                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 10-2306
                                     ___________

Michael Andrew Miller,                    *
                                          *
      Petitioner - Appellant,             *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Southern District of Iowa.
John Fayram, Warden,                      *
                                          *      [UNPUBLISHED]
      Respondent - Appellee.              *
                                     ___________

                                Submitted: March 16, 2011
                                   Filed: May 5, 2011
                                    ___________

Before LOKEN and COLLOTON, Circuit Judges, and NELSON,* District Judge.
                          ___________

PER CURIAM.

       In 1989, an Iowa jury convicted Michael Andrew Miller of first degree murder
after being instructed it could base that verdict on either premeditated or felony
murder. The conviction was affirmed on direct appeal, and two petitions for state
post-conviction relief were denied. In 2007, Miller filed a third petition for post-
conviction relief based upon the Supreme Court of Iowa’s decision changing the Iowa
law of felony murder. State v. Heemstra, 721 N.W.2d 549, 558 (Iowa 2006). In
November 2009, the Supreme Court of Iowa affirmed the denial of this petition based

      *
        The Honorable Susan Richard Nelson, United States District Judge for the
District of Minnesota, sitting by designation.
upon its prior decision that Heemstra was a change in the law and may not be used to
collaterally attack a prior conviction. Goosman v. State, 764 N.W.2d 539, 545 (Iowa
2009).

       Miller then filed this petition for federal habeas corpus relief under 28 U.S.C.
§ 2254, arguing that the Supreme Court of Iowa’s refusal to apply Heemstra
retroactively violated his federal constitutional right to due process of law. The
district court1 dismissed the petition as time-barred under 28 U.S.C. § 2244(d), further
observing that it was unlikely Miller would have obtained relief on the merits. Miller
timely appealed that ruling. While the appeal was pending, we affirmed the denial of
habeas relief to another Iowa inmate who sought retroactive application of the
Heemstra decision, concluding “that the Constitution does not require a state’s highest
court to make retroactive its new construction of a criminal statute.” Graves v. Ault,
614 F.3d 501, 512 (8th Cir.) (quotation omitted), cert. denied, 131 S. Ct. 508 (2010).
Our decision in Graves is controlling and requires affirming the district court’s
dismissal of Miller’s petition, whether or not it is time-barred.

      Accordingly, the judgment of the district court is affirmed.
                      ______________________________




      1
        The Honorable Robert W. Pratt, Chief Judge of the United States District Court
for the Southern District of Iowa.

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