Miller v. Champion

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 21 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

ARTHUR DONNELL MILLER, JR.,

Petitioner-Appellant,
v.
No. 00-6138
RON CHAMPION,

Respondent-Appellee.

Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 97-CV-867-A)

Susan M. Otto, Federal Public Defender (Paul Antonio Lacy, Assistant Federal
Public Defender, with her on the briefs), Oklahoma City, Oklahoma, for
Petitioner-Appellant.

Patrick T. Crawley, Assistant Attorney General (W.A. Drew Edmondson, Attorney
General, Seth S. Branham, Assistant Attorney General, with him on the brief),
Oklahoma City, Oklahoma, for Respondent-Appellee.

Before EBEL, Circuit Judge, MCWILLIAMS, Senior Circuit Judge, and
BALDOCK, Circuit Judge.

EBEL, Circuit Judge.
 Petitioner-Appellant Arthur Donnell Miller, Jr. (“Miller”) appeals the

district court’s order denying his petition for habeas corpus pursuant to 28 U.S.C.

§ 2254. Specifically, Miller challenges the district court’s finding that he was not

prejudiced by his attorney’s ineffective assistance in advising him to plead guilty

to a second-degree murder charge in Oklahoma state court without advising him

of the proper elements of that offense. We hold that when a defendant alleges

that his attorney’s ineffective assistance led him to plead guilty, the test for

prejudice is whether he can show that he would not have pled guilty had his

attorney performed in a constitutionally adequate manner. It is not necessary for

the defendant to show that he actually would have prevailed at trial, although the

strength of the government’s case against the defendant should be considered in

evaluating whether the defendant really would have gone to trial if he had

received adequate advice from his counsel. Applying this standard in light of the

factual determinations made by the district court below, we AFFIRM.

I. BACKGROUND

The facts surrounding Miller’s petition are essentially undisputed. Miller

and his nephew, Todd O’Shea Coburn, were both charged with first-degree

murder in Kay County, Oklahoma for the May 6, 1995, shooting death of Dominic

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Hamilton. Hamilton died of a single gunshot wound which entered his back and

exited through his chest.

On the day of the shooting, Miller attended a family fish-fry at his father’s

home in Ponca City, Oklahoma. Miller, an alcoholic, drank heavily during the

course of the day. Eventually, Miller, his wife Pam and brother Donald Ray went

to a club known as “the Bucket.” Miller encountered Hamilton, a long-term

acquaintance, on the club’s porch and began making jokes about Hamilton’s

weight. Hamilton took offense, and a fight ensued.

Miller’s brother, Donald Ray Miller (“Donald Ray”), went for help, and

Miller later told police that he was attacked, hit with a baseball bat, and cut with a

knife in his brother’s absence. A short time later, Donald Ray returned with

Miller’s sister, Rose Hodge Burgess (“Burgess”); Miller’s nephew, Coburn,

arrived soon thereafter with a .38 caliber semi-automatic pistol. Miller and his

family members soon spotted Hamilton and two additional men, Ty Jones

(“Jones”) and Napoleon Elston (“Elston”), approaching with baseball bats. Jones

threw a bat that narrowly missed Burgess, and Miller then took Coburn’s gun. At

this point, an onlooker shouted a warning that Miller had a gun, and everyone

present, including Hamilton, turned to run. Miller fired once in the air, and then

fired two more shots in the direction of Hamilton. Hamilton dropped to the

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ground in a vacant lot across from the Bucket. The shooting occurred

approximately ten minutes after Miller was first attacked.

Miller turned himself in to the Ponca City Police Department approximately

three hours after the shooting and gave a statement to Police Lieutenant Barbara

White. Lt. White testified that she confronted Miller with witness statements

placing him at the scene with a gun and identifying him as the shooter, and that

Miller confessed to killing Hamilton, alleging that he fired in self-defense.

Lt. White testified that she examined Miller, found no physical evidence

that he had been hit with a bat, and concluded that wounds he attributed to a knife

attack were minor. A second officer who observed Miller that night agreed.

