Opinion
A-18-CR-39-1-LY A-22-CV-281-DII-ML
08-02-2023
TERRY ALLEN MILES, Petitioner v. UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
MARK LANE UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE UNITED STATES DISTRICT JUDGE:
Before the court is Petitioner Terry Allen Miles's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 and Memorandum of Law in Support (Dkt. #299, #300) and all related briefing. After reviewing the pleadings and the relevant case law, the undersigned submits the following Report and Recommendation to the District Court.
I. Background
A. Factual Background
Miles was convicted by a jury of kidnapping sisters 7-year-old LB (Count One) and 14-year-old LG (Count Two) from Texas and taking them to Colorado after killing their mother and doing so to have sex with LG (Counts Three and Four). Miles had been living with the girls and their mother for several months and had been having a sexual relationship with 14-year-old LG for even longer. Dkt. #259 (Tr. Vol. 3) at 44-45, 50, 52-53, 58. After they were discovered in Colorado, LG denied the sexual relationship, denied that she and Miles were home when her mother was killed, and said they were running from her mother's killer. Dkt. #264 (Tr. Vol. 8) at 81:12-14; Dkt. #206-2, Def. Exh. 5 at 9:2-20, 12:17-13:19, 20:14-18, 30:23-25, 69:7-73:3. But at trial LG testified as to the sexual relationship and other abuse by Miles. Dkt. #259 (Tr. Vol. 3) at 44-45, 50, 52-53, 58, 61-69. LG also testified that the night of her mother's death, she heard and saw Miles physically fighting with her mother and although she did not see Miles kill her mother, after the fight she saw her mother on the floor on the floor with her head “caved in.” Id. 91-97, 100-102.
Miles was not charged with killing their mother in this case, but there was evidence that he killed her presented at trial and that was a major part of the Government's case.
B. Procedural History
On August 21, 2018, Miles was charged in a four-count superseding indictment with:
Count 1: Kidnapping of female minor L.B. (18 U.S.C. § 1201(a)(1));
Count 2: Kidnapping of female minor L.G. (18 U.S.C. § 1201(a)(1));
Count 3: Transportation of female minor L.G. with Intent to Engage in Criminal Sexual Activity (18 U.S.C. § 2423(a) & (e)); and
Count 4: Travel with Intent to Engage in Illicit Sexual Conduct with female minor L.G. (18 U.S.C. § 2423(b) & (e)).
Dkt. #45 (Superseding Indictment); Dkt. #220 (PSR) at ¶ 2. On February 12, 2019, after a ten-day jury trial, Miles was found guilty of all four counts. Dkt. #202 (Verdict); Dkt. #226 (Judgment) at 1. On May 21, 2019, Miles was sentenced to Life imprisonment as to Counts One, Two, and Three, and 360 months as to Count Four, with the sentences to run concurrently, for a total of Life imprisonment; a total term of supervised release of 10 years; and special assessments totaling $400. Dkt. #226 at 2. Miles appealed his conviction and sentence. Dkt. #231. The Fifth Circuit denied his appeal and affirmed the Judgment. Dkt. #291; United States v. Miles, 829 Fed.Appx. 686, 688 (5th Cir. 2020) (opinion on direct review). The Fifth Circuit twice noted there was “overwhelming evidence” of Miles's guilt. Miles, 829 Fed.Appx. at 688. Miles filed a petition for writ of certiorari with the United States Supreme Court, which the Court denied. Dkt. #294. Miles then filed this 2255 motion asserting an ineffective assistance of counsel claim.
C. Issues Presented
Miles submits three grounds for his ineffective assistance of counsel claim:
(1) he was denied effective assistance of counsel “when counsel inadequately consulted with him on the benefits of testifying in his own defense and failed to present his testimony at trial,” Dkt. #300 at 5;
(2) he was denied effective assistance of counsel “in connection with sentencing where he was forced - by the Court, who denied his motion for new counsel and his counsels' motion(s) to withdraw - to proceed, represented by counsel against whom he was pursuing a Bivens action for [counsels'] misconduct in connection with their representation of Miles in [this] case,” Dkt. #300 at 8; and
(3) he was denied effective assistance of counsel “by trial counsels' failures to object to leading questions from the prosecution to [trial witness FBI Special Agent Sean Mullen]” about the truthfulness of Miles's statement and some of LG's statements to law enforcement, Dkt. #300 at 14.
