Opinion
No. 3:01cv0655 AS
March 28, 2002
MEMORANDUM AND ORDER
On September 18, 2001, pro se petitioner, Larry D. Johnson, an inmate at the Indiana State Prison (ISP) in Michigan City, Indiana, filed a petition seeking relief under 28 U.S.C. § 2254. The Response filed on behalf of the respondent by the Attorney General of Indiana on February 4, 2002, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). The petitioner filed a Traverse on March 26, 2002, which this Court has carefully examined. The state court record has been filed and examined pursuant to the mandates of Townsend v. Sain, 372 U.S. 293 (1963).
The petitioner was convicted of rape and robbery approximately 20 years ago, and is serving a sentence imposed by the Superior Court of Lake County, Indiana, Crown Point, Indiana. A direct appeal to the Supreme Court of Indiana resulted in a unanimous decision by that Court, affirming the aforesaid convictions and sentence. See Johnson v. State, 445 N.E.2d 107 (Ind. 1983). Certainly, the findings of fact made by the Supreme Court of Indiana unanimously are entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1). More than 10 years after the decision of the Supreme Court of Indiana on February 25, 1983, this petitioner returned to the state trial court, and on February 1, 1994, filed a pro se petition for state post-conviction relief. That petition was amended by counsel on May 27, 1997, a hearing was had in the state trial court and the petition for post-conviction relief was denied.
Thereafter, an appeal of that denial was lodged with the Court of Appeals of Indiana, and on August 21, 2000, a panel of that court, speaking through Chief Judge Sharpnack with Judges Baker and Robb concurring, affirmed the decision of the state trial court denying post-conviction relief. That unpublished memorandum decision is marked as Appendix "A", attached hereto and incorporated herein. Again, that decision appears to be subject to the presumption of correctness as to facts stated under 28 U.S.C. § 2254(e)(1).
A facial examination of the published opinion of the Supreme Court of Indiana and the unpublished opinion of the Court of Appeals of Indiana clearly establish the issues that were raised and presented to the highest court in the State of Indiana. With reference to the Court of Appeals decision, the Supreme Court of Indiana denied transfer on it on October 19, 2000. Under the Houston v. Lack, 487 U.S. 266 (1988) rule, this petitioner may be entitled to have this petition considered as having been filed on April 28, 2001, rather than September 18, 2001. In either event, it appears to be timely.
It is of some interest that in ruling on the issue of severance, the Supreme Court of Indiana chose to rely solely on a series of federal decisions, the most important of which is a landmark case in this circuit, United States v. Echeles, 352 F.2d 892 (7th Cir. 1965). It is also of no small moment that Judge Clement in the Lake Superior Court conducted an evidentiary hearing on the aforesaid petition for post-conviction relief. Again, Chief Judge Sharpnack cited and relied on the standard for effective assistance of counsel under the Sixth Amendment of the Constitution of the United States by reference to Strickland v. Washington, 466 U.S. 668 (1984), and there followed a detailed analysis of the alleged inadequacies of trial and appellate representation, citing and relying on state court cases that followed Strickland. The long and short of it is that the two highest courts in the State of Indiana got it correct, understanding that the issues here must relate to violations of the Constitution, statutes and treaties of the United States. See Bell v. Duckworth, 861 F.2d 169 (7th Cir. 1988), cert. denied, 489 U.S. 1088 (1989). The focus is not on violations of state law. See Estelle v. McGuire, 502 U.S. 62 (1991). The Supreme Court opinion in Williams v. Taylor, 529 U.S. 362 (2000) is of some moment here because there is a complete failure to show that any of these so-called deficiencies and representation would have changed the result here. It's clear that they would not have. Generally, petitioners under § 2254 are hard-pressed to make a constitutional issue with reference to criminal trial jury instructions, and the petitioner has certainly not done so.
The Attorney General is correct that there are a goodly number of issues attempted to be raised by this petitioner that simply were not presented to either the highest court in Indiana or the Court of Appeals of Indiana. These claims relate to the amendment of the charging information on the first day of trial, some issues regarding instructions, trial counsel's alleged ineffectiveness in failing to object to the form of instructions and their presentation, trial counsel's ineffectiveness in failing to object to the amendment in the charging information, some species of the cumulative effect of trial counsel, and appellate counsel's failure to raise all of the above issues on appeal. These issues were not presented to the state court in Indiana under Castille v. Peoples, 489 U.S. 346 (1989). See also O'Sullivan v. Boerckel, 526 U.S. 838 (1999).
This Court is generally reluctant to bottom decisions on procedural default, but in good conscience, it cannot be said here that available state remedies were not exhausted. They were, so it comes down to a question of procedural default on these certain issues, and that is inescapable here. So, when it is all said and done, and after a careful review of the record, the decision of the two highest courts in the State of Indiana in this 20 year-old case must stand and not be disturbed by the exercise of federal question jurisdiction under 28 U.S.C. § 2254.
The petition is, therefore, DENIED. IT IS SO ORDERED.