Opinion
No. 3:06cv0271 AS.
January 9, 2007
MEMORANDUM, OPINION AND ORDER
On or about April 24, 2006, pro se petitioner, Gregory Jerome Culver, an inmate at the Miami Correctional Facility in Bunker Hill, Indiana (MCF), 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 October 16, 2006, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). The state court record has been filed on October 20, 2006 and has been examined pursuant to the mandates of Townsend v. Sain, 372 U.S. 293 (1963). The petitioner filed a Traverse on January 4, 2007, which this Court has carefully examined.
The petitioner is a convicted felon serving a sentence imposed by a court in the State of Indiana. At the time of the filing of this petition he was incarcerated in the MCF in this district. The criminal sentences involved here emanated from the state courts in Lake County, Indiana. For ease of reference, the memorandum opinion entered by the Court of Appeals of Indiana on December 28, 2005 is set out in full as Appendix "A" hereto and incorporated herein. The Supreme Court of Indiana denied transfer on March 16, 2006.
Certainly the decision of 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. It is correct that on July 24, 2003, this petitioner with counsel entered a plea of guilty but mentally ill to aggravated battery, and there was an agreement which called for the state to dismiss an attempted murder charge which also alleged this petitioner to be a habitual offender. The time for taking a direct appeal to the Supreme Court or Court of Appeals of Indiana expired on August 24, 2003.
Thereafter on June 3, 2004, this petitioner filed for relief in the state trial court, and that petition was denied on August 14, 2005. The issues raised there are apparent from a facial reading of the decision of the Court of Appeals of Indiana entered December 28, 2005 as referred to in Appendix "A".
As a condition precedent to seeking relief in a federal court under 28 U.S.C. § 2254, the petitioner must have presented a claim to the state's highest court under O'Sullivan v. Boerckel, 526 U.S. 838 (1999). The issue of fairly presenting the claims that are presented here. See Farrell v. Lane, 939 F.2d 409 (7th Cir. 1991), cert. denied, 502 U.S. 944 (1992), and Zellers v. Duckworth, 763 F.2d 250 (7th Cir. 1985), cert. denied, 474 U.S. 952 (1985). See also Riggins v. McGinnis, 50 F.3d 497 (7th Cir. 1995) and Jenkins v. Gramley, 8 F.3d 505 (7th Cir. 1993).
The test appears to be that the state judge could grasp the substance of the issue and its foundation in federal law. See Baldwin v. Reese, 541 U.S. 27, 124 S.Ct. 347 (2004). With regard to effective assistance of counsel under the basic decision of Strickland v. Washington, 466 U.S. 668 (1984), see more recently in this circuit Davis v. VanNatta, 438 F.3d 707 (7th Cir. 2006). See also Richardson v. United States, 379 F.3d 485 (7th Cir. 2004).
Given the factual setting of Burt v. Uchtman, 422 F.3d 557 (7th Cir. 2005), it is doubtful whether the procedures in that capital murder were constitutionally required in this proceeding. While a competency determination might have involved a better practice, it is not constitutionally required here. The collateral review envisioned by § 2254 focuses on violations of the Constitution, treaties and laws of the United States. See Haas v. Abrahamson, 910 F.2d 384 (7th Cir. 1990), and Bell v. Duckworth, 861 F.2d 169 (7th Cir. 1988), cert. den., 489 U.S. 1088 (1989). The focus is not on violations of state law. See Estelle v. McGuire, 502 U.S. 62 (1991). See also Holman v. Gilmore, 126 F.3d 876 (7th Cir. 1997).
It is of some moment that the principal authorities cited by this petitioner are Indiana cases with the exception of Ake v. Oklahoma, 470 U.S. 68 (1985) which involved death penalty issues. It is correct that this petitioner also cites United States v. Chronic, 466 U.S. 658 (1984) which the Court of Appeals also considered in Davis. Davis fails to find the applicability of so-called Chronic exceptions. Given the standards that apply in this federal court under 28 U.S.C. § 2254, this petitioner has failed to demonstrate entitlement to relief under § 2254 and such is now DENIED. IT IS SO ORDERED.
Appendix "a"
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. APPELLANT PRO-SE ATTORNEYS FOR APPELLEE GREGORY JEROME CULVER STEVE CARTER RICHARD C. WEBSTER IN THE COURT OF APPEALS OF INDIANA December 28, 2005 MEMORANDUM DECISION — NOT FOR PUBLICATION BAKER, Judge : : Bunker Hill, Indiana Attorney General of Indiana Deputy Attorney General Indianapolis, Indiana GREGORY JEROME CULVER, ) ) Appellant-Defendant, ) ) vs. ) No. 45A04-0505-PC-261 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. ) APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Kathleen A. Sullivan, Judge Cause No. 45G03-0406-PC-00008Appellant-petitioner Gregory Jerome Culver appeals from the denial of his petition for post-conviction relief. In particular, he alleges that he received ineffective assistance of trial counsel based on his counsel's conduct with respect to a competency determination. Finding that Culver did not receive ineffective assistance of counsel, we affirm the judgment of the post-conviction court.
