Opinion
No. 3:01cv0720 AS
July 10, 2002
MEMORANDUM AND ORDER
On October 11, 2001, pro se petitioner, Larry K. Danks, 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 January 16, 2002, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). The petitioner filed a Traverse on June 10, 2002, which this Court has carefully examined. Beyond its excellence in form, it obviously has to be considered for what it says on the merits. The state court record has been filed and examined pursuant to the mandates of Townsend v. Sain, 372 U.S. 293 (1963).
I. Facts
The petitioner is a convicted felon serving a sentence imposed by a court in the State of Indiana. A good starting point is a published opinion by the Court of Appeals of Indiana reported as Danks v. State, 733 N.E.2d 474 (Ind.App. 2000). Transfer was denied by the Supreme Court of Indiana on or about September 29, 2000. The Indiana Court of Appeals details the facts of the case as follows.
The facts relevant to this petition, as found by the post-conviction court, are as follows. On May 11, 1978, a robbery occurred at a gas station in LaPorte County, during which the attendant, Gary Adkins, was shot and killed. On May 19, 1978, another robbery took place at the same gas station and another attendant, Kenneth Thomas, was also murdered. The LaPorte County Sheriff's Department apprehended Danks as a suspect in the May 19 incident on May 20, 1978, and detained him in the LaPorte County jail. After being advised of his rights Danks gave a statement to a police detective in which he implicated himself in both the May 11 and May 19 incidents. A warrant for Danks' arrest was issued on May 23, 1978, based on the police detective's probable cause affidavit stating that Danks had implicated himself in the May 11 and May 19 incidents. The LaPorte County Prosecutor's Office also filed charges related to the May 19 incident on May 23, 1978, though it did not file charges for the May 11 incident. In September, the LaPorte County Prosecutor's Office formally suspended further investigation into the May 11 incident, though charges were still not filed.
The trial court subsequently found Danks incompetent to stand trial on February 23, 1979, and he was transferred to the Logansport State Hospital following his involuntary civil commitment. The Prosecutor's Office received periodic reports related to Danks' competency during his commitment. On March 21, 1984, Danks was determined to have regained his competency. After a transfer of venue from LaPorte to Porter County, a jury found Danks guilty of the May 19 incident on November 30, 1984, and it recommended a sentence of death. The trial court rejected the recommendation and sentenced Danks to serve 46 years in prison.
Meanwhile, on October 2, 1984, LaPorte County Chief Deputy Prosecutor Craig Braje ("deputy prosecutor") filed an information against Danks related to the May 11 incident that included a death penalty request. The trial court appointed Gregory Hofer ("defense counsel") to represent Danks in this new proceeding. Aside from a notice of intention to interpose an insanity defense, defense counsel filed no other motions on Danks' behalf, although he had considered filing a motion to dismiss based on the State's delay in the filing the charges. Danks himself approached the deputy prosecutor at a court hearing and requested a plea in exchange for the dropping of the death penalty.
At Danks' sentencing hearing in 1986 on his plea of guilty but mentally ill to the felony murder count of the State's information, defense counsel spoke of the "strategic decisions" he had made in handling Danks' case and indicated that he had not filed a motion to dismiss or any other motions because of his reluctance to sour potential negotiations with the deputy prosecutor. The trial court sentenced Danks to 60 years imprisonment on the May 11 incident charges to be served consecutively with the already imposed 46-year sentence. The State agreed to give Danks credit for nearly eight years time served, dating back to May 20, 1978, the date of his initial confinement in the LaPorte County Jail. The trial court later corrected the sentence, pursuant to a motion to correct error, and ordered that the terms be served concurrently.733 N.E.2d at 479. Certainly, the facts laid out elaborately by Judge Barnes for the Court of Appeals of Indiana are entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1).
II. Analysis
A claim under 28 U.S.C. § 2254 requires the federal habeas court to ensure that the state criminal conviction was not achieved at the expense of the petitioner's constitutional rights. The Congress of the United States has codified the holdings of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and its progeny through the AEDPA, which amended 28 U.S.C. § 2254, in relevant part, as follows:
In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.28 U.S.C. § 2254(e)(1).
