FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 22, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court FLOYD LEE MILLER,
Petitioner - Appellant,
v. No. 19-5024 (D.C. No. 4:15-CV-00700-TCK-FHM) CARL BEAR, (N.D. Okla.)
Respondent - Appellee. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before MATHESON, McKAY, and BACHARACH, Circuit Judges. _________________________________
An Oklahoma jury found Floyd Lee Miller guilty of manufacturing
methamphetamine and resisting arrest. After unsuccessfully challenging his convictions
in the Oklahoma Court of Criminal Appeals (“OCCA”), he filed for federal relief under
28 U.S.C. § 2254 in the Northern District of Oklahoma. The district court denied his
petition and denied a certificate of appealability (“COA”). Mr. Miller has asked this
court for a COA on whether (1) the evidence at trial was constitutionally sufficient to
* After examining the briefs and appellate record, this panel has determined unanimously to honor Mr. Miller’s request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and 10th Circuit Rule 32.1. sustain his conviction for manufacturing methamphetamine, (2) Mr. Miller’s trial and
appellate counsel were ineffective regarding how they handled the issue of the search of
his backpack at the time of arrest, and (3) the district court erred in denying an
evidentiary hearing on Mr. Miller’s ineffective assistance of counsel (“IAC”) claim.
Exercising jurisdiction under 28 U.S.C. § 1291, we deny his request for a COA and
dismiss this matter.
I. BACKGROUND
A. Factual Background
In 2011, Miami, Oklahoma Police Sergeant Michael Kelly saw Mr. Miller walking
down the street with a backpack around 2:00 a.m. Sergeant Kelly pulled his car over and
began speaking with Mr. Miller. When Mr. Miller identified himself as “Punkin’
Miller,” Sergeant Kelly recognized him and recalled there might be warrants for his
arrest. He radioed for backup, Officer Kelly Johnson arrived at the scene, and dispatch
confirmed Mr. Miller had warrants for his arrest.
Officer Johnson testified at trial that when he arrived, “Sergeant Kelly was talking
to Mr. Miller like they were old friends . . . and told Mr. Miller that he had warrants out
of the county that he needed to take care of.” ROA, Vol. III at 192. Mr. Miller was still
wearing his backpack. As Officer Johnson left his car, Mr. Miller placed the backpack on
the ground next to him and continued talking to Sergeant Kelly.
Officer Johnson approached the two men and told Mr. Miller to “turn around and
put his hands behind his back” so that he could be handcuffed. Id. at 193. Mr. Miller
2 initially complied, but once Officer Johnson made physical contact with him, “he took off
running.” Id. at 194. Officer Johnson described what happened next:
We went through, and I’m not sure exact distance, maybe a yard or two, and once he was trying to step up on a step I was able to—in the way my steps were working I was able to extend one of my steps to kick his back foot, and he turned around and faced me and we both fell to the ground. I actually tackled him to the ground at that point.
Id. at 194. The officers subdued and arrested Mr. Miller
The officers then searched Mr. Miller’s backpack, which was still sitting next to
Sergeant Kelly’s car where Mr. Miller had placed it. Officer Johnson said they
conducted the search “because [they were] going to have to take his property . . . to the
county to be booked in and I had to make sure there wasn’t any contraband or weapons in
the backpack.” Id. at 197. In the backpack, they found a 20-ounce partially melted
plastic bottle that Officer Johnson “thought . . . was a meth lab.” Id.1
A third officer—Narcotics Detective Hicks—arrived on the scene after Mr.
Miller’s arrest. He examined the bottle and concluded it showed “tell-tale” signs of
methamphetamine manufacturing. ROA, Vol. III at 201-02. Testing on the bottle’s
contents revealed methamphetamine and ephedrine residue. State witnesses testified that
the bottle looked like it had been used as a “shake and bake” one-pot vessel for cooking
methamphetamine. The officers also testified that they did not find any of the “fuel”
necessary to make methamphetamine on Mr. Miller’s person or in his backpack.
