# Miller v. Zaken

> District Court, M.D. Pennsylvania · April 15, 2024

URL: https://www.frixlaw.com/law-library/cases/10414604

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** April 15, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RICKY L. MILLER, JR., :
Petitioner :
: No. 1:21-cv-02130
v. :
: (Judge Kane)
MICHAEL ZAKEN, et al., :
Respondents :

MEMORANDUM

Before the Court is a habeas corpus petition filed pursuant to 28 U.S.C. § 2254 through
which pro se Petitioner Ricky L. Miller, Jr. (“Miller”) challenges his 2012 conviction for first-
degree murder and resulting sentence of life in prison in the Cumberland County Court of
Common Pleas. The Court will deny the petition for writ of habeas corpus with prejudice.
I. BACKGROUND
The Superior Court of Pennsylvania (“the Superior Court”) has succinctly summarized
the relevant factual background of Miller’s conviction. See Commonwealth v. Miller, No. 1571
MDA 2012, 2014 WL 10980108, at *1 (Pa. Super. Ct. Feb. 19, 2014). In 2009, Miller was
married to Ashley Miller (“Ashley”), with whom he had three children. See id. After the couple
began to experience problems in their marriage, Miller asked Ashley to move out. See id.
Ashley and their three children did so, moving in with her parents. See id.
Prior to moving out, Ashley had begun a romantic relationship with the eventual victim,
Kenneth Geiger (“Geiger”), with whom she had had a prior romantic relationship. See id. After
Miller and Ashley separated, Ashley informed Miller that she was seeing Geiger, but did not
inform him that her relationship with Geiger had begun before she had moved out. See id.
Miller proceeded to send a series of threatening statements and text messages to Ashley and
Geiger, which included language such as “brains going everywhere,” “a dead man,” and “its
hunting season on Creekbend Drive,” which was a reference to Geiger’s home address. See id.
On July 20, 2009, Miller demanded that Ashley come to their house, at which point he
stated that he had found letters exchanged between Ashley and Geiger. See id. When Ashley

got to the house, she observed that Miller was burning her childhood and family photographs.
See id. Ashley obtained a temporary protection from abuse order against Miller. See id.
Around this time, Miller began to make statements to several individuals, including Ashley’s
parents and a friend of his, that he wanted to kill Geiger. See id.
Prior to the killing, Miller traveled approximately 75 miles from his home in Lancaster
County to Geiger’s place of employment in Cumberland County. See id. Miller did not find
Geiger there, but he obtained his work schedule from another employee. See id. Miller then
spent the night in his vehicle and followed Geiger after he was picked up by a coworker on his
way to work. See id. Geiger noticed Miller following them and alerted the coworker, who
maneuvered the vehicle behind Miller’s vehicle and avoided further confrontation. See id.

Geiger contacted the police, who told him not to have any contact with Miller. See id.
The night before the killing, Miller encountered Ashley and their children at a gas station
on their way back from a day spent at a bowling alley with Geiger. See id. at *2. Miller told
Ashley that he was on his way to Cumberland County to meet with police because Geiger had
gotten him in trouble. See id. Miller then stated, “[y]ou just wait and see. What I am about to
do will make headlines.” See id. The next day, Miller called Ashley and told her that he was
going to Geiger’s house. See id. Ashley tried to dissuade him from doing so. See id.
Ashley and the children picked up Geiger in her car on July 26, 2009, shopped for
groceries, and returned to Geiger’s house. See id. Ashley was in the driver’s seat, Geiger was in
the passenger seat, and the children were in car seats in the back of the car. See id. As they
approached Geiger’s house, Ashley noticed Miller waiting in a car by the house. See id. Miller
drove his car in front of Ashley’s car and approached the driver’s side window. See id. After
briefly speaking with Ashley, he reached into the car and shot Geiger in the head. See id. at *2,

9. Miller then told Ashley, “I told you never to f--- with me, you f-----g bitch,” and fled in his
car. See id. at *2 (alterations in original). Geiger died as a result of the gunshot.
Miller was arrested approximately 24 hours later, after which he stated to the police,
“[Geiger] should be dead. I shot him with a .45 Glock from like a foot or something.” See id. at
*3. Miller subsequently stated that he had almost killed Geiger while he was following the
victim to work. See id. Miller stated that he had pushed his hand past Ashley in an effort to not
hurt Ashley or the children when he shot Geiger and indicated that he was aware that the
children were in the car during the shooting. See id.
Miller was charged with homicide and reckless endangerment on July 27, 2009. See id.
The Commonwealth subsequently announced its intention to present aggravating circumstances

at sentencing, allowing the possibility that Miller could be sentenced to death if he was convicted
of first-degree murder. See id. Miller filed a pretrial motion on January 13, 2011, arguing, inter
alia, that Pennsylvania’s death penalty statute was unconstitutional. See id. The trial court
denied the motion on August 3, 2011. See id.
On July 19, 2012, Miller pleaded guilty to homicide generally, with the Commonwealth
agreeing not to pursue the death penalty and Miller agreeing to proceed to a degree-of-guilt
hearing pursuant to Pennsylvania Rule of Criminal Procedure 590(C).1 See id. The trial judge

1 Pennsylvania Rule of Criminal Procedure 590(C) provides that in cases where a defendant
pleads guilty to murder generally, the case proceeds to a degree-of-guilt hearing, which is to be
conducted the degree-of-guilt hearing on August 1–3, 2012. See id. The court found Miller
guilty of first-degree murder and sentenced him to life in prison without the possibility of parole.
See id.
Miller filed a direct appeal of his conviction and sentence to the Superior Court on