Witness statements given to police also undermined Miller’s claim that he acted

in self-defense. Witnesses told police that Hamilton was moving away from

Miller and that he was at least twenty feet from Miller at the time of the shooting.

Further, an autopsy report concluded that Hamilton was shot in the back from

some distance away.

Miller and Coburn were both charged with first-degree malice murder. The

trial court appointed Rob Galbraith, an attorney in private practice, to represent

Miller. Galbraith testified that he conducted no formal investigation into the

shooting, but said that he instead relied on Miller’s description of the incident and

that he had intended to use a preliminary hearing for discovery purposes. Midway

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through the hearing, however, Galbraith learned that Coburn had reached a plea

agreement with the State and most likely would testify against Miller. A short

time later, he advised Miller to accept the state’s offer of second-degree murder

with a recommended sentence of thirty-eight years. Galbraith did not inform

Miller of the elements of second-degree murder. Rather, he told Miller that

second-degree murder did not really fit the facts of the case, but he advised Miller

that the plea represented Miller’s best chance to avoid a life sentence. Galbraith

predicted that Miller would probably be convicted of first-degree murder and

receive a life sentence if he were to go to trial. Miller accepted Galbraith’s

advice, pled guilty to second-degree murder, and received a thirty-eight-year

sentence.

After exhausting state post-conviction remedies, 1
Miller filed the instant

petition for habeas corpus under 28 U.S.C. § 2254, alleging that Galbraith was

ineffective for failing to inform him of the elements of second-degree murder.

Specifically, Miller alleges that, had he known that a prosecutor is required to

prove the defendant acted with a “depraved mind” in order to secure a conviction

1
Miller’s claim of ineffective assistance of counsel was technically not
exhausted at the state level. However, in Miller’s first appeal of the federal
district court’s denial of his petition, we held that Oklahoma’s procedural bar
does not provide an adequate state law basis upon which to deny relief in this
case. See Miller v. Champion, 161 F.3d 1249, 1252 (10th Cir. 1998).

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for second-degree murder, Miller would not have pled guilty and instead would

have exercised his right to trial by jury. 2

The district court initially denied the petition on the ground that Miller

failed to allege facts constituting inadequate performance by Galbraith.

See Miller v. Champion , 161 F.3d 1249, 1252 (10th Cir. 1998) (hereinafter Miller

I). This court reversed and remanded for an evidentiary hearing on Miller’s

claim. See id. at 1251. Specifically, we instructed the district court to determine

whether: (1) Galbraith failed to inform Miller of the “depraved mind” element of

Oklahoma’s second-degree murder statute, and (2) whether the outcome of the

state court proceedings would have changed had Miller known of the depraved

mind element of the crime. See id. at 1259. The case was referred to a magistrate

judge for initial proceedings pursuant to 28 U.S.C. § 636(b)(1). Following

evidentiary hearings, the magistrate issued a report and recommendation that

found that Galbraith failed to inform Miller of all of the elements of second-

2
Miller’s counsel in the present appeal suggested that we could reverse
because Galbraith’s advice was tainted by his failure to investigate the crime and
because certain unspecified exculpatory information may not have been disclosed.
We disagree. First, even a liberal reading of Miller’s original pro se habeas
petition does not raise this issue. Moreover, this issue exceeds the limited scope
of our remand to the district court. See Miller v. Champion, 161 F.3d 1249, 1259
(10th Cir. 1998); cf. United States v. Hicks, 146 F.3d 1198, 1200 (10th Cir. 1998)
(“The mandate rule is a discretion-guiding rule that generally requires trial court
conformity with the articulated appellate remand, subject to certain recognized
exceptions.” (citation and quotations omitted).) Therefore, these issues were not
properly before the district court, and we do not consider them on appeal.

