United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

April 24, 2007

Before

Hon. KENNETH F. RIPPLE, Circuit Judge

Hon. ILANA DIAMOND ROVNER, Circuit Judge

Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 05-3978

KEITH MILLER,

Petitioner-Apellant,

v.

WALTER E. MARTIN,

Respondent-Appellee

Appeal from the United States District

Court for the Northern District of

Indiana, Fort Wayne Division

No. 1:04-CV-028-TS

Theresa L. Springmann, 

Judge.

O R D E R

Before us is the State of Indiana’s motion to amend the opinion issued in the

above-entitled case on March 15, 2007, to remove the penultimate paragraph. We

will grant the motion, but we take this opportunity to respond to some of the points

raised by the State. 

The State suggests that our criticism of its stance in this case was misplaced

primarily because its argument prevailed in the district court and in the Indiana

Court of Appeals. How, the State wonders, can it be faulted for defending a position

that four other judges have accepted? The point has some facial appeal, but it

ignores that the first court to consider Miller’s ineffective-assistance claim (and the

only court to hear testimony from Miller and his lawyer) ordered resentencing on

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1
No. 05-3978 Page 2

the basis of the woefully inadequate representation he received the first time. 

When the postconviction court issued its decision, Miller had already been

imprisoned for more than six years. Rather than participate in a resentencing

hearing (which presumably would have cost Indiana taxpayers far less than six

additional years of litigation to prevent it from occurring), the State fought the

court’s decision. For this reason, we find its argument that it simply has been

defending a “winning” argument disingenuous.

The State further contends that anything short of zealous advocacy in this

case would betray its duty to defend “State criminal convictions” from collateral

attack. Of course, the conviction in this case was never in jeopardy. The

postconviction court accepted only Miller’s argument that he received ineffective

assistance of counsel at sentencing. At resentencing, the State could have simply

reprised its arguments in favor of maximum, consecutive sentences—but it would

have done so in the context of fair proceedings. 

Finally, the State homes in on our statements that “uncertainty” exists

concerning when Cronic rather than Strickland governs an ineffective-assistance

claim and that the Cronic exception at issue here is “exceedingly narrow.” The

State presents our statements as evidence that “it was not at all clear” that a

constitutional violation took place at Miller’s sentencing hearing. Let us be clear:

although deciding on the appropriate standard requires careful analysis, we suffer

from no lack of certainty that, under any standard, Miller’s counsel at sentencing

was ineffective. 

 

Our decision to express our concern with the path that this case took and the

manner in which the State presented its arguments was not made lightly. We

endeavor to treat all advocates who appear before us with the same civility and

respect that we expect from them. And, although the arguments discussed above

lead us to question whether the State took our words to heart, we will take the

State at its word that it has. Accordingly, the motion to modify our opinion is

GRANTED. An amending order will follow shortly.