900 F.2d 990 (7th Cir. 1990), 88-2916, Burgin v. Broglin

Docket Nº:88-2916.
Citation:900 F.2d 990
Party Name:James A. BURGIN, Petitioner-Appellee, v. G. Michael BROGLIN, et al., Respondents-Appellants.
Case Date:April 10, 1990
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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900 F.2d 990 (7th Cir. 1990)

James A. BURGIN, Petitioner-Appellee,


G. Michael BROGLIN, et al., Respondents-Appellants.

No. 88-2916.

United States Court of Appeals, Seventh Circuit

April 10, 1990

Argued April 13, 1989.

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Kathryn Butler O'Neall, O'Neall & O'Neall, Remington, Ind., for petitioner-appellee.

Michael A. Schoening, Deputy Atty. Gen., Indianapolis, Ind., for respondents-appellants.

Before WOOD, Jr., COFFEY and MANION, Circuit Judges.

COFFEY, Circuit Judge.

Respondent-appellant, G. Michael Broglin, Superintendent of the Westville (Indiana) Correctional Center appeals from the district court's grant of a writ of habeas corpus to petitioner-appellee, James A. Burgin, under 28 U.S.C. Sec. 2254. Burgin's failure to bring evidence relevant to the existence of an alleged plea agreement between the State and his accomplice, Marlene Beitler, to the attention of the state court during his direct appeal effectively waived his right to challenge the state court's rulings in a federal habeas proceeding based on this evidence. We reverse.


James Burgin was convicted of a felony in the Indiana state court system, dealing in a controlled substance, and was sentenced to a period of 14 years of confinement following a jury trial. The conviction resulted from a November 5, 1987, drug transaction in which Burgin and his girlfriend, Marlene Beitler, sold LSD to an undercover police detective at the residence Burgin and Beitler shared. During the meeting between Burgin, Beitler and Allen County, Indiana, Police Detective Steven J. Hamilton, Beitler asked if Hamilton wished to purchase acid (LSD). When Hamilton responded in the affirmative, Beitler left the room to obtain the LSD from the refrigerator. During the ensuing conversation between Hamilton and Burgin, a price of $80 was agreed upon. Burgin refused to handle drugs in Hamilton's presence and stated during their discussion that he had been "busted" previously on drug charges and thus was more cautious with the persons with whom he dealt. Upon Beitler's return, she handed the drugs to Hamilton, who, in turn, passed the $80 to Burgin who counted and pocketed the money.

At Burgin's trial Hamilton and Beitler were the principal prosecution witnesses and their respective testimony corroborated each other concerning the drug conspiracy. Beitler further testified that while she helped Burgin store the drugs, Burgin retained all the proceeds from the drug sales.

During the state court trial there was some testimony during Beitler's direct and cross-examination on the question of whether the state had failed to disclose the alleged fact that Beitler had been offered favorable treatment from the state in exchange for her testimony against Burgin. During her direct examination, Beitler denied

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that she had any deal or had reached an agreement with the prosecution:

"DANIEL SIEGEL (Prosecutor): You agreed to be a witness here today for the state of Indiana, is that correct?


SIEGEL: What, if anything, have you been promised?

BEITLER: Nothing at all.

SIEGEL: Have I told you anything about the case today?

BEITLER: No. Just to tell the truth.

SIEGEL: Have you been promised a suspended sentence or dismissal of charges in order to testify here today?

MR. GRIMM (Defense Attorney): We will object to this your Honor. Seems like it should be improper for him to try and create in the minds of the jury the fact that there is no arrangement or no anything and that the woman is going to just sit here and tell the truth. They can draw that conclusion, we think, on her testimony.

COURT: The objection is overruled. You may answer the question.

SIEGEL: I asked if you have been promised a suspended sentence or dismissal of charges in order for you to testify here today?

BEITLER: No sir."

Under defense attorney Howard Grimm's vigorous cross-examination, Beitler admitted that her case had been continued because she agreed to testify against Burgin but reaffirmed her prior statement that no negotiations had taken place:

"GRIMM: You mean to tell me that you gave up any right to a trial and agreed to testify against Jimmy Burgin and nobody promised you or even led you to believe that you would get any kind of favorable treatment, is that right?