II. Standard of Review
Under section 2255, there are generally four grounds upon which a defendant may move to vacate, set aside or correct his sentence: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the district court was without jurisdiction to impose the sentence; (3) the sentence imposed was in excess of the maximum authorized by law; and (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255. The nature of a collateral challenge under section 2255 is extremely limited: “A defendant can challenge his conviction after it is presumed final only on issues of constitutional or jurisdictional magnitude . . . and may not raise an issue for the first time on collateral review without showing both ‘cause' for his procedural default, and ‘actual prejudice' resulting from the error.” United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991) (quoting United States v. Frady, 456 U.S. 152, 168 (1982)). If the error is not of constitutional or jurisdictional magnitude, the movant must show that the error could not have been raised on direct appeal and would, if condoned, “result in a complete miscarriage of justice.” United States v. Smith, 32 F.3d 194, 196 (5th Cir. 1994). However, a defendant's ineffective assistance of counsel claim does create a constitutional issue and is cognizable pursuant to Section 2255. United States v. Walker, 68 F.3d 931, 934 (5th Cir. 1996).
III. Ineffective Assistance of Counsel
The Sixth Amendment to the United States Constitution guarantees a defendant in a criminal case reasonably effective assistance of counsel. U.S. CONST. amend VI; Cuyler v. Sullivan, 446 U.S. 335, 344 (1980). To prevail on an ineffective assistance of counsel claim, a movant must satisfy the two-part test enunciated in Strickland v. Washington. 466 U.S. 668, 687 (1984). First, he must demonstrate counsel's performance fell below an objective standard of reasonableness. Id. Under this standard, counsel must “research relevant facts and law, or make an informed decision that certain avenues will not be fruitful.” United States v. Conley, 349 F.3d 837, 841 (5th Cir. 2003). The effectiveness of an attorney's representation must be gauged “on the facts of the particular case, viewed as of the time of counsel's conduct.” Strickland, 466 U.S. at 690. A court will not find ineffective assistance merely because it disagrees with counsel's trial strategy. Crane v. Johnson, 178 F.3d 309, 312 (5th Cir. 1999). Whether counsel's performance was deficient is determined by examining “the law as it existed” at the time of the representation. See id. “[C]ounsel is not ineffective for failing to raise a claim that courts in the controlling jurisdiction have repeatedly rejected . . . or even for not rais[ing] every nonfrivolous ground that might be pressed on appeal.” United States v. Fields, 565 F.3d 290, 294 (5th Cir. 2009) (internal quotations and citations omitted).
Second, movant must prove he was prejudiced by counsel's substandard performance. “[T]o prove 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.” Conley, 349 F.3d at 841-42. When a movant fails to meet either requirement of the Strickland test, his ineffective assistance of counsel claim is defeated. See Belyeu v. Scott, 67 F.3d 535, 538 (5th Cir. 1995); United States v. Gaudet, 81 F.3d 585, 591-92 (5th Cir. 1996). “[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” United States v. Fields, 761 F.3d 443, 453 (5th Cir. 2014) (quoting Strickland, 466 U.S. at 689)). Additionally, courts presume that counsel's “challenged action might be considered sound trial strategy.” Belyeu, 67 F.3d at 538 (citing Strickland).
IV. Analysis
A. Ground 1
When a criminal defendant asserts his trial counsel did not allow him to testify in his own defense, the claim is analyzed as an ineffective assistance of counsel claim. Sayre v. Anderson, 238 F.3d 631, 635 (5th Cir. 2001).
In a footnote, Miles implies that the trial judge also prevented him from testifying. Dkt. #300 at 6 n.5. But the record does not support this assertion. The trial judge was speaking with the attorneys about exhibits and asked if counsel was comfortable with which exhibits would be submitted to the jury and which would only be included for the record on appeal. Miles spoke up and said, “I'm not comfortable. Can I speak?” The trial judge responded, “No, you may not.” Dkt. #266 (Tr. Vol. 9) at 122:14-20. The conversation between the court and the attorneys was specifically about trial exhibits. Id. at 116:9-122:22. The exchange had nothing to do with whether or not Miles would testify.
Miles asserts he wished to testify concerning:
his mental disabilities; the attacks on the family of the purported victims of the offenses for which he was being tried; the contents of certain 911 calls; the reality that he could not kidnap either alleged victim due to the in loco parentis status he was granted by the alleged victims' mother, when she employed him as their nanny; and his innocence of the offenses alleged in the indictment.Dkt. #300 at 7-8. Without any recognition or analysis of the evidence against him, he summarily asserts that “[c]redible testimony from [him] would be sufficiently outcome determinative to undermine confidence in the verdict and is therefore prejudicial under Strickland.” Id. at 8.
