Opinion
No. 3:01cv0894 AS
May 29, 2002
MEMORANDUM AND ORDER
On December 20, 2001, pro se petitioner, Eddie Jerome Mills, Jr., 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 May 13, 2002, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). The petitioner filed a Traverse on May 24, 2002, which this Court has carefully examined.
It is helpful to start with an unpublished memorandum decision of the Court of Appeals of Indiana dated April 13, 1995, authored by Judge Garrard and concurred in by Judge Hoffman with Judge Sullivan concurring in result. 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 Court of Appeals of Indiana are entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1). This Court fails to note in this record that the Supreme Court of Indiana was requested to grant transfer. That fact alone may be fatal to the prosecution in this case under O'Sullivan v. Boerckel, 526 U.S. 838 (1999). See also Castille v. Peoples, 489 U.S. 346 (1989), and Farrell v. Lane, 939 F.2d 409 (7th Cir. 1991), cert. denied, 502 U.S. 944 (1992).
The Attorney General of Indiana makes a powerfully strong argument for the application of procedural default, and the petitioner has attempted to use the scattergun approach by filing extensive pleadings basically rearguing the merits of the case. This Court is concerned principally with whether it can consider issues of ineffective assistance of counsel, either trial or appellate, in this case, and therefore has taken upon itself to appoint a very able and experienced lawyer to examine this record under a court appointment to determine whether there are meritorious arguments for this Court to entertain. A separate order will issue with regard to that designation.
IT IS SO ORDERED.