# Miller v. Warden Correctional Reception Center

> District Court, S.D. Ohio · May 28, 2020

URL: https://www.frixlaw.com/law-library/cases/10375583

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** May 28, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10375583

## How later opinions describe it (automated extraction)

- holding that AEDPA limits a federal habeas court to the record before the state court where a claim has been adjudicated on the merits by the state court

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

MICHAEL JASON MILLER, Case No. 1:18-cv-424
Petitioner,
Cole, J.
vs. Litkovitz, M.J.

WARDEN, CORRECTIONAL REPORT AND
RECEPTION CENTER, RECOMMENDATION
Respondent.

Petitioner, an inmate in state custody at the Correctional Reception Center in Orient,
Ohio, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This
matter is before the Court on the petition and respondent’s return of writ, to which petitioner has
not replied.1 (Doc. 1, 7).
0F
For the reasons stated below, the petitioner should be denied.
I. FACTUAL BACKGROUND
At petitioner’s April 30, 2015 guilty plea proceeding, the prosecution provided the
following summary of facts underlying petitioner’s plea:
MR. GMOSER: Yes, Your Honor. If Your Honor please, Mike Gmoser on behalf
of the State of Ohio. The evidence in this case establishes that on April the 18th,
2015, in Butler County in the City of Fairfield, in the early morning hours on that
date, sometime shortly after 9:00 in the morning, this defendant with knowledge of
Carol Boyd as an acquaintance of hers, a friend, if you will, went to her residence
at 3601 Woodridge, Apartment 8.

At that time, Carol Boyd was there under circumstances where she had prior
surgery to her rotator cuffs, bilaterally, meaning one on each side, and she also had
a hip surgery. As a result of those medical conditions, she had prescriptions for
pain medication, oxycodone. This was a factor that was known to this Defendant.

He went to that residence and thereupon struck Carol Boyd with an object, a lifting
weight of approximately ten pounds, often referred to as a dumbbell, and struck her

1 Petitioner was granted four extensions of time to file a response to the return of writ. (Docs. 9, 11, 13, 15). Most
recently, petitioner was granted an extension of time up to and including May 9, 2019 to file a response. (Doc. 15).
about the head twice, severely injuring Carol Boyd causing deep lacerations twice
to her skull, crushing her bone and vascular structures in her skull. Under
circumstances establishing thereby with respect to that blunt trauma, a purpose to
kill her.

Thereafter, he also proceeded to use a razor blade to slice into her wrist, lacerating
what is called the ulnar artery; the Court may be familiar from time to time with the
radial artery that’s also within the wrist artery, but the ulnar artery is also there;
causing blood to squirt from that, or spurt as it’s called forensically, from that
wound, indicating that she was likewise alive as a – at the time of that laceration,
and also establishing a purpose to kill her.

Also, the evidence would show that this was for the purpose of disguising the
injuries that he had caused to make this appear to be a suicide as opposed to a
purposefully [sic] killing.

The evidence would also establish – it does establish, Your Honor, that the purpose
to commit those assaults resulting in the purposeful death of this lady, was to take
from her her prescription medication, oxycodone, which he did. And after leaving
the residence and proceeding to lock the door behind him, in furtherance of that
presumptive suicide, he then took various items that he had removed from the
residence and deposited those in other places, five in all, to further disguise his
conduct.

The evidence will show that when he was arrested as a result of the investigative
efforts of police officers that I will call detectives from the City of Fairfield, and as
a result of their efforts, they were able to determine that this Defendant had been at
that residence. He was questioned and admitted that he had been there, and in
further discussions with him and observations that he had blood upon his person,
this Defendant acknowledged that he was, after all, the person that had done the
acts to which I have just described with respect to Carol Boyd.

(Doc. 6-1, Trans. at PageID 248–250).2
1F

II. PROCEDURAL HISTORY
State Trial Proceedings
On April 28, 2015, petitioner, with the assistance of counsel, and the State entered into a
Settlement Agreement. (Doc. 6, Ex. 1). According to the terms of the agreement, petitioner

2 During the recitation of facts, it was also noted that “the pills were recovered in a dumpster in one of the locations
that Mr. Miller showed the police officers that, and so – and there was – and other than blood on his person, there
was blood in his car, and a matching dumbbell weight was found at his residence . . . .” (Id. at PageID 252).
agreed to plead guilty to Aggravated Murder upon the issuance of an indictment. Petitioner and
the State agreed to enter an agreed sentence of life imprisonment without parole. The State
agreed not to pursue the death penalty in the initial indictment, but reserved the right to re-
present the case to the grand jury if petitioner breached the agreement. The agreement stated that