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degree murder, and that Miller’s assertion that he would have pled not guilty but

for Galbraith’s ineffective assistance was not credible. In addition, the magistrate

concluded that Miller would not have been acquitted if he had gone to trial. He

therefore recommended that Miller’s petition be denied. The magistrate relied

heavily on the strength of the case the prosecution could have brought against

Miller as evidence of whether Miller actually would have gone to trial if not for

his counsel’s errors. 3
The district court adopted the report and recommendation in

full. Miller then filed the present appeal.

II. DISCUSSION

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 2253 and the

district court’s grant of Miller’s request for a Certificate of Appealability. Claims

of ineffective assistance of counsel raise mixed questions of law and fact. See ,

e.g. , Hale v. Gibson , 227 F.3d 1298, 1314 (10th Cir. 2000); Smith v. Gibson , 197

3
The magistrate said:

I don’t think I have to take Mr. Miller’s subjective statements that he
would have insisted on going to trial had he been informed of the
elements of second degree murder. I think it’s an objective test and I
look at all of the facts and circumstances, including whether or not
there would have been a reasonable probability that he would be
acquitted had he insisted on going to trial.
His credibility will be a key issue and I will be assessing his
credibility as far as whether or not he would have insisted on going
to trial.

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F.3d 454, 461 (10th Cir. 1999). Because Miller’s claim has not previously been

adjudicated by a state court, we review it de novo, granting due deference to the

factual findings underlying the district court’s determination. See , e.g. ,

Battenfield v. Gibson , 236 F.3d 1215, 1220 (10th Cir. 2001) (“If a [habeas] claim

was not decided on the merits by the state courts (and is not otherwise

procedurally barred), we may exercise our independent judgment in deciding the

claim.”); Romero v. Furlong , 215 F.3d 1107, 1111 (10th Cir. 2000) (reviewing

mixed questions of law and fact raised by ineffective assistance claim de novo,

granting deference to underlying findings of fact); United States v. Prows , 118

F.3d 686, 691 (10th Cir. 1997) (“Whether a defendant received effective

assistance of counsel is a mixed question of law and fact that we review de

novo.”).

This case presents two issues for appeal. First, we consider whether the

magistrate and district court erred by apparently requiring Miller to prove that

Galbraith would have prevailed at trial in addition to proving that he would have

changed his plea and would have insisted on going to trial. 4 Next, we review the

4
The magistrate’s report and the district court’s opinion discussed both the
likelihood that Miller would have changed his plea and the likelihood that Miller
would have been acquitted had he gone to trial. It is a bit unclear whether these
were offered as alternative grounds for the district court’s finding that Miller was
not prejudiced, or whether the magistrate and the district court required Miller to
prove both that he would have pled not guilty and that he would have been
(continued...)

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district court’s factual conclusions to determine whether Miller is entitled to

habeas relief under the correct standard for demonstrating prejudice.

A. Standard for Showing Prejudice

The Supreme Court established the now familiar two-pronged test for

proving ineffective assistance of counsel in Strickland v. Washington, 466 U.S.

668, 687 (1984). In order to establish a claim that his attorney was so ineffective

as to require reversal of his conviction, Miller must show both that “counsel made

errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment,” and also that he was prejudiced because

counsel’s errors rendered the outcome of the state court’s proceedings unreliable.

See id. In this appeal, the State has not challenged the district court’s finding that

Galbraith failed to inform Miller of the elements of second-degree murder in

Oklahoma, or its conclusion that this failure fell below an objective standard of

reasonableness. We therefore consider only whether the district court applied the

proper standard to determine whether Miller was prejudiced by Galbraith’s

ineffectiveness.

4
(...continued)
acquitted had he done so. For purposes of this appeal, we will accept Miller’s
interpretation of the magistrate and district court’s ruling, which assumes that
they required proof of both in order for Miller to show he was prejudiced by his
counsel’s ineffective performance.

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 One year after deciding Strickland, in Hill v. Lockhart, 474 U.S. 52 (1985),

the Supreme Court specifically considered the appropriate standard for

demonstrating that a guilty plea was tainted by ineffective assistance of counsel.

