Opinion
No. 3:02cv0334 AS
November 7, 2002
MEMORANDUM AND ORDER
On May 6, 2002, pro se petitioner, Thomas O. Moore, an inmate at the Miami Correctional Facility (MCF) in Bunker Hill, 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 October 18, 2002, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). The petitioner filed a Traverse with attachments on November 1, 2002, which this Court has carefully examined.
The petitioner is a convicted felon serving a sentence imposed by a court in the State of Indiana. A good place to start in this case is the decision of the Supreme Court of Indiana in Moore v. State, 669 N.E.2d 733 (Ind. 1996). It is to be noted that all the justices of the Supreme Court concurred in the opinion of Chief Justice Shepard with the exception of Justice Sullivan who concurred separately with opinion. As a general proposition, the facts found by the highest court of the State of Indiana are entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1). This case was tried in the Clinton Superior Court in Frankfort, Indiana. The decision of the Supreme Court of Indiana affirming the aforesaid conviction became final on March 28, 1997 under the authority of Griffith v. Kentucky, 479 U.S. 314 (1987). See also Artuz v. Bennett, 531 U.S. 4 (2000). No action was taken prior on behalf of petitioner Moore until January 5, 1999, more than 20 months. At that time, a post-conviction relief action was filed under state law in the state trial court. It was thereafter heard and denied. That denial was appealed to the Court of Appeals of Indiana, and a panel of that court speaking through Judge Baker affirmed the denial of post-conviction relief on October 29, 2001 in an unpublished memorandum decision concurred in by Judges Friedlander and Robb.
As far as can be told in the record, no petition to transfer was sought with reference to the October 29 decision of the Court of Appeals of Indiana. That failure may implicate O'Sullivan v. Boerckel, 526 U.S. 838 (1999), but it probably does not. The petitioner is entitled to any benefits under Houston v. Lack, 487 U.S. 266 (1988), but those would not significantly alter the arguments of the Attorney General of Indiana regarding application of the statute of limitations under 28 U.S.C. § 2244(d).
The key day here under the Attorney General's argument is March 28, 1997, and the later filing of state post-conviction relief after the statute of limitations had run does not toll the applicability of that statute. See Fernandez v. Sterns, 227 F.3d 977 (7th Cir. 2000). Although it is not outcome determinative here on the basis of the statute of limitations argument, this Court has taken the trouble to carefully examine the extensive findings of fact made by Judge Steve David, which are in the record. There are 14 pages and 78 paragraphs entered January 15, 2001, and they help understand the basic procedure that caused concern originally to the state court of appeals before the Supreme Court accepted transfer and reversed its initial decision in this case.
Candor requires this Court to express concerns over two things that occurred in the trial of this case which, while not outcome determinative here, could be given close attention in the future. One has to do with the way that the state trial judge handled the problem of a jury question and its answer. It does not take very long for one to preside in either state or federal criminal jury trials to realize that when a jury is deliberating, the relationship between the court and that jury is an enormously sensitive one which must be approached by the judge with great care and restraint. That simply was not done in this case. There are due process constitutional arguments that can come up in that situation. See United States v. Chaney, 559 F.2d 1094 (7th Cir. 1977).
The second issue has to do with the dangerously excessive argument of the prosecutor here with regard to a defendant's failure to take the stand. That issue is very definitely a constitutional one, and were it not for the applicability of the statute of limitations, this Court would give it along with the way the jury was handled greater in-depth consideration. Alas, the Supreme Court of Indiana labeled the prosecutor's excesses as harmless, and this Court will not gainsay that determination in this record.
Notwithstanding some disturbing elements in this record, and because of the clearly applicable statute of limitations, the petition filed by Mr. Moore in this case seeking relief under 28 U.S.C. § 2254 is now DENIED.