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Miller v. Foster

United States District Court, E.D. Wisconsin

March 28, 2018

BRIAN FOSTER, Warden, Waupun Correctional Institution, Respondent.


          LYNN ADELMAN District Judge

         Michael Miller petitions for a writ of habeas corpus under 28 U.S.C. § 2254.

         I. BACKGROUND

         In June 2003, Marques Messling was shot and killed while sitting inside a blue Chevy. Witnesses reported hearing the shots and seeing two African-American men with their arms extended into the car. After firing five to eight shots, the two men took off running, each with a gun in his hand. The state would eventually charge Miller and another man, Dominic Addison, with Messling's murder. Addison pleaded guilty. Miller proceeded to trial and was found guilty of first-degree intentional homicide while armed, as party to a crime. He was sentenced to life in prison with an extended-supervision eligibility date of February 2, 2054.

         A key component of the state's case against Miller was a statement he made to Detective Gilbert Hernandez during a custodial interrogation. In this statement, Miller admitted that he was a member of a gang known as the “Two-Nine Hard Heads, ” a gang that had wanted Messling killed. Miller also admitted that, at the time of the shooting, he was armed with a gun and was with Addison and other men in a car that other witnesses had tied to the homicide. Miller stated that he and Addison started to walk from their car to Messling's car. On the way to the car, Miller heard two gunshots and thought someone was shooting at him. Miller said that he pulled out his gun and began shooting at a blue Chevy. Once Miller emptied his weapon, he realized that he was shooting at the wrong car. He stated that it was Addison who fired at the correct blue Chevy and killed Messling. Miller stated that Addison later bragged about having been the one who actually shot and killed Messling.

         In his federal petition, Miller alleges that his trial counsel rendered ineffective assistance in failing to adequately challenge the admissibility of this statement. As discussed below, defense counsel did file a motion to suppress the statement. However, Miller alleges that defense counsel rendered ineffective assistance in two respects: (1) she did not argue that the statement should have been suppressed as the fruit of an illegal search, and (2) she did not consult with Miller before the suppression hearing and thus failed to learn that Miller would have testified that, before the interview, he told Detective Hernandez that he did not want to be interviewed without counsel present. Miller also alleges that his appellate counsel rendered ineffective assistance in failing to adequately present his ineffective-assistance-of-trial-counsel claims to the state courts during his direct appeal. To discuss these claims, I must first describe the procedural history of this case, which is long and complex.

         A. Circumstances Leading to Miller's Statement

         Shortly after Messling was killed, the police arrested Miller on an unrelated matter and interviewed him about the homicide. Miller made no incriminating statements during this interview and was released. However, six months later, the police executed what Miller describes as a “municipal warrant” for Miller's arrest. (Habeas Br. at 2, ECF No. 42.) The arrest occurred at 9:00 p.m. at the home of Golda Randolph, where Miller was staying as an overnight guest. The police did not have a search warrant for Randolph's residence, although they did have the arrest warrant for Miller. Still, they entered the home to arrest Miller. At some point, Randolph consented to a search of her residence, but Miller contends that she only consented to a search for weapons and that she did not consent to any search at all until after the police had already entered the residence and arrested him.

         Miller was detained at Randolph's residence for about ten minutes and did not make any incriminating statements during that time. He was then taken to the police station. At about 11:00 p.m., a pair of detectives interviewed Miller about Messling's murder. The detectives would later testify that they advised Miller of his Miranda rights and that Miller agreed to speak with them. Miller maintained his innocence throughout the interview. However, at about 1:00 p.m. the next day, Miller was interviewed by Detective Hernandez. It was during this interview, which lasted seven-and-a-half hours, that Miller gave the incriminating statement described above. After Hernandez secured this statement, the state charged Miller with Messling's murder.

         B. Motion to Suppress

          Prior to trial, defense counsel, Anne Bowe, filed a motion to suppress Miller's statement to Detective Hernandez. The trial court held what in Wisconsin is known as a “Miranda/Goodchild hearing” to determine whether the statement was obtained in violation of Miranda or was given involuntarily. See Miranda v. Arizona, 384 U.S. 436 (1966); State ex rel. Goodchild v. Burke, 27 Wis.2d 244 (1965).

