United States District Court, N.D. Ohio, Eastern Division
LARUN E. MILLER, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
MEMORANDUM OPINION AND ORDER
LIOI, UNITED STATES DISTRICT JUDGE
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.
Factual and Procedural Background
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).) 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.
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.)
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.
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
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).)
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. ___.
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.)
THE EVIDENTIARY HEARING
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
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.
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 ...