1 The officers also recovered from the backpack Mr. Miller’s driver’s license and prescription pill bottles with Mr. Miller’s name on them. 3 B. Procedural Background
The State charged Mr. Miller with (1) manufacturing a controlled dangerous
substance after a felony and (2) resisting arrest. An Oklahoma jury convicted him of both
counts. He was sentenced to 17 years in prison, with two years suspended. Mr. Miller
appealed to the OCCA, arguing the evidence was insufficient to support the
methamphetamine conviction. The OCCA affirmed his conviction and sentence.
Mr. Miller then sought post-conviction relief in state court. He argued the
officers’ warrantless search of his backpack violated the Fourth Amendment. He further
argued he had not waived this issue because (1) his trial counsel was constitutionally
ineffective for failing to file a motion to suppress and (2) his appellate counsel was
ineffective for failing to argue the Fourth Amendment issue on direct appeal.
The Oklahoma district court denied Mr. Miller’s Fourth Amendment and IAC
claims, holding that Mr. Miller abandoned his backpack and that he “ha[d] no standing to
object to the search of abandon [sic] property.” ROA, Vol. I at 68.
Mr. Miller appealed, and the OCCA affirmed. Rejecting Mr. Miller’s arguments
regarding the warrantless search of his backpack, the OCCA stated:
Petitioner argues that the warrantless search of his backpack, which uncovered the evidence used to convict him, was not a valid search incident to arrest because he was removed from the backpack and thus it was not within his immediate reach and control. However, the District Court did not find the search was incident to Petitioner’s arrest. The District Court found, and the record provides ample support for the finding, that Petitioner placed the backpack on the ground and then fled from the arresting officers thereby abandoning the backpack. There can be no complaint of
4 illegal search when police officers search without a warrant and seize abandoned property. In attempting to establish that the District Court erred by finding Petitioner had abandoned the backpack, Petitioner argues that attempting to run a few yards when told he was being placed under arrest does not constitute abandonment of the property. However, if Petitioner’s actions were not an abandonment of the backpack, then the backpack was still within the area within Petitioner’s immediate control such that he could detonate a bomb or destroy evidence, and the officers had legitimate concern for their safety. The officers’ search would thus fall under the warrantless search exception of being incident to Petitioner’s arrest. Petitioner’s appellate counsel apparently realized the conundrum that, no matter which way he argued the facts of Petitioner’s case, the evidence would be admissible under an exception allowing the warrantless search. We do not find that Petitioner’s appellate counsel was unprofessional, or that the result of his appeal would have or should have been different.
ROA, Vol. II at 94-95 (citations omitted).2 In short, the OCCA said the search was valid
under either the abandonment or search-incident-to-arrest exceptions to the warrant
requirement, and therefore rejected his IAC claim.
Mr. Miller then filed a petition for federal habeas corpus relief under 28 U.S.C.
§ 2254 in the U.S. District Court for the Northern District of Oklahoma. He asserted
three grounds for relief: (1) insufficiency of the evidence, (2) illegal search and seizure
and IAC, and (3) newly discovered evidence. The district court rejected all three grounds
2 The OCCA addressed only the effectiveness of Mr. Miller’s appellate counsel on the merits. It concluded that Mr. Miller’s “trial and appellate counsel were not the same; therefore, his claims that trial counsel was ineffective are waived because they could have been raised in his direct appeal.” ROA, Vol. II at 93.
5 and denied his request for a COA. Mr. Miller timely appealed, challenging the district
court’s resolution of the first two issues.
II. DISCUSSION
Mr. Miller contends (1) the trial evidence was constitutionally insufficient to
sustain his conviction for manufacturing methamphetamine, and (2) trial and appellate
counsel were ineffective regarding the search issue.3 He asks for a COA on both issues.
A. COA and AEDPA
We must grant a COA to review the district court’s denial of a § 2254 petition.
