7th Circuit affirms COA sentence in split decision

The 7th Circuit Court of Appeals ruled in a split decision the Indiana Court of Appeals did not make any error in federal law when it upheld a man’s consecutive 40-year sentences for three convictions of child molestation.

The Indiana Court of Appeals affirmed Michael Miller’s sentence in 2004. Miller filed an application for post-conviction relief in 2013 saying his appellate counsel gave ineffective assistance by not challenging the length of his sentence. The COA said the attorney should have challenged the sentence, but the error was harmless as he would not have won anyway.

Miller then applied for a writ of habeas corpus in federal court, but it was denied. Miller appealed under 28 U.S.C. Section 2254, saying the COA’s decision was an unreasonable application of clearly established federal law.

Circuit Judge Frank Easterbrook wrote the decision for the majority and said the COA based its decision in 2013 on state law and not federal law. He said a federal court cannot disagree with a state court’s resolution of state law.

Miller contended his sentence was unreasonable because at his post-conviction relief hearing, the COA did look at decisions after 2004, which he contends gave shorter sentences and would have resulted in a shorter sentence for him. However, Easterbrook wrote that state courts have the power to decide when their laws and decisions apply retroactively, and it’s not up to the federal courts to determine that.

Eastern District Court of Wisconsin Judge Lynn Adelman, who was sitting on the court by designation, dissented in a 17-page opinion from Easterbrook’s 8-page decision. He wrote that Miller showed the COA decision was contrary to, or involved an unreasonable application of, clearly established federal law.

Adelman said just because the COA did not find Miller’s sentence was inappropriate doesn’t mean the sentence could not have been changed when deciding an ineffective assistance claim. Miller only needed to show “reasonable probability” that if it weren’t for his counsel’s errors, his sentence would have been less.

Adelman wrote Miller cited numerous cases in which Indiana appellate courts have changed sentences, and it could have happened in this one as well if not for his counsel. Also, Adelman wrote, the COA should have considered post-2003 cases, as Indiana law changed in 2003 making it easier for appellate court to revise sentences. Thus, Miller’s sentence could have been changed as well.

Adelman said the Indiana Supreme Court has ruled that each sentencing case must be judged on its own merits under Indiana Appellate Rule 7(B) and because of that, Miller’s should have been as well.

Finally, Adelman said while the COA did not have to look at post-2004 cases, it doesn’t mean the 7th Circuit couldn’t. He said it would have been prudent to point out that his lawyer should have noticed these cases and brought up the issue on appeal.

The case is Michael Miller v. Dushan Zateky, Superintendent, Pendleton Correctional Facility, 15-1869.