### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 15

- 1869

M ICHAEL M ILLER , Petitioner

- Appellant
,

v.

D U SHAN Z ATECKY , Superintendent, Pendleton Correctional Facility
, Respondent

- Appellee

.

____________________ Appeal from the United States District Court for the Southern District of Indiana
, Indianapolis Division.
No. 1:13

- cv

- 913

- SEB

- TAB

— Sarah Evans Barker
, Judge

.

____________________

A RGUED A PRIL 18, 2016

— D ECIDED A PRIL 26, 2016

____________________

Before E ASTERBROOK and S YKES , Circuit Judges , and A DELMAN , District Judge

. *

E ASTERBROOK , Circuit Judge

. Michael Miller was convicted in Indiana of three counts of child molestation and sentenced to three consecutive 40

- year terms. The sexual abuse , inclu d-

* Of the Eastern District of Wisconsin, sitting by designation.2 No. 15

- 1869

ing anal intercourse
, began when the victi m was nine and continued for six years. When imposing the lengthy term (e ffectively life in prison) , the state judge relied not only on the nature of Miller’s conduct but also on his four prior convi ctions, his failure to reform after stretches of imprisonment, and the absence of any mitigating factors.

The convictions were affirmed on direct appeal, see Mi ller v. State , No. 34A02

- 0307

- CR

- 563 (Ind. App. June 8, 2004). Miller then filed a collateral attack, contending that his a ppellate lawyer furnished ineffective assistance by failing to contest the length of his sentence. (Miller made many other arguments, but all except the sentencing issue have been abandoned .) The state’s court of appeals eventually conclu ded that appellate counsel should have raised this issue, but that its omission did not result in prejudice under the stan dard of Strickland v. Washington , 466 U.S. 668, 694

– 96 (1984), and equivalent state decisions, which ask whether the pet itioner has demonstrated a “reasonable p robability” that the outcome of the direct ap peal would have been different.

The court observed that the substantive standard for a ppellate review in Indiana is whether the sentence is “ina ppropriate in light of the nature of the offense and the chara cter of the offender.” Ind. App. R. 7(B). (Mille r does not co ntend that his sentence violates the Cruel and Unusual Pu nishments Clause o r any other rule of federal law .) After r eviewing the evidence, the appellate court held “that Miller has not established that his 120

- year aggregate sentence is inappropriate in light of the nature of the offense and the character of the offender .” Miller v. State
, 2013 Ind. App. U npub. L EXIS 377 (Mar. 16, 2013) at *19

.No. 15

- 1869 3

This means that, if Miller’s appellate lawyer had conte s ted the sentence, the argument would have failed on the me rits. Because, in the state court’s view, the chance of success was zero, it necessarily followed that Miller had not shown a “reasonable proba bility” that a better appellate lawyer could have obta ined a lower sentence for him. A federal district judge then denied Miller’s petition for a writ of habeas co rpus under 28 U.S.C. §2254. Miller v. Zatecky , No. 1:13

- cv

- 913

- SEB

- TAB (S.D. Ind. Mar. 26, 2015). Because Indiana addressed on the merits the quest ion whether Miller has established prejudice, we must decide whether the state’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. §22 54(d) (1)

. Miller recognizes that Indiana’s judiciary articulated the legal standard the same way the Su preme Court does, so he contends that the state court’s decision was an “unreason able application” of the governing standard. But
, as far as we

can see, the decision was not based on federal law at all, let alone federal law “clearly established” by the Supreme Court. It rests on a conclusion that, as a matter of state law, it would have been futile to contest the sentence ’s length on appeal, because a 120

- year sentence is not “inappropriate in light of the nature of the offense and the character of the o ffender.” A federal court cannot disagree with a state court’s resolution of an issue of state law. See, e.g., Bradshaw v. Ric hey , 546 U.S. 74 (2005); Este lle v. McGuire , 502 U.S. 62 (1991)

. Shaw v. Wilson , 721 F.3d 908, 914

– 15 (7th Cir. 2013), shows that a defendant may use ineffective

- assistance do ctrine t o gain the benefit of state law when a lawyer’s error4 No. 15

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prevented the state judiciary from recognizing the force of a potential state

- law defense (or other advantage secured by state law). Doing that does not use §2254 to override a state court’s conclusion that state law does not provide the pet itioner with th e benefit he sought. But that’s exactly what Miller needs

. A lawyer’s blunder has not led Indiana’s jud iciary to overlook the possibility that Miller may have been entitled to a lower sentence. Instead the state’s court of a ppeals addressed that subject di rectly and concluded that a ppellate review of his sentence in 2004 would have done him no good

— as a matter of state law. That’s the sort of decision §2254 leaves to the state judiciary.