The Court held that a prisoner challenging a guilty plea because of ineffective

assistance satisfies the prejudice inquiry by showing that the constitutionally

ineffective performance “affected the outcome of the plea process. In other

words . . . that there is a reasonable probability that, but for counsel’s errors, he

would not have pleaded guilty and would have insisted on going to trial.” Hill,

474 U.S. at 59 (emphasis added). However, the Court went on to note that courts

applying this standard will often review the strength of the prosecutor’s case as

the best evidence of whether a defendant in fact would have changed his plea and

insisted on going to trial. See id. at 59-60. The Court explained:

In many guilty plea cases, the “prejudice” inquiry will closely
resemble the inquiry engaged in by courts reviewing ineffective-
assistance challenges to convictions obtained through a trial. For
example, where the alleged error of counsel is a failure to investigate
or discover exculpatory evidence, the determination whether the error
“prejudiced” the defendant by causing him to plead guilty rather than
go to trial will depend on the likelihood that discovery of the
evidence would have led counsel to change his recommendation as to
the plea. This assessment, in turn, will depend in large part on a
prediction whether the evidence likely would have changed the
outcome of the trial.

Id. at 59 (emphasis added).

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 This court has therefore held that a petitioner’s “mere allegation” that he

would have insisted on trial but for his counsel’s errors, although necessary, is

ultimately insufficient to entitle him to relief. See United States v. Gordon, 4

F.3d 1567, 1571 (10th Cir. 1993). Rather, we look to the factual circumstances

surrounding the plea to determine whether the petitioner would have proceeded to

trial. See id.; United States v. Wright, 43 F.3d at 491, 498 (10th Cir. 1994);

Lassiter v. Thomas, 89 F.3d 699, 703-04 (10th Cir. 1996).

The first issue before us is whether the district court correctly applied the

prejudice inquiry set forth in Lockhart to the facts of this case. Miller asserts

that, in addition to requiring him to prove that a reasonable probability existed

that he would have gone to trial, the district court erroneously required him to

show a reasonable probability that he would have actually prevailed at trial had he

done so. The district court, responding to Miller’s objections to the magistrate’s

report and recommendation, made the following comments before denying

Miller’s petition:

[P]etitioner challenges Judge Argo’s analysis that petitioner would
not have been acquitted at trial on the charge of second degree
murder. Rather, petitioner contends that he need only prove he
would have insisted on going to trial had he been advised of the
elements of second-degree murder. Moreover, petitioner challenges
Judge Argo’s credibility determination.
Petitioner’s legal argument is meritless. The Tenth Circuit
Court of Appeals clearly held in Miller v. Champion, supra, 161 F.3d
at 1256-57, that petitioner must show that “had he rejected the
State’s plea bargain, the outcome of the proceedings ‘likely would

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 have changed.’” The circuit noted that such proof requires a showing
of a likelihood “a jury would have acquitted him of second-degree
murder.” Thus, Judge Argo’s legal analysis was proper.

This language suggests that the district court believed Miller was not entitled to

habeas relief unless he established a reasonable probability both that he would

have gone to trial and that he would have successfully prevailed in his case to a

jury.

Despite the fact that this language imposes an additional burden beyond

that contemplated by the Supreme Court’s decision in Lockhart, the State

contends that the Tenth Circuit endorsed the district court’s approach both in

Miller I and in Braun v. Ward, 190 F.3d 1181 (10th Cir. 1999). It is true that our

opinion in Miller I contained language which, when read in isolation, might

support the district court’s interpretation. See, e.g., 161 F.3d at 1257 (“However,

under Hill v. Lockhart, whether a defendant could have been convicted of the

crime to which he pleaded guilty is not the test. Rather, we must determine

whether it is likely that a jury would have acquitted him of that crime.”). When

read in its entirety, however, our opinion in Miller I is fully consistent with

Lockhart. Although the court placed heavy emphasis on the strength of the

State’s case, in the end it is clear that the evidence that might have been

marshaled at trial was considered because it provided circumstantial evidence of

the defendant’s state of mind when he made his plea. See id. at 1259. Thus, for

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example, after engaging in an extensive inquiry into the record at that stage of the