August 28, 2012, asserting: (1) that the trial court erred in concluding that Pennsylvania’s death
penalty statute is constitutional; and (2) that there was insufficient evidence to convict Miller of
first-degree murder instead of voluntary manslaughter. See id. at *3–4. The Superior Court
affirmed the conviction and sentence on February 19, 2014. See id. at *10. Miller filed a
petition for leave to appeal to the Pennsylvania Supreme Court, which was denied on September
18, 2014. See Commonwealth v. Miller, 99 A.3d 924 (Pa. 2014).
Miller filed a petition for state collateral relief pursuant to Pennsylvania’s Post-
Conviction Relief Act (“PCRA”) on September 17, 2015, asserting, inter alia, that: (1) the trial
court’s plea colloquy did not comply with Pennsylvania Rule of Criminal Procedure 590(C); (2)
counsel was ineffective for failing to properly advise Miller about the possibility of a jury

determining his degree of guilt; (3) Rule 590(C) violates the Pennsylvania and United States
Constitutions by allowing a judge rather than a jury to determine an element of an offense that
triggers a mandatory minimum sentence; and (4) counsel was ineffective in failing to call an
expert witness to testify to Miller’s mental state at the time of the killing. See generally
Commonwealth v. Miller, No. CP-21-CR-2605-2009, 2020 WL 8881135 (Cumberland Cnty. Ct.
of Com. Pl. June 12, 2020).

conducted by a jury “unless the attorney for the Commonwealth elects to have the judge, before
whom the plea was entered, alone determine the degree of guilt.” See Pa. R. Crim. P. 590(C).
The Court of Common Pleas conducted an evidentiary hearing on the PCRA petition on
October 25, 2017. (Doc. No. 10-28.) During the hearing, Miller testified that he agreed to plead
guilty to murder generally based on his understanding that the Commonwealth would no longer
pursue the death penalty if he did so. (Id. at 10.)2 He first learned of the possibility of a general

plea from his counsel. (Id.) Miller testified that, prior to pleading guilty, his counsel did not
discuss with him the possibility of a jury determining his degree of guilt. (Id. at 11.) Rather,
Miller’s understanding of degree-of-guilt hearings was that “they were done in front of a Judge
only” and that there was no option for a jury to conduct the hearing. (Id.) Miller testified that he
was “a little concerned” about facing a jury with a potential death penalty on the table and that he
had “second guesses” about such a situation. (Id. at 12.) Miller further testified that he worried
that a jury would be “less sympathetic,” that the prospect of a jury trial “bugged” him, and that
he did not have “good feelings” about a potential jury trial. (Id.) Miller recalled that, prior to his
plea hearing, nobody from the district attorney’s office had explained to him that there was a
possibility of a degree-of-guilt hearing being conducted by a jury. (Id. at 15.) Rather, Miller

“assumed” from what he heard about degree-of-guilt hearings that a judge conducting the
hearings was “just how they were done, period.” (Id.)
When asked to explain how the result of his plea hearing would have been different if he
had been advised of the possibility of a jury conducting a degree-of-guilt hearing, Miller testified
as follows:
Well, I would be more educated for one. I would have known that I could have
requested a jury at least. Whether it would have been granted, I don’t know. But,
I would have known for some reason the Commonwealth was electing not to have
a jury and had just had a Judge for some reason, but, you know, very well could

2 The Court cites the transcript of the PCRA hearing using the page numbers corresponding to
the ECF headings from this Court’s docket.
have raised red flags. I don’t know, there is -- just the fact of not knowing and
being informed.

(Id. at 17.) Miller testified that having his degree of guilt determined by a jury “absolutely”
could have changed the result of the degree-of-guilt hearing and stated that he was seeking a new
degree-of-guilt hearing before a jury rather than a judge. (Id. at 17–18.) Miller then confirmed
that the basis of his PCRA claim was that he did not knowingly waive his “right to have a jury
determine [his] degree of guilt,” and that he was “not asking the Judge to set aside the plea in its
entirety, only the proceedings that followed the plea.” (Id. at 18.) In other words, Miller
clarified, he was seeking “[t]he same thing, but in front of a jury.” (Id.) Miller subsequently
conceded, however, that the decision on whether to proceed by judge or jury in a degree-of-guilt
hearing pursuant to Pennsylvania Rule of Criminal Procedure 590(C) was left to the
Commonwealth’s discretion and that he did not have a right to have the hearing conducted by a
jury. (Id. at 35.)
Miller recalled that in preparation for his degree-of-guilt hearing, he had met with an
expert witness hired by his counsel, Dr. Hume, about his mental state at the time of the killing.
(Id. at 18–20.) Miller further testified that, prior to the degree-of-guilt hearing, he had spoken
with his counsel about presenting a defense that he had killed Geiger in a sudden and intense
passion in response to provocation by Geiger. (Id. at 21.) Miller understood that such a defense
would be part of his strategy during the hearing. (Id.)