Miller maintains that the state court’s decis ion was “u nreasonable” be cause, w hen considering dispositions of sim ilar cases , the court of appeals did not discuss any opinion issued after June 8, 2004, the date Miller’s direct appeal was decided. Later decisions, according to Miller, look more f avorably on contentions that se ntences in sex

- offense cases are too long, and had the court of appeals used them as comparisons this would have demonstrated a “reasonable probability” of appellate success. But the court of appeals considered only decisions that were “available as preced ent during Miller’s direct appeal” ( Miller v. State at *17 )

. Section 2254(d )(1) does not ask whether a decision was reasonable in the abstract . It asks whether the state court reasonably applied rules clearly established by the Supreme Court of the United States. Miller does not point to any de c ision by that C ourt clearly establishing that a state must give a petitioner the benefit of state

- law precedent that comes a fter his conviction’s finality. That would amount to saying, as a matter of federal law, tha t all state

- law decisions must a p-No. 15

- 1869 5

ply retroactivel y. That isn’t how federal court s apply their own decisions. See Welch v. United States , No. 15

– 6418 (U.S. Apr. 18, 2016 ) (explaining federal retroactivity doctrine) . T he Supreme Court has never questioned th e states’ ability to choose whether to apply their own case law retroactively. State courts must apply federal decisions retroactively when federal doctrine so requires (if they entertain collateral a ttacks at all), see Montgomery v. Louisiana , 136 S. Ct. 718
, 727

– 32 (2016), but they are free to decide when their own doctr inal changes apply to cases that have become final

. And why should a state be required, as a matter of either state or federal law, to give Miller the benefit of decisions released after the conclusion of his direct appeal? Miller does not question the state judiciary’s conclusion that, if his la wyer had contested the length of his sentence in 2004 , he would have lost. The goal of ineffective

- assistance doctrine is to give criminal defend ants the benefit of the counsel to which the Sixth Amendment says they are entitled. We know from Indiana’s decision that, even if appellate counsel had done exactly what Miller says counsel should have done, this would not have helped him. It would be wei rd to
say that a defendant is better off having a lawyer who omits a losing issue than if that lawyer had performed exactly as a zealous and capable counsel should

. Nonetheless, Miller insists that Lockhart v. Fretwell , 506 U.S. 364 (1993) , entitles him to the benefit of hindsight. That isn’t what Lockhart holds. It did not concern §2254(d) (1)

— not only because it predates by three years the Antiterrorism and Effective Death Penalty Act, which rewrote §2254 and insulated many state decisions that might have led to relief in earlier years, see Cullen v. Pinholster , 563 U.S. 170, 1 80

– 906 No. 15

- 1869

(2011), but also because Lockhart does not deal with an a sserted change of state law

. It does not make defendants with poor lawyers better off than defendants with good ones.

Fr etwell was convicted of a capital crime in Arkansas and sentenced to death. The jury instructions permitted the j urors to consider, as an aggravating factor, that the crime had been committed for pecuniary gain. A few months before Fretwell’s sentencing , a panel of the Eighth Circuit had held that the Eighth Amendment forbids a state to use as an a ggravating factor any element of the substantive crime. Collins v. Lockhart , 754 F.2 d 258 (8th Cir. 1985). Fretwell’s lawyer did not ask the Arkansas judge to app ly Collins . By the time Fretwell filed a collateral attack in federal court, Collins had been overruled as inconsistent with Lowenfield v. Phelps , 484 U.S. 231 (1988). See Perry v. Lockhart , 871 F.2d 1384 (8th Cir. 1989). Another panel of the Eight h Circuit held that Fretwell was entitled to the benefit of the holding in Collins , even though that decision was wrong , but the Supreme Court r eversed. It held that the Sixth Amendment does not entitle litigants to gain from judicial errors

. Miller concludes from this that anyone who advances an ineffective

- assistance claim is entitled to the benefit of hin dsight. Yet that was not the Court’s point. The case stands for the proposition that a person seeking federal collateral r eview must show that the state court committed an error of federal law

— not that it took a step mistakenly (and temp orarily) thought to be an error, but that the state judiciary rea lly was in error . Given Lowenfield and Perry , the instructions at Fretwell’s sentencing trial were c onstitutionally valid; he had no legitimate beef about them , and at any new senten c-No. 15

- 1869 7

ing hearing the instructions would have been repeated ve rbatim

. Later decisions have emphasized that Lockhart does not redefine Strickland ’s “prejudice” component. See, e.g.
, Lafler v. Cooper , 132 S. Ct. 1376, 1386

– 87 (2012); Glover v. United States , 531 U.S. 198, 202

– 04 (2001)

. Indeed, the Court has u nderstood Lockhart as an anti

- hindsight decision, warning against the “natural tendency to speculate as to whether a different ... strategy might have been more successful.” Maryland v. Kulbicki , 136 S. Ct. 2, 4 (2015), quoting from Loc khart , 506 U.S. at 372. Miller observes that our op inion in Shaw remarks in pas sing that “hindsight is permissible.” 721 F.3d at 918. That’s so in the sense that, under Lockhart , federal law must favor the petitioner when the collateral attack is resolved , as well as when the state’s decision became final. Nothing in Lockhart justifies any general re sort to hindsight. Immediately after the langue we have quoted, our opinion in Shaw cites 506 U.S. at 372
, where Lockhart condemns resort to hindsight to disparage the performance of counsel. And we cannot forge t that Strickland asks whether there is a reasonable probability that “ but for counsel's unprofessional errors, the result of the
proce eding would have been different .” 466 U.S. at 694. That has the same temporal focus as the state’s court of appeals in
Mi ller’s case, asking whether a better performance by cou nsel could have affected the outcome then and there.