When Congress passed the AEDPA, the standards of review that the court must apply to the merits of a petition for writ of habeas corpus under § 2254 also changed significantly. Section 2254 was further amended in pertinent part:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in the State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d). As such, the AEDPA provides a "new, highly deferential standard for evaluating state court rulings." Lindh v. Murphy, 521 U.S. 320, 333 n. 7 (1997). The Supreme Court handed down an opinion further explaining the application of the AEDPA in Williams v. Taylor, 120 S.Ct. 1495 (2000). Williams v. Taylor specifically addresses the application of the "contrary to, or involved an unreasonable application of, clearly established law" language from the AEDPA in the Strickland context. 120 S.Ct. at 1499.
Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied — the state-court adjudication resulted in a decision that (1) "was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by the Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.
Id. at 1523.
It remains basic to this day that claims of constitutional violations must first be fairly presented to the state court, as defined by Justice Scalia in Castille v. Peoples, 489 U.S. 346 (1989), and reaffirmed most recently in O'Sullivan v. Boerckel, 119 S.Ct. 1728 (1999). In Moore v. Parke, 148 F.3d 705 (7th Cir. 1998), the Seventh Circuit explained that:
A prerequisite for applying this section is that the state court adjudicated the issue before us on the merits. . . . [Because] the state courts did not address Moore's sufficiency of the evidence argument on the merits, . . . the new standard of review in AEDPA does not apply.148 F.3d at 708. However, the court went on to explain that the petitioner must first have "provided the state courts with a full and fair opportunity to review his claims." Id., citing Picard v. Connor, 404 U.S. 270 (1971). The Seventh Circuit has provided the following framework to determine whether a state court has been provided a fair opportunity to consider a petitioner's federal constitutional claims:
If the petitioner's argument to the state court did not: (1) rely on pertinent federal cases employing constitutional analysis; (2) rely on state cases applying constitutional analysis to a similar factual situation; (3) assert the claim in terms so particular as to call to mind a specific constitutional right; or (4) allege a pattern of facts that is well within the mainstream of constitutional litigation, then this court will not consider the state courts to have had a fair opportunity to consider the claim. However, the presence of one of these factors, particularly factors (1) or (2), does not automatically avoid a waiver; the court must consider the specific facts of each case.
Verdin v. O'Leary, 972 F.2d 1467, 1473-74 (7th Cir. 1992). Petitioner has the burden to establish a basis for federal collateral relief.
A. Speedy Trial Violation
The right to a speedy trial in a state court criminal proceeding certainly has both federal constitutional and statutory implications. An example of the constitutional implications is Barker v. Wingo, 407 U.S. 514 (1972). Under Barker, a court considering whether a defendant's right to a speedy trial under the Sixth Amendment has been violated should consider four factors: the length of the delay, the reason for the delay, the defendant's assertion of his right to a speedy trial, and rejudice to the defendant. 407 U.S. at 530. The issue of prejudice focuses on the interests of the defendant in three areas: to prevent oppressive pre-trial incarceration, to minimize anxiety and concern of the accused, and most importantly, to limit the possibility that the defense will be impaired. Id. at 532. In this case, Danks was arrested on May 20, 1978, and at that time confessed to crimes he had committed on May 11, 1978 and on May 19, 1978. Danks, 733 N.E.2d at 481. He was charged on May 23 with the crime he committed on May 19, but not the crime of May 11. Id. He was not charged with the May 11 crime until October of 1984. Danks argues that this delay violated his right to a speedy trial under the Sixth Amendment. The Indiana Court of Appeals determined that five years and one month of the delay was attributable to Danks, due to his involuntary commitment in the Logansport State Hospital. 733 N.E.2d at 482. The court then considered the remaining period of delay, one year and four months, and attributed that delay to the state. However, the court did not find that more than minimal prejudice stemmed from the state's delay, and thus found that no constitutional violation had occurred.
Danks in his brief also appears to argues that this delay violated his right to due process under the Fifth Amendment. However, the Indiana Court of Appeals determined that Danks had waived this claim, and thus is has disposed of on the adequate and independent state law ground of waiver. Coleman v. Thompson, 501 U.S. 722 (1991).
