Opinion
No. 3:02cv0103 AS.
April 18, 2007
MEMORANDUM, OPINION AND ORDER
This case has a very elongated history. There were convictions of murder in Lake County, Indiana approximately 27 years ago in 1980 for crimes that were committed in 1978, now 29 years ago. There was a direct appeal to the Supreme Court of Indiana as reflected in Wilson v. State, 432 N.E. 2d 30 (Ind. 1982). This court has specifically revisited this unanimous decision of the Supreme Court of Indiana authored by Justice Prentice. In June 1989, the petitioner sought state post-conviction relief, and the state trial court conducted an evidentiary hearing on it and later denied the same. That hearing was in May 1999. In April 2000, the Court of Appeals of Indiana affirmed the aforesaid denial of post-conviction relief also on the doctrine of laches. The Supreme Court of Indiana denied transfer on August 11, 2000. The Attorney General of Indiana here also raises the issue of procedural default citing Daniels v. Knight, 476 F.3d 426 (7th Cir. 2007). In Daniels, the Court of Appeals in this circuit was emphatic that district courts should not have considered the merits. However, given the procedural history in this case, considering the merits seems to be mandatory. However, the Attorney General of Indiana makes a very strong case for procedural default there under O'Sullivan v. Boerckel, 526 U.S. 838 (1999). See also Henderson v. Cohn, 919 F.2d 1270 (7th Cir. 1990).
It is of some moment that the only issue there before the Supreme Court of Indiana was that of laches.
There remains a concern about whether the issues argued for here were fully presented to the highest courts in the State of Indiana. See Hough v. Anderson, 272 F.3d 878 (7th Cir. 2001), aff'g 73 F.Supp. 2d 981 (N.D. Ind. 1999), cert. denied, 537 U.S. 1050 (2002). In the interest of completeness, this court now attaches hereto and incorporates herein the unpublished memorandum decision of the Court of Appeals of Indiana entered April 24, 2004 authored by Judge Baker and concurred in by Judges Riley and Kirsch. See Appendix "A". The Supreme Court of Indiana denied transfer. This court has recently taken a close look at Day v. McDonough, 547 U.S. 198 (2006); Evans v. Chavis, 546 U.S. 189 (2006) and especially see Pace v. DiGuglielmo, 544 U.S. 408 (2005), and Pliler v. Ford, 542 U.S. 225 (2004). Obviously it is not for this court to either gainsay or ignore the decision of the Court of Appeals entered July 25, 2003. Looking at this record in the largest possible context, it appears that it has become the burden of this court to deal with this petitioner's actions brought here under the Anti-Terrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2244(d)(1) on the merits. An extensive state record has been filed and has been available to counsel and to this court. Oral argument and proceedings were had with counsel and indeed the petitioner himself present in Lafayette, Indiana on January 19, 2007. This court greatly appreciates the excellent services of Attorney Michael Parkinson in this case. The briefing has just now been completed and it is in the best interest of all concerned that this case be decided without further delay.
This court much earlier denied this petitioner's relief on all of his claims under 3:01cv0553 AS (docket 15), and sees no good reason here to revisit or reverse that decision. This court is also in agreement with the Attorney General of Indiana, and with no disrespect meant to Mr. Wilson or his able counsel, the claims for relief here under 28 U.S.C. § 2254 are barred either by procedural default or without merit. Very recently, the Court of Appeals in this circuit decided Daniels v. Knight, 476 F.3d 426 (7th Cir. 2007) which this court here and now considers a binding precedent. O'Sullivan v. Boerckel, 526 U.S. 838 (1999) is also a binding precedent that must be followed in this court and in this circuit. Here in the state court post-conviction proceedings, there was found to be an adequate and independent state law ground, namely the state law doctrine of laches to bar further review of Wilson's claims under authority of Henderson v. Cohn, 919 F.2d 1270 (7th Cir. 1990).