If Shaw meant more by its remark
, it still can not control the outcome in a proceeding under §2254(d)(1). That statute limits the federal courts’ rol e to applying law clearly esta blished by the Supreme Court of the United States. The Justi ces insist that district and circuit judges disregard their own8 No. 15

- 1869

decisions . See, e.g., Lopez v. Smith
, 135 S. Ct. 1, 4 (2014) (“Ci rcuit precedent cannot ‘ refine or sha rpen a general principle of Supreme Court jurisprudence into a specific legal rule tha t this Court has not an nounced.’ ”); Marshall v. Rodgers , 133 S. Ct. 1446, 1450 (2013)

. Lockhart itself does not “clearly esta blish” that state courts must conside r state

- law decisions that post date counsel’ s deficient performance; it has nothing to say about how state courts determine the temporal scope of their own decisions. A nd Kulbicki holds federal law does not require the use of hindsight in ineffective

- assista nce cases.
Miller has not shown that the state judiciary made an e rror of federal law , so he is not entitled to collateral relief.

A FFIRMEDNo. 15

- 1869 9

A DELMAN , District Judge , dissenting. Because appellate counsel provided ineffective assistance by failing to cha llenge Michael Miller’s 120

- year prison sentence, I would conditionally grant the writ. The majority concludes that Miller fails to show that the state judiciary made any error of federal law in rejecting this claim. For the reasons that fo llow, I respectfully dissent.


### I.
A jury convicted Miller of three counts of child molest ation, and the trial court sentenced him to 40 yea rs in prison on each count running consecutively for a total of 120 years. 1

1 The majority notes that the sexual abuse, including anal intercourse, began when the victim was nine and continued for six y ears, and that the state court in imposing an effective life term considered not only the n ature of Miller’s conduct but also his four prior convictions, his failure to reform after stretches of imprisonment, and the absence of mitigating factors. While it isn’t necessary to address the facts at length, I do note that the victim in this case came forward years after the alleged abuse, first disclosing it during a psychiatric hospitalization. During Miller’s trial, the victim testified that he was drunk and high on marijuana du ring the alleged assaults. He did not know how old he was when the a ssaults occurred (although he did know he was under the age of 14, an element of the charges). He was not sure of the dates of, or the addresses where, the assaults too k place. The “only thing that [he was] a hundred percent sure of is that man [Miller] had sex with [him].” At the senten cing hearing, Miller presented testimony from numerous witnesses as to his good character. Several of the witnesses had children of thei r own; none expressed concern about Miller acting inappropriately. One wi tness indicated that Miller had taken her 15

- year

- old son under his wing, turning his life around. “I can’t thank Mike enough for what he’s done for my son.” The victim, apparently in carcerated at the time of Miller’s sentencing, did not appear to make a statement. Finally, while Miller had prior felony convictions, they were for drug offenses, not sexual misco nduct.10 No. 15

- 1869

On direct appeal, Miller’s counsel raised two nigh frivolous challenges

— to the sufficiency of the evidence and the a dmission of other

- acts evidence; he also noted a clerical error in the written judgment, which did not affect the length of Miller’s sentence. Counsel failed to raise a challenge to Mi ller’s virtual life sentence, despite the fact that Miller asked him to and counsel in a letter to Miller said “it probably will be” one of the issues he raised. The Indiana court of appeals remanded for correction of the clerical error but quickly r ejected the evidentiary challenges. Miller then petitioned for post

- conviction relief in state court, arguing, inter alia , that his appellate counsel provided ineffective assistance. The state trial court held a hearing, at which appellate counsel testified he did not have any ind ependent recollection of or knowledge why he did not raise the sentencing issue on direct appeal. The trial court den ied relief, and the Indiana court of appeals affirmed. The state court of appeals found that counsel should have raised the sentencing issue on direct appeal and thus considered whether there was a reasonable probability that the outcome of the appeal wou ld have been different had he done so. In analyzing this issue, the court distinguished two cases “available as precedent during Miller’s direct appeal,” opining that Miller’s case was more aggravated. The court noted that Miller acted as a father figure t o the victim and found the nature of the offense particularly contemptible b ecause Miller had significant time to reflect upon the heinous nature of his actions between the dates on which the crimes occurred. The court also found that Miller’s prior crimin al history, which included three Class D felony drug convi ctions and a Class A misdemeanor conviction, and the factNo. 15