Danks asserts that the Indiana Court of Appeals erred in finding that Danks had not shown adequate prejudice stemming from the delay of his trial to merit relief under Barker. He claims that he was prejudiced in four distinct ways; specifically that 1) he was not able to investigate "Tony," the man he claimed had committed the murders; 2) the gas station where the murders had occurred was torn down and thus not available for further investigation; 3) he was unable to investigate a car seen behind the station on May 11, 1978; and 4) one of his doctors at the Logansport State Hospital had passed away prior to Danks being charged with the May 11 offense, which limited his ability to present an insanity defense. 733 N.E.2d at 484. With respect to "Tony," Danks was equally liable as an accomplice or as the principal, and thus evidence regarding "Tony" would not have impacted a jury's ability to convict Danks. Danks showed no evidence to suggest how the layout of the gas station would have impacted his defense; thus, both the post-conviction court and the Court of Appeals found that the prejudice resulting from its destruction was minimal. 733 N.E.2d at 484. Similarly, Danks' sole claim regarding the mysterious parked car was that it might further establish his role as an accomplice, rather than the principal, and thus the court found that he was only minimally prejudiced by his inability to investigate. Id. Finally, with respect to Danks' claim regarding Dr. Matthews, Danks was not seen by Dr. Matthews until his confinement in the Logansport State Hospital, and Dr. Matthews passed away while Danks was still confined there. Id. at 485. Thus, Dr. Matthews would not have been able to opine on Danks' mental condition prior to the crimes, as he did not meet Danks until after the crimes. And Dr. Matthews had already passed away when Danks regained his competency, and thus would not have been available even had the state charged him immediately. The court also pointed out that there were no reports from Dr. Matthews in the record. Id. Thus, the court found that Danks had not shown any actual prejudice caused by Dr. Matthews' death. Id.
It is clear that the Indiana Court of Appeals applied the appropriate Constitutional test to the claim made by Danks, and after a careful review of the record, this court finds that the state court's determination under the Barker standard was reasonable. This court concludes that the Indiana Court of Appeals' decision is neither contrary to nor an unreasonable application of existing Constitutional law, and thus will not grant relief on this issue.
B. Ineffective Assistance of Counsel
Danks also asserts that he received ineffective assistance of counsel in violation of the Sixth Amendment and Strickland v. Washington, 446 U.S. 668 [ 466 U.S. 668] (1984). In order to prevail on this claim, Williams must establish two elements: first, that counsel's performance fell below an objective standard of reasonably effective representation; and second, that the "deficient performance prejudiced the defense." Id. at 687-88. For the first prong, the petitioner must "identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id. at 690. On the second prong, the petitioner must show a "reasonable probability that, but for counsel's unprofessional errors the result of the proceeding would have been different." Id. at 694. There is no question after Williams v. Taylor that Strickland v. Washington, 466 U.S. 668 (1984) "qualifies as `clearly established Federal law, as determined by the Supreme Court of the United States.'" Williams, 120 S.Ct. at 1512.
Danks asserts that his trial counsel provided ineffective assistance in three ways: that he failed to interview witnesses, that he failed to file motions, and that he failed to properly advise Danks regarding the potential of a recommendation of a sentence of death. Danks did not raise the failure to interview witnesses in his brief on appeal from the denial of post-conviction relief, and thus this portion of his claim is barred by procedural default. See Farrell v. Lane, 939 F.2d 409 (7th Cir. 1991). Additionally, he fails to explain which witnesses should have been interviewed or what information they would have provided.
Danks asserts that his counsel failed to file motions on his behalf. Before the court of appeals, he specified that counsel was ineffective for failing to move for a speedy trial, to move to suppress Danks' statements to police, and to challenge the death penalty aggravators. 733 N.E.2d at 489-90. The court found that trial counsel had not been deficient in failing to move for a speedy trial because the delay did not deprive him of his constitutional rights and would not have entitled him to an automatic discharge. Id. at 490. The court found that Danks' counsel's failure to challenge the death penalty aggravators was not ineffective assistance because the state of Indiana law was unsettled at the time and his counsel had no legal basis for making such a motion. Id. Finally, the court found that Danks had no legal basis for suppressing his statements to the police, and thus his counsel had no reason to make a motion on that ground. Id. at 489.
After careful review of the record, it is evident that the Indiana Court of Appeals correctly applied the Strickland standard in determining that Danks' counsel had not provided him ineffective assistance of counsel. This court finds their determination to be a reasonable application of Constitutional law and thus no relief is merited.
III. Conclusion
Notwithstanding the formal excellence of Danks' presentation, there is nothing in this record to merit the relief sought by this petitioner. The petition for habeas corpus is now DENIED.
IT IS SO ORDERED.