Opinion
No. 3:01cv0729 AS
July 10, 2002
MEMORANDUM AND ORDER
On October 15, 2001, pro se petitioner, William R. McCall, 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 June 20, 2002, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). The petitioner filed a Traverse on July 3, 2002, which this Court has carefully examined. The document is in excellent legal form, and greatly appreciated by this Court.
The petitioner is a convicted felon serving a sentence imposed by a court in the State of Indiana. In the Appendix to the Response, the Attorney General of Indiana has placed before this Court Exhibits A through M, which contain a very large bundle of the state record in this case. Of first and primary importance, is the decision of the Supreme Court of Indiana in McCall v. State, 388 N.E. 520, in which then Justice Prentice wrote for the majority with only Justice Pivarnik concurring in part and concurring in result.
The proceedings went further and the Court notes an unpublished memorandum decision of the Court of Appeals of Indiana authored by Judge Brook and concurred in by Judges Darden and Mattingly. For the immediate reference of all concerned, the memorandum decision is marked as Appendix "A", attached hereto and incorporated herein. Certainly, the facts found by the Supreme Court of Indiana are entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1). The same can be said for the decision of the Court of Appeals of Indiana, especially since the Supreme Court of Indiana denied transfer on it November 2, 2000.
The Attorney General makes quite a point of the requirement that these federal issues must be first presented to the state judiciary in Indiana, citing O'Sullivan v. Boerckel, 526 U.S. 838 (1999). Even before O'Sullivan, there was Castille v. Peoples, 489 U.S. 346 (1989), and, more recently, Wilson v. Briley, 243 F.3d 325 (7th Cir. 2001). Certainly, there must be a showing of a failure to follow clearly established precedents by the Supreme Court of the United States. See 28 U.S.C. § 2254(d). See also Williams v. Taylor, 529 U.S. 362 (2000). The Supreme Court of Indiana determined that this petitioner was not denied counsel before giving his written statement to the police. The petitioner requested and was granted the opportunity to contact and consult with counsel of his choice before giving a written statement to the police. The burden here is a serious one under Williams and under the statute. The petitioner must demonstrate that the state court's decisional process involved an indirect or unreasonable application of federal law at the time, or was based upon an unreasonable determination of the facts. To put it bluntly but not disrespectfully, neither is shown here.
This case is more than a quarter of a century old. This petitioner was arrested in Terre Haute, Indiana around noon on Sunday, April 13, 1975 and held there until an officer from the Gary, Indiana Police Department arrived to take him in custody. It appears undisputed that the Terre Haute Police did not question the petitioner. The next day, a detective from the Gary Police Department arrived in Terre Haute, advised this petitioner of his constitutional right, and transported him to Gary. The petitioner did not ask for an attorney. Upon returning to Gary, the petitioner was brought before a judge of the East Gary City Court where this petitioner was re-read the warrant and again advised of his constitutional rights. The petitioner indicated that he did not want to speak with the judge of the court, and the session ended. The petitioner was taken to the jail and booked. The petitioner made a phone call to attempt to get counsel, and the police did not question the petitioner that evening. The next day, April 15, 1975, the police questioned the petitioner after again advising him of his constitutional rights. He was shown two incriminating letters that he had written and signed. The petitioner said that he wanted to speak with his attorney and the police returned him to his jail cell. After a brief time, he was called back and questioning was re-initiated. The petitioner gave an oral statement dealing with his knowledge of the incident, and at 11:30 a.m., his attorney arrived and petitioner consulted with that attorney privately. (The Attorney General's office apparently made an error in the memo on page 7 by indicating that the date was April 15, 2002, which is obviously erroneous. Please be more careful.).
Before giving the written statement and after consultation with counsel, this petitioner signed a waiver of rights form where he waived his right to have an attorney present. He did ask that the FBI protect his family. His attorney did not ask to be present at the giving of the statement, and this petitioner never asked that the attorney be present. The attorney asked and was given a copy of the statement once it was finished. The attorney interrupted the statement at least once to give the petitioner some cigarettes. During the statement, there were breaks taken and the petitioner was allowed to visit with his family. The state trial court made a specific finding that the statement was voluntary and admitted it in trial, and the Supreme Court of Indiana affirmed. A careful reading of the concurring opinion of Justice Pivarnik does not put him at odds on this issue with either the state trial court or the majority.
This petitioner filed for state post-conviction relief and raised the issues that his right to counsel was violated; that his confession was not knowingly and intelligently made; that the state trial court improperly instructed the jury; and that he was denied the effective assistance of trial and appellate counsel. The state trial court conducted an evidentiary hearing and concluded that the petitioner was barred under the doctrine of laches because the petitioner unreasonably delayed in filing his petition and the state had been prejudiced by that delay. This petitioner appealed that decision to the Court of Appeals of Indiana, and on August 30, 2000, the Court of Appeals of Indiana affirmed and the Supreme Court of Indiana denied transfer on November 2, 2000.
Certainly, state law questions are not the focus here under Estelle v. McGuire, 502 U.S. 62 (1991). The collateral review that is envisioned by § 2254 focuses on violations of the Constitution, treaties and laws of the United States. See Bell v. Duckworth, 861 F.2d 169 (7th Cir. 1988), cert. den., 489 U.S. 1088 (1989).
Certainly, this Court must be aware of the basic doctrines in Miranda v. Arizona, 384 U.S. 436 (1966), as well as Edwards v. Arizona, 451 U.S. 477 (1981). See also Eagan v. Duckworth, 492 U.S. 195 (1989), reversing 843 F.2d 1554 (7th Cir. 1988)
Obviously, as indicated in the Supreme Court's decision in Eagan, which emanated from this Court, one has to look at the totality of circumstances in the way in which the police department dealt with this petitioner when he was a pretrial detainee. The record speaks clearly to a desire and an effort to meticulously follow the demands of Miranda and Edwards. When the totality is considered, they did so. It would be incorrect to focus in on an isolated fragment that does not portray the entire picture. The plain fact of the matter is that the attorney was there when the critical statements were given. The concept of laches also has been honored in this circuit in the habeas context. Although Henderson v. Cohn, 919 F.2d 1270 (7th Cir. 1990) was decided before the advent of the present Anti-Terrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2244(d)(1). Judge Flaum, speaking for the panel in that case, did address the issue under the so-called cause and prejudice standard. There, as here, the petitioner-inmate-defendant is not alleging "actual innocence." This is a much stronger case, it appears, than Henderson, since there was an abundance of advising of the right to counsel by the police.
When it is all said and done, and wading through the massive record that has been presented to this Court, there is simply no basis here for relief under 28 U.S.C. § 2254. Such is now DENIED. IT IS SO ORDERED.