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that he molested the victim over a six

- year time span demonstrated his inability to lead a law abiding life and his depraved character. The court concluded:

that Miller has not established that his 120

- year aggregate se ntence is inappropriate in light of the nature of the offense and the character of the offender. Consequently, Miller cannot establish that there is a reasonable probability tha t his sentence would have been revised pursuant to Appellate Rule 7(B) if appellate counsel had raised the issue on direct appeal. We therefore a ffirm the trial court’s finding that Miller’s appellate counsel was not ineffective.
Miller v. State , 2013 Ind. App. Unpub. L EXIS 377, at *19

– 20 (Ind. Ct. App. Mar. 26, 2013) (internal citations omitted). Miller then sought habeas relief in federal court. The di strict court denied his petition, but we granted a certificate of appealability on the issue of whether a ppellate counsel pr ovided ineffective assistance and sua sponte appointed cou nsel to represent Miller on this appeal.


### II.
Because his case is governed by the Antiterrorism and E ffective Death Penalty Act (“AEDPA”), in order to obtain r elief Miller must sho w that the decision of the last state court to address his claim on the merits was contrary to, or i nvolved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d). T he standard is a d emanding one, but I believe that Miller satisfies it.
In order to establish a claim of ineffective assistance, a defendant generally must show (1) that counsel’s perfo rmance was deficient, and (2) that the deficient performance prejudiced the defense. Strickland v. Washington , 466 U.S. 668,12 No. 15

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687 (1984). The present case involves the performance of counsel on direct appeal. An appellate lawyer performs def iciently if he abandons a non

- frivolous claim that was both obvious and clearly stronge r than the claims he actually pr esented. Shaw v. Wilson , 721 F.3d 908, 915 (7th Cir. 2013). The court evaluates performance from the perspective of a re asonable attorney at the time of the appeal, avoiding the di storting effects of hindsight. Id.

To deter mine prejudice in this context, the court asks whether there is a reasonable probability that, but for cou nsel’s unprofessional errors, the result of the direct appeal would have been different. Id. at 918. As this court stated in a similar case involving appellate counsel’s failure to raise an issue of Indiana law on direct appeal:
In assessing prejudice, we must bear in mind once again that we are making a comparative inquiry about counsel’s choices; we are not resolving any issue of state law, and we are not telling the Indiana judiciary how it should approach this issue. Prej udice exists, however, if counsel bypassed [a] nonfrivolous arg ument that, if successful, would have resulted in the vacation of [the petitioner’s] conviction. ... And when evaluating prejudice, unlike when evaluating attorney performance, hindsight is pe rmissible. Lockhart v. Fretwell , 506 U.S. 364, 372 (1993); Hemstreet v. Greiner , 491 F.3d 84, 91 (2d Cir. 2007); Eddmonds v. Peters , 93 F.3d 1307, 1326 n.5 (7th Cir . 1996). This means t hat the Indiana S upreme Court’s [later decisions are] relevant to whether the a rgument [counsel] jettisoned was both nonfrivolous and stronger than the sufficiency argument he presented.
Id

. There can be little doubt that counsel performed def iciently by failing to raise the sentencing issue on Miller’s d irect appeal. The evidentiary challenges counsel raised were all but doomed to fail, given the standards of review IndianaNo. 15

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appellate courts apply, and the clerical correction did Miller no good.

On the ot her hand, Indiana appellate courts are autho rized to independently “review and revise” sentences. Ind. Const. Art. 7, § 4; Pierce v. State , 949 N.E.2d 349, 352 (Ind. 2011). This authority is implemented through Indiana A ppellate Rule 7(B), which provides t hat the appellate court may revise a sentence if after due consideration of the trial court’s decision the appellate court finds the sentence is i nappropriate in light of the nature of the offense and the cha racter of the offender. Pierce , 949 N.E.2d at 35 2. As Miller shows in his brief, Indiana appellate courts have not hesita ted to use this authority; he cites no less than 11 cases in which Indiana appellate courts shortened sentences in sim ilar cases. 2

2 Pierce v. State , 949 N.E.2d 349 (Ind. 2011) (revising 124 year sente nce on four counts of child molestation to 80 years); Sanchez v. State , 938 N.E.2d 720 (Ind. 2010) (revising total sentence of 80 years on three counts of child molestation to 40 years); Harris v. State , 897 N.E.2d 927 (Ind. 2008) (revising consecutive sen tences of 50 years on two counts of child molesting to concurrent); Smith v. State , 889 N.E.2d 261 (Ind. 2008) (revi sing four consecutive sentences of 30 years each, a total of 120 years, to a total of 60 years); Monroe v. State , 886 N.E.2d 578 (Ind. 2008) (reducing sentence of 100 years to 50 years); Estes v. State , 827 N.E.2d 27 (Ind. 2005) (revising sentence of 267 years on 14 counts of child molesting and sex ual misconduct with a minor to 120 years); Serino v. State , 798 N.E.2d 852 (Ind. 2003) (revising sentence of 385 years on 26 counts of child molest ation to 90 years); Kien v. State , 782 N.E.2d 398 (Ind. Ct. App. 2003) (revi sing consecutive sentences of 40 years on three counts, a total of 120 years, to 80 years total); Ortiz v. State , 766 N.E.2d 370 (Ind. 2002) (revising 30 year consecutive sentences on child molesting counts to run concurren tly); Haycraft v. State , 760 N.E.2d 203 (Ind. Ct. App. 2001) (revising 190 year sentence for child molesting and related offenses to 150 years);14 No. 15