The Government notes that Miles has not alleged any specific facts supporting his claim. Citing the risk that Miles could be cross examined on his prior convictions and arrests, see Dkts. #48, #79, #146-1, #167-1, the Government argues not having Miles testify was a strategic decision by defense counsel. The Government also points out that portions of Miles's interview with FBI agents shortly after he was arrested were already in evidence. If Miles had testified, he would either have repeated this evidence or contradicted it, undermining his credibility.
In his reply, Miles does not specifically respond to these arguments. He points out that the Government was unable to obtain a declaration from any of his trial counsel contradicting his claim even though he waived any privilege by asserting the claim. Miles also seems to assume that the burden rests on the Government to disprove his claim and ignores the “strong presumption” that counsel's conduct is reasonable and the presumption that it could be considered sound trial strategy. See Fields, 761 F.3d at 453; Belyeu, 67 F.3d at 538.
The Government describes its efforts to obtain an affidavit from his counsel, who each declined citing an ABA Formal Opinion on the subject and/or office policies. Dkt. #304 at 14 n.1.
Miles has not shown he is entitled to relief for this claim. He provided no specific facts he would have testified to; he does not address how his testimony would have supplemented any evidence defense counsel did submit; he does not address the risks he faced on cross-examination; and he does not address how his testimony would have been more believable than “the overwhelming evidence of [his] guilt.” See Miles, 829 Fed.Appx. at 688. Miles assumes-but does not offer any supporting facts or arguments to show-that if he had testified, the jury would have believed him and he would not have been found guilty. Miles has not shown his counsel's performance fell below an objective standard of reasonableness or that there was a reasonable probability that the result of his trial would have been different had he testified. See Strickland, 466 U.S. at 687; Conley, 349 F.3d at 841-42.
B. Ground 2
On April 4, 2019, after the jury convicted him on all counts but before he was sentenced, Miles moved for new counsel. Dkt. #210. His trial counsel also moved to be replaced. Dkt. #211, #212. Miles alleged that one of his attorneys had met with another criminal-defendant client, Rodney Green, and during those meetings had disparaged Miles and breached his confidentiality. Dkt. #210. Miles substantiated his allegations by attaching Green's unsworn “affidavit.” Id. In the “affidavit,” Green stated that Miles's attorney had told him: 1) Green's case needed to be reset because the attorney was preparing for trial in another case, 2) the client in that other case was guilty and the only reason they were going to trial was to try to avoid the death penalty, 3) it was a murder/kidnapping case and the prosecutor was pushing for trial, 4) counsel would have wanted more time so psychiatrists could have worked with the girls more before putting them on the stand, 5) referred to Miles as a “piece of shit” with “serious problems,” and 6) counsel thought Miles was guilty even before he went to trial. Id. On April 23, 2019, the undersigned held a hearing on the motions, in which counsel denied the allegations. Dkt. #266 (Hrg. Tr.) at 9:25-10:2, 10:4-9. After listening to arguments, including arguments made by Miles himself, the undersigned denied the motions. Id. at 18:13-21:16. The undersigned noted that even assuming everything is Green's “affidavit” were true, it would not demonstrate that Miles had or would receive ineffective assistance of counsel. Id. Miles was constitutionally guaranteed effective counsel, not counsel that believed him innocent. Id.
On May 1, 2019, Miles filed a civil Bivens suit alleging counsel was ineffective and had misrepresented him on the same grounds. Miles v. Aldredge, Civ. Action No. 1:19-cv-00473-RP, (W.D. Tex. May 1, 2019), Dkt. #1. He requested a new trial with new counsel and monetary compensation. Id. Judge Pitman dismissed his Complaint as legally frivolous, and the Fifth Circuit affirmed. Dkt. #5, Dkt. 20, 1:19-CV-473-RP; Miles v. Aldredge, 795 Fed.Appx. 319 (5th Cir. 2020).
After he was sentenced and had filed a notice of appeal, Miles filed a pro se “Motion for Habeas Corpus,” which the court construed as a motion for new counsel. Dkt. #240. The undersigned held a hearing on that motion at which counsel announced that Miles had decided to proceed on appeal with his current counsel. Dkt. #271 (Hrg. Tr.) at 3:15-16. Miles affirmed this was the case. Id. at 3:22, 5:15-17. The undersigned dismissed the motion as moot. Id. at 4:3-11.