BEITLER: That's right.

GRIMM: So your belief is then I take it that here shortly now you will go on trial yourself?


GRIMM: And you will plead not guilty.

BEITLER: Yes sir."

Following Burgin's conviction for dealing in a controlled substance, and pursuant to a plea agreement, Beitler's charge was reduced from a Class B felony to a Class D felony. 1 Beitler was then given a prison sentence of two years that the sentencing judge suspended on the condition she serve six weekends in the County Jail.

Burgin filed a direct appeal of his conviction to the Indiana Supreme Court raising as one issue the question of whether the state impermissibly failed to disclose an agreement made with Beitler for her testimony. 2 The Indiana Supreme Court affirmed Burgin's conviction in Burgin v. State, 475 N.E.2d 1155 (Ind.1985). In disposing of the question of whether the non-disclosure of Beitler's alleged plea agreement prejudiced Burgin, the court stated:

"Appellant claims he is entitled to a new trial because the state failed to completely disclose the arrangements made for the testimony of Beitler. There is absolutely no evidence in this record to indicate that there was any transaction between the prosecutor and Beitler prior to her testimony against the appellant.... There is no evidence in this case that there was a failure on the part of the state to disclose an arrangement between the state and Beitler. Mere speculation as to the circumstances surrounding Beitler's testimony is not sufficient to give rise to a presumption that any agreement had been reached. Asbell v.

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State (1984), Ind., 468 N.E.2d 845. The appellant must do more than create an inference of an agreement. Bland v. State (1984), Ind., 468 N.E.2d 1032."

Burgin v. State, 475 N.E.2d at 1156-57.

After the Indiana Supreme Court had denied Burgin's contentions regarding the plea agreement, Burgin, incarcerated at the Westville Corrections Center, Westville, Indiana, filed a 28 U.S.C. Sec. 2254 petition for habeas corpus in federal court on December 4, 1985. The petition was based upon evidence that Burgin's son, Jeffrey Burgin, 14 years of age, allegedly overheard a conversation between Beitler, her attorney and the prosecutor that took place prior to Beitler's testimony against Burgin during the trial on Burgin's state drug charge. During this alleged conversation the parties supposedly discussed an agreement in which Beitler would plead guilty to a lesser charge and receive a reduced sentence in exchange for her testimony against Burgin. The record states that this evidence was discovered "shortly after" Burgin commenced his confinement. However, Burgin's post-conviction petition and the testimony of his son Jeffrey fails to reflect when, in relation to the date of Burgin's confinement, he (Burgin) actually became aware of the details of the evidence. Interestingly, at oral argument, in order to defeat the state's argument on the exhaustion issue, Burgin's attorney stated that "Burgin became aware of what his son had overheard prior to the filing of his appellate brief" before the Indiana Supreme Court, and we accept as true and accurate, her characterization of the time of Burgin's knowledge. 3 In spite of his

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knowledge of this alleged conversation during the pendency of his state court appeal, Burgin failed to bring the evidence of the conversation Jeffrey Burgin supposedly overheard to the attention of the Indiana state courts. We see no reason why this evidence was not brought to the attention of the Indiana Supreme Court, and Burgin's failure to present this evidence leaves us with a grave doubt as to whether this alleged conversation took place, much less was overheard for this information, if true, would certainly add to his argument. We note that this alleged "new" evidence is the only difference between the record presented in Burgin's unsuccessful attempt to reverse his conviction on the basis of the state's alleged non-disclosure of Beitler's plea agreement in his state court appeal and his attempt to upset his conviction on this same basis in federal habeas corpus proceedings.

The district court granted Burgin's habeas corpus petition on the basis of the alleged newly discovered evidence. 4 The district court concluded that while it had "some lurking doubt" about whether Burgin had exhausted his state remedies, it ruled that Burgin had exhausted these remedies because he would likely be unable to obtain Indiana state post-conviction relief in light of the Indiana Supreme Court's adverse ruling in his direct appeal concerning the nondisclosure of Beitler's alleged plea agreement. The district court ruled, despite its "lurking doubt" on the exhaustion question, that Burgin had been deprived of due process of law in that the state failed to disclose Beitler's alleged plea agreement to...

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