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The Indiana court of appeals found deficient perfo rmance in this case. The warden does not argue otherwise in this court. The issue is thus whether the state court’s prej udice finding was contrary to, or involved an unreasonable application of, federal law as determined by the Supreme Court.

The Indiana co urt correctly set forth the standards for evaluating ineffective assistance of appellate counsel claims. The court cited state rather than federal decisions, but there is nothing wrong with that (so long as the state cases do not contradict federal law as set forth by the Supreme Court). See, e.g.
, Early v. Packer , 537 U.S. 3, 8 (2002).
As Miller notes, however, the state court limited its ana lysis to cases pre

- dating Miller’s direct appeal, ignoring later cases cited by the parties in which Indiana appella te courts revised sentences in similar cases. Miller argues that this is “contrary to” the holding of Lockhart v. Fretwell that, while

Walker v. State
, 747 N.E.2d 536 (Ind. 2001) (revising consecutive sentences of 40 years on two counts of child molesting to be concurrent). As di scussed below, one of the issues in this case is whether the Indiana court of appeals erred by failing to consider cases post

- da ting Miller’s direct appeal. Five of the cases cited above pre

- date the decision on Miller’s direct appeal; six post

- date the direct appeal. It is also important to note that in January 2003 the Indiana supreme court modified the standard for revising a se ntence; formerly, appellate courts could revise a sentence only if it was “manifestly unreasonable.” Serino , 798 N.E2d at 856. Fin ding this barrier to review too high, the court modified the rule to allow revision “if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Id. (quoting Ind. Appellate Rule 7(B)). This more lenient standard applied at the time of Miller’s d irect appeal, but there were a limited number of cases applying it at that
time.No. 15

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the performance prong is evaluated without the benefit of hindsight, prejudice is measured based on the law as it exists at the time the court adjudicates the ineffective assistance claim. See 506 U.S. at 372; see also Shaw , 721 F.3d at 918 (“[W]hen evaluating prejudice, unlike when evaluating a ttorney performance, hindsight is permissible.”).

While the state court discusse d only cases available at the time of Miller’s direct appeal, it did not explicitly state that later cases were irrelevant as a matter of law; as indicated, the court set forth the correct standards earlier in its dec ision. We will not grant a writ simply because the state court failed to cite all of the pertinent cases. 3

3 The warden argues that Lockhart v. Fretwell has no applicability here because that case is limited to situations in which the defendant would receive a windfall if the court did not consi der subsequent legal deve lopments. In Lockhart , counsel failed to raise an objection supported by

case

- law at the time of sentencing; however, by the time the defendant sought habeas relief, the favorable case

- law had been overruled. Under these circumstan ces, the Supreme Court refused to focus “on mere ou tcome determination, without attention to whether the result of the pr oceeding was fundamentally unfair or unreliable.” 506 U.S. at 369. Loc khart did not supplant the general prejudice rule set forth in St rickland
, e.g., a reasonable probability that, but for counsel’s unprofessional e rrors, the result of the proceeding would have been different. Williams v. Taylor , 529 U.S. 362, 391

– 93 (2000). Lockhart ’s rule that the court also co nsider unfairness only co mes into play in the unusual circumstance where the defendant attempts to demonstrate prejudice based on consider ations that, as a matter of law, ought not inform the inquiry, id. at 393 n.18, such as later rejected case

- law, Shaw , 721 F.3d at 919. The war den contends that the present case does not involve a change in the law. However, after Lockhart , courts have held that prejudice is determined with the benefit of hindsight in all cases, whether focused on the ou tcome or unfairness. See, e.g.
, Lynch v. Do lce , 789 F.3d 303, 311 (2d Cir.16 No. 15

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However, I would hold that the Indiana court of appeals did unreasonably apply federal law. As indicated above, the court stated:

that Miller has not established that his 120

- year aggregat e se ntence is inappropriate in light of the nature of the offense and the character of the offender. Consequently, Miller cannot establish that there is a reasonable probability that his sentence would have been revised pursuant to Appellate Rule 7(B) if a ppellate counsel had raised the issue on direct appeal.