Nonetheless, Miles later moved the Fifth Circuit to dismiss his counsel for his direct appeal, which the Fifth Circuit granted. Dkt. #282. The Fifth Circuit noted that counsel “may be relieved upon a showing that there is a conflict of interest or other most pressing circumstances or that the interests of justice otherwise require relief of counsel.” Id. The Fifth Circuit found the “interests of justice require the relief of counsel in this case.” Id.
Miles now argues he was denied effective assistance of counsel when the trial court did not allow his counsel to withdraw during the sentencing phase. Miles asserts his counsel had a conflict of interest because he had filed suit against them. Miles also points to the fact that the Fifth Circuit appointed him new appellate counsel. The Government argues there was no actual conflict of interest and points to specific actions by defense counsel at sentencing that demonstrate their zealous advocacy on his behalf. Again, in his reply brief, Miles does not respond to these arguments.
Although Miles asserts his counsel was ineffective, he points to nothing at the sentencing phase that his counsel should have done but failed to do or did but should not have done. “It is affirmatively established that no Sixth Amendment violation occurs unless defendant demonstrates that an actual conflict of interest adversely affected his lawyer's performance.” Barrientos v. United States, 668 F.2d 838, 840-41 (5th Cir. 1982). Miles has made no showing that any alleged conflict adversely affected his attorneys' performance. At the sentencing stage, Miles's counsel moved for a downward variance, Dkt. #219, filed objections to the PSR, Dkt. #220-2, and argued their objections to the PSR at the sentencing hearing. Dkt. #270. Miles has not shown his counsel's performance fell below an objective standard of reasonableness or that there was a reasonable probability that his sentencing would have been different if he had other counsel. See Strickland, 466 U.S. at 687; Conley, 349 F.3d at 841-42.
The Constitution guarantees Miles effective counsel, not counsel he trusts, not counsel that believe him innocent, and not counsel that like him. Moreover, under Miles's rationale, a criminal defendant could bring frivolous suits against competent counsel just to have counsel removed from their representation. When a criminal defendant is entitled to appointed counsel, the defendant is not entitled to counsel of his choosing. The cases Miles cites are not persuasive. Two cases were cited for the proposition that new counsel should be permitted when there is a breakdown of communication between the defendant and counsel. But Miles alleged no such breakdown here. The two other cases, not from the Fifth Circuit, involved situations where the defendant was currently alleging counsel had provided ineffective assistance in either the criminal case at issue or in a previous case, but neither case were frivolous attempts to manipulate his representation.
Miles has not shown he is entitled to relief on this ground.
C. Ground 3
Miles asserts his trial counsel was ineffective for failing to object to leading questions from the prosecution to FBI Special Agent Mullen and his answers to those questions, which asserted that Miles's statement and portions of LG's statement to law enforcement were not truthful, based on comparison with the testimony of other witnesses. See Dkt. #264 (Tr. Vol. 8) at 81-87. Miles argues no reasonable attorney would have allowed the prosecution to ask such leading questions and, if counsel had objected, the court would not have allowed the testimony. Miles further contends that if “Agent Mullen would not have been allowed to contaminate the jury with his testimony that the exculpatory statements of Mr. Miles and LG to law enforcement were false- along with why he had formed this opinion concerning their accuracy.... there is a reasonable probability that the outcome of the proceeding would have been more favorable.” Dkt. #300 at 22.
The Government argues the questions were not leading, it was a sound trial strategy to not object to the leading questions and instead successfully object to hearsay questions, some of the testimony was favorable to Miles because it highlighted the inconsistencies of LG's prior statements, and overall the testimony at issue was a minuscule portion of the testimony presented by the Government.
“[F]ailure to object to leading questions and the like is generally a matter of trial strategy as to which [courts] will not second guess counsel.” Burnett v. Collins, 982 F.2d 922, 930 (5th Cir. 1993). Overall, the testimony that Miles points to was 10 minutes long in a trial that included eight days of evidence. Dkt. #264 (Tr. Vol. 8) at 81:3-87:20; Dkt. #182, #184, #186, #189, #190, #192, #193, #197. The testimony occurred during Agent Mullen's redirect examination. A few questions were leading. For instance, the Government asked “[LG] had denied that she and Defendant Miles had had sex at that [interview]; is that correct?” Agent Mullen answered, “She did.” Dkt. #264 (Tr. Vol. 8) at 81:12-14. The Government then asked the non-leading question, “What in your investigation has established that that was not true?” which Agent Mullen then answered. Id. at 81:15-24. In these instances, the Government used arguably leading questions to summarize evidence the jury had already heard so that the Government could ask a non-leading question about that evidence. Any objections to these leading questions would likely have been overruled as the point of the questions was to “avoid wasting time” and develop Agent Mullen's further substantive testimony. See FED. R. EVID. 611(a)(2), (c). Moreover, during that questioning defense counsel did successfully object when Agent Mullen attempted to use hearsay in his answers. Dkt. #264 (Tr. Vol. 8) at 82:3-5, 18-19.
