Opinion
No. 3:05cv0655 AS.
November 3, 2006
MEMORANDUM, OPINION AND ORDER
On or about October 17, 2005, this pro se petitioner, Roy Bebout, incarcerated in the Miami Correctional Facility in Bunker Hill, Indiana (MCF), filed the within petition seeking relief under 28 U.S.C. § 2254. The response filed by the Attorney General of Indiana on March 17, 2006, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982).
The petitioner is serving a 45-year sentence from Vanderburgh County, Indiana for convictions on one count of felony kidnaping, one count of felony criminal deviate conduct, and one count of felony rape.
It is necessary to carefully examine the published opinion of the Court of Appeals of Indiana in Bebout v. State, 714 N.E. 2d 1152 (Ind.App. 1999). Later, there is an unpublished memorandum decision of the Court of Appeals of Indiana entered on February 25, 2005. Said decision is marked as Appendix "A", attached hereto and incorporated herein. It was authored by Judge Sharpnack and concurred in by Judges Baker and Friedlander. As these two opinions indicate, the facts asserted by the Court of Appeals of Indiana are entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1), and this petitioner has the burden of rebutting that presumption by clear and convincing evidence which he has failed to do. He was convicted by a jury in a trial held in Evansville, Indiana. In fact, he declared judicial warfare on his attorney who represented him, but the very experienced judges on the Court of Appeals of Indiana simply did not buy that, and the Supreme Court of Indiana denied transfer on September 14, 2005.
This court is familiar with Pennsylvania v. Finley, 481 U.S. 551 (1987), which would undermine much of what this petitioner is saying about his state post-conviction proceedings. Certainly he cannot assert ineffective assistance of counsel in the post-conviction proceedings, and it appears that effort is being made here. This court cannot escape the fact that a panel of three judges on the Court of Appeals of Indiana with extensive experience in real-world litigation literally gave short shrift to his claims about his lawyer. The Court of Appeals of Indiana did not think there had been a violation of the Sixth Amendment right to counsel, as enunciated in Strickland v. Washington, 466 U.S. 668 (1984), and neither does this court conceive that there has been a violation of the teaching of Strickland. But see also Williams v. Taylor, 529 U.S. 362 (2000). Also, see Bell v. Cone, 543 U.S. 447 (2005), reversing Cone v. Bell, 359 F.3d 785 (6th Cir. 2004).
This court is quite familiar with Bounds v. Smith, 430 U.S. 817 (1977), and with all due deference, this petitioner has had an abundance of access to the courts of the State of Indiana and to this court. That part of the Constitution has certainly been followed. This court is mandated to greatly indulge pro se plaintiffs. See Haines v. Kerner, 404 U.S. 519 (1972). But see McNeil v. United States, 508 U.S. 106 (1993). A conscientious attempt has been made to comply with Haines and its progeny here.
When it is all said and done, focusing on violations of the Constitution, statutes and treaties under Bell v. Duckworth, 861 F.2d 169 (7th Cir. 1988), cert. denied, 489 U.S. 1088 (1989), the petitioner has presented no basis here for relief under 28 U.S.C. § 2254. Such relief is now DENIED. IT IS SO ORDERED.