The conclusion in the second sentence does not necessar ily follow from the premise in the first sentence. A court co nsidering an ineffective assistance claim need not definitively resolve in the defen dant’s favor the merits of the arguments counsel omitted, “for under Strickland [the defendant] need show only a reasonable probability that, but for counsel’s u nprofessional errors, the result of the proceeding would have been different.” United States v. Weathers , 493 F.3d 229, 238 (D.C. Cir. 2007) (internal quote marks omitted, emphasis in original); see also Shaw , 721 F.3d at 918 (rejecting the r espondent’s argument that the petitioner’s claim would have failed under state law because his “theory does n ot turn on the ultimate outcome in the state courts; it depends only on the relative strength of this argument over the one counsel chose”). Given the numerous cases in which Indiana appellate courts revised similar sentences, there is at least a reasonabl e chance Miller may have obtained such relief on direct a ppeal. That this panel of the Indiana court of appeals found the sentence appropriate on post

- conviction review does not

2015); Eddmonds , 93 F.3d at 1326 n.5. The warden cites no authority to the contrary. Thus, this aspect of Lockhart applies in the present case.No. 15

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foreclose the possibility that the Indiana supreme court (or the different pan el of the court of appeals that heard Miller’s direct appeal) 4 would have exercised independent authority differently. 5 Indeed, had counsel raised the sentencing issue on direct appeal, there is every reason to believe that Miller’s case would have been on the list set forth in note 2, above. As Miller shows in his brief, the state supreme court has on multiple occasions reduced sentences in cases arguably more aggravated than his. In Serino v. State , for instance, a jury found the defendant guilty of 26 co unts of child moles ting and sexual misconduct with a minor. 6 The defendant in that case became a father figure to the victim, his girlfriend’s son, but then repeatedly sexually abused the boy over a three year period, beginning when the victim was 11, incl u ding fondling, oral sex, and anal sex. 798 N.E.2d at 853. In i mposing a 385

- year sentence, the trial court noted that Serino was in a position of trust with the victim and exploited that trust, that Serino was not charged with all crimes committed against the child, and that Serino had other pending charges

4 The Indiana court of appeals has 15 members. The court’s three

judge panels si t together for terms of four months, after which the judges rotate. http://www.in.gov/judiciary/appeals/2347.htm (last visited Apr. 21, 2016). None of the judges who heard Miller’s direct appeal served on the panel that decided his post

- conviction appeal.

5 It is important to note that appellate review under Rule 7(B) i nvolves “an exercise of judgment that is unlike the usual appellate pr ocess, and is very similar to the trial court’s [exercise of discretion].” Cardwell v. State , 895 N.E.2d 1219, 1223 (Ind. 2008). The Indiana supreme court has described Rule 7(B) as “a standard leaving much to the unco nstrained judgment of the appellate court.” Id. at 1224.

6 Serino was decided on November 19, 2003, nearly seven months b efore the court of appeals decided Mill er’s direct appeal.18 No. 15

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for sex crimes against another child, in concluding that a lesser sentence would depreciate the seriousness of the
crimes. Id. at 857. Based primarily on the testimony from numerous witnesses attesting to Serino’s positive character traits, the supreme court reduced the sentence to 90 years. Id.
at 858. Miller also occupied a position of trust with the victim, and his crimes also occurred over a several year period. However, Miller was convicted of just three counts, he had no other charges pending, and the record discloses no u ncharged conduct related to the same victim. As discussed in note 1, supra , Miller also produced numerous positive cha racter witnesses at his sentencing. Yet he is serving a senten ce 30 years longer than Serino.

In Smith v. State , a jury convicted the defendant of four counts of child molesting, based on his step

- daughter’s r eport that he had sexual intercourse with her when she was 10 years old and on three other occasions before s he turned 14. 889 N.E.2d at 262. The trial court imposed four consec utive sentences of 30 years, 120 years total, based on Smith’s extensive criminal history, including two sex offenses; the extended period of time over which Smith molested the vi ctim; the heinous violation of trust represented by Smith’s abuse of his step

- daughter; and the additional psychological abuse he inflicted on the girl. Id. at 263

- 64. Despite these a ggravated circumstances, the Indiana supreme court reduced the sentence to a total of 60 years. Id. at 264. Miller sits in prison for twice as long, despite the absence of prior sex o ffenses on his record or any evidence of additional psych ological abuse of the victim.No. 15

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And in Sanchez v. State , the defendant sexually abused his step

- daug hters, ages six and nine, resulting in three child molestation convictions. 938 N.E.2d at 721. The trial court imposed concurrent sentences of 40 years for the two counts pertaining to the first child, and a consecutive sentence of 40 years for the count p ertaining to the second child. Id. The state supreme court, noting that Sanchez did not use signif icant force on the girls or cause injury, and that he lacked an extensive prior record, made the sentences concurrent, r educing the total term to 40 years. Id

. at 723. Miller was co nvicted of three counts involving the same victim, who test ified that Miller never threatened him or inflicted any injury (other than temporary pain from the intercourse). Yet Mi ller’s sentence is three times as long as Sanchez’s. 7