“Defendant is entering this agreement voluntarily and on the advice of counsel; Defendant and
counsel believe this is the best course of action; Defendant is not under undue influence or under
the influence of any mind altering substances; and Defendant is competent to make this
decision.” (Id. at PageID 29). The agreement further stated that petitioner “had frank, in-depth
discussions regarding this case, encompassing all facts known to them (including Defendant’s
confession) and possible outcomes,” before entering into the agreement. (Id. at PageID 30).
Finally, the agreement specified that the document—signed by petitioner, his two attorneys, and
the State—encompassed the entirety of the agreement and that no other representations or
promises had been made to petitioner.
The following day, on April 29, 2015, the Butler County, Ohio grand jury returned a two-

count indictment charging petitioner with one count each of aggravated murder and aggravated
robbery. (Doc. 6, Ex. 2).
On April 30, 2015, petitioner entered into a plea agreement. (Doc. 6, Ex. 3). As set forth
in the Settlement Agreement, petitioner pled guilty to aggravated murder in exchange for an
agreed upon sentence of life in prison without the possibility of parole. On the same day, the
trial court conducted a plea hearing, accepted petitioner’s guilty plea, and sentenced petitioner to
the agreed sentence of life in prison without the possibility of parole. (Doc. 6, Ex. 4).
Petitioner did not appeal his conviction and sentence.
Post-Conviction Petition and Motion to Withdraw Guilty Plea
On October 27, 2015, petitioner, through counsel, filed a petition for post-conviction
relief pursuant to Ohio Rev. Code § 2953.21 and a motion to withdraw his guilty plea, with an
accompanying affidavit. (Doc. 6, Ex. 5, 6). Petitioner argued that his guilty plea was coerced

and involuntary. Specifically, petitioner claimed that he never read the plea agreement, his
attorney coerced him to enter the agreement, and that he was on drugs or going through
withdrawal at the time. (See id. at PageID 36–37).
On December 15, 2015, the trial court issued an entry and order dismissing relief and
denying petitioner’s motion to withdraw his plea. (Doc. 6, Ex. 8). The trial court found
petitioner’s affidavit to be self-serving and insufficient to rebut the trial record, which it found
“demonstrates a knowingly, intelligently, and voluntarily entered guilty plea.” (Id. at PageID
58).
Petitioner, through counsel, appealed the trial court’s judgment to the Ohio Court of
Appeals. (Doc. 6, Ex. 9). Petitioner raised the following single assignment of error:

The trial court erred by failing to hold an evidentiary hearing and failing to sustain
Mr. Miller’s motion to set aside and vacate the sentence and motion to withdraw
guilty plea.

(Doc. 6, Ex. 11 at PageID 76). The Ohio Court of Appeals affirmed the judgment of the trial
court by opinion issued October 17, 2016. (Doc. 6, Ex. 13).
Petitioner, through counsel, filed a notice of appeal to the Ohio Supreme Court. (Doc. 6,
Ex. 14). In his memorandum in support of jurisdiction, petitioner raised the following single
proposition of law:
The Twelfth District Court of Appeals denied Mr. Miller his right to due process of
law as guaranteed by the United States Constitution when it did not reverse the trial
court’s error in failing to hold an evidentiary hearing and failing to sustain Mr.
Miller’s motion to set aside and vacate the sentence and Motion to Withdraw the
Guilty Plea.

(Doc. 6, Ex. 15 at PageID 122). On June 21, 2017, the Ohio Supreme Court declined jurisdiction
over the appeal. (Doc. 6, Ex. 16).
Second Post-Conviction Petition
On October 16, 2017, petitioner, proceeding pro se, filed a second petition for post-
conviction relief. Petitioner asserted the following single ground for relief:
Miller’s conviction and sentence is voidable because Miller was denied the
effective assistance of counsel in violation of his rights under the Sixth Amendment
of the United States Constitution.

(Doc. 6, Ex. 18 at PageID 156). On November 14, 2017, the trial court denied the petition as
untimely and barred by the doctrine of res judicata. (Doc. 6, Ex. 20).
On April 20, 2018, petitioner filed a motion for leave to file a delayed appeal. (Doc. 6,
Ex. 22). On June 11, 2018, the Ohio Court of Appeals denied the motion as unnecessary. (Doc.
6, Ex. 23). The Ohio appeals court construed the motion as a timely filed notice of appeal. At
the time of the filing of respondent’s return of writ, the appeal remained pending. However, on
February 20, 2019, the Ohio Court of Appeals dismissed the appeal with prejudice for
petitioner’s failure to file an appellant’s brief.3
2F
Petitioner does not appear to have sought further review in the Ohio courts.
Federal Habeas Corpus

Petitioner filed the instant federal habeas corpus action on June 11, 2018. (See Doc. 1 at
PageID 15). Petitioner raises the following single ground for relief in the petition:
GROUND ONE: Mr. Miller was denied his sixth amendment right to the effective

3 Viewed at http://butlercountyclerk.org/ under Case No. CA2018-04-083. This Court may take judicial notice of
court records that are available online to members of the public. See Lynch v. Leis, 382 F.3d 642, 648 n.5 (6th Cir.
2004) (citing Lyons v. Stovall, 188 F.3d 327, 332 n.3 (6th Cir. 1999)).
assistance of counsel guaranteed him under the sixth amendment to the United
States Constitution.