proceedings, we concluded “a reasonable jury might even find him altogether

innocent of any crime,” and therefore “Mr. Miller has met his burden under Hill

v. Lockhart of demonstrating that ‘there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted on

going to trial.” Id. at 1258-59. Likewise, our mandate specifically directed the

district court to conduct a hearing to determine “whether there was a reasonable

probability that, had Mr. Miller received . . . notice [of the elements of second-

degree murder], he would not have pleaded guilty and would instead have insisted

on going to trial.” Id. at 1259.

Braun v. Ward picked up on some of the more expansive language in Miller

I and, like the district court below, concluded that a petitioner must show a

reasonable probability exists that he would have prevailed had he gone to trial.

See 190 F.3d at 1188-89 (stating that Lockhart’s prejudice inquiry “requires [the

petitioner] to establish a reasonable probability that he would have plead not

guilty and that a jury either would not have convicted him of first degree murder

or would not have imposed the death penalty”(emphasis added)). The underlined

portion of this statement goes too far. 5 It does not reflect the law as established

5
The Braun court also stated: “[t]he petitioner must show that his counsel’s
performance prejudiced him by demonstrating (1) that ‘“there is a reasonable
(continued...)

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by the Supreme Court or as applied in the Tenth Circuit in the cases that preceded

Braun.

To the extent that this language in Braun is inconsistent with our prior

cases interpreting Lockhart, we are, of course, bound by our earlier rulings. See,

e.g., United States v. Gray, 182 F.3d 762, 767 (10th Cir. 1999) (“To the extent

appellant contends his counsel’s ineffectiveness made his guilty plea involuntary,

he must show that had counsel performed effectively, he would not have pleaded

guilty and would have proceeded to trial.”); Lasiter v. Thomas, 89 F.3d 699, 703

(10th Cir. 1996) (same); United States v. Carr, 80 F.3d 413, 418 (10th Cir. 1996)

(same); United States v. Gordon, 4 F.3d 1567, 1570 (10th Cir. 1993) (same); cf.

United States v. Wright, 43 F.3d 491, 498 (10th Cir. 1994) (adopting Lockhart

prejudice standard to determine whether plea should be remanded in light of

alleged coercion by the prosecution, and determining remand was appropriate

without considering the likelihood of success at trial). Cases decided after

Braun have likewise not required a showing of probable success at trial in order

to establish prejudice. See, e.g., Beavers v. Saffle, 216 F.3d 918, 925-26 (10th

5
(...continued)
probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial”’ . . . and (2) that ‘had he rejected the
State’s plea bargain, the outcome of the proceedings “likely would have
changed.”’” Braun, 190 F.3d at 1188. That statement as to part (2) is similarly in
error.

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Cir. 2000) (holding petitioner had alleged a sufficient habeas claim based on

allegations that his counsel was ineffective and that he would not have changed

his plea but for his counsel’s mistakes).

In addition, we note that the statement in Braun that a petitioner must prove

he would have prevailed at trial was unnecessary to the opinion in that case. The

issue before the court was only whether, under AEDPA standards of review, the

Oklahoma Court of Criminal Appeals had used a correct standard for determining

prejudice. See Braun v. State, 909 P.2d at 790 (denying relief based on state

court’s conclusion that “we find nothing in the record showing that but for any

alleged substandard representation, Petitioner would not have pled nolo

contendere”). Our opinion in Braun therefore merely held that the OCCA’s

resolution of the case – which was itself decided under a correct standard – was

not unreasonable.

Finally, while other circuits have considered the strength of the

prosecution’s case as circumstantial evidence of whether a petitioner would have

changed his plea, and therefore whether he was prejudiced, none has held a

petitioner must show that the case would likely have failed had it gone to trial.

See, e.g., Weeks v. Snyder, 219 F.3d 245, 259-60 (3d Cir. 2000); Witherspoon v.