The court additionally heard testimony from Miller’s counsel, Heidi Eakin (“Eakin” or
“counsel”). (Id. at 41.) Eakin testified that she advised Miller to plead guilty to murder
generally after reviewing incriminating letters he had written after killing Geiger. (Id. at 43.)
Eakin testified that “to say [the letters] were destructive to his defense is an understatement.”
(Id.) According to Eakin, the letters destroyed a theory of self-defense and “basically said this
was an assassination.” (Id.) Based on the content of the letters, Eakin was concerned that a jury
would return a death penalty for Miller. (Id. at 44.) Eakin testified that she could not remember
who first had the idea for Miller to plead guilty to murder generally, but noted that Miller “had
repeatedly expressed concerns about jury trials.” (Id. at 44–45.)

Eakin testified that, prior to the degree-of-guilt hearing, she and Miller never discussed
the possibility of a jury conducting the hearing. (Id. at 45.) Eakin noted that “the discussions
about [a] jury trial, and who was going to be in the courtroom, and his anxiety, was paramount
on his mind at times.” (Id.) Eakin summarized Miller’s thoughts during their discussions as “get
rid of that jury. I don’t want to be in front of a jury.” (Id.) Eakin did not “believe for a minute”
that Miller would have chosen to have a jury decide his degree of guilt if such a choice were
presented to him. (Id.) Eakin further testified that agreeing to go before a judge for a degree-of-
guilt hearing was “how we got the death penalty off the table.” (Id. at 47.) Eakin reiterated that
the “overwhelming gist” of Miller’s “concern” was “I do not want a jury involved.” (Id. at 48.)
“Ricky’s anxiety,” Eakin continued, “was a jury . . . and what they could do to him.” (Id. at 49.)

Eakin testified that she had reviewed Hume’s expert report in preparation for Miller’s
case and that it “did not support anything of a mental health defense, did not support diminished
capacity, and certainly didn’t support McNaughton [sic].”3 (Id. at 56.) Eakin testified that she
did not call Hume as an expert witness because she did not want to turn his report over to the
Commonwealth. (Id.) Eakin noted that the report contained statements made by Miller to Hume
that were “pretty not good for [Miller].” (Id.) Eakin noted that in the statements in question

3 Pennsylvania follows the M’Naghton test for legal insanity, which relieves a defendant of
criminal responsibility “if at the time of the committing (of) the act, the party accused was
labouring under such a defect of reason, from disease of the mind, as not to know the nature and
quality of the act he was doing, or if he did know it that he did not know [what] he was doing . . .
was wrong.” See Commonwealth v. Hicks, 396 A.2d 1183, 1185 (Pa. 1979).
Miller was “blasting the victim” and “blasting his wife” and that Eakin therefore made the
“tactical decision” not to call Hume as an expert witness to avoid disclosure of Hume’s report to
the Commonwealth. (Id. at 56–57.) Eakin noted that the only reason she saw to introduce
Hume’s report was to show statements by Miller that he saw a gun on Geiger’s person prior to

shooting him. (Id. at 58.) Eakin stated her belief that “the material that was not beneficial to
Ricky far outweighed the fact that we had him mentioning the gun” and that she had other
evidence that could be used to support the assertion that Geiger had a gun. (Id. at 59.)
On cross-examination Eakin confirmed her understanding that the plea agreement
between Miller and the Commonwealth was that the death penalty would no longer be pursued,
Miller would plead guilty to murder generally, and that a degree-of-guilt hearing would be
conducted in front of a judge. (Id. at 62–63.) Eakin testified that she was “absolutely” confident
that Miller understood the terms of this agreement prior to pleading guilty. (Id. at 63.)
The Court of Common Pleas denied the PCRA petition on June 12, 2020. See Miller,
2020 WL 8881135, at *7. Miller appealed to the Superior Court, which affirmed the denial of

the PCRA petition on May 26, 2021, holding, in relevant part, that Miller waived his challenge to
the constitutionality of Rule 590(C) by failing to raise the claim on direct appeal and that his
challenges to the adequacy of the plea colloquy and his counsel’s effectiveness failed on their
merits. See Commonwealth v. Miller, 255 A.3d 1277, No. 907 MDA 2020, 2021 WL 2138505,
at *2–8 (Pa. Super. Ct. May 26, 2021). Miller petitioned for allowance of appeal to the
Pennsylvania Supreme Court, which denied the petition on November 30, 2021. See
Commonwealth v. Miller, 268 A.3d 275 (Pa. 2021).
Miller filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on
December 7, 2021, and the Court received and docketed the petition on December 21, 2021.
(Doc. No. 1.) Miller asserts four claims for habeas corpus relief: (1) Pennsylvania Rule of
Criminal Procedure 590(C) violates the United States and Pennsylvania Constitutions by
allowing a judge, rather than a jury, to decide an element of an offense that triggers a mandatory
minimum sentence; (2) the trial court’s plea colloquy did not comply with Rule 590(C), which

constitutes a violation of Miller’s Fourteenth Amendment right to due process; (3) counsel was
ineffective by failing to advise Miller about the possibility of a jury determining his degree of
guilt and for failing to object to the defective plea colloquy; and (4) counsel was ineffective in
failing to present expert testimony regarding Miller’s mental state at the time of the killing. (Id.
at 7–21.)
Respondents responded to the petition on June 6, 2022. (Doc. Nos. 10, 10-1.)
Respondents argue that Miller’s claim challenging the constitutionality of Rule 590(C) and the
plea colloquy should be denied as procedurally defaulted because they were waived on direct
appeal, or, alternatively, that they should be denied on their merits. (Doc. No. 10-1 at 9–19.)
Respondents argue that the ineffective assistance of counsel claims should be denied on their