There is also a serious question as to whether this petitioner fully and fairly presented his claims to the two highest courts in the State of Indiana under the mandates of Duncan v. Henry, 513 U.S. 374 (1995). In those proceedings, it appears that this petitioner did brief the issue of laches but did not discuss the merits of other claims for relief under 28 U.S.C. § 2254. See also Wilson v. Briley, 243 F.3d 325 (7th Cir. 2001). This court is not here prepared to gainsay the decision in Henderson, and thereby to declare laches to be an inadequate state law basis. This court is very impressed with the wide array of Indiana appellate decisions on the issue of laches that appear on pages seven and eight of the brief filed here by the Attorney General of Indiana on March 14, 2007.
This court has also taken the trouble to look closely at the decision in Tredway v. Farley, 35 F.3d 288 (7th Cir. 1994), cert. denied, 115 S.Ct. 941 (1995), and certainly the elongated array of Indiana authority on laches belies any suggestion that the application of the same has been infrequently, unexpectedly or freakishly applied. See also Prihoda v. McCaughtry, 910 F.2d 1379, 1382 (7th Cir. 1990). This court here and now does reaffirm its decision in 3:01cv0553. There is some attempt here to go back nearly a quarter of a century to suggest that the state trial court acted improperly in violation of this petitioner's constitutional rights with regard to instructions to the jury. The assertions seem to be that the state trial court failed to instruct the jury on the essential elements of the crime charged and/or the burden of proof. Further, it is suggested that the state trial court failed to instruct the jury on the defense of alibi and the burdens with regard to the same as well as instructions regarding flight. It is basic that questions of state law including instructions in state criminal cases are not fair game here under 28 U.S.C. § 2254. See Estelle v. McGuire, 502 U.S. 62 (1991). At the very most, these claims are on the basis of state law and are without merit here. See Reeves v. Battles, 272 F.3d 918 (7th Cir. 2001). It is further elementary under binding precedent from the Supreme Court of the United States that instructions are not to be considered in isolation but rather as a whole. See Cupp v. Naughten, 414 U.S. 141 (1973). See also Carella v. California, 491 U.S. 263 (1989). A close look at the massive record in this case fails to demonstrate that this petitioner objected to the instructions that he now complains of and did not raise them in a motion to correct errors or on appeal in the state judiciary. Aside from all of that, it appears that the instructions now complained of were appropriate dealing with the definition of murder, the definition of attempt, the burden of proof beyond a reasonable doubt, and the definition of reasonable doubt as well as the presumption of innocence. In a traverse shown in docket number 67, it appears that this petitioner has conceded that there was no error in the jury instructions on the elements of murder and attempt. In the Seventh Circuit under the leadership of Judge Bauer, there is a long-standing set of decisions that draws a rather tight judicial cloak around the process of attempting to define and instruct on reasonable doubt. The backup position with regard to instruction arguments in this species of cases often comes down to an argument about ineffective assistance of counsel under the Sixth Amendment of the Constitution of the United States as interpreted in such cases as Strickland v. Washington, 466 U.S. 668 (1984), rehr'g denied, 467 U.S. 1267 (1984). The well-known elements of a claim for ineffective assistance of counsel are (1) that counsel's performance was deficient and (2) that counsel's deficient performance prejudiced a defendant. Williams v. Taylor, 529 U.S. 362 (2000) following Strickland. The analysis and result in Davis v. VanNatta, 438 F.3d 707 (7th Cir. 2006) purports such a conclusion here. Obviously issues with regard to trial tactics have to be considered very carefully. Also, lawyers are not obligated to anticipate shifts of legal doctrine, and certainly have a right to concentrate on issues that have the best chance of success. See Knox v. United States, 400 F.3d 519 (7th Cir. 2005). Certainly, it was not the burden of defense counsel to anticipate that some 11 years later the Supreme Court of Indiana would decide Spradlin v. State, 569 N.E. 2d 948 (Ind. 1991) which required certain specific intent language in attempted murder instructions. See also Taylor v. State, 616 N.E. 2d 748 (Ind. 1993). Given that this is basically an Indiana question of law anyway, the instructions given appear to be consistent with the law of Indiana as it was at the time of the state court criminal trial.