         At the hearing, the various detectives who interviewed Miller during the course of the investigation into Messling's murder testified. Each detective testified that Miller was given Miranda warnings before each interview, that Miller did not invoke his right to counsel or right to remain silent, and that Miller agreed to speak to them without an attorney present. However, Detective Hernandez acknowledged that Miller mentioned something about having retained an attorney. (Tr. of Suppression Hr'g at 24.) Hernandez testified that when Miller said this, he advised him that he had a right to have the attorney present, but Miller said he wanted to talk without his lawyer present. (Id.) Hernandez also testified that it was his belief that the attorney in question, Michael Jackelen, represented Miller in connection with a different matter and not on the Messling homicide. (Id.) Hernandez also testified that after Miller gave his statement, Hernandez wrote up a summary and had Miller initial it at various spots. Miller initialed a paragraph that stated Miller waived his Miranda rights and agreed to speak to the detectives without his attorney present. (Id. at 25-28.) When the prosecutor asked Hernandez whether Miller “[a]t any time” invoked “any of his rights, ” including his right to remain silent, his “right to have a lawyer present, ” his “right to consult with a lawyer, ” or “anything like that, ” Hernandez answered “No.” (Id. at 27-28.)

         On cross-examination, defense counsel tried to establish that Detective Hernandez knew before the interview that Miller was represented by Attorney Jackelen. (Id. at 31.) However, Hernandez maintained that “[t]he first time [the issue regarding Miller's being represented by Jackelen] came up was when [Miller] was being advised [of his rights], ” at which point Miller indicated that “he did have a lawyer but also indicated that he didn't need him present.” (Id.)

         After the state presented its witnesses, the court asked whether the defense wished to call witnesses. Defense counsel responded: “No. I will just state for the record, that I am aware of the information about the lawyer. That I've discussed this with Mr. Miller. That his recollections are sufficiently similar to those of the witnesses that I do not need to-I did not think it's necessary to present additional information.” (Id. at 39.) When the trial court gave the parties an opportunity to present arguments based on the testimony, defense counsel declined and stated that the court should “rule based on the record.” (Id. at 41.)

         The trial court found Miller's statement admissible. (Id. at 41-46.) The court stated that it was “uncontroverted” that Miller received proper Miranda warnings and did not invoke his right to counsel or to remain silent. (Id. at 41-42.) The court also found that the statement was voluntary. (Id. at 42-46.)

         B. Postconviction Hearing

         After Miller was convicted, Miller's appellate counsel initiated a no-merit appeal. However, the Wisconsin Court of Appeals rejected the no-merit report and directed the public defender's office to appoint new counsel, at which time the public defender's office appointed Attorney Jeffrey Jensen. Jensen decided to advance claims that Attorney Bowe rendered ineffective assistance during the suppression hearing. In Wisconsin, to present such a claim on direct appeal, a defendant must first file a postconviction motion in the trial court. Jensen filed such a motion, alleging that trial counsel was ineffective in (1) not seeking suppression of the statement as the fruit of an illegal search of Randolph's residence, and (2) not having Miller testify at the suppression hearing that he invoked his right to counsel prior to giving his incriminating statement to Detective Hernandez. The trial court held a hearing on this motion, which is known as a “Machner hearing, ” at which both Miller and Bowe testified.

         Before the court heard the testimony of the witnesses, it and counsel discussed the issues to be addressed. Attorney Jensen began by identifying the two ineffective-assistance claims at issue, one based on the search of Randolph's residence and the other based on not having Miller testify at the suppression hearing. At this point, Jensen stated that he intended to introduce evidence showing that Miller had standing under the Fourth Amendment to challenge the search of Randolph's residence. The state responded that it would concede Miller had standing to challenge the search as an overnight guest, and that the police did not have a search warrant for Randolph's residence, even though they had a warrant for Miller's arrest. (Tr. of Machner Hr'g at 9, 11-12.) The state explained that it would argue that even if the search was illegal, the exclusionary rule would not apply to Miller's statement, which he did not give until the day after the search, when he was at the police station. (Id. at 10-11.) The state cited New York v. Harris, 495 U.S. 14 (1990), in support of that argument. The state argued that, in light of Harris, trial counsel could not have performed deficiently in failing to move to suppress the statement on Fourth Amendment grounds. Given the state's position, the court and Jensen agreed that there was no need to present evidence at the hearing concerning Miller's standing to challenge the search. Instead, the testimony would focus on whether the statement was attenuated from the search and whether trial counsel erred in not having Miller testify at the suppression hearing. (Id. at 12.)

         Miller was the first witness to testify. He testified that after he was arrested in Randolph's home, the police detained him at the scene for about ten minutes and then took him to the police station. Miller testified that while he was being “processed” at the station, he told an officer that he did not want to talk to any detectives and that he wanted his lawyer. (Id. at 15.) This officer escorted Miller to an interrogation room. When a detective entered the room, Miller immediately told him that he did not want to talk and that he wanted his lawyer. (Id. at 17, 20.) Miller testified that his lawyer at the time was Attorney Jackelen, who was representing him in connection with his status as a suspect in the Messling murder. (Id. at 18.) Miller testified that, despite his request to remain silent and ...

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