merits. (Id. at 19–28.) Miller filed a reply brief on November 25, 2022, and a supplemental
reply brief on April 13, 2023. (Doc. Nos. 18, 22.) Miller then filed a motion for leave to amend
his petition on November 14, 2023. (Doc. No. 24.)
II. LEGAL STANDARDS
A. Substantive Standard
Habeas corpus is an “extraordinary remedy” reserved for defendants who were
“grievously wronged” by criminal proceedings. See Calderon v. Coleman, 525 U.S. 141, 146
(1998). The exercise of restraint by a federal court in reviewing and granting habeas corpus
relief is appropriate due to considerations of comity and federalism. See Engle v. Isaac, 456 U.S.
107, 128 (1982). “The States possess primary authority for defining and enforcing the criminal
law. In criminal trials they also hold the initial responsibility for vindicating constitutional
rights. Federal intrusions into state criminal trials frustrate both the States’ sovereign power and
their good-faith attempts to honor constitutional law.” Id. States also have a recognized interest

in the finality of convictions that have survived direct review within the state court system. See
Brecht v. Abrahamson, 507 U.S. 619, 620 (1993).
A district court may entertain an application for a writ of habeas corpus filed by a person
in state custody “only on the ground that he is in custody in violation of the Constitution or laws
of the United States.” See 28 U.S.C. § 2254(a). If a claim presented in a Section 2254 petition
has been adjudicated on the merits in state court proceedings, the Anti-Terrorism and Effective
Death Penalty of 1996 (“AEDPA”) sets stringent limits on a federal court’s ability to issue a writ
of habeas corpus. Specifically, AEDPA states, in relevant part:
(d) An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; 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).
The standard for obtaining habeas corpus relief under AEDPA is “difficult to meet.” See
Mays v. Hines, 592 U.S. 385, 391 (2021) (quoting Harrington v. Richter, 562 U.S. 86, 102
(2021)). Federal habeas corpus relief is meant to guard against “extreme malfunctions in the
state criminal justice systems” and is not meant to substitute for “ordinary error correction
through appeal.” See Harrington, 562 U.S. at 102–03 (citing Jackson v. Virginia, 443 U.S. 307,
332 n.5 (1979) (Stevens, J. concurring in judgment)). “Federal habeas courts must defer to
reasonable state-court decisions,” see Dunn v. Reeves, 594 U.S. 731, 732 (2021), and may only
grant habeas corpus relief when the state court’s decision “was so lacking in justification” that its

error was “beyond any possibility for fair minded disagreement,” see Mays, 592 U.S. at 391
(quoting Harrington, 562 U.S. at 102).
B. Exhaustion and Procedural Default
Absent unusual circumstances, a federal court should not entertain a petition for writ of
habeas corpus, unless the petitioner has first satisfied the exhaustion requirement articulated in
28 U.S.C. § 2254(b). Under Section 2254(c), a petitioner will not be deemed to have exhausted
his available state remedies if he had the right under the law to raise, by any available procedure,
the question presented. See O’Sullivan v. Boerckel, 526 U.S. 838 (1999). A claim is exhausted
when it has been “fairly presented” to the state court. See Picard v. Connor, 404 U.S. 270, 275
(1971). To that end, the federal habeas claim “must be the substantial equivalent of that

presented to the state courts.” See Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). The
petition must present the claim “in a manner that puts [the respondents] on notice that a federal
claim is being asserted.” See Bronshtein v. Horn, 404 F.3d 700, 725 (3d Cir. 2005). “The
Supreme Court has instructed that a claim is not ‘fairly presented’ if the state court ‘must read
beyond a petition or brief . . . in order to find material’ that indicates the presence of a federal
claim.” Collins v. Sec’y of Pa. Dep’t of Corrs., 742 F.3d 528, 542 (3d Cir. 2014) (quoting
Baldwin v. Reese, 541 U.S. 27, 32 (2004)). Moreover, a habeas corpus petitioner has the burden
of proving the exhaustion of all available state remedies. See 28 U.S.C. § 2254. Overall, the
exhaustion requirement advances the goals of comity and federalism while reducing “piecemeal
litigation.” See Duncan v. Walker, 533 U.S. 167, 180 (2001).
“When a claim is not exhausted because it has not been ‘fairly presented’ to the state courts, but
procedural rules bar the applicant from seeking further relief in state courts, the exhaustion

requirement is satisfied because there is an absence of available State corrective process.”
McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999). Claims deemed exhausted because of
a state procedural bar are considered procedurally defaulted. See Lines v. Larkins, 208 F.3d 153,
159 (3d Cir. 2000). The district court then analyzes the claims under the procedural default
doctrine. See id. The purpose of this rule is to prevent habeas petitioners from avoiding the
exhaustion doctrine by defaulting their claims in state court. See Coleman v. Thompson, 501
U.S. 722, 732 (1991). In Cone v. Bell, 556 U.S. 449 (2009), the United States Supreme Court
explained:
It is well established that federal courts will not review questions of federal law
presented in a habeas petition when the state court’s decision rests upon a state-law
ground that is independent of the federal question and adequate to support the
judgment. In the context of federal habeas proceedings, the independent and
adequate state ground doctrine is designed to ensure that the State’s interest in
correcting their own mistakes is respected in all federal habeas cases. When a
petitioner fails to properly raise his federal claims in state court, he deprives the
State of an opportunity to address those claims in the first instance and frustrates
the State’s ability to honor his constitutional rights. Therefore, consistent with the
longstanding requirement that habeas petitioners must exhaust available state
remedies before seeking relief in federal court, we have held that when a petitioner
fails to raise his federal claims in compliance with relevant state procedural rules,
the state court’s refusal to adjudicate the claim ordinarily qualifies as an
independent and adequate state ground for denying federal review.