There is some brief discussion here with regard to sentencing and if such is an attempt at an Eighth Amendment claim, it certainly would have to be some compliance with the mandates of Harmelin v. Michigan, 501 U.S. 957 (1991). See also Solem v. Helm, 463 U.S. 277 (1983). The argument appears to be that the state court judge and indeed the state court judiciary may have failed to follow state sentencing statutes. Even if that were correct, it would be beyond the authority of this court to act on it under § 2254. See Dellinger v. Bowen, 301 F.3d 758 (7th Cir. 2002).
This court has now again given close attention to Baldwin v. Reese, 541 U.S. 27 (2004). What impresses one when the outset of the opinion of Justice Breyer is read is what is re-stated and reaffirmed in the very first paragraph of that opinion including O'Sullivan as well as Picard v. Connor, 404 U.S. 270 (1971), and Duncan. Except for the brief dissent of Justice Stevens, the same is a unanimous opinion of the Supreme Court of the United States three years ago. This court does not conceive that Baldwin undermines the decision here or give this petitioner any realistic hope of success on the merits.
Obviously, this case has had the attention for a long period of time of judges in the State of Indiana. In the end, it is important to remember and indeed to return to the teaching of two unanimous decisions decided the same day by the Supreme Court of the United States in Woodford v. Visciotti, 537 U.S. 19 (2002) and Early v. Packer, 537 U.S. 3 (2002). See also Rice v. Collins, 126 S.Ct. 969 (2006), Bell v. Cone, 535 U.S. 685 (2002) and Charlton v. Davis, 439 F.3d 369 (7th Cir. 2006). Much that has been said here tracks the decision of the Court of Appeals in Charlton.
When it is all said and done, the sad fact remains that there is no basis for relief stated by this petitioner under 28 U.S.C. § 2254 as argued for by his very able counsel, and such is now DENIED. IT IS SO ORDERED.
Appendix A
Pursuant to Ind.App. Rule 15(A)(3), 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 MOSES WILSON KAREN M. FREEMAN-WILSON TIMOTHY W. BEAM IN THE COURT OF APPEALS OF INDIANA : : Michigan City, Indiana Attorney General of Indiana Deputy Attorney General Indianapolis, Indiana MOSES WILSON, ) ) Appellant-Defendant, ) ) vs. ) No. 45A03-9906-PC-238 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. ) APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Kathleen A. Sullivan, Magistrate Cause No. 45G04-9103-CF-53April 24, 2000 MEMORANDUM DECISION-NOT FOR PUBLICATION
BAKER, Judge
Appellant-petitioner Moses Wilson appeals from the denial of his petition for post-conviction relief. Specifically, he contends that the post-conviction court erred in determining that the State met its burden of proving the affirmative defense of laches.
FACTS
On May 22, 1980, a jury found Wilson guilty of murder and three counts of attempted murder. Record at 9. Following a direct appeal to our supreme court, Wilson's convictions were affirmed on March 11, 1982. R. at 19. Immediately thereafter, Wilson contacted the Lifer's for United Penal Progress' (LUPP) office for assistance. That office informed Wilson that he should file a petition for post-conviction relief. The LUPP also recommended that Wilson contact the State Public Defender's Office (Public Defender) for additional help. R. at 120.
At one point, the Public Defender received correspondence from another individual indicating that Wilson needed assistance. That office informed Wilson on February 25, 1986, that their office needed to interview him regarding his request for post-conviction relief. R. at 137. The Public Defender also informed Wilson that it would not represent him until personnel from that office could conduct the interview. R. at 137.
