946 F.Supp. 639 (N.D.Ind. 1996), 3 96-CV-0040, Clay v. McBride

Docket Nº:3 96-CV-0040
Citation:946 F.Supp. 639
Party Name:Clay v. McBride
Case Date:November 07, 1996
Court:United States District Courts, 7th Circuit, Northern District of Indiana

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946 F.Supp. 639 (N.D.Ind. 1996)

Joel CLAY, Petitioner,


Daniel McBRIDE, Respondent.

No. 3:96-CV-0040 AS.

United States District Court, N.D. Indiana, South Bend Division.

Nov. 7, 1996

Page 640

[Copyrighted Material Omitted]

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Joel Clay, Westville, IN, Pro Se.

James D. Dimitri, Office of the Attorney General, Indianapolis, IN, for Respondent.


ALLEN SHARP, Chief Judge.

On January 16, 1996, petitioner, Joel Clay ("Clay"), filed the present petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this court, challenging three separate convictions imposed by the State of Indiana. Clay is currently incarcerated at the Westville Correctional Facility in Westville, Indiana, and has filed his petition pro se.


This case began when Clay filed three separate petitions challenging three different convictions under § 2254. On April 19, 1996, after determining that all three petitions were related, the court consolidated the three cases into this cause. The three convictions at issue are as follows: (1) a 1977 burglary conviction from the LaPorte County

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Superior Court; (2) a 1979 forgery conviction from the LaPorte County Superior Court; and (3) a 1985 burglary conviction and habitual offender determination from the Porter County Superior Court. Clay has completely served his sentences on the 1977 burglary and 1979 forgery convictions. However, these convictions were used as predicate offenses for the 1985 habitual offender determination. See IND. CODE § 35-50-2-8. Clay now attempts to challenge the constitutionality of these convictions since they were used as a basis to enhance the prison sentence he currently serves. On June 7, 1996, the respondent filed his return to order to show cause, demonstrating the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982). The petitioner filed his traverse to order to show cause on August 23, 1996. It must be noted that this court believes in giving prompt and close attention to all § 2254 petitions. However, it has taken more time than usual to review this petition due to the very complex and convoluted state court record produced in this case. In order to preserve judicial efficiency in this case, the court will now address the merits of Clay's petition by discussing one conviction at a time.


A claim under 28 U.S.C. § 2254 requires the federal habeas court to ensure that the state criminal conviction was not achieved at the expense of the petitioner's constitutional rights. Justice Stewart, speaking for the Supreme Court of the United States in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), described the role of the federal district courts in habeas proceedings:

A judgment by a state appellate court rejecting a challenge to evidentiary sufficiency is of course entitled to deference by the federal courts, as is any judgment affirming a criminal conviction. But Congress in § 2254 has selected the federal district courts as precisely the forums that are responsible for determining whether state convictions have been secured in accord with federal constitutional law. The federal habeas corpus statute presumes the norm of a fair trial in the state court and adequate state postconviction remedies to redress possible error. See 28 U.S.C. § 2254(b), (d). What it does not presume is that these state proceedings will always be without error in the constitutional sense. The duty of a federal habeas corpus court to appraise a claim that constitutional error did occur--reflecting as it does the belief that the "finality" of a deprivation of liberty through the invocation of the criminal sanction is simply not to be achieved at the expense of a constitutional right--is not one that can be so lightly abjured.

Id. at 323, 99 S.Ct. at 2791.

Following Jackson, supra, there is an increasingly long line of cases in this circuit, including the very recent decision in Brumley v. Detella, 83 F.3d 856, 861 (7th Cir.1996), which suggest that the facts found by the highest court of a state are presumed to be correct. See also, Milone v. Camp, 22 F.3d 693, 697 n. 2 (7th Cir.1994), cert. denied, 513 U.S. 1076, 115 S.Ct. 720, 130 L.Ed.2d 626 (1995); Cuppett v. Duckworth, 8 F.3d 1132, 1141 (7th Cir.1993) (en banc), cert. denied, 510 U.S. 1180, 114 S.Ct. 1226, 127 L.Ed.2d 571 (1994); Andersen v. Thieret, 903 F.2d 526, 531 (7th Cir.1990). "This deference requires that a federal habeas court more than simply disagree with the state court before rejecting its factual determinations. Instead, it must conclude that the state court's findings 'lacked even fair support in the record.' " Marshall v. Lonberger, 459 U.S. 422, 432, 103 S.Ct. 843, 849-50, 74 L.Ed.2d 646 (1983); see also Mills v. Jordan, 979 F.2d 1273, 1279 (7th Cir.1992).