Supporting Facts: Trial counsel coerced Miller to enter a plea agreement that was
not voluntary made and signing the agreement without reading it. Moreover,
counsel informed Miller that if he did not accept the plea that he could get the death
penalty and Miller was not presented with or shown any evidence or documentation
that he was actually charged with an offense carrying the death penalty.

(Doc. 1 at PageID 5).

Respondent has filed a return of writ in opposition to the petition. (Doc. 6). Respondent
contends that petitioner’s ground for relief is without merit.
As noted above, see supra n.1, although petitioner was granted four extensions of time to
file a reply to the return of writ, petitioner has not filed a response.
III. THE PETITION SHOULD BE DENIED
In this federal habeas case, the applicable standard of review governing the adjudication
of constitutional issues raised by petitioner to the state courts is set forth in 28 U.S.C. § 2254(d).
Under that provision, a writ of habeas corpus may not issue with respect to any claim adjudicated
on the merits by the state courts unless the adjudication either:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established federal law, as determined by the United States
Supreme Court; or

(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the state court proceeding.

28 U.S.C. § 2254(d).
“A decision is ‘contrary to’ clearly established federal law when ‘the state court arrives at
a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state
court decides a case differently than [the Supreme] Court has on a set of materially
indistinguishable facts.” Otte v. Houk, 654 F.3d 594, 599 (6th Cir. 2011) (quoting Williams v.
Taylor, 529 U.S. 362, 412–13 (2000)). “A state court’s adjudication only results in an
‘unreasonable application’ of clearly established federal law when ‘the state court identifies the
correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies
that principle to the facts of the prisoner’s case.’” Id. at 599–600 (quoting Williams, 529 U.S. at

413).
The statutory standard, established when the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA) was enacted, is a difficult one for habeas petitioners to meet. Id. at 600.
As the Sixth Circuit explained in Otte:
Indeed, the Supreme Court has been increasingly vigorous in enforcing AEDPA’s
standards. See, e.g., Cullen v. Pinholster, U.S. , 131 S.Ct. 1388, 1398, 179
L.Ed.2d 557 (2011) (holding that AEDPA limits a federal habeas court to the record
before the state court where a claim has been adjudicated on the merits by the state
court). It is not enough for us to determine that the state court’s determination is
incorrect; to grant the writ under this clause, we must hold that the state court’s
determination is unreasonable. . . . This is a “substantially higher threshold.”. . .
To warrant AEDPA deference, a state court’s “decision on the merits” does not
have to give any explanation for its results, Harrington v. Richter, U.S. , 131
S.Ct. 770, 784, 178 L.Ed.2d 624 (2011), nor does it need to cite the relevant
Supreme Court cases, as long as “neither the reasoning nor the result of the state-
court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362,
154 L.Ed.2d 263 (2002) (per curiam).

Id. (emphasis in original). The Supreme Court extended its ruling in Harrington to hold that
when a state court rules against a defendant in an opinion that “addresses some issues but does
not expressly address the federal claim in question,” the federal habeas court must presume,
subject to rebuttal, that the federal claim was “adjudicated on the merits” and thus subject to the
“restrictive standard of review” set out in § 2254(d). See Johnson v. Williams, 568 U.S. 289, 292
(2013).
Although the standard is difficult to meet, § 2254(d) “stops short of imposing a complete
bar on federal court relitigation of claims already rejected in state proceedings” and “preserves
authority to issue the writ in cases where there is no possibility fairminded jurists could disagree
that the state court’s decision conflicts with [Supreme Court] precedents.” Harrington v.
Richter, 562 U.S. 86, 102 (2011). In other words, to obtain federal habeas relief under that
provision, the state prisoner must show that the state court ruling on the claim presented “was so

lacking in justification that there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” Id. at 103.
The Supreme Court has made it clear that in assessing the merits of a constitutional claim
under § 2254(d), the federal habeas court must apply the Supreme Court precedents that
controlled at the time of the last state-court adjudication on the merits, as opposed to when the
conviction became “final.” Greene v. Fisher, 565 U.S. 34, 38–40 (2011); cf. Otte, 654 F.3d at
600 (citing Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003)) (in evaluating the merits of a claim
addressed by the state courts, the federal habeas court must “look to Supreme Court cases
already decided at the time the state court made its decision”). In Greene, 565 U.S. at 38, the
Court explained:

[W]e held last term in Cullen v. Pinholster, 563 U.S. , 131 S.Ct. 1388, 179 L.Ed.2d
557 (2011), that review under § 2254(d)(1) is limited to the record that was before
the state court that adjudicated the prisoner’s claim on the merits. We said that the
provision’s “backward-looking language requires an examination of the state-court
decision at the time it was made.” Id., at , 131 S.Ct. at 1398. The reasoning of
Cullen determines the result here. As we explained, § 2254(d)(1) requires federal
courts to “focu[s] on what a state court knew and did,” and to measure state-court
decisions as of ‘the time the state court renders its decision.’” Id., at , 131 S.Ct.
at 1399 (quoting Lockyer v. Andrade, 538 U.S. [at] 71-72 . . .; emphasis added).