Wilson asserted in a letter he wrote to the Public Defender on August 26, 1990, that he had been seeking assistance from that office since 1984. R. at 140. However, Moses has offered nothing in support of that contention.
In September and October of 1988, the Public Defender again corresponded with Wilson and informed him that he could file a pro se petition for post-conviction relief and make a request to the trial court that its office should be appointed to represent him. R. at 138-39. On June 28, 1989, Wilson proceeded to file a pro se petition for post-conviction relief alleging, inter alia, that the jury was improperly instructed and that certain impeachment evidence was erroneously admitted at trial. R. at 12, 26-36. In response to the petition, the State raised the defense of laches in its answer on August 1, 1989. Two days later, the Public Defender entered an appearance, but Moses did nothing in furtherance of his petition for post-conviction relief over the next several years.
On August 5, 1993, the Public Defender withdrew its appearance and Wilson filed an amended petition for post-conviction relief on August 17, 1993. While the court set a hearing date for January 28, 1994, Wilson moved for a continuance and, again, did nothing to prosecute his petition for relief for nearly two years. As a result, the post-conviction court issued a "show cause" order on November 13, 1995. R. at 76. Wilson then retained private counsel, and on December 13, 1995, he filed an answer to the show cause order. The court then proceeded to set the matter for hearing on May 1, 1996.
As the result of additional continuances and apparent negotiations with the State, the post-conviction court continued the hearing on Wilson's petition indefinitely until either Wilson or the State requested a hearing date. R. at 89-91. On June 2, 1998, Wilson was ordered to request a hearing or to show why the petition should not be dismissed. On June 30, 1998, Wilson's private counsel withdrew from the case and the court set May 11, 1999 as the hearing date on the petition. Following a continuance by the State, the court conducted a hearing on the petition on May 24, 1999. Wilson's request for relief was denied, inasmuch as the post-conviction court determined that Wilson's petition was barred by laches. Specifically, the court determined that Wilson had unreasonably delayed in requesting relief and noted prejudice to the State because the primary witnesses who had testified at the original trial had become unavailable. Wilson now appeals, claiming that the finding of laches was erroneous.
DISCUSSION AND DECISION I. Standard of Review
The doctrine of laches is an affirmative defense that the State must plead and present evidence upon in order to prove that a petitioner is not entitled to a new trial. See Williams v. State, 716 N.E.2d 897, 901-02 (Ind. 1999). In reviewing a claim that the post-conviction court erroneously found the existence of laches, this court will neither reweigh the evidence nor judge the credibility of the witnesses. Id. Moreover:
[The reviewing court] consider[s] only that evidence favorable to the judgment, together with all reasonable inferences to be drawn therefrom. If the determination of the court is supported by substantial evidence of probative value, the judgment will be affirmed.Id. at 901.
We also note that the laches defense "acts as a legitimate waiver of the petitioner's right to challenge a judgment." Lile v. State, 671 N.E.2d 1190, 1194 (Ind.Ct.App. 1996). To prevail on a laches claim, the State must demonstrate by a preponderance of the evidence that: 1) the petitioner unreasonably delayed in seeking relief; and 2) the State has been prejudiced by that delay. Williams, 716 N.E.2d at 902; see also id. A petitioner's knowledge of post-conviction relief is a factor in determining if the delay was unreasonable. Williams, 716 N.E.2d at 901. We consider many factors to infer that the petitioner had knowledge of post-conviction remedies such as repeated contacts with the criminal justice system, incarceration in a penal institution with legal facilities, and consultation with counsel. Lile, 671 N.E.2d at 1194.
II. Wilson's Claims A. Delay
While Wilson claims that the post-conviction court erroneously determined that he had unreasonably delayed in pursuing a request for post-conviction relief, it is apparent that Wilson first learned in 1982 from the LUPP that the remedy was available to him. R. at 137. Notwithstanding such knowledge, Wilson waited almost four years before seeking the Public Defender's assistance. R. at 137. Moreover, the Public Defender represented Wilson for only a short period of time. R. at 12-13. Excluding the Public Defender's involvement, Wilson waited approximately seven years before filing his first pro se petition for post-conviction relief. R. at 73, 76, 89-92. Wilson also failed to request a hearing date for several more years.
