F I L E D

United States Court of Appeals

Tenth Circuit

PUBLISH

NOV 24 1998

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PATRICK FISHER
Clerk

ARTHUR DONNELL MILLER, JR.,

Petitioner-Appellant,
v.

No. 97-6439

RON CHAMPION,
Respondent-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. CIV-97-867-A)
Arthur Donnell Miller, Jr., pro se.
W.A. Drew Edmondson (Attorney General of Oklahoma) and Patrick T. Crawley
(Assistant Attorney General of Oklahoma), Oklahoma City, Oklahoma, for
Respondent-Appellee.
Before PORFILIO , KELLY , and HENRY , Circuit Judges.
HENRY , Circuit Judge.

Arthur Donnell Miller, Jr. filed this pro se appeal after the district court,
without holding an evidentiary hearing, denied his 28 U.S.C. 2254 petition for a
writ of habeas corpus

and also denied his subsequent request for a certificate of

appealability. In August, we issued a certificate of appealability to Mr. Miller

and ordered the respondent, Ron Champion, to file a brief addressing several
issues that Mr. Miller raised in his petition. After reviewing Mr. Champions
response brief, we now vacate the district courts decision denying Mr. Millers
petition and remand for an evidentiary hearing.

BACKGROUND
After Mr. Miller shot and killed a man, he was charged in Oklahoma state
court with first-degree murder. Following negotiations with the prosecutor, Mr.
Miller pleaded guilty to a reduced charge of second-degree murder and was
sentenced to 38 years imprisonment. Although Mr. Miller did not directly appeal
his conviction, he did file a petition for post-conviction relief in state district
court. In his petition, Mr. Miller alleged that he had received ineffective
assistance of counsel because his attorney had failed to inform him that one of
the elements of second-degree murder under Oklahoma law is that a defendant
act with a depraved mind.

See Okla. Stat. tit. 21, 701.8(1). Mr. Miller

asserted that had he known that depraved mind was an element of second-degree

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Accordingly, we
hereby order the case submitted without oral argument.
1

murder, he would not have pleaded guilty and would have instead insisted on
proceeding to trial.
The state district court denied Mr. Millers petition, ruling that his failure
to appeal his conviction directly barred him from obtaining habeas relief and, in
addition, that he had failed to demonstrate that his counsels performance was
constitutionally deficient. On appeal, the Oklahoma Court of Criminal Appeals
affirmed this ruling.
Mr. Miller then filed the instant 2254 petition in federal court, once
again alleging ineffective assistance of counsel based on his attorneys failure to
inform him of the depraved mind element of second-degree murder. The
district court referred the case to a magistrate judge. In his report and
recommendation, the magistrate recommended dismissal of the petition; although
the magistrate found that Mr. Millers petition was not barred by his failure to
file a direct appeal, he nonetheless found that Mr. Miller had failed to
demonstrate that his counsel had performed ineffectively. Over Mr. Millers
objection, the district court adopted the magistrates report and recommendation
and dismissed the petition. The court subsequently denied Mr. Millers request
for a certificate of appealability.
Mr. Miller then appealed both the district courts denial of his 2254
petition and its denial of his request for a certificate of appealability. After
3

reviewing Mr. Millers petition and concluding that he had made a substantial
showing of the denial of his Sixth Amendment right to the effective assistance of
counsel, we granted his request for a certificate of appealability pursuant to 28
U.S.C. 2253(c).

DISCUSSION
I

Procedural Bar
In response to Mr. Millers petition, Mr. Champion contends that Okla.

Stat. tit. 22, 1086 and

Jones v. State , 704 P.2d 1138 (Okla. Crim. App. 1985),

bar Mr. Miller from obtaining post-conviction relief.

These authorities provide

that under Oklahoma law, a petitioner who fails to raise a claim on direct appeal
and does not demonstrate sufficient reason for such failure is barred from
obtaining relief on that claim in a subsequent collateral proceeding.
704 P.2d at 1138-39;

See Jones ,

see also McCracken v. State , 946 P.2d 672, 676 (Okla.