See 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). To
receive a COA, the petitioner must make “a substantial showing of the denial of a
constitutional right,” 28 U.S.C. § 2253(c)(2), and must show “that reasonable jurists
could debate whether . . . the petition should have been resolved in a different manner or
that the issues presented were adequate to deserve encouragement to proceed further,”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted).
Under AEDPA, when a state court has adjudicated the merits of a claim, a federal
district court cannot grant habeas relief on that claim unless the state court’s decision
“was contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1),
3 Mr. Miller also argues the district court erred in denying his request for an evidentiary hearing on his ineffective assistance of counsel claim and separately asks for a COA on that issue. Aplt. Br. at 20-22. We resolve the evidentiary hearing claim below when we address the merits of his argument under the Fourth and Sixth Amendments. 6 or “was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding,” id. § 2254(d)(2).
When the district court has denied habeas relief because the petitioner failed to
overcome AEDPA, our COA decision requires us to determine whether reasonable jurists
could debate the court’s application of AEDPA to the state court’s decisions. Miller-El,
537 U.S. at 336.
B. Sufficiency of the Evidence
1. Legal Background
Under the Due Process Clause of the Fourteenth Amendment, a defendant cannot
be convicted of a crime unless the state proves, beyond a reasonable doubt, every
essential element of the crime charged. See Jackson v. Virginia, 443 U.S. 307, 316
(1979); In re Winship, 397 U.S. 358, 364 (1970). On federal habeas review, a district
court must decide under AEDPA whether the state courts have reasonably determined
“whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson, 443 U.S. at 319.
To convict Mr. Miller of manufacturing methamphetamine, the State needed to
prove that he (1) knowing and intentionally, (2) manufactured, (3) a controlled dangerous
substance (methamphetamine). Vilandre v. State, 113 P.3d 893, 895 n.1 (Okla. Crim.
App. 2005); see Okla. Stat. tit. 63, § 2-401(G); Okla. Unif. Crim. Jury Instr. No. 6-3.
Oklahoma law defines manufacturing as “the production, preparation, propagation,
compounding or processing of a controlled dangerous substance, either directly or
7 indirectly by extraction from substances of natural or synthetic origin, or independently
by means of chemical synthesis or by a combination of extraction and chemical
synthesis.” Okla. Stat. tit. 63 § 2-101(22).
2. Analysis
Mr. Miller argues the district court—and by inference the OCCA—“failed to come
to grips with the fact that one of the essential ingredients for the manufacture of
methamphetamine—fuel—was not found in Mr. Miller’s possession.” Aplt. Br. at 13.
He concedes the evidence at trial showed he possessed a soda bottle that was used to
manufacture methamphetamine, but he claims that evidence failed to prove he made the
illegal drug. He argues the jury’s conclusion to the contrary constituted an unsupported
“leap[] of logic.” Aplt. Br. at 14.
The evidence at trial showed police found the “shake and bake” soda bottle in Mr.
Miller’s backpack along with his driver’s license and prescription pill bottles bearing his
name. The jury could reasonably conclude that the bottle belonged to Mr. Miller. See
Jackson, 443 U.S. at 319. Detective Hicks explained that the bottle showed “tell-tale”
signs of being used to manufacture methamphetamine. See ROA, Vol. II at 165. And the
State’s chemist confirmed that the substance in the bottle tested positive for ephedrine—a
precursor substance used to make methamphetamine—and for methamphetamine itself.
Viewing these facts in the light most favorable to the State, the district court held
that the OCCA reasonably concluded that a rational jury could find that Mr. Miller used
the bottle to knowingly manufacture methamphetamine. See Okla. Stat. tit. 63,
§ 2-401(G); see United States v. Poe, 556 F.3d 1113, 1126 n.16 (10th Cir. 2009) (“[T]he
8 mere existence of an alternative explanation does not require the finding of reasonable
doubt.”).4 Based on our review of the record and the OCCA’s opinion, we conclude that
reasonable jurists could not debate the district court’s denial of habeas relief on this
ground. We deny a COA on the issue.