Decisions by lower courts are relevant “to the extent [they] already reviewed and
interpreted the relevant Supreme Court case law to determine whether a legal principle or right
had been clearly established by the Supreme Court.” Otte, 654 F.3d at 600 (quoting Landrum v.
Mitchell, 625 F.3d 905, 914 (6th Cir. 2010)). The writ may issue only if the application of
clearly-established federal law is objectively unreasonable “in light of the holdings, as opposed
to the dicta, of the Supreme Court’s decisions as of the time of the relevant state court decision.”
McGhee v. Yukins, 229 F.3d 506, 510 (6th Cir. 2000) (citing Williams, 529 U.S. at 412).
In this case, petitioner argues that he received the ineffective assistance of trial counsel

because he claims that counsel coerced him to enter the plea agreement. Petitioner further
argues that the plea agreement was not voluntarily entered because he did not read it and that
counsel informed him that he could get the death penalty if he did not accept it. According to
petitioner, he was not shown any evidence that he was actually charged with an offense carrying
the death penalty. (Doc. 1, p. 5).
The Fourteenth Amendment’s Due Process Clause guarantees that a guilty plea must be
made voluntarily and intelligently with sufficient awareness of the relevant circumstances and
likely consequences. Boykin v. Alabama, 395 U.S. 238, 242 (1968); see also Brady v. U.S., 397
U.S. 742, 748 (1970); King v. Dutton, 17 F.3d 151, 153 (6th Cir. 1994). “[A] plea does not
qualify as intelligent unless a criminal defendant first receives ‘real notice of the true nature of

the charge against him, the first and most universally recognized requirement of due process.’”
Bousley v. United States, 523 U.S. 614, 618 (1998) (quoting Smith v. O’Grady, 312 U.S. 329,
334 (1941)). In Brady, the Supreme Court adopted the following standard for determining the
voluntariness of a guilty plea:
[A] plea of guilty entered by one fully aware of the direct consequences, including
the actual value of any commitments made to him by the court, prosecutor, or his
own counsel, must stand unless induced by threats (or promises to discontinue
improper harassment), misrepresentation (including unfulfilled or unfulfillable
promises), or perhaps by promises that are by their nature improper as having no
proper relationship to the prosecutor’s business (e.g. bribes).

Brady, 397 U.S. at 755 (quoting Shelton v. United States, 246 F.2d 571, 572 n.2 (5th Cir. 1957)
(en banc), rev’d on other grounds, 356 U.S. 26 (1958)). The voluntariness of a guilty plea must
be assessed in light of all the relevant circumstances surrounding the plea. Brady, 397 U.S. at
749; King, 17 F.3d at 153 (and cases cited therein).
For a guilty plea to be deemed voluntarily entered with a “sufficient awareness of the
relevant circumstances and likely consequences,” the defendant must be correctly informed of

the maximum sentence that could be imposed. King, 17 F.3d at 154; Hart v. Marion Corr.
Instit., 927 F.2d 256, 259 (6th Cir. 1991). Although the defendant must be apprised of such
“direct consequences” of the plea, the court is under no constitutional obligation to inform the
defendant of all the possible “collateral consequences” of the plea. King, 17 F.3d at 153; see
also El-Nobani v. United States, 287 F.3d 417, 421 (6th Cir. 2002). “When a defendant
subsequently brings a federal habeas petition challenging his plea, the state generally satisfies its
burden by producing a transcript of the state court proceeding.” Garcia v. Johnson, 991 F.2d
324, 326 (6th Cir. 1993). As the Supreme Court noted in Blackledge v. Allison, 431 U.S. 63
(1977):
[T]he representations of the defendant, his lawyer, and the prosecutor at [the guilty
plea hearing], as well as any findings made by the judge accepting the plea,
constitute a formidable barrier in any subsequent collateral proceedings. Solemn
declarations in open court carry a strong presumption of verity. The subsequent
presentation of conclusory allegations unsupported by specifics is subject to
summary dismissal, as are contentions that in the face of the record are wholly
incredible.

