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Miller v. United States

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

August 12, 2019




         Before the Court is the motion of pro se petitioner Larun Miller (“Miller”) to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. (Doc. No. 97 [“Mot.”].) Respondent United States of America (the “government”) opposes the motion, (Doc. No. 101 [“Opp'n”]), and Miller has filed a reply. (Doc. No. 108 [“Reply”].) The Court granted Miller leave to file a further memorandum in support of his motion and afforded him leave to exceed the page number limit for such a filing. (Doc. No. 112 (Supplemental Brief [“Suppl.”]).) For the reasons that follow, Miller's § 2255 motion is DENIED.

         I. 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). (Case No. 5:05-cr-300, Doc. No. 7 (Indictment).) This 2005 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). (Id., 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. (Id., 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.)

         Shortly after his release from prison on the 2005 case, Miller began an online relationship with an individual he believed was a fourteen year old girl from Colorado named “Jordan”. In reality, “Jordan” was an undercover investigator for the Jefferson County District Attorney's Office, investigating internet crimes against children. Between May 28, 2014 and June 2, 2014, the investigator-using the persona of “Jordan” and sometimes aided by a female officer- communicated with Miller via cellular phone calls, text messages, and the internet. The investigator ultimately determined that Miller was a registered sex offender in Ohio, and the investigator contacted law enforcement in Ohio.

         On June 2, 2014, law enforcement in Ohio learned that Miller was not living at his registered address. The following day (June 3, 2014), members of the United States Marshals Service and local state law officers, working together as part of a joint task force, arrested Miller at his workplace and transported him to the Wickliffe Police Department. Once at the police station, Miller was interviewed by a deputy federal marshal and a state police officer, after he was read his Miranda rights and signed a written waiver. During the course of the interview, Miller was asked questions regarding his failure to register as well as his online interactions with “Jordan.” There is no dispute that a federal arrest warrant did not issue until July 23, 2014. Miller was arrested on federal charges on July 25, 2014 and was arraigned before a federal magistrate judge that same day. At his arraignment, Miller waived his right to a preliminary hearing. (Doc. No. 5.) A federal indictment issued on August 20, 2014. (Doc. No. 7.)

         Pursuant to the superseding indictment, 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. (Doc. No. 35.) The SORNA violations also formed the basis for supervised release violations in Miller's 2005 case.[1]

         At the July 25, 2014 arraignment, Attorney Darin Thompson of the Federal Public Defender's Office was appointed to represent Miller. Thompson subsequently moved to continue the trial date, and at a hearing on October 16, 2014, Miller indicated in open court that he concurred with his counsel's request for a continuance and ultimately executed a waiver of his speedy trial rights. (Doc. No. 12 (Waiver/Ends of Justice); Doc. No. 26 (Hearing Transcript) at 100-04[2].) The Court granted the motion, finding that a continuance best served the ends of justice. (Id.) Defense counsel later moved for a second continuance. (Doc. No. 14.) In the December 23, 2014 hearing on the motion, Miller, once again, indicated that he concurred in his counsel's request and executed another waiver of his speedy trial rights. (Doc. No. 25 (Hearing Transcript) at 93-97; Doc. No. 15 (Waiver/Ends of Justice Order).) Following a hearing on March 18, 2015-and at Miller's request-Attorney Thompson was replaced by Attorney Donald Malarcik. (See Doc. No. 31; Minutes from Mar. 18, 2015.) The Court further continued the action on multiple occasions at the request of Miller or his counsel. (Doc. No. 32 (Motion to Continue); Doc. No. 33 (Waiver/Ends of Justice Order); Doc. No. 38 (Waiver/Ends of Justice Order).)

         During the pendency of the case, Miller and his counsel also caused numerous substantive pretrial motions to be filed. In one such motion, Miller sought the suppression of the statements he made during his interview at the Wickliffe police station on June 3, 2014. Following an evidentiary hearing, the Court granted the motion in part. (Doc. No. 34 (Memorandum Opinion).) While the Court concluded that Miller had initially knowingly and voluntarily waived his right to counsel, the Court determined that there came a point in the interview where he revoked his waiver and invoked his right to remain silent. (Id. at 152.) Accordingly, the Court suppressed any statements Miller made after the point he revoked his waiver. (Id.)

