                       NONPRECEDENTIAL DISPOSITION
                        To be cited only in accordance with
                                Fed. R. App. P. 32.1




            United States Court of Appeals
                               For the Seventh Circuit
                               Chicago, Illinois 60604

                                    April 24, 2007

                                        Before

                    Hon. KENNETH F. RIPPLE, Circuit Judge

                    Hon. ILANA DIAMOND ROVNER, Circuit Judge

                    Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 05-3978

KEITH MILLER,                                 Appeal from the United States District
      Petitioner-Apellant,                    Court for the Northern District of
                                              Indiana, Fort Wayne Division
      v.
                                              No. 1:04-CV-028-TS
WALTER E. MARTIN,
      Respondent-Appellee                     Theresa L. Springmann,
                                              Judge.

                                      ORDER

       Before us is the State of Indiana’s motion to amend the opinion issued in the
above-entitled case on March 15, 2007, to remove the penultimate paragraph. We
will grant the motion, but we take this opportunity to respond to some of the points
raised by the State.

       The State suggests that our criticism of its stance in this case was misplaced
primarily because its argument prevailed in the district court and in the Indiana
Court of Appeals. How, the State wonders, can it be faulted for defending a position
that four other judges have accepted? The point has some facial appeal, but it
ignores that the first court to consider Miller’s ineffective-assistance claim (and the
only court to hear testimony from Miller and his lawyer) ordered resentencing on
No. 05-3978                                                                     Page 2

the basis of the woefully inadequate representation he received the first time.
When the postconviction court issued its decision, Miller had already been
imprisoned for more than six years. Rather than participate in a resentencing
hearing (which presumably would have cost Indiana taxpayers far less than six
additional years of litigation to prevent it from occurring), the State fought the
court’s decision. For this reason, we find its argument that it simply has been
defending a “winning” argument disingenuous.

       The State further contends that anything short of zealous advocacy in this
case would betray its duty to defend “State criminal convictions” from collateral
attack. Of course, the conviction in this case was never in jeopardy. The
postconviction court accepted only Miller’s argument that he received ineffective
assistance of counsel at sentencing. At resentencing, the State could have simply
reprised its arguments in favor of maximum, consecutive sentences—but it would
have done so in the context of fair proceedings.

       Finally, the State homes in on our statements that “uncertainty” exists
concerning when Cronic rather than Strickland governs an ineffective-assistance
claim and that the Cronic exception at issue here is “exceedingly narrow.” The
State presents our statements as evidence that “it was not at all clear” that a
constitutional violation took place at Miller’s sentencing hearing. Let us be clear:
although deciding on the appropriate standard requires careful analysis, we suffer
from no lack of certainty that, under any standard, Miller’s counsel at sentencing
was ineffective.

      Our decision to express our concern with the path that this case took and the
manner in which the State presented its arguments was not made lightly. We
endeavor to treat all advocates who appear before us with the same civility and
respect that we expect from them. And, although the arguments discussed above
lead us to question whether the State took our words to heart, we will take the
State at its word that it has. Accordingly, the motion to modify our opinion is
GRANTED. An amending order will follow shortly.
