Stephen Miller v. Mark Nooth

MEMORANDUM

Stephen Richard Miller appeals from the District Court’s denial of his 28 U.S.C. § 2254 Petition for Habeas Corpus. Miller presents a single claim of ineffective assistance of trial counsel under the Sixth and Fourteenth Amendments, contending that the Oregon post-conviction court unreasonably applied the clearly established law of Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). We affirm.

Miller contends that he was denied effective assistance of trial counsel because his counsel (1) failed to request a lesser-included offense jury instruction and (2) failed to communicate properly with him regarding that decision. We have found ineffective assistance of counsel for failing to request a jury instruction in situations in which there was not even a plausible strategic explanation for counsel’s failure to request the instruction. E.g., United States v. Alferahin, 433 F.3d 1148, 1161 (9th Cir.2006). Here, in comparison, not only is there a plausible explanation, there is an actual explanation: one of the attorneys averred that, after consulting with Miller, they jointly made a strategic decision to pursue an “all-or-nothing” approach to…