         The Court conducted a bench trial, 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. (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 violations based upon the testimony and evidence offered at trial. The Court sentenced Miller to a term of imprisonment of 540 months in this case and 36 months imprisonment for the supervised release violations in the 2005 case, for an aggregate sentence of 576 months, to be followed by lifetime supervised release with SORNA registration requirements. (Doc. No. 70 (Judgment); Case No. 5:05-300, Doc. No. 32 (Order on Violation).).

         Miller unsuccessfully appealed the Court's judgment to the Sixth Circuit Court of Appeals and was ultimately denied certiorari review by the United States Supreme Court. (Doc. Nos. 92, 95.) Before the Sixth Circuit, Miller challenged as “outrageous conduct” tactics used by the interviewing officers on June 2, 2014, the sufficiency of the evidence supporting the first two counts of the superseding indictment, and the Court's partial denial of his suppression motion. (See Doc. No. 92.) The Sixth Circuit rejected each argument on the merits.

         Miller filed the present motion to vacate on September 25, 2018. He raised ten grounds for relief: Ground One (Ineffective Assistance of Counsel), Ground Two (Violation of Fed. R. Crim. P. 5(a)), Ground Three (Speedy Trial Violation), Ground Four (Due Process), Ground Five (Collusion), Ground Six (Deprivation of Counsel), Ground Seven (Right to Confrontation), Ground Eight (Procedural and Substantive Trial Errors), Ground Nine (Abuse of Discretion), and Ground Ten (Prosecutorial Misconduct). Miller also sought leave to amend his petition to raise additional grounds. The Court denied the motion to amend, finding that the grounds Miller sought to add were either sufficiently raised in his existing § 2255 motion or had been rejected by the Sixth Circuit on direct appeal. (Doc. No. 106 (Order); see Doc. No. 100 (motion to amend).)

         II. Standard of Review

         A federal prisoner may attack the validity of his sentence by filing a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255 in the district court where he was sentenced. Section 2255 sets forth four grounds upon which a federal prisoner may state a claim for relief: “[1] the sentence was imposed in violation of the Constitution or laws of the United States, or [2] that the court was without jurisdiction to impose such sentence, or [3] that the sentence was in excess of the maximum authorized by law, or [4] [the sentence] is otherwise subject to collateral attack[.]” 28 U.S.C. § 2255(a).

         To prevail under § 2255, “a petitioner must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict.” Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003) (citing Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). “Relief is warranted only where a petitioner has shown ‘a fundamental defect which inherently results in a complete miscarriage of justice.'” Id. (quoting Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974)).

         The movant bears the burden of articulating sufficient facts to state a viable claim for relief under § 2255. McQueen v. United States, 58 Fed.Appx. 73, 76 (6th Cir. 2003) (per curiam). Vague and conclusory claims that are not substantiated by allegations of specific facts with some probability of verity are not enough to warrant relief. A § 2255 motion may be dismissed if it only makes conclusory statements without substantiating allegations of specific facts and fails to state a claim cognizable under § 2255. O'Malley v. United States, 285 F.2d 733, 735 (6th Cir. 1961); see Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972).

         A criminal defendant may not utilize a § 2255 motion as a substitute for a direct appeal. Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003); Capaldi v. Pontesso, 135 F.3d 1122, 1124 (6th Cir. 1998) (“An application under § 2255 is an extraordinary remedy and should not be considered a substitute for direct appeal.”). To assert a claim not raised on direct appeal, a petitioner ordinarily must show cause for the default and prejudice. See Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); United States v. Frady, 456 U.S. 152, 167-69, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982).

         When a factual dispute arises in a § 2255 proceeding, an evidentiary hearing is required “‘to determine the truth of the petitioner's claims.'” Valentine v. United States, 488 F.3d 325, 333 (6th Cir. 2007) (quoting Turner v. United States, 183 F.3d 474, 477 (6th Cir. 1999)). A hearing is not necessary, however, when a petitioner's claims “‘cannot be accepted as true because they are contradicted by the record, inherently incredible, or [are] conclusions rather than statements of fact.'” Id. (quoting Arrendondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)). Where, as here, the judge considering the § 2255 motion also presided over the trial, the judge may rely on her recollections of the trial. Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996).

         III. ...

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