FACTS
On September 2, 2002, Culver was charged with class A felony attempted murder, class B felony aggravated battery, class C felony battery, and with being a habitual offender. On January 3, 2003, Culver filed a notice of intent to interpose the defense of insanity, and the trial court appointed two doctors to evaluate him. Following the evaluations and a hearing on Culver's motion for a competency determination, the trial court found him competent to stand trial.
On July 24, 2003, Culver pleaded guilty but mentally ill to class B felony aggravated battery in exchange for the dismissal of the remaining charges. At the guilty plea hearing, Culver acknowledged that he was receiving mental health treatment, that he was taking medication for his mental illness, and that he understood what was occurring in court. Appellant's App. p. 9. At the sentencing hearing on November 6, 2003, Culver made a statement that was "eloquent" and "clearly established his understanding of the proceedings." Id. The trial court sentenced Culver to fifteen years of incarceration.
On June 3, 2004, Culver filed a pro se petition for post-conviction relief, alleging that he had received ineffective assistance of counsel because his attorney had not raised the issue of Culver's competency to enter a plea of guilty. On April 14, 2005, the post-conviction court denied Culver's petition. Culver now appeals.
DISCUSSION AND DECISION
Culver argues that the post-conviction court erred in denying his petition for post-conviction relief. As we consider this argument, we note that the petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);McCarty v. State, 802 N.E.2d 959, 962 (Ind.Ct.App. 2004),trans. denied. When appealing from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Id. On review, we will not reverse the judgment unless the evidence as a whole unerringly and unmistakably leads to a conclusion opposite that reached by the post-conviction court. Id. Post-conviction procedures do not afford petitioners with a "super appeal." Richardson v. State, 800 N.E.2d 639, 643 (Ind.Ct.App. 2003), trans. denied. Rather, they create a narrow remedy for subsequent collateral challenges to convictions that must be based upon grounds enumerated in the post-conviction rules. Id.; see also P-C.R. 1(1).
In evaluating Culver's claim that he received ineffective assistance of counsel, we observe that when evaluating a claim of ineffective assistance of counsel, we apply the two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984).Pinkins v. State, 799 N.E.2d 1079, 1093 (Ind.Ct.App. 2003),trans. denied. First, the defendant must show that counsel's performance was deficient. Strickland, 446 U.S. at 687. This requires a showing that counsel's representation fell below an objective standard of reasonableness, id. at 688, and that the errors were so serious that they resulted in a denial of the right to counsel guaranteed to the defendant by the Sixth and Fourteenth Amendments. Id. at 687. Second, the defendant must show that the deficient performance resulted in prejudice. Id. To establish prejudice, a defendant must show that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome.Id.
When, as here, a claim of ineffective assistance arises from a guilty plea, the defendant must establish a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have instead insisted on going to trial.Butler v. State, 658 N.E.2d 72, 79 (Ind. 1995). Additionally, the defendant must establish a reasonable probability that the trial would not have resulted in a conviction. Segura v. State, 749 N.E.2d 496, 507 (Ind. 2001).
At the outset, we want to emphasize what Culver's attorney was able to accomplish. Given a client who was charged with class A felony attempted murder, class B felony aggravated battery, class C felony battery, and with being a habitual offender, Culver's attorney was able to reach an agreement with the State whereby Culver would plead guilty but mentally ill to aggravated battery, with the remaining charges dismissed. Overall, therefore, it is apparent that Culver's attorney was quite effective.
Turning to Culver's argument, we note that Culver presented the following evidence at his post-conviction hearing: transcripts of the guilty plea and sentencing hearing, his own testimony, and a letter written by his trial counsel to a doctor, requesting that he conduct a psychological evaluation of Culver. Culver did not present either the testimony or affidavit of his trial counsel. The post-conviction court may infer from the absence of this evidence that Culver's counsel would not have corroborated his allegations of ineffective assistance. Lockert v. State, 627 N.E.2d 1350, 1353 (Ind.Ct.App. 1994).
Culver argues that his attorney should have insisted on an independent competency evaluation before the guilty plea hearing. According to Culver, his attorney requested such an evaluation but failed to ensure that the evaluation occurred in a timely fashion before the guilty plea hearing. Culver contends that he was incompetent to plead guilty and that he received ineffective assistance of counsel as a result of his attorney's failure to ensure that the evaluation took place.
The record reveals that at the post-conviction hearing, Culver admitted that he understood why he was in court on the day of his guilty plea, who the other participants were, and why they were present. Tr. p. 14-15, 25-26. He also understood who his attorney was and his role in Culver's case. Id. at 16, 25-26. Moreover, Culver had been evaluated twice prior to entering his guilty plea and was found to be competent by both physicians. Culver presented no evidence that his mental state had changed since the time of those evaluations aside from the fact that he had not yet taken his medication on the day of his guilty plea hearing. But given his acknowledgement that he understood his surroundings and the events taking place on the day of the guilty plea hearing, he has not established that another psychiatrist would have reached a different result with a new evaluation. Thus, Culver has not met his burden of establishing that he would not have entered into the guilty plea if his attorney had obtained another psychiatric evaluation in time for the hearing. Moreover, Culver has not remotely shown that if he had gone to trial, he would not have been convicted. Consequently, we cannot conclude that Culver received the ineffective assistance of counsel.
The judgment of the post-conviction court is affirmed.
NAJAM, J., and BAILEY, J., concur.