Purckett, 210 F.3d 901, 903-04 (8th Cir. 2000); Warner v. United States, 975 F.2d

1207, 1214 (6th Cir. 1992); United States v. Horne, 987 F.2d 833, 835-36 (D.C.

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Cir. 1993); Panuccio v. Kelly, 927 F.2d 106, 109 (2d Cir. 1991); Holmes v.

United States, 876 F.2d 1545, 1551 (11th Cir. 1989); Hooper v. Garraghty, 845

F.2d 471, 475-76 (4th Cir. 1988); Iaea v. Sunn, 800 F.2d 861, 865-66 (9th Cir.

1986); Key v. United States, 806 F.2d 133, 138-39 (7th Cir. 1987); United States

v. Giardino, 797 F.2d 30, 32 (1st Cir. 1986). Rather, these cases frequently state

that the strength of the case that could have been mounted against one pleading

guilty to a crime is relevant only because it offers circumstantial evidence of what

the petitioner would have done had his counsel not proved to be ineffective. For

example, in Hooper, the Fourth Circuit explained that a petitioner’s statement that

he would have insisted on trial but for his counsel’s mistakes, “suffers from

obvious credibility problems and must be evaluated in light of the circumstances

the defendant would have faced at the time of his decision.” 845 F.2d at 475.

Accordingly, in light of the Supreme Court’s opinion in Lockhart, our own

precedent concerning prejudice in the context of a guilty plea, and the

overwhelming weight of authority among the other federal circuits, we hold the

district court erred by requiring Miller to prove a reasonable probability existed

not only that he would have insisted on trial but for his counsel’s mistakes, but

also that there was a likelihood that he would have prevailed at trial. Of course,

the “assessment [of whether the defendant would have insisted on changing his

plea] will depend in large part on a prediction whether the evidence likely would

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have changed the outcome of the trial,” Hill v. Lockhart, 474 U.S. at 59, but the

ultimate issue that the court has to determine is whether the defendant would have

changed his plea.

B. Evidence of Prejudice

In spite of the district court’s error in interpreting the standard for showing

prejudice, we hold that Miller is not entitled to habeas corpus relief. The district

court adopted the magistrate court’s finding that the evidence against Miller

would probably have led a jury to convict him on charges of first-degree murder,

and thus even if Miller had been informed of the elements of second-degree

murder it was highly unlikely he would have risked a lengthier sentence by facing

a jury on the first-degree charges.

The district court’s decision was supported by the record and was not

clearly erroneous. To begin, the record shows that Miller’s plea was based on his

belief that he would likely receive a more lenient sentence if he were to plead

guilty to second-degree murder than if he were to proceed to trial, and thus the

district court rationally inferred that the precise elements of second-degree

murder were not material to Miller in making his plea.

Moreover, the district court properly considered the strength of the state’s

case against Miller as evidence of whether he would have changed his plea. All

of the witness statements – including those by Miller’s own family and Miller

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himself – indicate that Miller shot and killed Hamilton after their altercation at

the Bucket. Although Miller argues that he could have raised viable defenses at

trial, we agree with the district court’s findings to the contrary.

Miller asserted to the district court that he would have gone to trial in spite

of the evidence against him, arguing that he shot Hamilton in self-defense, or, in

the alternative, that his level of culpability would at most have supported a

conviction for first-degree manslaughter. The district court found that Miller

lacked credibility in light of the weakness of the evidence supporting both

arguments. The district court found Miller’s own testimony in support of his self-

defense argument was not believable. During his interview with Lt. White, Miller

stated he shot Hamilton in the chest after Hamilton attacked him a second time

and cut him with a knife. In his testimony to the district court, however, Miller

stated both that he did not remember shooting Hamilton at all, and that he meant

to fire only at Hamilton’s legs but that Hamilton ducked and was thus struck in

the chest. Furthermore, contrary to Miller’s statement to the police, the evidence

demonstrated that Hamilton was at least twenty feet from Miller when he was

killed, that he was armed with only a baseball bat or knife (compared with

Miller’s gun), and that Miller was walking toward Hamilton and simultaneously

firing while Hamilton ran in the opposite direction. Likewise, the autopsy report

indicated that Hamilton was shot in the back from a distance. Finally, Miller’s

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story is undercut by officers who interviewed him after the shooting and who

failed to locate injuries other than “a couple of scratches” to corroborate Miller’s

story that he had been attacked.