See id. at 465 (internal quotations and citations omitted).
However, habeas corpus review is not barred in every instance in which a state court
invokes a procedural rule to preclude its review of the federal claims asserted by a state prisoner.
A state procedural rule can preclude federal habeas corpus review “only when the state rule is
‘independent of the federal question [presented] and adequate to support the judgment.’” See
Levya v. Williams, 504 F.3d 357, 365 (3d Cir. 2007) (citing Nara v. Frank, 488 F.3d 187, 199
(3d Cir. 2007)). The requirements of independence and adequacy are distinct. See id. A rule is
“independent” if it is not dependent on any federal constitutional question, but “[a] state

procedural ground will not bar federal habeas relief if the state law ground is ‘so interwoven with
federal law’ that it cannot be said to be independent of the merits of a petitioner’s federal
claims.” See Johnson v. Pinchak, 392 F.3d 551, 557 (3d Cir. 2004). A rule is “adequate” if “it
was firmly established, readily ascertainable, and regularly followed at the time of the purported
default.” Levya, 504 F.3d at 366 (quoting Szuchon v. Lehman, 273 F.3d 299, 372 (3d Cir.
2001)).
A petitioner whose constitutional claims have not been addressed on the merits due to
procedural default can overcome the default, thereby allowing federal court review, if the
petitioner can demonstrate either: (1) “cause” for the default and “actual prejudice” as a result of
the alleged violation of federal law; or (2) that the failure to consider the claims will result in a

“fundamental miscarriage of justice.” See Coleman, 501 U.S. at 750. In order to show “cause
and prejudice” sufficient to overcome a state court default, a petitioner must demonstrate the
“cause” for his default and “prejudice” attributable thereto. See Werts v. Vaughn, 228 F.3d 178,
192 (3d Cir. 2000) (citing Harris v. Reed, 489 U.S. 255 (1989)). “[T]he existence of cause for a
procedural default must ordinarily turn on whether the prisoner can show that some objective
factor external to the defense impeded counsel’s efforts to comply with the State’s procedural
rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Under the “prejudice prong,” a petitioner
has the burden of showing “not merely that the errors at his trial created a possibility of
prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire
trial with error of constitutional dimensions.” See United States v. Frady, 456 U.S. 152, 170
(1982); see also Holland v. Horn, 519 F.3d 107, 112 (3d Cir. 2008).
To show “fundamental miscarriage of justice,” a petitioner must establish that “a
constitutional violation has probably resulted in the conviction of one who is actually innocent.”

See Schlup v. Delo, 513 U.S. 298, 326 (1995). Demonstrating actual innocence requires a
stronger showing than that needed to establish prejudice. See id. In Goldblum v. Klem, 510
F.3d 204 (3d Cir. 2007), the Third Circuit explained the applicable two-step inquiry as follows:
first, a “court must decide ‘whether the petitioner has presented new reliable evidence . . . not
presented at trial,” and second, if a petitioner “puts forth new evidence not considered by the
jury, a court asks ‘whether it is more likely than not that no reasonable juror would have
convicted him in light of the new evidence.’” See id. at 225 (citing Hummard v. Pinchak, 378
F.3d 333, 340 (3d Cir. 2004)). If a petitioner can establish cause and prejudice or a fundamental
miscarriage of justice, the Court excuses his default and reviews the merits of the claim
presented.

C. Standard for Claims Challenging Voluntariness of Guilty Plea
A writ of habeas corpus may properly issue if it is determined that a guilty plea was not
the result of “a knowing, and intelligent act done with sufficient awareness of the relevant
circumstances and likely consequences.” See Jamison v. Klem, 544 F.3d 266, 272 (3d Cir.
2008) (citing Boykin v. Alabama, 395 U.S. 238 (1969)). For a guilty plea to be knowing and
intelligent, a criminal defendant “must be of sound mind, understand the nature of the charges
and the direct penal consequences, and have the advice of competent counsel.” See United
States v. Yung, 37 F.4th 70, 81 (3d Cir. 2022). To be valid, a guilty plea must have been a
“voluntary and intelligent choice among the alternative courses of action open to the defendant.”
United States v. Jones, 336 F.3d 245, 253 (3d Cir. 2003). The voluntariness of a guilty plea “can
be determined only by considering all of the relevant circumstances surrounding it.” Brady v.
United States, 397 U.S. 742, 749 (1970). A guilty plea “cannot be truly voluntary unless the
defendant possesses an understanding of the law in relation to the facts.” McCarthy v. United