F inally, while perhaps not an independent basis for granting relief, the Indiana court’s rejection of Miller’s se ntencing claim is weakened by its failure to consider post

2004 cases. As discussed above, in January 2003 the Indiana supreme court made it eas ier for appellate courts to revise

sentences. 8 It thus stands to reason that there would be more

case

- law favorable to Miller’s position after 2003 than before. The warden argues that, because the text of the rule did not

7 I do not cite these cases to show that the Indiana court of appeals e rroneously exercised its discretion under Appellate Rule 7(B) in Miller’s case. The only issue we need to decide is whether Miller has shown a reasonable probability, a better than negligible chance, see Harris v. Thompson , 698 F.3d 609, 644 (7th Cir. 2012), of a different outcome. B ecause the Indiana supreme court has reduced sentences in cases arguably more aggravated than Miller’s, I find that Miller has made the re quired showing.

8 The Indiana court of appeals acknowledged the changed standard, and that it applied to Miller’s sentence.20 No. 15

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change, the court’s analysis was t he same in 2013 as it would have been in 2004. But given the vagueness of the rule surely the Indiana supreme court’s application of it in similar cases is important. Those cases offer insight into what might have happened had counsel challenged Miller’s s entence on direct appeal. It is true, as the warden notes, that the Indiana court of appeals used the present tense

— “Miller has not esta blished that his 120

- year aggregate sentence is inappropriate.” Miller , 2013 Ind. App. Unpub. L EXIS 377, at *19 (emphasi s added.) But this shows only that this panel found the se ntence appropriate; it does not show that another panel of the court or the Indiana supreme court would not have revised Miller’s sentence on direct appeal. Nor does the tense the court used change the fact that it ignored post

- 2003 case

- law.


### III.
The majority says that the state court’s decision was not based on federal law at all; rather, it rests on the conclusion that, as a matter of state law, an appeal challenging the se ntence would have been futile. A federal court cannot dis agree with a state court’s resolution of an issue of state law.

We addressed a similar issue in Shaw , a case which also involved counsel’s failure to raise an issue of Indiana state law on direct appeal. In Shaw , the state amended the info rmation after the deadline set by the then

- applicable proc edural rule (Section 35

- 34

- 1

- 5). 721 F.3d at 911. Although no Indiana appellate court ever had invalidated an amendment under that rule, the Indiana supreme court had stated that

ta rdy amendments, if substantive in nature, were impermi ssible. Id. at 912 (citing Haak v. Indiana , 695 N.E.2d 944, 951 (Ind. 1998)). Trial counsel challenged the amendment, but appellate counsel failed to renew the challenge on direct a p-No. 15

- 1869 21

peal, instead raisin g a near frivolous challenge to the suff iciency of the evidence. Id. Four years after Shaw lost his d irect appeal, the Indiana supreme court reversed a conviction based on an untimely substantive amendment, confirming what it had said in Haak

. Id. (citing Fajardo v. Indiana , 859 N.E.2d 1201 (Ind. 2007)). 9 Shaw then sought post

- conviction relief, arguing that his appellate lawyer provided ineffective assistance by not raising the amendment issue. The Indiana court of appeals denied relief, noting that while some dec isions of the state supreme court included dicta supporting Shaw, prior to Fajardo no amendment had actually been i nvalidated under the rule. Given the state of the law, the court found that counsel’s performance was not deficient. Id. at 913. The court also found no prejudice because Shaw had been granted a continuance to prepare for trial. Id. When Shaw sought habeas relief, the state argued that the federal courts were entirely prohibited from evaluating the Indiana court of appeals’ assessment of Shaw’s claim b ecause the claim involved a question of state law. Id. at 914. We rejected that contention:
The state’s argument, however, misses the point that Shaw is making. Shaw is not asking (and has no reason to ask) that we second

- guess an Indiana court on the meaning of Section 35

- 34

- 1

- 5. Shaw is making a simpler point: a competent lawyer in Ind iana should have recognized that there was a state statute under which relief for his client was possible and would have pursued that theory on appeal. An a rgument about the validity of the state’s effort to amend the indictment would have been materia lly stronger than the frivolous sufficiency

- of

- the

- evidence point that [counsel] raised. With that much accepted, there is no fu r-

9 The Indiana legislature later changed the rule in response to Faja rdo

. Id . at 912

– 13.22 No. 15

- 1869

ther role for the federal judic iary: whether the Indiana appellate court would have been persuaded, or if not, whether the Indiana Supreme Court would have granted transfer, is immaterial. The state’s argument that even this kind of comparative assessment is out of bounds, if accepted, would foreclose federal review of almost any ineffectiveness claim that rests on an attorney's mi shandling of a state

- law issue, no matter how egregiously def icient the attorney’s performance. It is well established that a d efense attorney’s failure to rai se a state