The district court also rejected Miller’s assertion that he might have argued

that his actions would have merited at most a conviction for the lesser offense of

first-degree manslaughter. The district court found his representation lacked

credibility because Miller most likely could not have established all of the

elements of the lesser offense. Oklahoma defines first-degree manslaughter as a

homicide “perpetrated without a design to effect death, and in a heat of passion,

but in a cruel and unusual manner, or by means of a dangerous weapon.” Okla.

Stat. Ann. tit. 21, § 711(2). In order to establish “heat of passion” manslaughter,

the defendant must show: “1) adequate provocation; 2) passion or emotion such as

anger, rage, fear, or terror; 3) a homicide occurring during a state of passion; and

4) the existence of a casual connection between the provocation, passion and

homicide.” Bryson v. Ward, 187 F.3d 1193, 1208 (10th Cir. 1999) (citing

Fairchild v. State, 965 P.2d 391, 399 (Okla. Crim. App. 1998)). A conviction for

manslaughter is not appropriate, however, if the homicide occurs after the actor

has had a reasonable opportunity to cool down from the provoking event. See id.

In this case, the district court conceded Miller might have persuaded a jury to

convict him of the lesser offense, but concluded it was more likely that a jury

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would have found that Miller had reasonable time to cool off in the ten minutes

that elapsed between the initial attack and Hamilton’s death. Furthermore, the

district court correctly observed that Miller’s sentencing exposure for first-degree

manslaughter was significantly higher than his recommended sentence under the

negotiated plea agreement. See Okla. Stat. Ann. tit. 21 § 715; Barlor v. State, 665

P.2d 318 (Okla. Crim. App. 1983) (affirming sentence of seventy years’

imprisonment for first-degree manslaughter). Thus, the district court concluded

that Miller would have been unlikely to risk a life sentence on the highly

speculative possibility that he would receive a sentence lower than thirty-eight

years for first-degree manslaughter.

Finally, the district court considered and rejected Miller’s assertion that he

was too intoxicated to form the requisite intent to commit first-degree murder.

While conceding the facts might have supported this defense, the district court

noted that Galbraith himself considered this defense and rejected it because juries

are seldom sympathetic to defendants on the basis of claims of voluntary

intoxication. Moreover, while the evidence shows that Miller was drinking

throughout the day, the district court found that the evidence was not sufficient to

show that Miller was “‘totally unable to form an intent to kill,’ as is required to

constitute a defense to murder in the first degree under Oklahoma law.”

Oklahoma Uniform Jury Instruction – Criminal 2d 8-36; Crawford v. State, 840

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P.2d 627, 638 (Okla. Crim. App. 1992). Rather, the evidence shows that Miller

was able to drive himself to the Bucket, that he did not seem visibly intoxicated to

those around him, and that he could effectively communicate with those around

him both before and after the shooting. Moreover, Miller’s own statement to the

police demonstrates he had the presence of mind following the killing to conceal

his gun and to escape detection for approximately three hours before his father

persuaded him to turn himself in.

All of the foregoing evidence is supported by the record, and we therefore

hold that the district court’s determination that Miller would not have gone to

trial but for Galbraith’s mistakes was not clearly erroneous.

III. CONCLUSION

We conclude that the district court erred in requiring Miller to show a

reasonable probability that he would have prevailed at trial but for his counsel’s

mistakes. Nevertheless, the district court’s conclusion that Miller still would

have accepted the plea bargain offered to him even if he had been informed of the

“depraved mind” element of second-degree murder was supported by the record

and was not clearly erroneous. Therefore, we AFFIRM the district court’s denial

of Miller’s habeas petition.

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