C. Ineffective Assistance of Counsel
Mr. Miller argues that his trial and appellate counsel were constitutionally
ineffective regarding the evidence officers recovered from his backpack. We understand
the argument to be that (1) trial counsel should have challenged the search through a
motion to suppress, and (2) appellate counsel should have argued on appeal or in
post-conviction proceedings that trial counsel was ineffective for failure to move to
suppress.
In denying habeas relief, the district court said that, because the searched property
had been abandoned, counsel provided effective assistance. We agree, but unlike the
district court, we discuss each argument separately.
4 The lack of fuel in Mr. Miller’s possession does not undermine the jury’s verdict. As explained at trial, consumption of fuel triggers the chemical process that produces methamphetamine. See ROA, Vol. III at 214. Once the fuel is exhausted, the reaction stops and does not produce any additional methamphetamine. The absence of fuel on Mr. Miller’s person does not mean the manufacturing process never happened. See United States v. Hill, 786 F.3d 1254, 1261 (10th Cir. 2015) (explaining that juries have wide latitude to make logical inferences). Instead, Mr. Miller’s possession of a bottle that manufactured methamphetamine allows for the reasonable inference that the chemical reaction had finished by the time the officers encountered Mr. Miller.
9 1. Trial counsel IAC
The first argument about trial counsel is procedurally barred. As noted above, the
OCCA said Mr. Miller waived this claim because it could have been raised in his direct
appeal. See ROA, Vol. II at 93. A “procedural default prevents a federal court from
reviewing the merits of a claim—including constitutional claims—that a state court
declined to hear because the prisoner failed to abide by a state procedural rule.” Williams
v. Trammell, 782 F.3d 1184, 1212 (10th Cir. 2015).
Mr. Miller has not challenged the OCCA’s waiver determination. He further has
not shown his procedural default rested on a basis other than “an independent and
adequate state procedural rule,” nor has he attempted to “demonstrate cause for the
default and actual prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a fundamental miscarriage of
justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Although the district court did not address Mr. Miller’s procedural default of the
trial counsel IAC issue before the OCCA, we may deny COA on a ground that is
supported by the record even if it was not relied on by the district court. See Davis v.
Roberts, 425 F.3d 830, 834 (10th Cir. 2005). Based on the foregoing, we conclude that
reasonable jurists could not debate the district court’s denial of habeas relief on Mr.
Miller’s IAC claim about trial counsel.
2. Appellate counsel IAC
As to the second argument about appellate counsel, the OCCA decided that issue
on the merits, so AEDPA review applies. Even though the trial counsel IAC issue is
10 procedurally barred, we nonetheless must discuss trial counsel’s effectiveness to resolve
the appellate counsel issue. This is so because, if trial counsel was not ineffective,
appellate counsel could not have been ineffective in failing to make an argument about
trial counsel on appeal.
3. Legal Background
a. Fourth Amendment and ineffective assistance of counsel
The Supreme Court has held that defendants may not bring Fourth Amendment
challenges in habeas proceedings when they could have raised the same challenges in
pretrial proceedings. Stone v. Powell, 428 U.S. 465, 469, 494 (1976). But a habeas
petitioner may allege counsel was ineffective for failure to move to suppress. In
Kimmelman v. Morrison, 477 U.S. 365, 368, 383 (1986), the Supreme Court said that
although habeas petitioners may not raise Fourth Amendment arguments, they may allege
counsel’s ineffectiveness for failing to file a “timely motion to suppress evidence
allegedly obtained in violation of the Fourth Amendment.”
b. The Sixth Amendment right to effective counsel
To succeed on a claim for ineffective assistance of counsel, Strickland v.