Crim. App. 1997); Neill v. State , 943 P.2d 145, 148 (Okla. Crim. App. 1997).
However, notwithstanding Oklahoma state law to the contrary, we have
held that a state prisoner may raise an ineffective assistance of counsel claim for
the first time in a 2254 proceeding unless (1) he had an opportunity to consult
with separate counsel on direct appeal in order to obtain an effective assessment
of trial counsels performance and (2) the State provided a procedural mechanism
4

that afforded him an opportunity to develop adequately the factual basis of his
ineffective assistance claim on direct appeal.

See English v. Cody , 146 F.3d

1257, 1263 (10th Cir. 1998). In this case, the record contains no evidence that
Mr. Miller had the opportunity to consult with separate appellate counsel in order
to evaluate his attorneys performance or that Oklahoma provided him with any
procedural mechanism to develop the factual basis of his ineffective assistance
claim on direct appeal. Accordingly, Mr. Millers habeas petition is not barred,
and we may proceed to the merits of his claim.
II

Standards of Review
In his petition, Mr. Miller alleged that he was denied his Sixth Amendment

right to effective assistance of counsel. The district court dismissed the petition
without conducting an evidentiary hearing.
Prior to the enactment of the Antiterrorism and Effective Death Penalty
Act (AEDPA), to be entitled to an evidentiary hearing, a petitioner was first
required to make allegations which, if proved, would entitle him to relief.
Medina v. Barnes , 71 F.3d 363, 366 (10th Cir. 1995).

If the petitioner made the

requisite allegations, he was entitled to an evidentiary hearing only if the facts

[were] in dispute, [and he] did not receive a full and fair evidentiary hearing in a
state court. Id. at 369 (quoting Townsend v. Sain , 372 U.S. 293, 312 (1963),
overruled on other grounds , Keeney v. Tamayo-Reyes , 504 U.S. 1 (1992)).
5

Mr.

Miller, though, filed his habeas petition after Congress enacted the AEDPA.
Thus, we must consider the effect of the AEDPA on standards governing
evidentiary hearings.
28 U.S.C. 2254(e)(2) provides:
If the applicant has failed to develop the factual basis of a claim in
State court proceedings, the court shall not hold an evidentiary
hearing on the claim unless the applicant shows that-(A)

(B)

the claim relies on-(i)

a new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court, that
was previously unavailable; or

(ii)

a factual predicate that could not have been previously

discovered through the exercise of due diligence; and

the facts underlying the claim would be sufficient to establish

by clear and convincing evidence that but for constitutional
error, no reasonable factfinder would have found the applicant
guilty of the underlying offense.

Thus, [t]he petitioner who seeks an evidentiary hearing in federal court

must now clear the initial hurdle of 2254(e)(2) before the court can proceed
to determine whether an evidentiary hearing is otherwise proper or necessary.
Cardwell v. Greene , 152 F.3d 331, 337 (4th Cir. 1998) (citation and quotation
omitted). Consequently, we begin by asking whether Mr. Miller has failed to
develop the factual basis of a claim in State court.

See 28 U.S.C. 2254(e)(2).

If he has, we must deny hearing unless he establishes that one of the two
6

exceptions set forth in 2254(e)(2) applies. If, on the other hand, the applicant
has not failed to develop the facts in state court, [we] may proceed to consider
whether a hearing is appropriate, or required under [pre-AEDPA standards].
Cardwell , 152 F.3d at 337.
Although the record indicates that Mr. Miller requested an evidentiary
hearing in state court, the court denied this request.

See Rec. doc. 10, Exh. A, at

11; id. doc. 2, at 3. We now join every other circuit that has confronted this
question and hold that where, as here, a habeas petitioner has diligently sought to
develop the factual basis underlying his habeas petition, but a state court has
prevented him from doing so, 2254(e)(2) does not apply.

See Cardwell , 152

F.3d at 337; McDonald v. Johnson , 139 F.3d 1056, 1059 (5th Cir. 1998);
v. Parke , 116 F.3d 256, 258-59 (7th Cir.),

Burris

cert. denied , 118 S. Ct. 462 (1997);

Jones v. Wood , 114 F.3d 1002, 1012-13 (9th Cir. 1997);

Love v. Morton , 112

F.3d 131, 136 (3d Cir. 1997). Accordingly, the AEDPA does not preclude Mr.
Miller from receiving an evidentiary hearing. Thus, Mr. Miller is entitled to
receive an evidentiary hearing so long as his allegations, if true and if not
contravened by the existing factual record, would entitle him to habeas relief.
See Medina , 71 F.3d at 368-69.
A petitioner is entitled to a writ of habeas corpus only if he can
demonstrate that his conviction is contrary to, or involved an unreasonable
7

application of, clearly established Federal law, as determined by the Supreme

Court of the United States. 28 U.S.C. 2254(d)(1). The Supreme Court has set
forth a two-part test for evaluating the claim of a habeas petitioner who is
challenging his guilty plea on the ground that he was denied his Sixth
Amendment right to effective assistance of counsel.

First, we must ask whether

counsels representation fell below an objective standard of reasonableness.

Hill v. Lockhart , 474 U.S. 52, 57 (1985) (quoting

Strickland v. Washington , 466

U.S. 668, 688 (1984)). To demonstrate that his attorneys performance fell below
this standard, Mr. Miller must overcome the strong presumption that counsels
conduct falls within the wide range of reasonable professional assistance.
Strickland , 466 U.S. at 689.
Even if Mr. Miller is able to satisfy the first prong of this test, he will not
be entitled to relief unless he is also able to demonstrate that his counsels
performance prejudiced him, i.e., that there is a reasonable probability that, but
for counsels errors, he would not have pleaded guilty and would have insisted on
going to trial.

Hill , 474 U.S. at 59. The Supreme Court has explained that [i]n

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.

Id. The Court has also emphasized that these

predictions of the outcome at a possible trial, where necessary, should be made

8

objectively, without regard for the idiosyncracies of the particular

decisionmaker.

Id. at 59-60 (quoting Strickland , 466 U.S. at 695).

Mr. Millers ineffective assistance claim presents a mixed question of law

and fact.

Parker v. Champion , 148 F.3d 1219, 1221 (10th Cir. 1998). Because

our analysis of this claim primarily involves consideration of legal principles, we

review this claim de novo.

See id. Further, we note that because the state court

did not hold any evidentiary hearing, we are in the same position to evaluate the
factual record as it was. Accordingly, to the extent the state courts dismissal of
Mr. Millers petition was based on its own factual findings, we need not afford
those findings any deference.

See Nguyen v. Reynolds , 131 F.3d 1340, 1359

(10th Cir. 1997) ([Although] [f]ederal courts entertaining habeas petitions must
give a presumption of correctness to state courts factual findings, . . .[t]his
presumption of correctness does not apply . . . if the habeas petitioner did not
receive a full, fair, and adequate hearing in the state court proceeding on the
matter sought to be raised in the habeas petition.),

cert. denied , 1998 WL

313396 (Oct. 5, 1998).

III

Whether Mr. Miller Has Alleged Facts Sufficient to

Demonstrate Ineffectiveness
In his habeas petition, Mr. Miller alleges that he was denied his Sixth

Amendment right to effective assistance of counsel because his attorney failed to

inform him that, in order to secure a conviction for second-degree murder, the
9

State would have been required to prove that he acted with a depraved mind.

See

Okla. Stat. tit. 21, 701.8 (Homicide is murder in the second degree . . . : 1.
When perpetrated by an act imminently dangerous to another person and evincing
a depraved mind, regardless of human life, although without any premeditated
design to effect the death of any particular individual.).

Neither the plea

hearing transcript nor the Plea of Guilty and Summary of Facts statement that
Mr. Miller signed contain any evidenceeither direct or indirectthat Mr. Millers
attorney ever informed him of the depraved mind element. Thus,

we must

determine whether such a failure, if proven, would be sufficient to demonstrate

that counsels representation fell below an objective standard of
reasonableness.

See Hill v. Lockhart , 474 U.S. at 57 (quoting

Strickland , 466

U.S. at 688).
The Supreme Court emphasized the importance of informing a defendant
of the elements of the offense in

Henderson v. Morgan , 426 U.S. 637 (1976). In

that case, the Court vacated a guilty plea to a charge of second-degree murder
because neither the petitioners attorney nor the court informed the petitioner that
intent to cause the death of his victim was an element of the offense.

See id. at

647. The Court ruled that a guilty plea made under such circumstances could not
be deemed a voluntary and intelligent admission that he had committed the crime.

10

See id. at 645. Accordingly, it concluded that a conviction entered following

such a plea violated a defendants due process rights.

See id. at 647.

In Henderson , the trial court found as fact that the petitioners counsel had
not explained the intent element to him. Although this finding was essential to
the result in Henderson , 2 Wayne R. LaFave & Jerold H. Israel,

Criminal

Procedure 20.4, at 643 (1984), it did not end the Courts analysis. Rather,
focusing on the principle that a defendant is entitled to real notice of the true
nature of the charge against him,

Henderson , 426 U.S. at 641 (quoting

Smith v.

OGrady , 312 U.S. 329, 334 (1941)), the Court proceeded to examine the entire
record to determine whether the petitioner had received noticed of this element
through other any means, such as a plea colloquy, stipulation, or an indictment.
Finding no such evidence, the Court set aside the conviction, concluding that a
plea made under such benighted circumstances could not be deemed voluntary.
See id. at 646-47.
In explaining why its holding would not invite a flood of habeas claims,
the Henderson Court emphasized that [n]ormally the record contains either an
explanation of the charge by the trial judge, or at least a representation by
defense counsel that the nature of the offense has been explained to the accused.
Id. at 647. Further, the Court stated that it may be appropriate to presume that
in most cases defense counsel routinely explain the nature of the offense in
11

sufficient detail to give the accused notice of what he is being asked to admit.
Id. Finally, the Court noted that its decision does not require[] a description of
every element of the offense but, rather, only critical element[s].

Id. at 647

n.18.
Although Henderson spoke in terms of a petitioners Fifth Amendment
right to receive real notice of the true nature of the charge against him before
pleading guilty, see id. at 645 (quoting Smith v. OGrady , 312 U.S. at 334), the
case is equally applicable in the Sixth Amendment arena. After all, if the
defendants attorney does not supply his client with notice of the critical elements
of the crime to which he is pleading guilty, and the defendant does not learn this
information from another source, the attorney has deprived the defendant of his
right to make a fully informed and voluntary decision regarding the prosecutions
plea offer. Accordingly, if neither the court nor some other source provides a
defendant with notice of the critical elements of the crime to which he intends to
plead guilty, the Sixth Amendment requires that the defendants attorney supply
his client with the requisite notice in order to ensure that the ensuing plea is
knowing and voluntary.

See Hill v. Lockhart , 474 U.S. at 62 (White, J.,

concurring) (The failure of an attorney to inform his client of the relevant law
clearly satisfies the first prong of the

Strickland analysis . . . , as such an

omission cannot be said to fall within the wide range of professionally

12

competent assistance demanded by the Sixth Amendment.) (quoting

Strickland

v. Washington , 466 U.S. at 690).

Thus, to prove that his plea was involuntary under
satisfy the first prong of his ineffectiveness claim under

Henderson (and, hence,

Hill ), it is not enough for

Mr. Miller to show that his attorney failed to inform him of the depraved mind
element of second-degree murder. Rather, he must also (1) show that the
depraved mind element was a critical element of second-degree murder; (2)
overcome the presumption that his attorney explained this element to him at some
other time prior to his guilty plea; and (3) demonstrate that, prior to his guilty
plea, he did not receive notice of this element from any other source.
First, we conclude that depraved mindthe requisite intent for a seconddegree murder convictionis a critical element of the offense.

See Henderson ,

426 U.S. at 647 n.18 ([I]ntent is such a critical element of the offense of
second-degree murder that notice of that element is required.);

Gaddy v.

Linahan , 780 F.2d 935, 945 (11th Cir. 1986) (At the very least, due process
requires that the defendant, prior to tendering a plea of guilty, receive a
description of the critical elements of the charged offense, such as the element
defining the requisite intent.)

. Moreover, in this case, an explanation of the

depraved mind element was particularly necessary because the concept of

13

criminal intent is a complex concept not readily understandable by a layman.

See Gaddy , 780 F.2d at 945.
Second, Mr. Champion admits that the record does not contain any
indication that Mr. Millers counsel ever informed him of the depraved mind
element. Although Henderson presumes that in most cases defense counsel
routinely explain the nature of the offense in sufficient detail to give the accused
notice of what he is being asked to admit,

426 U.S. at 647, in order to indulge

such a presumption, there must exist some factual basis from which we could
conclude that Mr. Millers attorney had explained the depraved mind element to
him. See United States v. Bigman , 906 F.2d 392, 395 (9th Cir. 1988)
(concluding that record contained insufficient evidence from which court could
indulge Henderson presumption). In the present case, there simply are no facts
upon which we could base such a presumption. The court never inquired of Mr.
Miller whether he understood the elements of the crime to which he was pleading
guilty, nor did it ask Mr. Miller whether his attorney had explained these
elements to him. In fact, Mr. Champion candidly concedes that it is doubtful
that any person who enters a guilty plea is recited the particular elements of the
offense by [his] defense attorneys or any other persons. Rather, . . . it seems
reasonable to presume petitioner was not so advised. Aples Br. at 6. In this
factual context, we cannot presume that Mr. Millers attorney explained the
14

depraved mind element to him at any time prior to the plea.

See 2 LaFave &

Scott, Criminal Procedure 20.4, at 644 (characterizing several lower court

decisions that have entertained such a presumption in order to defeat a
defendants Henderson claim as highly questionable)

Finally, we must examine the record to determine whether Mr. Miller

received the requisite notice from a source other than his attorney. The plea
hearing transcript reveals that the judge failed to explain the depraved mind
element to Mr. Miller. Although telling, the absence of such an explanation does
not end our analysis.
In some cases, courts have concluded that the indictment or information
supplied the defendant with the necessary notice of the elements of the crime to
which he pleaded guilty.

See, e.g. , Marshall v. Lonberger , 459 U.S. 422, 437-38

(1983); Worthen v. Meachum , 842 F.2d 1179, 1183 (10th Cir. 1988),

overruled

on other grounds , Coleman v. Thompson , 501 U.S. 722 (1991). However, in the
present case, the indictment or information (from the record, it is unclear which
charging document the State used) charged Mr. Miller only with first-degree
murder. As in Henderson , the formal charging document did not contain a charge
of second-degree murder.

See Henderson , 426 U.S. at 641-43. Rather, it was

only at the plea hearing, moments before Mr. Miller entered his guilty plea, that
the State moved orally to amend the charging document to include a charge of
15

second-degree murder.

Thus, because the indictment or information did not even

contain a charge of second-degree murder, there is no way that this document

could have provided Mr. Miller with notice that depraved mind was an element
of this crime. Cf. Gaddy , 780 F.2d at 946 (granting evidentiary hearing to
petitioner who had pleaded guilty to first-degree murder on grounds that a more
thorough explanation of the nature of the crime and its elements was required
than the one-sentence indictment the prosecutor read to petitioner during the
plea hearing).
In sum, the record contains no evidence that contradicts Mr. Millers
assertion that his attorney failed to inform him that depraved mind was an
element of second-degree murder. The record is similarly devoid of evidence
indicating that Mr. Miller learned of this element from any other source. Thus,
Mr. Miller has satisfied the first prong of

Hill v. Lockhart .

Under such circumstances, courts have often granted evidentiary hearings

in order to determine whether petitioners had received the requisite noticeeither
from their attorneys or other sourcesof the crimes to which they had pleaded
guilty. See Bigman , 906 F.2d at 394-95 (remanding for evidentiary hearing
where record failed to establish that habeas petitioner had received notice of
elements of crime to which he had pleaded guilty);

Burden v. Alabama , 584 F.2d

100, 102 (5th Cir. 1978) (same). However, under

Hill v. Lockhart , before we can

16

grant Mr. Miller such a hearing, we must determine whether he has been
prejudiced by his counsels alleged error, i.e., whether there is a reasonable
probability that, but for his counsels alleged failure to inform him of the
depraved mind element, Mr. Miller would not have pleaded guilty and would
have insisted on going to trial.
IV

See 474 U.S. at 59.

Whether Counsels Alleged Error Prejudiced Mr. Miller

In his 2254 petition, Mr. Miller alleges that he would not have pleaded

guilty had he known that the State was required to prove that his conduct evinced
a depraved mind in extreme disregard of human life. Rec. doc. 2, at 6a.
Although Mr. Millers claim would necessarily fail without such an allegation,
see Hill , 474 U.S. at 60, this allegation alone is insufficient to demonstrate
prejudice, see United States v. Gordon , 4 F.3d 1567, 1571 (10th Cir. 1993) ([A
petitioners] mere allegation that, but for original counsels failure to inform him
. . . , he would have insisted on going to trial, is insufficient to establish
prejudice.). Rather, in order to demonstrate prejudice, Mr. Miller must also
show that, had he rejected the States plea bargain, the outcome of the
proceedings likely would have changed.

See Hill , 474 U.S. at 59. Thus, we

must determine whether it is likely that a jury would have acquitted him of
second-degree murder.

17

Unfortunately, the factual record in this case is, at best, skeletal. Other
than the reading of a 30-word Plea of Guilty and Summary of Facts statement
that Mr. Miller signed, the transcript of the plea hearing contains no testimony
concerning the facts underlying the killing. The passage in question, which
comprises the entire factual record regarding the underlying crime, provides:
Defendant recalls being present and involved in a fight with deceased. Codefendant handed Defendant gun which he recalls firing once. Witness[e]s
would testify Defendant shot deceased. Both parties were intoxicated. Rec.
doc. 9, Exh. C at 25; accord id. , Exh. D at 16.
The Oklahoma Court of Criminal Appeals has held that second-degree
depraved mind murder (as opposed to second-degree felony-murder) consists of
the following elements:
(1)

death of a human;

(2)

caused by conduct that was imminently dangerous to another

person;

(3)

the conduct was that of the defendant;

(4)

the conduct evinced a depraved mind in extreme disregard of

human life; and

(5)

the conduct was not done with the intention of taking the life
of any particular individual.

See Willingham v. State , 947 P.2d 1074, 1081 (Okla. Crim. App. 1997),
denied , 118 S. Ct. 2329 (1998).
18

cert.

As the magistrate judge accurately observed, the factual record in this case
is sufficient to support a conviction of second-degree murder, as a reasonable
jury could find that the facts as recited in Mr. Millers plea statement established
all five of the required elements of second-degree murder.

See Rec. doc. 12, at

7; see also Willingham , 947 P.2d at 1081; Quilliams v. State , 779 P.2d 990, 991
(Okla. Crim. App. 1989) (upholding second-degree murder conviction where,
after altercation between defendant and victim, defendant, who denied an intent
to do more than wound, retrieved gun and shot and killed victim). 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.

See Hill ,

474 U.S. at 59.

In Oklahoma, [h]omicide is manslaughter in the first degree . . . [w]hen
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. tit.
21, 711(2). The Oklahoma Court of Criminal Appeals has held that [t]he
elements of heat of passion are 1) adequate provocation; 2) a passion or emotion
such as fear, terror, anger, rage or resentment; 3) the homicide occurred while the
passion still existed and before a reasonable opportunity for the passion to cool;
and 4) a causal connection exists between the provocation, passion and
19

homicide. Le v. State , 947 P.2d 535, 546 (Okla. Crim. App. 1997),

cert. denied ,

118 S. Ct. 2329 (1998).

The plea statement indicates that Mr. Miller killed his victim during or
immediately after a fight between the two. This suggests that, had Mr. Miller
chosen to go to trial, a reasonable jury could have found that he killed his victim
in the heat of passion and, thus, found him guilty of first-degree manslaughter
rather than second-degree murder.

See Williams v. State , 513 P.2d 335, 338

(Okla. Crim. App. 1973) (ruling that defendant who shot his wife numerous
times, allegedly during a fight, was entitled to manslaughter instruction because
[t]he jury might reasonably interpret the evidence to show that the initial firing
of the gun was caused by a sudden and unexpected attempt to attack defendant
with a pair of scissors and fired by the defendant while in a heat of passion);
Wood v. State , 486 P.2d 750, 752 (Okla. Crim. App. 1971) (where killing
occurred during bar fight, court reduced defendants sentence from murder to
manslaughter and held that homicide may be reduced from murder to
manslaughter where the killing was done because the slayer believed that he was
in great danger, even if he was not warranted in such belief or where the slayer
although acting in self-defense was not himself free from blame).
Further, the signed plea statement also indicates that Mr. Miller was
intoxicated at the time of the killing. Under Oklahoma law, a defendant may not
20

be convicted of murder where, at the time of the killing, he was so intoxicated

that his mental abilities were totally overcome and it therefore became impossible
for him to form criminal intent.

Crawford v. State , 840 P.2d 627, 638 (Okla.

Crim. App. 1992). Thus, were Mr. Miller able to demonstrate that when he killed
his victim, he was sufficiently intoxicated so as to be totally unable to form an
intent to kill, . . . [t]he homicide, under such circumstances, unless otherwise
excusable, would amount to manslaughter in the first degree.

See Williams , 513

P.2d at 339 (quotation omitted).

Moreover, in his 2254 petition, Mr. Miller provided the following
recitation of facts:
[W]hen [the petitioner] arrived [at a party,] he witnessed the
deceased and two other men stomping and beating another man . . .
whom the petitioner recognized. . . . Petitioner . . . attempted to
break up the fight and the deceased and the two other men turned on
him and started hitting and stomping him. Shortly thereafter, the
petitioners nephews heard about the incident and came to his aid.
The deceased and the two other [men] ceased fighting with the
petitioner when his nephews arrived. . . . [A]fter one of [the
petitioners] nephews handed him a gun for his protection, the
deceased started talking profoundly against [the petitioner] and
started swinging a knife at him. The knife cut the petitioner severely
several times across his upper body as he retreated into an open
field. [P]etitioner asked the deceased to stop his assault . . . but the
deceased kept on yelling . . . and lunged at him again with the knife.
Petitioner, in an attempt to avoid any further injury[,] fired a single
shot at the deceased[s] lower body area. The shot was fatal[,]
striking the deceased in his chest.

21

Rec. doc. 2, at 6-6a. In his petition, Mr. Miller emphasized that he did not
intend to kill the deceased but had aimed the gun at the deceased[s] lower body
area. Id. at 6.
Because no state or federal court conducted a hearing to develop the facts
surrounding the killing, we do not know whether Mr. Millers version of events
is accurate. However, Mr. Millers recitation of the facts does not conflict with
his signed plea statement. In fact, it is entirely consistent with that statement.
And Mr. Champion has not offered any evidence that would cast doubt on Mr.
Millers version of the events. Under these circumstances, we must treat the facts
alleged in Mr. Millers habeas petition as true.

See Williams v. Kaiser , 323 U.S.

471, 473-74 (1945) (Where no evidentiary hearing was held, and where
allegations contained in the petition are not inconsistent with the recitals of the
certified copy of the sentence and judgment which accompanied the petition[,] . .
. [w]e must assume that the allegations of the petition are true.);

see also

Machibroda v. United States , 368 U.S. 487, 494-95 (1962) (concluding that
district court was required to conduct evidentiary hearing in habeas case where
prisoners allegations related primarily to . . . occurrences . . . upon which the
record could . . . cast no real light).
If the allegations in Mr. Millers habeas petition are true, Mr. Miller killed
his victim: 1) after his victim had provoked him verbally, stomped him, and
22

cut him repeatedly with a knife; 2) while Mr. Miller was in fear for his life; and
3) in an attempt to wound the victim so as to prevent the victim from further
assaulting and perhaps killing him. Moreover, the record also indicates that Mr.
Miller was intoxicated at the time of the killing. However, without an
evidentiary hearing, the court was unable to explore whether Mr. Millers
intoxication rendered him legally incapable of forming the requisite intent to
support a second-degree murder conviction.
Accepting Mr. Millers version of the events (which we must do here), we
conclude that a reasonable jury would likely conclude that Mr. Miller was guilty
See Williams , 513 P.2d at 338-39;

of no more than first-degree manslaughter.

Wood , 486 P.2d at 751-53. In fact, under Mr. Millers recitation of the facts, a
reasonable jury might even find him altogether innocent of any crime, on the
ground that the shooting was a necessary act of self-defense.

See Okla. Stat. tit.

21, 643(3) ([T]o use force or violence upon or toward the person of another is
not unlawful . . . [w]hen committed . . . by the party about to be injured . . . in
preventing or attempting to prevent an offense against his person[,] . . . provided
the force or violence used is not more than sufficient to prevent such offense.);
see also Townley v. State , 355 P.2d 420, 439 (Okla. Crim. App. 1960) (Where
one who has provoked a combat abandons or withdraws from it in good faith, . . .
his right of self-defense is restored, and if thereafter he is pursued by his
23

adversary, he is justified or excused in killing him if necessary to save himself

from death or great bodily harm.) (quotation omitted). Thus, Mr. Miller has met
his burden under Hill v. Lockhart of demonstrating that there is a reasonable
probability that, but for counsels errors, he would not have pleaded guilty and
would have insisted on going to trial.

See 474 U.S. at 59.

CONCLUSION
Until the district court has fully developed the factual record, it cannot
properly resolve Mr. Millers habeas petition. Accordingly, the court should not
have dismissed this action.

Rather, it should have granted Mr. Miller an

evidentiary hearing and appointed counsel to represent him in this matter.

Swazo v. Wyoming Dept of Corrections

See

, 23 F.3d 332, 333 (10th Cir. 1994)

(holding that habeas petitioners enjoy right to counsel when court determines that
evidentiary hearing is required).
Accordingly, we hereby VACATE the district courts decision dismissing
Mr. Millers 2254 petition and REMAND this matter so that the court may
consider the merits of Mr. Millers claim. On remand, the court should conduct
an evidentiary hearing to determine whether, prior to Mr. Millers guilty plea, he
was ever provided with noticeeither by his attorney or by some other sourceof
the depraved mind element of second-degree murder. If the evidence fails to
24

establish that Mr. Miller did receive such notice, the hearing should also explore
whether there was a reasonable probability that, had Mr. Miller received such
notice, he would not have pleaded guilty and would have instead insisted on
going to trial.
The mandate shall issue forthwith.

25