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Miller v. United States

United States District Court, N.D. Ohio, Eastern Division

June 7, 2019

LARUN E. MILLER, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.

          MEMORANDUM OPINION AND ORDER

          SARA LIOI, UNITED STATES DISTRICT JUDGE

         Petitioner Larun E. Miller (“Miller”) has moved the Court to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. No. 37 [“2255 Mot.”]). On January 18, 2018, in accordance with Campbell v. United States, 686 F.3d 353 (6th Cir. 2012), the Court conducted an evidentiary hearing on the motion. At the conclusion of the hearing, the Court took the matter under advisement. For the reasons that follow, Miller's motion to vacate his sentence is DENIED.

         I. Factual and Procedural Background

         On June 22, 2005, a federal indictment issued charging Miller with travel with intent to engage in illicit sexual conduct with a 14-year old girl, in violation of 18 U.S.C. § 2423(b). (Doc. No. 7 (Indictment).)[1] This case was assigned to the docket of the Honorable Dan Polster. On August 23, 2005, pursuant to a plea agreement, Miller entered a counseled plea of guilty to one count of violating 18 U.S.C. § 2423(b). (Doc. No. 13 (Plea Agreement). On November 7, 2005, Judge Polster sentenced Miller to a term of imprisonment of 105 months, followed by 10 years of supervised release. (Doc. No. 16 (Judgment).) As part of the conditions of his supervised release, Miller was required to comply with all registration requirements as a sexual offender. (Id.) Miller did not appeal from the Court's judgment.

         Miller was arrested, pursuant to a warrant issued June 3, 2014, on suspicion of violating the terms of his supervised release. A determination on the supervised release violations was held in abeyance pending the filing of new federal charges in No. 1:14-cr-278 (hereinafter “2014 case”), which was assigned to the undersigned. By agreement with the undersigned, Judge Polster transferred the supervised release violations in the present case to the undersigned as a related case on March 27, 2015. (Doc. No. 28.)

         Pursuant to the Superseding Indictment issued in the 2014 case, Miller was charged with the following: attempted coercion and enticement of a minor to engage in unlawful sexual activity, in violation of 18 U.S.C. § 2422(b); attempted enticement or coercion of a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, in violation of 18 U.S.C. § 2251(a) and (e); knowingly failing to register and update registration as a sex offender as defined for the purposes of the Sex Offender Registration and Notification Act (“SORNA”), in violation of 18 U.S.C. § 2250(a) and (c); and committing a felony offense involving a minor while being required to register as a sex offender, in violation of 18 U.S.C. § 2260A. (No. 1:14-cr-278, Doc. No. 35.) The same conduct charged in the 2014 Case served as the basis for the charged supervised release violations.

         Attorney Darin Thompson of the Federal Public Defender's Office was initially appointed to represent Miller in the 2014 case, as well as the related supervised release violations. Following a hearing on March 18, 2015-and at Miller's request-Attorney Thompson was replaced by Attorney Donald Malarcik as counsel. The Court conducted a bench trial in the 2014 case, beginning on January 25, 2016 and concluding on January 27, 2016, after which the Court took the matter under advisement. On February 1, 2016, the Court issued its findings of fact and conclusions of law, finding Miller guilty on all four counts in the Superseding Indictment. (No. 1:14-cr-278, Doc. No. 61.) At the sentencing hearing conducted on May 19, 2016, Miller admitted to two of the supervised release violations, and the Court found Miller guilty of the remaining 7 violations based upon the testimony and evidence in the 2014 case bench trial. The Court sentenced Miller to a term of imprisonment of 540 months in the 2014 case and 36 months imprisonment for the supervised release violations the present case, for an aggregate sentence of 576 months, to be followed by lifetime supervised release on the 2014 case with SORNA registration requirements. (No. 1:14-cr-278, Doc. No. 70 (Judgment); No. 5:05-300, Doc. No. 32 (Order on Violation.)) At the time of sentencing, the Court instructed Miller on his right to appeal the Court's judgment. Miller was specifically advised that Attorney Malarcik would assist him in filing a notice of appeal, if it was his desire to pursue a direct appeal.

         On May 26, 2016, Miller, through Attorney Malarcik, filed a notice of appeal with the Sixth Circuit. (No. 1:14-cr-278, Doc. No. 72 (Notice).) The Notice indicated that Miller was appealing the Court's judgment in the 2014 case but did not identify the supervised release violations in the present case. (Id.) On June 14, 2017, the Sixth Circuit affirmed the Court's judgment in the 2014 case. (Doc. No. 92 (Opinion); Doc. No. 93 (Mandate).)

         On May 23, 2017, the Miller submitted a letter to the Court indicating that he only recently learned Attorney Malarcik did not file a notice of appeal from the Court's judgment on his supervised release violations. The Court construed the letter as a § 2255 motion claiming ineffective assistance of counsel and requesting leave to file an untimely direct appeal to address issues of ineffective assistance of counsel, substantive and procedural due process, judicial misconduct, and collusion relating to the original judgment in the present case. On November 6, 2017, Miller filed a brief on the merits fleshing out these issues. (Doc. No. ___.

         (Merits Brief).) Included within his laundry list of complaints against trial counsel was that Attorney Malarcik failed to file a notice of appeal from the sentence for the supervised release violations. (Id. at 120.) In light of the allegation that his counsel ignored a direction to file a notice of appeal, the Court conducted a telephonic status conference with Miller, his attorney, and government's counsel. At the conclusion of the conference, the Court determined that it was Miller's intent to waive his attorney client privilege for the purpose of asserting this claim. Accordingly, the Court appointed Miller counsel and scheduled the matter for an evidentiary hearing. (Non-doc. Minutes, dated Nov. 30, 2017.) Prior to the hearing, Miller's appointed counsel filed a brief in support of Miller's § 2255 motion. (Doc. No. 48.)

         II THE EVIDENTIARY HEARING

         One witness testified at the January 18, 2018 evidentiary hearing-Attorney Malarcik. The undersigned presided over the hearing and had the opportunity to closely observe this witness as he testified. Attorney Malarcik testified that he had served as an attorney for 25 years, and that eighty-five to ninety percent of his practice is devoted to criminal defense.

         On the witness stand, Attorney Malarcik stated that, after the Court issued its fact-findings and legal conclusions and before sentencing, he and Miller had numerous conversations regarding sentencing and an appeal of the 2014 case. He indicated that Miller was very concerned about his appellate rights with respect to the 2014 case, and he even wanted to file a notice of appeal before sentencing. He further stated that their conversations regarding the supervised release violations were limited to determining which violations to which he was willing to admit. At the conclusion of these discussions, it was decided that Miller would admit to certain violations-relating to failing to register as a sex offender-and deny the others.

         When asked if Miller had ever raised with him any errors he thought occurred in the resolution of the supervised release violations, Attorney Malarcik explained that, prior to trial, Miller had shared his belief that he had been detained illegally on the supervised release violations and that Judge Polster had erred in failing to conduct a detention hearing. Counsel informed Miller that he did not believe that he could raise a motion relative to these issues in good faith, and Miller ultimately filed such a motion in the 2014 case pro se, claiming that the circumstances surrounding his arrest and custody on the supervised release violations impacted his 2014 case and the collection of evidence therein. Attorney Malarcik confirmed that these discussions did not touch on any issue relative to the supervised release violations themselves. In ...


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