Washington, 466 U.S. 668 (1984), requires a showing of (1) deficient performance
that (2) causes prejudice. Id. at 687. The first step requires showing that defense
counsel “made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed . . . by the Sixth Amendment.” Id. The performance assessment is
“highly deferential.” Id. at 689. Counsel’s actions are presumed to constitute “sound
trial strategy.” Id. at 690 (quotations omitted). At the second step, Strickland
11 requires demonstration that counsel’s errors and omissions resulted in actual
prejudice, id. at 687; that 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.” Id. at 694.
When coupled with AEDPA, the Strickland standard is doubly deferential. See
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). The state court must defer to
counsel’s trial strategy, granting wide latitude to strategic decisions. See Ryder ex
rel. Ryder v. Warrior, 810 F.3d 724, 744 (10th Cir. 2016). The federal habeas court
must defer to the state court’s evaluation of counsel’s performance under AEDPA.
See id.
c. The Fourth Amendment right to be free from unreasonable searches
Under the Fourth Amendment, warrantless searches are “per se
unreasonable . . . subject only to a few specifically established and well-delineated
exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967). The exceptions
relevant here are (1) abandonment and (2) search incident to arrest.
i. Abandonment
Individuals do not retain Fourth Amendment rights in property they abandon.
Abel v. United States, 362 U.S. 217, 241 (1960). Voluntary relinquishment of
property control eliminates the owner’s reasonable expectation of privacy in the
property. See California v. Greenwood, 486 U.S. 35, 40 (1988). For example, in
Greenwood, the Supreme Court held a defendant had no expectation of privacy in
12 garbage placed in opaque plastic bags outside the curtilage of his home because it
was “readily accessible to animals, children, scavengers, snoops, and other members
of the public.” Id. at 41 (footnotes omitted).
During Prohibition, the Supreme Court held that bootleggers who had discarded
their jugs of moonshine whiskey in a field while running from law enforcement had
abandoned those jugs and could not succeed in challenging the government’s seizure of
the jugs. Hester v. United States, 265 U.S. 57, 58 (1924). The Court later held a juvenile
defendant had abandoned a rock of crack-cocaine by throwing it aside while running
from the police. California v. Hodari D., 499 U.S. 621, 624, 629 (1991).5
Merely relinquishing physical control of an item is not the same as abandoning it.
For example, in Smith v. Ohio, 494 U.S. 541, 543-44 (1990) (per curiam), the Court held
the defendant did not abandon his paper bag when he threw it on the hood of his car
before speaking with police. Likewise, “[a] passenger who lets a package drop to the
5 This circuit has interpreted the Supreme Court’s cases to hold that, when a defendant discards an item on a third-party’s property while fleeing from the police and does not claim ownership of the property, he has abandoned that property. “[A]bandonment occurs if either (1) the owner subjectively intended to relinquish ownership of the property or (2) the owner lacks an objectively reasonable expectation of privacy in the property.” United States v. Easley, 911 F.3d 1074, 1083 (10th Cir. 2018), cert. denied, 139 S. Ct. 1644 (2019); see United States v. Morgan, 936 F.2d 1561, 1571 (10th Cir. 1991) (allowing warrantless search of bag that defendant had discarded in neighbor’s yard when defendant did not claim ownership of the bag); United States v. Jones, 707 F.2d 1169, 1170, 1172-73 (10th Cir. 1983) (concluding defendant abandoned his satchel when he left it outside the building he was hiding in and denied ownership of it); United States v. Juszczyk, 844 F.3d 1213, 1214-15 (10th Cir.), cert. denied, 138 S. Ct. 100 (2017) (concluding defendant abandoned his bag when he placed it on third-party’s roof when he did not have permission to access the roof). 13 floor of the taxicab in which he is riding can hardly be said to have ‘abandoned’ it.” Rios
v. United States, 364 U.S. 253, 262 n.6 (1960).
ii. Search incident to arrest
To protect officers and prevent the destruction of evidence, the Fourth
Amendment allows officers to search individuals without a warrant if that search is
incident to the defendant’s lawful arrest. See Arizona v. Gant, 556 U.S. 332, 339 (2009).