Here, Wilson's argument challenging the finding that his delay in seeking post-conviction relief was unreasonable is merely an invitation for this court to reweigh the evidence. Inasmuch as we decline such an invitation, the circumstances here support the post-conviction court's determination that Wilson unreasonably delayed in seeking post-conviction relief.
B. Prejudice
As noted above, the State must also demonstrate that it has been prejudiced by the petitioner's unreasonable delay before it can succeed on its claim of laches. To show prejudice, the State must demonstrate that it would be extremely difficult to present a case against the petitioner at the time of the post-conviction hearing. Moser v. State, 562 N.E.2d 1318, 1320 (Ind.Ct.App. 1990). The State is not required to show the impossibility of presenting a case. Rather, it must be demonstrated that there is a reasonable likelihood that a successful prosecution has been materially diminished by the petitioner's neglect and delay. See Stewart v. State, 548 N.E.2d 1171, 1176 (Ind.Ct.App. 1990),trans. denied. Prejudice will be demonstrated by an inability to reconstruct a case against a petitioner because of unavailable evidence, such as destroyed records, deceased witnesses, or witnesses who have moved away. Guajardo v. State, 544 N.E.2d 174, 177 (Ind.Ct.App. 1989). Additionally, the State has an obligation to use due diligence in its investigation of the availability of evidence and witnesses. McCollum v. State, 671 N.E.2d 168, 171-72 (Ind.Ct.App. 1996).
In the instant case, the record demonstrates that Nestor Melendez, an investigator with the prosecutor's office, testified that he performed a search for the State's witnesses who had testified against Wilson at trial. R. at 111. Melendez checked each name with the Indiana Bureau of Motor Vehicles in order to obtain driver's license information and found nothing regarding five of them. R. at 111, 113-14. Melendez continued his search for these individuals by traveling to their last known addresses, but was unsuccessful in acquiring any leads as to their whereabouts. R. at 111-14. While Melendez was able to locate one of the witnesses who was incarcerated at an Illinois prison, he discovered that the chief investigating police officer had moved to New York. Melendez was also unable to locate the prosecutor's file despite his efforts to do so. R. at 117.
The evidence at the post-conviction hearing established that three of the witnesses who could not be located had testified at trial that Wilson had fired the gun that killed the victim. A nurse from the coroner's office whom Melendez also could not locate had testified as to the description of the victim's body at the scene of the shooting and concluded that the victim's death was due to a lacerated brain. R. at 158-60, 163. Moreover, a police officer who could not be located but was the first to arrive at the scene, was able to corroborate the other witness' account of the shooting. R. at 285-86, 299-300.
While Wilson argues that the State should have used the Internet or the "social security agency," as additional efforts to locate the State's witnesses, appellant's brief at 13, 17, he has made no showing that the State had access to the witness' social security numbers or that the Internet would have produced any locating information. Although the State must exercise due diligence in its effort to search for the witnesses, it is not under an obligation to "leave no stone unturned." See McCollum, 671 N.E.2d at 171-72.
Inasmuch as the State demonstrated the loss of the prosecutor's file along with the loss of testimonial evidence, it is apparent that the State's ability to successfully reprosecute Wilson would result in prejudice. See Woods v. State, 506 N.E.2d 487, 489 (Ind.Ct.App. 1987), trans. denied (laches was proved where victim died, investigating officer moved out-of-state, and another witness could not be located). Accordingly, we hold that the post-conviction court properly determined that Wilson's claim for relief was barred by the doctrine of laches.
Judgment affirmed.
RILEY, J., and KIRSCH, J., concur.