United States District Court, D. South Dakota, Southern Division
ORDER ADOPTING REPORT AND RECOMMENDATION AND
E. SCHREIER, UNITED STATES DISTRICT JUDGE
Chris Allen Miller, filed a petition for writ of habeas
corpus under 28 U.S.C. § 2254. Docket 1. Respondents,
Darin Young and Marty Jackley, filed a motion to dismiss.
Docket 11. The matter was referred to Magistrate Judge
Veronica L. Duffy for a report and recommendation under 28
U.S.C. § 636(b)(1)(B) and this court's October 16,
2014 standing order. Magistrate Judge Duffy recommends that
Miller's petition be dismissed. Docket 14. Miller timely
filed his objections to the report and recommendation. Docket
15. Miller also moved to proceed in forma pauperis, for the
court to appoint counsel, and to quash the motion to dismiss.
Dockets 5, 8, and 12. For the following reasons, the court
adopts Magistrate Judge Duffy's report, and denies
Miller's motions to proceed in forma pauperis, to appoint
counsel, and to quash the motion to dismiss.
procedural history was provided by the magistrate judge in
her report and recommendation. Docket 14 at 1-10. Thus, the
court will only give a simple explanation and point to the
magistrate judge's report and recommendation for the full
was indicted for second-degree murder, first-degree
manslaughter, and aggravated assault in connection with the
death of his infant son. State v. Miller, 851 N.W.2d
703, 705 (S.D. 2014). At trial, the court used a mandatory
strike down jury selection process that allowed each party
two more peremptory challenges than were permitted by SDCL
§ 23A-20-20. Miller v. Young, 911 N.W.2d 644,
647 (S.D. 2018). A court error resulted in an additional
juror being seated and then passed for cause. Id. at
646. Because of this error, the court gave the government an
extra peremptory challenge. Id. Also, during
deliberations, the jury asked to listen to the 911 call that
had been admitted into evidence and its request was denied.
Docket 16 at 46. Miller was convicted of second-degree murder
and aggravated assault. State v. Miller, 851 N.W.2d
at 705. He was sentenced to life in custody on the
second-degree murder conviction and fifty years in custody on
the assault conviction. Id. The sentences were to
run consecutively. Id. Attorneys Tim Whalen and
Scott Podhradsky represented Miller at trial, but only
Podhradsky represented him at sentencing. Docket 1 at 3.
appealed. State v. Miller, 851 N.W.2d at 706. The
South Dakota Supreme Court affirmed the verdict. Id.
at 711. Podhradsky represented Miller on direct appeal.
Docket 1 at 3.
filed a habeas petition in state court raising several
claims. Miller v. Young, 911 N.W.2d at 647. Miller
was appointed attorney Jason Ravnsborg to represent him in
his state habeas proceedings. See Docket 16 at 83.
The state court habeas judge denied relief on all claims.
Id. at 35-71; Miller v. Young, 911 N.W.2d
at 647-48. Miller's first application for a certificate
of probable cause was dismissed for being untimely.
See Docket 16 at 15. Miller then sought a motion to
vacate in order to reapply for a certificate of probable
cause. See Id. at 77. This motion was granted.
Id. at 76, 82. Miller then applied for a certificate
of probable cause on: (1) the trial court's method of
selecting a jury; (2) the trial counsel's failure to
object to the jury selection issue; and (3) the trial
court's denial of the jury's request to listen to the
recording of the 911 call during deliberations. Id.
at 99-101. The state habeas court granted the certificate of
probable cause on the two jury selection claims but not on
the 911 call claim. Id. at 85. Miller did not
separately seek a certificate of probable cause from the
South Dakota Supreme Court on the 911 call claim. See
Miller v. Young, 911 N.W.2d at 648 (stating that the
only claims before the South Dakota Supreme Court were the
jury selection claims). The South Dakota Supreme Court denied
habeas relief on the merits. Id. at 651.
October 24, 2018, Miller filed a pro se federal
habeas petition under 28 U.S.C. § 2254. Docket 1. Miller
asserts the following claims in this petition:
1. The trial court judge violated Federal Rule of Criminal
Procedure 24 by using an amended process for jury selection.
2. Ineffective assistance of counsel in violation of
Miller's Sixth Amendment right to counsel in the
following seven respects:
a. Failure to move to strike the entire jury panel after a
potential juror made comments about a potential witness's
b. Failure to call witnesses on Miller's behalf;
c. Failure to object when the trial court allowed the jury to
continue to deliberate instead of sequestering the jury;
d. Failure to request a sentence of time served;
e. Failure to raise on appeal the trial court's jury
f. Failure to raise on appeal the admission of prior bad
g. Failure to present alternate theories on how injuries to
the victim could have occurred at trial;
h. Failure to object when the trial court refused to allow
the jury to re-listen to the recording of the 911 call during
3. The trial court erred by denying the jury's request to
re-listen to the recording of the 911 call during
4. Ineffective assistance of state habeas counsel in failing
to raise the claim of the jury's request to re-listen to
the 911 call.
5. The state court habeas judge was biased and had stated she
was friends with the trial court judge who presided over
Miller's jury trial and that she would recuse herself if
the trial court judge were called as a witness in the habeas
6. The trial court was biased as evidenced by giving
advantage to the prosecutor altering the path of the trial,
giving the jury advance notice they were about to be
sequestered, knowingly breaking laws to keep the trial moving
forward, and willfully excluding evidence.
Id. at 4-8.
court's review of a magistrate judge's report and
recommendation is governed by 28 U.S.C. § 636 and Rule
72 of the Federal Rules of Civil Procedure. The court reviews
de novo any objections to the magistrate judge's
recommendations as to dispositive matters that are timely
made and specific. 28 U.S.C. § 636(b)(1)(B);
Fed.R.Civ.P. 72(b). In conducting its de novo review, this
court may then “accept, reject, or modify, in whole or
in part, the findings or ...