A court does not need to inquire whether a search of the arrested person is necessary on a
case-by-case basis. United States v. Robinson, 414 U.S. 218, 235 (1973). This exception
to the warrant requirement extends only to the “area within [the] immediate control” of
the arrestee, which means “the area from within he might gain possession of a weapon or
destructible evidence.” Chimel v. California, 395 U.S. 752, 763 (1969) (quotations
omitted).
As noted above, because the OCCA resolved Mr. Miller’s Sixth Amendment
claim regarding his appellate counsel on the merits, its decision is entitled to AEDPA
deference. The OCCA held (1) that Mr. Miller abandoned his backpack when he left it in
front of Sergeant Kelly’s car and fled from the officers and (2) appellate counsel
therefore was not ineffective for failing to argue that trial counsel was ineffective for
failing to file a motion to suppress. The OCCA buttressed its analysis by pointing out
that if Mr. Miller, having managed to run only a few yards, did not abandon his
backpack, its proximity to him allowed for a search incident to arrest. The district court
14 concluded the OCCA did not unreasonably apply clearly established Supreme Court
precedent. See 28 U.S.C. § 2254(d)(1); ROA Vol. II at 167.
In addressing the COA question, we ask if reasonable jurists could debate
whether the district court correctly determined under AEDPA that the OCCA’s
decision was a reasonable application of Supreme Court law. See Miller-El, 537 U.S.
at 336. Note that the OCCA’s decision was based on its determination that the search
of Mr. Miller’s backpack was valid under the abandonment or the search-incident-to-
arrest exceptions.
In his brief to this court, Mr. Miller argues he “simply placed the backpack on the
ground” and did not discard it when he fled. Aplt. Br. at 18. The trial evidence showed
Mr. Miller removed his backpack and placed it on the ground while he was speaking with
the officers. When Officer Johnson instructed Mr. Miller to turn around to be
handcuffed, Mr. Miller started to run away. He left his backpack. Because he fled, this
situation is not the same as placing his backpack on the hood of a car to speak with
police, as the defendant did in Smith, 494 U.S. at 543-44. Nor is it the same as placing a
bag on the floor of taxi, as the defendant did in Rios, 364 U.S. at 262 n.6.
Even if there is room to debate the OCCA’s analysis of whether Mr. Miller did
enough to abandon the backpack or whether the backpack was close enough to him to be
searched incident to arrest, we have explained that, under AEDPA, the state court’s
“application of Supreme Court law may be incorrect without being unreasonable.”
Lockett v. Trammell, 711 F.3d 1218, 1231 (10th Cir. 2013); see Williams v. Taylor, 529
U.S. 362, 410 (2000). Indeed, to qualify for relief, Mr. Miller must convince the district
15 court that “there is no possibility fairminded jurists could disagree that the state court’s
decision conflicts with [the Supreme] Court’s precedents.” Harrington v. Richter, 562
U.S. 86, 102 (2011). The district court properly determined that the OCCA did not
unreasonably apply the Supreme Court’s abandonment precedent to the circumstances of
this case.
The district court held that the OCCA was not unreasonable under AEDPA.
Reasonable jurists may be able to debate the OCCA’s determination, but not the district
court’s.6
III. CONCLUSION
We deny a COA and dismiss this matter.
Entered for the Court
Scott M. Matheson, Jr. Circuit Judge
6 Mr. Miller also asserts the OCCA made an unreasonable determination of fact in concluding that he abandoned his backpack and argues the district court abused its discretion in denying his request for an evidentiary hearing. But he does not contest that Mr. Miller fled from the officers when they tried to arrest him. Nor does he identify any other factual issue that might bear on the abandonment question. We therefore deny a COA on Mr. Miller’s request for an evidentiary hearing. 16