The Government arguably asked only one substantive leading question. Agent Mullen was asked what parts of the investigation indicated Miles was not truthful in his interview with the FBI. Id. at 82:25-83:8. Agent Mullen answered that Miles claimed he was impotent. The Government then asked, “And that would contradict his semen and sperm being found on [LG's] panties and also on the pineapple towel; is that correct?” Mullen answered, “That is correct, yes.” Id. Although an objection to this question could have been made, the Government would have easily restated the question to yield the same result. Additionally, objecting to this question runs the risk of highlighting to the jury that this evidence is especially damning to Miles. Whether to object or not falls within the scope of “trial strategy as to which [courts] will not second guess counsel.” Burnett, 982 F.2d at 930. Accordingly, Miles has not shown that counsel's performance fell below an objective standard of reasonableness or that there was a reasonable probability that the result of his trial would have been different had counsel objected to these questions. See Strickland, 466 U.S. at 687; Conley, 349 F.3d at 841-42.
Miles has not shown he is entitled to relief on this ground.
D. Supplement of Ground 1
After briefing concluded, Miles filed a supplement to his first ground. Dkt. #307. Miles attaches a statement from Candy Rumbaugh, “a former companion” and mother to his child, who states that investigators and Miles's ex-wife tried to convince her to lie about Miles. Id. at 2, 6-7. Miles asserts that if he had testified, “he would have mentioned how agents were coercing witnesses to lie about his involvement in his case” and he would have produced Rumbaugh to testify. Id. at 2. However, Miles does not assert that he knew about this alleged coercion before or during the trial. Accordingly, and for the reasons stated above, counsel's decision not to have Miles testify was not unreasonable.
In contradiction to his previous argument that presumed he knew about this coercion and Rumbaugh's statement, he also asserts that if his counsel had done their due diligence, this evidence from Rumbaugh would have changed the trajectory of this case. Miles's argument assumes Rumbaugh would have been credible on the stand and ignores the physical evidence against him that was presented at trial. Miles has not shown his counsel was ineffective for not tracking down and calling as a witness a girlfriend from 23 years ago.
Miles also claims that if he had been put on the stand, he would have testified that LG denied any wrongdoing by Miles up to a week before the trial. Dkt. #307 at 3. This was already in evidence, and Miles does not explain how he could have offered anything new on this topic. For the same reasons already discussed, Miles has not shown his counsel was ineffective for not calling him as a witness.
E. Request for an Evidentiary Hearing
In his reply brief and in the last sentence of his supplement to his 2255 motion, Miles requested “an evidentiary hearing so that the record can be expanded as necessary.” Dkt. #396 at 1; Dkt. #307 at 4. Miles argues he is entitled to a hearing because the Government has not conclusively shown he is not entitled to relief. Miles has not shown that an evidentiary hearing is warranted. For the reasons given above, Miles's claims that his counsel was ineffective are entirely without merit.
Accordingly, the undersigned denies Miles's request for a hearing.
V. Recommendations
For the reasons given above, the Magistrate Court respectfully RECOMMENDS Petitioner Terry Allen Miles's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 and Memorandum of Law in Support (Dkt. #299, #300) be DENIED.
VI. Certificate of Appealability
An appeal may not be taken to the court of appeals from a final order in a proceeding under section 2255 “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C. § 2253(c) (1)(A). Pursuant to Rule 11 of the Federal Rules Governing Section 2255 Proceedings, effective December 1, 2009, the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.
A certificate of appealability (“COA”) may issue only if a movant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained the requirement associated with a “substantial showing of the denial of a constitutional right” in Slack v. McDaniel, 529 U.S. 473, 484 (2000). In cases where a district court rejected a movant's constitutional claims on the merits, “the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Id. “When a district court denies a habeas petition on procedural grounds without reaching the petitioner's underlying constitutional claim, a COA should issue when the petitioner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id.
In this case, reasonable jurists could not debate the denial of the movant's section 2255 motion on substantive or procedural grounds, nor find that the issues presented are adequate to deserve encouragement to proceed. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack, 529 U.S. at 484). Accordingly, it is respectfully recommended that the District Court not issue a certificate of appealability.
VII. Objections
The parties may file objections to this Report and Recommendation. A party filing objection must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. See Battles v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Services Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc).