                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 12a0219n.06

                                              No. 11-5074

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                                                                              FILED

JOSEPH MILES,                                       )                                    Feb 23, 2012
                                                    )                              LEONARD GREEN, Clerk
        Petitioner-Appellant,                       )
                                                    )
v.                                                  )    ON APPEAL FROM THE UNITED
                                                    )    STATES DISTRICT COURT FOR THE
ROLAND COLSON, Warden,                              )    MIDDLE DISTRICT OF TENNESSEE
                                                    )
        Respondent-Appellee.                        )
                                                    )


        Before: MERRITT and COOK, Circuit Judges; COX, District Judge.*


        PER CURIAM. In this appeal of state prisoner Joseph Miles’s habeas-petition dismissal, we

determine whether the district court abused its discretion in denying Miles’s request for an

evidentiary hearing. Holding that it did not, we AFFIRM.


        The facts underlying this appeal may be found in the district court opinion. Miles v. Bell,

2010 WL 5211602, at *6–*9 (M.D. Tenn. Dec. 16, 2010). The only issue raised on appeal, fairly

distilled, is whether the district court abused its discretion by refusing to grant an evidentiary hearing

before dismissing Miles’s habeas petition.




        *
       The Honorable Sean F. Cox, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 11-5074
Miles v. Colson, Warden


        Subject to exceptions not applicable here, 28 U.S.C. § 2254(e)(2) prohibits a district court

sitting in habeas from granting evidentiary hearings in cases where a state prisoner “fail[ed]” to

develop the factual basis for his claim during state proceedings. We deem Miles’s lack of diligence

in procuring expert testimony during state postconviction proceedings as such a “failure.” See

Williams v. Taylor, 529 U.S. 420, 432 (2000) (“Under . . . § 2254(e)(2), a failure to develop the

factual basis of a claim is not established unless there is lack of diligence, or some greater fault . . . .”

(emphasis added)).


        Though Miles argues that “he showed no lack of diligence in not putting on testimony that

he could not afford,” Williams forecloses such after-the-fact arguments. See Williams, 529 U.S. at

435 (“Diligence . . . depends on whether the prisoner made a reasonable attempt, in light of the

information available at the time, to investigate and pursue claims in state court . . . .” (emphasis

added)). Nothing in the record suggests that Miles attempted to procure the expert testimony that

he seeks to introduce through a habeas evidentiary hearing, though he knew at the time of his state

postconviction proceedings the necessity of such evidence to support his ineffective-assistance-of-

counsel claim. See Landrum v. Mitchell, 625 F.3d 905, 924 (6th Cir. 2010) (rejecting petitioner’s

request for habeas evidentiary hearing to introduce expert testimony, where petitioner only made

“general requests” for discovery during state proceedings, rather than referring “specifically to the

need for an expert”). We are unpersuaded by his assertion that any attempt to introduce expert

evidence would have been futile. See Sheppard v. Bagley, 657 F.3d 338, 343–44 (6th Cir. 2011)



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No. 11-5074
Miles v. Colson, Warden


(rejecting habeas petitioner’s futility-based excuse for non-attempt, because there was some chance

that witnesses might have volunteered to testify, contrary to petitioner’s assumptions).


       Having fully considered Miles’s arguments to the contrary, we hold that the district court

acted within its sound discretion in denying an evidentiary hearing. We affirm the district court

judgment dismissing the habeas petition.




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No. 11-5074
Miles v. Colson, Warden


        MERRITT, Circuit Judge, concurring. I agree with the court’s opinion affirming the

district court in this case on procedural grounds. I would simply add that this case is governed by

the Anti-Terrorism and Effective Death Penalty Act (AEDPA), see 28 U.S.C. § 2254, which

modifies the habeas corpus statute to make more restrictive the rules applicable to habeas petitions.

In the recent case of Greene v. Fisher, No. 10-637, 565 U.S. ____ (Nov. 8, 2011), the Supreme Court

was unanimous. It stated that the AEDPA standard “is difficult to meet, because the purpose of

AEDPA is to ensure that federal habeas relief functions as a guard against extreme malfunctions in

the state criminal justice system, and not as a means of error correction” (emphasis added). In my

opinion, the ruling of the Tennessee Court of Criminal Appeals that the failure of trial counsel to call

a psychiatric or similar expert in this case was not prejudicial, does not constitute an “extreme

malfunction in the state criminal justice system.” Miles killed Elliott at point blank range. He did

so intentionally. It seems highly unlikely that a jury would have found Miles not guilty of murder.

There has been no breakdown in the system of criminal justice in this case, even though it may well

be possible that in this case, like many others, the defendant could have had better representation.




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