Id. at 73-74 (internal citations omitted).
To establish ineffective assistance of counsel, petitioner must demonstrate both (1) his
trial attorneys’ conduct was constitutionally deficient; and (2) counsels’ deficient performance
prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Under the first
prong of the Strickland test, it must be shown that counsels’ representation fell below an
objective standard of reasonableness based on all the circumstances surrounding the case. Id. at
688. In determining whether or not counsels’ performance was deficient, the Court must indulge
a strong presumption that the challenged conduct fell within the wide range of reasonable
professional assistance. Id. at 689. Under the second “prejudice” prong of the Strickland test,
petitioner must demonstrate that a “reasonable probability” exists that, but for his counsels’

errors, the outcome of the trial would have been different. See id. at 694. Petitioner has met his
burden if he shows that the result of the trial would “reasonably likely have been different absent
the errors.” Id. at 695. In the context of a guilty plea, “in order to satisfy the ‘prejudice’
requirement, the defendant must show that there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and insisted on going to trial.” Hill v.
Lockhart, 474 U.S. 52, 59 (1985).
In the instant case, petitioner challenged the voluntariness of his guilty plea in light of the
alleged ineffectiveness of his trial counsel in his October 27, 2015 petition for post-conviction
relief and motion to withdraw his guilty plea. (See Doc. 6, Ex. 5). In denying petitioner relief,
the trial court found petitioner’s supporting affidavit to be self-serving and insufficient to rebut

the record, which it found demonstrated a knowingly, intelligently, and voluntarily entered guilty
plea:
The record establishes that on April 18, 2015, Carol Boyd was murdered. Petitioner
Miller was arrested the next day under suspicion of having murdered Ms. Boyd.
On April 29, 2015, Petitioner Miller was formally indicted with having committed
the offenses of Aggravated Murder and Aggravated Robbery. On April 30, 2015,
Petitioner Miller was brought before this Court. At this initial hearing, Petitioner
Miller was represented by two privately retained defense counsel, Attorney Richard
Hyde and Attorney John Holcomb, Jr.

During the hearing, Petitioner Miller was arraigned in compliance with Crim.R. 10.
It was then brought forth that the State of Ohio and Petitioner Miller had mutually
agreed to a negotiated plea and sentence. The details of the negotiated plea were
represented to the Court by the parties as follows: (1) Petitioner Miller would plead
guilty to the Aggravated Murder charge; (2) the Aggravated Robbery charge would
be dismissed; and (3) all parties would agree to a Life Without The Possibility of
Parole sentence, pursuant to R.C. 2953.08.

Upon being formally advised of the negotiated plea agreement, and before
beginning its Crim.R. 11 plea colloquy, this Court conducted a voir dire of counsel
for Petitioner and the Petitioner himself as to the decision making process that was
undertaken to arrive at his plea. The questions to the attorneys included whether
they’ve had the opportunity to consult with Petitioner Miller about this matter prior
to the hearing; whether they were entering into this plea agreement with the State
of Ohio after fulfilling their duties as effective advocates on behalf of Petitioner
Miller; and whether they had any questions concerning Petitioner Miller’s
competency.

In response to these questions, Attorney Hyde indicated that he believed he had
been effective in his representation of Petitioner Miller. Attorney Hyde explained
to the Court that he had worked on this case every day, that he had obtained
discovery, had gone over the discovery in detail, that the Fairfield Police
Department and the Prosecutor’s Office were forthcoming with discovery, that he
had gone through the discovery with Petitioner Miller, that he had gone through
some of the video statements with Petitioner Miller’s family, that he had met with
Petitioner Miller numerous times, and that he believed this to be the best course of
action for the Petitioner Miller. Additionally, when Attorney Holcomb was asked,
he agreed with all representations made by Attorney Hyde concerning their joint
representation of Petitioner Miller.

The Court then asked Petitioner Miller a serious of questions. These questions
included:

Whether he had enough time to consult with his attorneys in this case?

Whether he had frank discussions with his attorneys about this decision?

Whether he had reviewed the discovery, indictment, and other legal
documents with his attorneys?

Whether he believed that this was the best course of action for him?

Whether he understood what a jointly recommended sentence was and its
ramifications?

Whether he was certain that this is how he wants to proceed?

Only upon hearing affirmative responses and legally proper affirmations to all of
these questions, did this Court then proceed into its usual Crim.R. 11 colloquy.

During the colloquy, Petitioner Miller indicated that he was not under the influence
of any drugs or alcohol which could be affecting his abilities to make decisions.
Petitioner further indicated that he had read, consulted with his attorneys, and was
able to ask his attorneys questions before signing the plea of guilty. Petitioner
Miller then answered in the affirmative that he had signed the plea form knowingly,
intelligently, and voluntarily.

Petitioner Miller also stated that no person had forced, threatened, coerced, or in
any way caused him to plead guilty. The Court then asked Petitioner Miller a
serious of three questions regarding his attorneys. From those questions Petitioner
Miller answered that he was satisfied with his counsel, did not believe there was
anything they could have done for him that they had not already done, and that they
were able to answer all of his questions about the legal proceedings.

