Joseph Miles v. Roland Colson , 463 F. App'x 540 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0219n.06
No. 11-5074
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
JOSEPH MILES, ) Feb 23, 2012
) LEONARD GREEN, Clerk
Petitioner-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
ROLAND COLSON, Warden, ) MIDDLE DISTRICT OF TENNESSEE
)
Respondent-Appellee. )
)
Before: MERRITT and COOK, Circuit Judges; COX, District Judge.*
PER CURIAM. In this appeal of state prisoner Joseph Miles’s habeas-petition dismissal, we
determine whether the district court abused its discretion in denying Miles’s request for an
evidentiary hearing. Holding that it did not, we AFFIRM.
The facts underlying this appeal may be found in the district court opinion. Miles v. Bell,
2010 WL 5211602, at *6–*9 (M.D. Tenn. Dec. 16, 2010). The only issue raised on appeal, fairly
distilled, is whether the district court abused its discretion by refusing to grant an evidentiary hearing
before dismissing Miles’s habeas petition.
*
The Honorable Sean F. Cox, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 11-5074
Miles v. Colson, Warden
Subject to exceptions not applicable here, 28 U.S.C. § 2254(e)(2) prohibits a district court
sitting in habeas from granting evidentiary hearings in cases where a state prisoner “fail[ed]” to
develop the factual basis for his claim during state proceedings. We deem Miles’s lack of diligence
in procuring expert testimony during state postconviction proceedings as such a “failure.” See
Williams v. Taylor, 529 U.S. 420, 432 (2000) (“Under . . . § 2254(e)(2), a failure to develop the
factual basis of a claim is not established unless there is lack of diligence, or some greater fault . . . .”
(emphasis added)).
Though Miles argues that “he showed no lack of diligence in not putting on testimony that
he could not afford,” Williams forecloses such after-the-fact arguments. See Williams, 529 U.S. at
435 (“Diligence . . . depends on whether the prisoner made a reasonable attempt, in light of the
information available at the time, to investigate and pursue claims in state court . . . .” (emphasis
added)). Nothing in the record suggests that Miles attempted to procure the expert testimony that
he seeks to introduce through a habeas evidentiary hearing, though he knew at the time of his state
postconviction proceedings the necessity of such evidence to support his ineffective-assistance-of-
counsel claim. See Landrum v. Mitchell, 625 F.3d 905, 924 (6th Cir. 2010) (rejecting petitioner’s
request for habeas evidentiary hearing to introduce expert testimony, where petitioner only made
“general requests” for discovery during state proceedings, rather than referring “specifically to the
need for an expert”). We are unpersuaded by his assertion that any attempt to introduce expert
evidence would have been futile. See Sheppard v. Bagley, 657 F.3d 338, 343–44 (6th Cir. 2011)
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No. 11-5074
Miles v. Colson, Warden
(rejecting habeas petitioner’s futility-based excuse for non-attempt, because there was some chance
that witnesses might have volunteered to testify, contrary to petitioner’s assumptions).
Having fully considered Miles’s arguments to the contrary, we hold that the district court
acted within its sound discretion in denying an evidentiary hearing. We affirm the district court
judgment dismissing the habeas petition.
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No. 11-5074
Miles v. Colson, Warden
MERRITT, Circuit Judge, concurring. I agree with the court’s opinion affirming the
district court in this case on procedural grounds. I would simply add that this case is governed by
the Anti-Terrorism and Effective Death Penalty Act (AEDPA), see 28 U.S.C. § 2254, which
modifies the habeas corpus statute to make more restrictive the rules applicable to habeas petitions.
In the recent case of Greene v. Fisher, No. 10-637, 565 U.S. ____ (Nov. 8, 2011), the Supreme Court
was unanimous. It stated that the AEDPA standard “is difficult to meet, because the purpose of
AEDPA is to ensure that federal habeas relief functions as a guard against extreme malfunctions in
the state criminal justice system, and not as a means of error correction” (emphasis added). In my
opinion, the ruling of the Tennessee Court of Criminal Appeals that the failure of trial counsel to call
a psychiatric or similar expert in this case was not prejudicial, does not constitute an “extreme
malfunction in the state criminal justice system.” Miles killed Elliott at point blank range. He did
so intentionally. It seems highly unlikely that a jury would have found Miles not guilty of murder.
There has been no breakdown in the system of criminal justice in this case, even though it may well
be possible that in this case, like many others, the defendant could have had better representation.
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