- law issue can constitute ineffect iveness.
Id. at 914

– 15. The majority indicates that Shaw permits an ineffective assistance claim where counsel’s error prevented the state judiciary from recognizing the force of a potential state law argument. H ere, according to the majority, appellate cou nsel’s mistake did not prevent the Indiana judiciary from looking at Miller’s sentence; the Indiana court of appeals did so on post

- conviction review, concluding that a possible r eview of the sentence in 2004 wo uld have done him no good

— as a matter of state law. For two reasons, this misses the mark. First, because habeas petitioners must exhaust their state court remedies before turning to the federal courts, it will often be the case that the state post

- convict ion court a ddresses the merits of the argument counsel omitted. Indeed, the Indiana court of appeals did so in Shaw . 721 F.3d at 913. 10 We granted habeas relief, despite the fact that the omitted claim may have failed as a matter of state law; we declined

10 Specifically, the Indiana court of appeals noted the absence of a uthority supporting a challenge to the amendment at the time of the direct appeal. Because state law did not support the claim at the time, the court found that counsel’s performance was not deficient. Id.No. 15

- 1869 23

t o be drawn into the content of state law, noting that “it is necessary only to conclude that the amendment issue was clearly stronger than the sufficiency argument. Id. at 916. We said the same thing assessing prejudice:

[W]e are making a comparative inqui ry about counsel’s choices; we are not resolving any issue of state law, and we are not tel ling the Indiana judiciary how it should approach this issue. Prejudice exists, however, if counsel bypassed an nonfrivolous argument that, if successful, would have resulted in the vacation of Shaw’s conviction (just as the conviction in Fajardo later was).
Id. at 918. Second, the majority makes the same mistake as the Ind iana court of appeals, equating one panel’s discretionary r ejection of Miller’s sentencing claim (based solely on pre

- 2004

case

- law), with a finding that there is no reasonable prob ability that the state supreme court or another panel of the court of appeals would have modified the sentence on direct appeal. As indicated above, review under Rule 7(B) involves “an exercise of judgment that is unlike the usual appellate process.” Cardwell , 895 N.E.2d at 1223. The Indiana supreme court has explained that:
whether we regard a sentence as appropriate at the end of the day turns on our sense of the culpabil ity of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case. Individual jud gments as to the proper balance to be struck among these consi derations will necessarily vary from person to person, and judges, whether they sit on trial or appellate benches, are no exception. There is thus no right answer as to the proper sentence in any given case. As a result, the role of an appellate court in revie wing a sentence is unlike its role in r eviewing an appeal for legal error or sufficiency of evidence.24 No. 15

- 1869

Id. at 1224. Because there is no “right” or “wrong” answer under Appellate Rule 7(B), it is incorrect to say, as the majo rity does, that the Indiana court of appeals definitively r esolved the i ssue as a matter of state law in finding the se ntence appropriate. See id. at 1225 (explaining that the goal of appellate review is “not to achieve a perceived ‘correct’ r esult in each case”). 11 The majority notes that Miller cites no Supreme Court decision holding that a state must give a petitioner the ben efit of state law precedent that comes after his conviction b ecame final. This, too, misses the mark. I agree that, while it would have been permissible for the Indiana court of appeals to cite post

- 2004 cases, no rule of federal law required it to do so. But Miller’s point is that those cases are available to us in evaluating the state court’s prejudice determination. Consi dering later cases does not, as the majority suggests, effectiv ely require that all state law decisions apply retroactively. The operative rule in Indiana was the same in 2004 as in 2013; Miller does not seek benefit of a new, more lenient standard, he simply directs our attention to cases applying the rule which support his position tha t there is a reasonable prob ability his sentence would have been modified had his lawyer raised the issue. The majority contends that Lockhart does not entitle Mi ller to the benefit of hindsight. While it is true that Lockhart , a pre

- AEDPA case, applied ca se

- law post

- dating the petitio ner’s direct appeal to deny habeas relief, we have not unde r-

11 It would be different if Mi ller had argued, say, that Indiana law prohibited consecutive sentences in cases like his, and the court of a ppeals rejected that contention under state lawNo. 15

- 1869 25

stood the case to be limited to those circumstances. See Shaw
, 721 F.3d at 918. In Shaw , for instance, we considered the I ndiana supreme court’s post

- direct

- appeal de cision in Fajardo in evaluating prejudice. Id. The majority correctly notes that Lockhart did not change Strickland ’s prejudice component, see note 3, supra , but the Supreme Court’s later decisions do not, as the majority suggests, understand Lockhart as a n anti

hindsight decision. Maryland v. Kulbicki , 136 S. Ct. 2, 4 (2015), cited by the majority, quoted Lockhart in assessing perfo rmance , not prejudice. The Court explicitly declined to a ddress prejudice in that case. Id. at 5.


### IV.

For these reasons, I wou ld vacate the district court’s dec ision and remand with instructions to grant the writ unless Indiana affords Miller a new appeal.