What is more, after a statement of facts was read to Petitioner Miller, he
acknowledged that he had committed this offense. Finally, before formally asking
Petitioner Miller how he pleads, this Court asked him if he had any questions about
what was covered at the hearing, if he had any questions about things that were not
covered, and if he had any questions about the jury waiver and guilty plea form or
items inside of the form. After Petitioner Miller informed this Court that he did not
have any questions, this Court formally asked for, and accepted his guilty plea.

In the face of these counseled and recorded statements made in open Court,
Petitioner Miller now brings a post-conviction petition which claims, amongst other
things, that: (1) both of his privately retained defense counsel were ineffective; (2)
that Petitioner Miller signed the plea agreement without reading it; (3) that
Petitioner Miller was forced to sign the plea agreement; and that (4) Petitioner
Miller was never presented with any information indicating that any investigation,
research, or discovery had been done in his case.

. . .

Upon careful consideration of the Affidavit in support of the petition for pos-
conviction relief, and after having reviewed the record from the plea hearing, this
Court DENIES the petition.

Simply stated, the Court finds the Affidavit from Petitioner Miller to be a self-
serving Affidavit that cannot be accepted as an accurate representation of the facts
of this case. Rather, this Court finds that Petitioner Miller’s own self-serving
declarations are insufficient to rebut a record that clearly demonstrates a knowingly,
intelligently, and voluntarily entered guilty plea. This is especially true where both
defense counsel and Petitioner Miller were subject to voir dire by this Court before
the Court proceeded to engage Petitioner Miller in the plea colloquy.

During this voir dire, Defense Counsel thoroughly detailed to the Court the steps
they had undertaken in this case. Additionally, Petitioner Miller himself indicated
that he had enough time to consult with his attorneys prior to the hearing, that he
had frank discussions with his attorneys, that he had reviewed the discovery and
legal documents with his attorneys, that he believed that this was the best course of
action for him, and that he was certain that the plea was how he wanted to proceed.
Again, only after hearing all of this did this Court then move forward into the actual
Crim.R. 11 plea colloquy.

During the colloquy, Petitioner Miller answered all of this Court’s questions
properly, stated he was not under the influence of any drugs or medications, stated
that he was satisfied with []his counsel, that his counsel had done everything they
could for him, and stated that counsel had answered all of his questions.

Therefore, while the Petitioner argues that “based on the evidence of record, it is so
clear that the Mr. Miller unknowingly and unintelligently entered his guilty plea
that a denial of the instant motion would demonstrate an unreasonable, arbitrary,
and unconscionable attitude on the part of this Court”, this Court disagrees. What
is clear to the Court, is that the actual record of the in-court proceedings from April
30, 2015, defeats, contradicts and exposes Petitioner’s self-serving Affidavit as
incredible. This Court also finds that Petitioner only supported his petition with his
affidavit that belies the record.

(Doc. 6, Ex. 8 at PageID 57–59). On appeal, the Ohio Court of Appeals subsequently ruled that
the trial court did not err in determining that petitioner’s affidavit contradicted the actual record
and lacked credibility. (See Doc. 6, Ex. 13). The appeals court further found that petitioner
otherwise “failed to show there is a reasonable probability that he would have not otherwise pled
guilty but for any alleged errors.” (Id. at PageID 118).
Upon review of the entire record in this case, the undersigned finds that petitioner has
failed to demonstrate that the state courts’ adjudication of his claims was contrary to or an
unreasonable application of Supreme Court precedent. Petitioner seeks relief based on his claim
that counsel rendered ineffective assistance by coercing him into entering a guilty plea. As he
did in the state courts, petitioner contends that he signed the plea agreement without reading it,
that his attorneys coerced him, and that petitioner was never shown any evidence or
documentation that he was charged with an offense carrying the death penalty. (Doc. 1, at
PageID 5). However, as reasonably determined by the Ohio courts, the trial court record
demonstrates that petitioner’s guilty plea was voluntary, intelligent, and entered after being fully
informed of his constitutional rights.
Prior to petitioner’s plea colloquy, the trial court thoroughly examined petitioner and his
attorneys regarding petitioner’s decision to enter a guilty plea, including their discussions of the
case, review of discovery, and their belief that a guilty plea was the best course of action.4 (Doc.
3F
6-1, Trans. at PageID 240–243). Counsel for petitioner stated that they met with petitioner and
his family multiple times and that they had no questions about petitioner’s competency to enter
the plea.5 (Id. at PageID 241–42). Petitioner specifically affirmed that he had enough time to
4F
consult with counsel, that he had frank discussions with counsel, that he had the opportunity to
review the discovery, indictment, and other legal documents with his attorneys, that he
understood the ramifications of a jointly recommended sentence, that he believed it was the best
course of action, and that he was certain that was how he wanted to proceed. (Id. at PageID 243–
44).
During the plea colloquy, petitioner further stated that he was not under the influence of
any drugs or alcohol which could be affecting his decision, that he read the guilty plea before
signing it, and that he signed the plea form knowingly, intelligently, and voluntarily.6 (Id. at
5F