States, 394 U.S. 459, 466 (1969).
D. Standard for Ineffective Assistance of Counsel Claims
In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court
explained that there are two components to demonstrating a violation of the right to effective
assistance of counsel. First, the petitioner must show that counsel’s performance was deficient.
This requires showing that “counsel’s representation fell below an objective standard of
reasonableness.” See id. at 668; see also Williams v. Taylor, 529 U.S. 362, 390–91 (2000).
Second, under Strickland, the petitioner must show that he was prejudiced by the deficient
performance. “This requires showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. To

establish prejudice, the defendant “must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.” See
id. at 694. The Strickland test is conjunctive and a habeas petitioner must establish both the
deficiency in the performance prong and the prejudice prong. See id. at 687; Dooley v. Petsock,
816 F.2d 885, 889 (3d Cir. 1987).
The Strickland standard for ineffective assistance of counsel claims applies to actions by
counsel during plea negotiations. See Lafler v. Cooper, 566 U.S. 156, 162 (2012). In the context
of plea negotiations, counsel is required to give a defendant information sufficient “to make a
reasonably informed decision whether to accept a plea offer.” See Shotts v. Wetzel, 724 F.3d
364, 376 (3d Cir. 2013) (citing United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992)). To
establish prejudice for a claim of ineffective assistance of plea counsel, a petitioner “must show
the outcome of the plea process would have been different with competent advice.” See id.

(quoting Lafler, 566 U.S. at 163. The petitioner “can show prejudice by demonstrating a
‘reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.’” Lee v. United States, 582 U.S. 357, 364–65 (2017)
(quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).
When considering an ineffective assistance of counsel claim, the Court’s analysis is
“doubly deferential” when a state court has already decided that counsel’s performance was
adequate. See Dunn, 594 U.S. at 739. The Court must apply a high level of deference both to
counsel’s actions and to the state court’s determination that counsel’s actions were
constitutionally adequate. See id.; Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citing
Yarborough v. Gentry, 540 U.S. 1, 5–6 (2003)). The federal court may only grant habeas corpus

relief if “every ‘fairminded jurist’ would agree that every reasonable lawyer would have made a
different decision.” See id. at 2411 (emphasis in original) (quoting Harrington, 562 U.S. at 101).
III. DISCUSSION
At the outset, the Court will address Miller’s motion for leave to amend his petition.
Miller seeks leave to amend his petition because he “has learned that he did not properly present
one of his constitutional claims for relief” and does not want the claim to be deemed
procedurally defaulted. (Doc. No. 24 at 1.) He additionally notes that “new claims may not be
raised in response to a Respondent’s Answer, [n]or in response to the Magistrate Judge’s Report
& Recommendation.”4 (Id.)
The Court will deny the motion for leave to amend because Miller has not filed a
proposed amended petition. Amendment of habeas corpus petitions is governed by Federal Rule

of Civil Procedure 15. See 28 U.S.C. § 2242 (noting that habeas corpus petitions “may be
amended or supplemented as provided in the rules of procedure applicable to civil actions”); Fed.
R. Civ. P. 15 (providing rules for amendment and supplementation of civil pleadings). Motions
for leave to amend under Rule 15 are properly denied when a litigant fails to attach a proposed
amended pleading, because without the proposed document, the Court “cannot evaluate the
merits” of the motion for leave to amend. See Lake v. Arnold, 232 F.3d 360, 374 (3d Cir. 2000).
Moreover, decisions on whether to grant leave to amend are left to the sound discretion of the
district court, see CMR D.N. Corp. v. City of Philadelphia, 703 F.3d 612, 629 (3d Cir. 2013),
and leave to amend may be denied based on a litigant’s undue delay in seeking leave to amend.
See Foman v. Davis, 371 U.S. 178, 182 (1962). Here, Miller did not seek leave to amend his

petition until nearly two years after the filing of his original petition and a year after the petition
became ripe. Miller has not explained this significant delay in seeking leave to amend, and,
absent such explanation, the Court finds that the request for leave to amend is properly denied
for undue delay. Accordingly, the motion for leave to amend will be denied based on both
Miller’s failure to file a proposed amended petition and his undue delay in seeking leave to
amend.

4 Miller appears to be operating on the mistaken assumption that a report and recommendation
will be issued by a United States Magistrate Judge prior to this Court ruling on his petition.
Because this case has never been referred or assigned to a magistrate judge, no such report and
recommendation will issue.
Turning to the claims asserted in the original petition, the Court will first consider
Miller’s constitutional challenge to Rule 590(C). Miller asserts that Rule 590(C)’s procedure
allowing judges to decide what degree of murder a defendant is guilty of is unconstitutional
under Alleyne v. United States, 570 U.S. 99 (2013), which holds that any fact that increases a

defendant’s mandatory minimum sentence “is an ‘element’ that must be submitted to the jury,”
rather than decided by the court. See Alleyne, 570 U.S. at 103; (Doc. No. 1 at 8).
The Superior Court deemed Miller’s constitutional challenge to Rule 590(C) waived for
Miller’s failure to assert the claim on direct appeal of his conviction. See Miller, 2021 WL
2138505, at *7. Miller argues that this conclusion was erroneous because “Alleyne was not
decided until [his] direct appeal was already filed and pending disposition,” and thus he could
not have asserted the claim on direct appeal. (Doc. No. 1 at 9.)
This Court need not decide whether Miller’s constitutional challenge to Rule 590(C)
pursuant to Alleyne was waived on direct appeal because Alleyne does not apply retroactively to
cases on collateral review.5 See United States v. Reyes, 755 F.3d 210, 212–13 (3d Cir. 2014);

United States v. Winkelman, 746 F.3d 134, 136 (3d Cir. 2014). Thus, regardless of whether the
claim was waived on direct appeal, it may not be raised in this case on collateral review of
Miller’s conviction. The claim will accordingly be denied.
Miller next argues that his Fourteenth Amendment right to due process was violated
when the trial court conducted a plea colloquy that did not comply with Rule 590(C). Because

