residence and, during the execution of the search warrant, Miller “admitted that he had engaged in downloading and trading images of child pornography for approximately the past two years.” (Id. at 10.) Miller also admitted to searching “the internet for child pornography using selected specific search terms such as ‘pre-teen and pre-teen hardcore, '” and he estimated the age of the females depicted as “typically between 9 and 15 years of age.” Finally, the criminal complaint noted that Miller confirmed that the images of child pornography and the chat logs obtained by ICE agents during their investigation were consistent with his own recollection of communications he had with images he had displayed on his computer. (Id.)

         After he was arrested and charged, Miller filed a motion to suppress statements he made to the special agents during the execution of the search warrant. Before the court ruled on that motion, however, Miller entered a guilty plea to both counts.

         A plea hearing was held on June 18, 2009. The court first noted that the state had filed an amended information that morning, asking Miller whether he'd had the opportunity to review and sign the plea questionnaire and waiver of rights with his attorney. (See Trans. Plea Hrg., dkt. #12.) Miller responded in the affirmative.[3] Miller also acknowledged receiving a copy of the amended information and his understanding that it contained two counts for possession of child pornography. He next acknowledged his understanding that both felonies carried a 3-year minimum sentence, unless the judge made a finding that the public interest would be best served with a lesser sentence, and a maximum penalty of a $100, 000 fine and 25 years' imprisonment. Miller finally confirmed that he understood his right to a trial by jury, at which each element of the offenses would have to be proved beyond a reasonable doubt.

         Miller then pleaded guilty to both counts. (Id. at 16.) Miller went on to confirm that his pleas were voluntary; he understood he was giving up all of the rights set forth in the plea questionnaire; he knew the judge would likely order a presentence investigation before sentencing; and he understood the various sentencing options available to the judge. (Id. at 18-20.) Accordingly, the court accepted Miller's plea and found that the “report attached to the original complaint” contained “sufficient facts to find [him] guilty.” (Id. at 21.) At the same time, the court did not ask Miller whether he understood the elements of the charged offenses; whether he could explain them in his own words; or whether he had read or agreed with the facts in the criminal complaint. The court also did not ask the state to explain what it would have proven had the case gone to trial, and it did not ask Miller to explain, in his own words, his conduct that formed the basis of the offenses.

         On August 17, 2009, the circuit court sentenced Miller to serve a 15-year sentence, including 5 years of initial confinement followed by a 10-year term of extended supervision. On February 18, 2011, Miller filed a post-conviction motion through counsel, which sought a hearing and an order permitting withdrawal of his guilty pleas. The motion argued that the plea colloquy was defective because Miller was not told all of the elements of the offense of child pornography. More specifically, Miller claimed that at the time he pleaded guilty, he believed Wisconsin law prohibited any nude photos of minors, and he did not understand the legal definition of “sexually explicit conduct.” If he had known the legal definition of “sexually explicit conduct” required for the offense of possession of child pornography, Miller further claimed that would not have pleaded guilty because the state would have found nothing on his computers that included “sexually explicit conduct.” Miller also argued that his counsel was ineffective because she failed to explain that his guilty plea would waive his right to contest the admissibility of his statements. Alternatively, the motion sought resentencing on the grounds that the court relied on inaccurate information at sentencing.

         After a hearing, the circuit court issued a decision concluding that, although Miller had shown a defect in the plea colloquy, the state had shown that the plea was still knowing, intelligent and voluntary. The court also concluded that Miller's counsel was not ineffective, relying on counsel's testimony that her “usual practice” would have been to discuss with her client the elements of the offense by “printing out the relevant statute(s) and/or jury instructions for the charged crimes.” Based on counsel's testimony regarding her “usual practice, ” the court further concluded that counsel likely explained to Miller that he would be waiving his right to appeal the admissibility of the statements.

         On direct appeal, Miller, through counsel, renewed all of the grounds raised in his post-conviction motion. In particular, he argued that he was entitled to withdraw his guilty plea because: (1) it was not knowingly, voluntarily and intelligently given because he did not understand the elements of the offense at the time of his plea; and (2) his trial counsel was ineffective for failing to make clear that he was waiving his right to challenge admissibility of statements by pleading guilty before the trial court ruled on his motion to suppress. (See Petitioner's Appeal Br., dkt. #14-2.) He also raised challenges to the circuit court's sentencing decision.

         On August 14, 2012, the Wisconsin Court of Appeals rejected all of Miller's arguments and affirmed the conviction in an unpublished opinion. See State v. Miller, 2012 WI.App. 106, 344 Wis.2d 297, 821 N.W.2d 412. Miller did not file a petition for review with the Wisconsin Supreme Court.

         On December 26, 2012, Miller filed a pro se motion for post-conviction relief pursuant to § 974.06, asserting the following grounds for relief:

(1) no evidence exists, and none was introduced to support a conviction for the offense charged; (2) the failure of the court to establish a factual basis, on the record, thereby failing to meet the constitutional standard required; (3) an element was missing from the plea questionnaire and charging documents; (4) no waiver was obtained of my right to appeal, thus violating the Constitution; (5) the violation of my 6th Amendment right to a jury trial on the missing element; (6) the court was without jurisdiction to impose sentence because the complaint was void and filing of the complaint without sufficient evidence to support a conviction violates due process; (7) the infringement of my right against self-incrimination under the United States and Wisconsin Constitutions; (8) the search warrant issued by a court without ...

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