4 Counsel stated that they reviewed petitioner’s police interview for Miranda-warning issues or signs of coercion.
Although petitioner has argued that he was under the influence of drugs at the time of the police interview and suffering
from withdrawal symptoms when meeting with his attorneys (see Doc. 6, Ex. 6), counsel indicated that “Mr. Miller,
during the interview process, seemed to be coherent, was not slurring his words, was not in any way under the influence
of anything at the time, that we can tell, and so that is something that we look very hard at . . . and based on the
statements that were made by Mr. Miller and the investigations conducted by the police department, this is - - this
case is - - this is the best result in this case for Mr. Miller, in our opinion.” (Id. at PageID 241).

5 Counsel stated that “[e]very time I’ve met with Mr. Miller he is lucid, he’s well-spoken, he’s attended college, he
knows what he’s done. This is totally out of character for him, and when we get to the sentencing portion, we’ll
explain a little bit about that, but the - - he’s a[n] intelligent individual who fell on some personal issues of his own
which caused all this, in my opinion, but he’s been able to talk about all this, and we went through it.” (Id. at PageID
242).

6 Although petitioner does not raise the claim that he was going through withdrawal symptoms during the course of
entering his guilty plea in his habeas petition, in his post-conviction petition and appeal he argued that his plea was
involuntary on this basis. (See Doc. 6, Ex. 5 at PageID 41; Ex. 11 at PageID 84). However, counsel attested to
petitioner’s competency to enter the guilty plea (see supra n.5) and petitioner affirmed before entering the plea that
he was not suffering from any physical or mental disease, disability, or defect that would make it difficult for him to
PageID 245–47). With respect to his attorneys, petitioner affirmed that he was satisfied with
counsel, he did not believe there was anything else they could have done for him, and they were
able to answer all his questions about the legal proceedings. (Id. at PageID 246–48). Contrary to
petitioner’s claim that he was coerced into entering the plea, petitioner affirmed that no one had

threatened, coerced, or in any way caused him to plead guilty:
THE COURT: Okay. Has anyone in any way forced you, threatened you, coerced
you, or in any way caused you to come in here and plead guilty to aggravated
murder?

THE DEFENDANT: No.
(Id. at PageID 247).
The trial court reviewed with petitioner the charges against him and the underlying
statement of facts. (Id. at PageID 248). Petitioner affirmed that he understood the charges
against him, that the facts were a true representation of his conduct, and that a guilty plea
constitutes a complete admission of the allegations contained in the indictment. (Id. at PageID
252–53). The trial court further reviewed with petitioner the maximum penalties that he faced
under the plea agreement and the constitutional rights that he would waive by entering his guilty
plea. (Id. at PageID 253–57). Petitioner indicated that he understood that he had a right to a jury
trial, to call and compel witnesses to testify on his behalf, and to cross-examine adverse
witnesses, that he could not be forced to testify against himself, and that the state was required to
prove that he was guilty beyond a reasonable doubt. (Id. at PageID 254–57). Finally, after
having the opportunity to ask any questions and being advised of his constitutional rights,
petitioner affirmed that he was giving up these rights knowingly, intelligently, and voluntarily.
(Id. at PageID 257–58).

understand the proceedings. (Doc. 6-1, Trans. at PageID 245).
After review of the record in this case, the undersigned is convinced that the Ohio courts
reasonably determined that petitioner’s guilty plea was not the result of coercion from counsel or
otherwise involuntary. The record contradicts petitioner’s claims in the instant petition that trial
counsel coerced him into entering a guilty plea and he signed the agreement without reading it.

As noted above, petitioner specifically affirmed that he had read the guilty plea form and was not
coerced or otherwise forced into entering his guilty plea involuntarily.
Petitioner’s remaining claim that counsel was ineffective for failing to provide him with
“evidence or documentation that he was actually charged with an offense carrying the death
penalty” (Doc. 1 at PageID 5) is also without merit. Under Ohio law, the death penalty can be
imposed for aggravated murder where the offense “was committed for the purpose of escaping
detection, apprehension, trial, or punishment for another offense committed by the offender” or
the offense was committed in the course of committing an aggravated robbery. Ohio Rev. Code
§ 2929.04(A)(3), (7). In this case, the charges against petitioner included that petitioner killed
the victim during the course of an aggravated robbery. See § 2929.04(A)(7). Additionally, the