5 Miller argues that Alleyne applies retroactively to his case because it applies retroactively to
cases on direct appeal and his case was still pending on direct appeal when Alleyne was decided.
See (Doc. No. 18 at 14–15). To benefit from such a rule, however, Miller would have had to
assert the claim on direct appeal, and it is undisputed that he did not do so. Accordingly, the sole
question is whether he may assert the claim on collateral appeal after having failed to do so on
direct appeal. Reyes and Winkelman hold that he cannot.
this claim was denied on its merits in state court, AEDPA requires this Court to grant significant
deference to the state court decision. See 28 U.S.C. § 2254(d); Dunn, 594 U.S. at 732; Mays,
592 U.S. at 391.6
Miller’s due process argument is based on the comment to Rule 590(C), which notes

seven questions that courts “should” ask defendants before accepting their pleas pursuant to the
rule. See Pa. R. Crim. P. 590(C). Miller argues that the plea colloquy in his case was defective
because the trial court failed to ask the seventh question—“Does the defendant understand that
the Commonwealth has a right to have a jury decide the degree of guilt if the defendant pleads
guilty to murder generally?” See id.; (Doc. No. 1 at 12–13).
As a preliminary matter, the Court notes that the relief Miller seeks through this claim
appears to have shifted from his original claim in state court. During PCRA proceedings, Miller
specified that he was not seeking to invalidate his plea, but only “the proceedings that followed
the plea,” because he had not knowingly waived his “right to have a jury determine [his] degree
of guilt.” (Doc. No. 10-28 at 18.) Here, by contrast, Miller asserts that the relevant question is

not “whether [he] had the right to select the fact finder, but rather his procedural deprivation of
the knowledge that the Commonwealth could have chosen a jury, and had apparently thought its
chances were better before the judge alone.” (Doc. No. 1 at 13.) Miller asserts that without this
knowledge, he “could not knowingly and voluntarily decide to enter the plea.” (Id.) Thus, in the
PCRA proceedings Miller sought a new degree-of guilt hearing before a jury, whereas here he
seeks to invalidate his guilty plea entirely.

6 Although Respondents contend that this claim is procedurally defaulted because it was waived
on direct appeal, see (Doc. No. 10-1 at 14–15), the Superior Court considered it on its merits on
appeal from the denial of Miller’s PCRA petition. See Miller, 2021 WL 2138505, at *5 n.3.
This Court will accordingly also consider the claim on its merits.
Miller’s claim fails under either theory. To the extent Miller seeks a new degree-of-guilt
hearing before a jury because he had not knowingly waived his “right to have a jury determine
[his] degree of guilt,” his claim is meritless. As the Superior Court noted in denying Miller’s
claim, see Miller, 2021 WL 2138505, at *6, Rule 590(C) clearly states that it is the

Commonwealth, rather than the defendant, that has the right to decide whether a degree-of-guilt
hearing will be conducted in front of a judge or a jury. See Pa. R. Crim. P. 590(C) (stating that
“[i]n cases in which the imposition of a sentence of death is not authorized, when a defendant
enters a plea of guilty or nolo contendere to a charge of murder generally, the degree of guilt
shall be determined by a jury unless the attorney for the Commonwealth elects to have the judge,
before whom the plea was entered, alone determine the degree of guilt.” (emphasis added)).
Thus, because Miller did not have a right to have the degree-of-guilt hearing conducted by a jury,
he cannot obtain habeas corpus relief based on his supposedly unknowing waiver of that right.
As for Miller’s request to invalidate his guilty plea based on the violation of Rule 590(C),
the Court must determine whether the plea was the result of “a knowing, and intelligent act done

with sufficient awareness of the relevant circumstances and likely consequences.” See Jamison,
544 F.3d at 272 (citing Boykin, 395 U.S. at 238). The state courts concluded that Miller
knowingly and intelligently pleaded guilty to murder generally because the record reflected his
desire to avoid having a jury act as the finder of fact. See Miller, 2021 WL 2138505, at *5–6.
This Court finds that the state courts’ analysis was neither contrary to clearly established
federal law nor unreasonable. The state court record is replete with testimony from Miller
indicating that he understood that he was pleading guilty to murder generally so that he would
not receive the death penalty and that his degree of guilt would be determined by a judge.
Specifically, Miller testified as follows:
Q: Now, you already noted how you pled guilty generally to murder
generally. At that hearing, and for the record, page 17 and 18 of the guilty plea, the
Court put the agreement on record. And it doesn’t sound like there is any dispute
here. The Court basically said he understands you are pleading to murder generally,
the Commonwealth will not seek the death penalty, and instead we will proceed to
a hearing to determine the degree of guilt, and then the Judge later already had a
hearing date scheduled where he would decide the degree of guilt. Do you agree
with that?
A: Yes.
Q: So that was the general idea. They are going to take the death
penalty away, I am going to plead guilty, and your understanding of the agreement
was we are going to go forward and the Judge is going to determine the degree of
my guilt?
A: Yes. I thought that was the only way it could be done.