The Congress of the United States has recently codified the holdings of Jackson and its progeny through the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA"). The AEDPA amended 28 U.S.C. § 2254, in relevant part, as follows:

In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant

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shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

28 U.S.C. § 2254(e)(1).

It also must be understood that this court does not sit to correct any errors of state law. See Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991), and Kraushaar v. Flanigan, 45 F.3d 1040 (7th Cir.1995). Further, this court does not sit as a trier de novo in state court criminal proceedings and does not sit as a court of general common law review. 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. denied, 489 U.S. 1088, 109 S.Ct. 1552, 103 L.Ed.2d 855 (1989).

The AEDPA also amended the standards a federal court must apply when reviewing the merits of a collateral challenge to a state criminal conviction under § 2254. Congress amended § 2254 in relevant part:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in the State court proceedings unless the adjudication of the claim--

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). Thus, when addressing the merits of Clay's claims, the court must now review them under the amended standard. See Lindh v. Murphy, 96 F.3d 856, 865 (7th Cir.1996) (holding that "the amended § 2254(d) is designed to curtail collateral review and augment the finality of judgments, which strongly implies application to existing judgments"). With these preliminaries aside, the court will now address Mr. Clay's challenges.


Because Clay finished serving the sentences on his 1977 burglary conviction and 1979 forgery conviction before this petition was filed, the court must determine whether it has jurisdiction to consider Clay's petition for writ of habeas corpus. Section 2254(a) grants federal courts jurisdiction to entertain a petition for relief from an individual who, at the time the petition is filed, is "in custody" for the conviction the petitioner is challenging. Maleng v. Cook, 490 U.S. 488, 490, 109 S.Ct. 1923, 1924-25, 104 L.Ed.2d 540 (1989). However, the Supreme Court of the United States has not interpreted the "in custody" language as requiring that an inmate be physically confined in order to challenge his sentence on a petition for writ of habeas corpus. Id. at 491, 109 S.Ct. at 1925.

Mr. Clay seeks to attack the constitutionality of two convictions for which he has completely served the applicable sentences. However, Clay seeks to challenge his 1977 burglary conviction as well as his 1979 forgery conviction through the 1985 determination by the Porter County Superior Court that he qualifies as an habitual offender under Indiana law.

It is well settled in the Seventh Circuit that a petitioner may challenge the constitutionality of a past conviction even though the custodial term of that conviction has totally expired only if the petitioner is currently in custody by virtue of a sentence that was enhanced on the basis of that prior conviction. Tredway v. Farley, 35 F.3d 288, 292 (7th Cir.1994), cert. denied, 513 U.S. 1129, 115 S.Ct. 941, 130 L.Ed.2d 885 (1995) (citing Smith v. Farley, 25 F.3d 1363, 1365-66 (7th Cir.1994), cert. denied, 513 U.S. 1114, 115 S.Ct. 908, 130 L.Ed.2d 791 (1995)). Put another way, Clay must establish that his current confinement violates the Constitution or laws of the United States. Thus, in order to succeed on his petition, he must establish not only that the 1977 burglary conviction or the 1979 forgery conviction is invalid but also that these convictions were used to augment the sentence for which he is presently incarcerated. See Crank v. Duckworth, 905 F.2d 1090, 1091 (7th Cir.1990) ,

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cert. denied, 498 U.S. 1040, 111 S.Ct. 712, 112 L.Ed.2d 701 (1991) (" Crank I "). 1

In this case, it appears that the state trial court based its finding that Clay qualified as an habitual offender in part on the basis of Clay's 1977 burglary and 1979 forgery convictions. Thus, the court finds that Clay's current sentence was...

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