prosecution alleged that the victim was alive at the time petitioner cut her wrist and that he did so
“for the purpose of disguising the injuries that he had caused to make this appear to be a suicide.
. . .” (Doc. 6-1, Trans. at PageID 249–50). See § 2929.04(A)(3). As noted by the trial judge
before sentencing, “[t]he Court will note from my experience that clearly, this case could have, it
looks like contained multiple capital specifications, and that the agreement in this case in large
part . . . was made to avoid that.” (Doc. 6-1, Trans. at PageID 262).
Furthermore, as argued by respondent, that petitioner faced the death penalty was evident
from the settlement agreement, which specified that “the State of Ohio agrees not to pursue the
death penalty in the initial indictment” in exchange for petitioner pleading guilty to Aggravated
Murder at arraignment. (Doc. 6, Ex. 1). The agreement further indicated that if petitioner
breached the agreement that “the State of Ohio may re-present this case to the Butler County
Grand Jury for consideration of the death penalty.” (Id. at PageID 29).7
6F
Finally, to the extent that petitioner may contend—as he did in the state courts8 (see Doc.
7F
6, Ex. 18 at PageID154–55)—that the prosecution would have been unable to prove that he
committed an aggravated robbery at trial, petitioner affirmed that by virtue of entering his guilty
plea he was making a complete admission of guilt to the allegations contained in the indictment
and that he waived the right to have the prosecution prove his guilt on each element of the
offenses with which he was charged. (Doc. 6 at PageID 253–55).
Accordingly, petitioner has failed to demonstrate that the adjudication of his claims in the
state courts was contrary to or an unreasonable application of Supreme Court precedent. The
state courts reasonably determined that petitioner’s guilty plea was voluntary, intelligent, and
entered after being fully informed of his constitutional rights. Petitioner’s claims that his trial

7 Prior to petitioner entering his guilty plea, the prosecution noted that the death penalty was not pursued according to
the terms of the agreement: “I did not recommend the death penalty in furtherance of an agreement from this
Defendant and his counsel, and the grand jury and the family, the children of Carol Boyd, that in furtherance of an
agreement, taking the death penalty off the table, if you will, that this Defendant would immediately plead guilty to
aggravated murder with a sentence agreed to life without the possibility of parole and that was understood and agreed
by the family.” (Doc. 6 at PageID 251).

8 In his successive post-conviction petition, petitioner argued that there was not sufficient evidence to substantiate a
death penalty specification. Petitioner argued there was no evidence of pre-meditation or that he was committing any
other felony at that time. (See Doc. 6 at PageID 158). According to petitioner, “At a trial, Miller contends that there
is more than a reasonable probability that no reasonable trier of fact would have found him guilty of aggravated
murder.” (Id. at PageID 155). Similarly, in his first post-conviction petition, petitioner claimed that he did not rob
anyone, and the incident was not premeditated. (Doc. 6, Ex. 6 at PageID 41).

Although petitioner does not make the argument in his petition, he also argued that his counsel were ineffective for
failing to seek discovery or further investigating his case. (See Doc. 6, Ex. 6 at PageID 157). However, as noted at
the plea hearing, trial counsel stated that they conducted discovery and reviewed the evidence against petitioner with
him and his family. (Doc. 6, Trans. at PageID 240–43). Counsel reviewed the police interview for signs of coercion
as well as the evidence against petitioner, including his confession, blood found on his person and in his vehicle, a
matching dumbbell found at his residence, and the fact that petitioner showed police the location of the victim’s drugs.
(See id. at PageID 252). Based on the record before the Court and the substantial evidence against him, petitioner
has failed to demonstrate that the Ohio courts unreasonably determined that petitioner would not have pled guilty
absent any error on the part of his counsel. See Strickland, 466 U.S. at 694; Hill, 474 U.S. at 59.
counsel coerced him into entering into a plea agreement and that he signed the agreement
without reading it are refuted by the record. Because petitioner has otherwise failed to
demonstrate that his trial attorneys rendered ineffective assistance of counsel, petitioner is not
entitled to federal habeas relief on his single ground for relief.
IT IS THEREFORE RECOMMENDED THAT:
1. Petitioner’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1)
be DENIED with prejudice.
2. A certificate of appealability should not issue with respect to the claims alleged in the
petition, which have been addressed on the merits herein, because petitioner has not stated a
“viable claim of the denial of a constitutional right,” nor are the issues presented “adequate to
deserve encouragement to proceed further.” See Slack v. McDaniel, 529 U.S. 473, 475 (2000)
(citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). See also 28 U.S.C. § 2253(c); Fed.
R. App. P. 22(b).
3. With respect to any application by petitioner to proceed on appeal in forma pauperis,
the Court should certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting
this Report and Recommendation would not be taken in “good faith,” and, therefore, should
DENY petitioner leave to appeal in forma pauperis upon a showing of financial necessity. See
Fed. R. App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).

Date: _May 28, 2020 Harn Rethin
Karen L. Litkovitz
United States Magistrate Judge

19

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

MICHAEL JASON MILLER, Case No. 1:18-cv-424
Petitioner,
Cole, J.
vs. Litkovitz, M.J.

WARDEN, CORRECTIONAL
RECEPTION CENTER,
Respondent.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10375583. Public record. Not legal advice.