(Doc. No. 10-28 at 34–35.)
Although Miller argues that his lack of knowledge that the Commonwealth could elect to
have a jury conduct the degree-of-guilt hearing meant that his plea was not knowing, the state
courts found this argument “logically meritless” because Miller “had no desire for a jury trial and
would not have made such a request in any event.” See Miller, 2021 WL 2138505, at *5. This
Court agrees. Ample testimony from both Miller and Eakin indicates that Miller did not want to
appear before a jury and was motivated by a desire to avoid a jury in pleading guilty. See (Doc.
No. 10-28 at 12 (testimony from Miller that he was “a little concerned” about appearing in front
of a jury and that he had “second guesses” about doing so); id. (testimony from Miller expressing
concern that a jury would be “less sympathetic” than a judge, that the prospect of appearing
before a jury “bugged” him, and that he did not have “good feelings” about appearing in front of
a jury); id. at 45 (testimony from Eakin that Miller “repeatedly expressed concerns about jury
trials” to her); id. (testimony from Eakin that Miller’s thought process appeared to be “get rid of
that jury. I don’t want to be in front of a jury”); id. at 48 (testimony from Eakin that the gist of
what Miller expressed to her prior to his plea was “I do not want a jury involved”); id. at 49
(testimony from Eakin that Miller had “anxiety” about what a jury “could do to him”)). Thus,
because the state courts’ conclusion that Miller knowingly and intelligently pleaded guilty to
murder generally is neither contrary to clearly established federal law nor unreasonable, this
Court will deny habeas corpus relief on this claim.7
The Court will similarly deny habeas corpus relief with respect to Miller’s claim that

counsel was ineffective by failing to advise Miller about the possibility of a jury determining his
degree of guilt and for failing to object to the defective plea colloquy. The Superior Court
concluded that Miller could not establish prejudice for this claim because he could not establish a
reasonable probability that he would have gone to trial absent counsel’s actions. See Miller,
2021 WL 2138505, at *6. This conclusion is neither contrary to clearly established federal law
nor an unreasonable application of federal law. As noted above, the state court record clearly
indicates that Miller did not want a jury trial and wanted to avoid the death penalty. See (Doc.
No. 10-28 at 10–12, 45, 48–49). Accordingly, because the Court agrees with the Superior
Court’s conclusion that Miller could not establish prejudice for his first ineffective assistance of
counsel claim, the Court will deny this claim for habeas corpus relief.

7 Miller additionally quotes Suarez v. Pennsylvania, see (Doc. No. 18 at 35), in which the court
stated that “[w]here the trial court followed the dictates of the comment to Pennsylvania Rule of
Criminal Procedure 590, federal law does not require a more detailed guilty plea colloquy.” See
Suarez v. Pennsylvania, No. 4:11-cv-00349, 2014 WL 2922283, at *6 (M.D. Pa. June 26, 2014)
(internal quotation marks omitted). Thus, Miller argues, “[s]ince the trial court did not follow
the dictates [of Rule 590(C)], [f]ederal law does then require a more detailed plea colloquy.”
(Doc. No. 18 at 35.) This argument commits the logical fallacy of denying the antecedent. In
other words, it erroneously infers “from the logical sequence ‘if P then Q’ that ‘not P’ implies
‘not Q.’” See Bell v. Houser, No. 1:22-cv-01383, 2023 WL 3727946, at *5 n.4 (M.D. Pa. May
30, 2023) (citing STEVEN PINKER, RATIONALITY 83 (1st ed. 2021)). Although compliance with
Rule 590(C) may imply compliance with federal law, it does not follow logically from that
proposition that noncompliance with Rule 590(C) implies noncompliance with federal law. The
relevant statement in Suarez simply recognizes that the questions provided by the comment to
Rule 590(C) are sufficient to satisfy federal law; it does not state that they are necessary to
satisfy federal law.
Finally, Miller argues that Eakin provided ineffective assistance of counsel by failing to
call Hume as an expert witness to testify to Miller’s mental state at the time of the killing.8
(Doc. No. 1 at 19–21.) The Superior Court concluded that Miller was not entitled to relief on
this claim because the record reflected that Eakin had a reasonable strategic basis for declining to

call Eakin as a witness. The record amply supports this conclusion. Eakin testified during the
PCRA evidentiary hearing that she made the tactical decision to not call Hume as a witness to
avoid disclosing Hume’s report to the Commonwealth because the report contained statements
made by Miller that were harmful to his defense. (Doc. No. 10-28 at 56–59.) The Court will
accordingly apply the substantial deference that AEDPA requires to both counsel’s decision and
the state court’s judgment determining that the decision had a reasonable strategic basis and deny
habeas corpus relief on this claim. See Dunn, 141 S. Ct. at 2410.
IV. CONCLUSION
For the foregoing reasons, the Court will deny Miller’s petition for writ of habeas corpus
with prejudice and deny his motion for leave to amend. A certificate of appealability will not

issue because no reasonable jurist would disagree with this ruling or conclude that the issues
presented are adequate to deserve encouragement to proceed further. See Buck v. Davis, 580
U.S. 100, 115 (2017) (citing Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)). An appropriate
Order follows.
s/ Yvette Kane _
Yvette Kane, District Judge
United States District Court
Middle District of Pennsylvania

8 Miller also appears to assert that counsel was ineffective for failing to have him evaluated by
Hume. See (Doc. No. 1 at 19–21). To the extent this is asserted as a separate claim, it is denied
as meritless. The record clearly reflects that counsel had Miller evaluated by Hume. See (Doc.
No. 10-28 at 20).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10414604. Public record. Not legal advice.