On May 5, 1982, the Petitioner, under the name Rufus Averhart,2 was convicted of murder and felony murder of a police officer, and was sentenced to death. The Indiana Supreme Court affirmed both the conviction and sentence on direct appeal. Averhart v. State, 470 N.E.2d 666, 697 (Ind. 1984). Azania sought post-conviction relief, which the trial court denied. On appeal, the Indiana Supreme Court concluded that Azania was denied effective assistance of counsel at the sentencing phase, and remanded the case for imposition of a term of years or for a new penalty phase. Averhart v. State, 614 N.E.2d 924,935 (Ind. 1993). On remand, Azania was again sentenced to death, and the Indiana Supreme Court affirmed the sentence on appeal. Azania v. State, 730 N.E.2d 646, 655 (Ind. 2000).
Azania filed a successive petition for post-conviction relief and the Indiana Supreme Court authorized "the filing of Azania's successive petition for post-conviction relief but only for the purpose of presenting his first claim regarding the Allen County jury selection system." Azania v. State, 738 N.E.2d 248, 252 (Ind. 2000). The Supreme Court further ordered that this successive petition for post-conviction relief "shall be consolidated with the proceedings in Azania's separate successive petition for post-conviction relief alleging newly discovered evidence relevant to the guilt phase of his murder trial, which was authorized to be filed by our order of October 12, 2000." Id.
The trial court denied relief on Azania's successive petitions for post-conviction relief. On appeal the Indiana Supreme Court affirmed the trial court in part, but held that Allen County's computerized jury selection system did not substantially comply with Indiana's jury selection statute, requiring that the death sentence be vacated and that a new penalty phase be conducted. Azania v. State, 778 N.E.2d 1253, 1263 (Ind. 2002).
On remand, the trial court granted Azania's motion barring the State from seeking the death penalty. On appeal from that order, the Indiana Supreme Court reversed the trial court, and remanded the case for a new penalty phase that would include the possibility of a death penalty. Azania v. State, 865 N.E.2d 994, 1010 (Ind. 2007). The State sought rehearing, and the Supreme Court granted "the State's petition for rehearing and [held] that Azania should be re-sentenced under the post-2002 death penalty statute, but without the availability of [life without parole]." State v. Azania, 875 N.E.2d 701, 705 (Ind. 2007). On remand, the trial court sentenced Azania to an aggregate term of 74 years pursuant to a stipulated sentencing agreement. (DE # 16-1 at 58.)
This petition is governed by the provisions of the Anti-Terrorism and Death Penalty Act of 1996, see Lindh v. Murphy, 521 U.S. 320, 336 (1997), which allows a district court to issue a writ of habeas corpus on behalf of a person in custody pursuant to a state court judgment "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In reviewing a petition for federal collateral relief from a state court judgment of conviction, this courtmust presume as correct the facts as found by the state courts. 28 U.S.C. § 2254(e)(1); Sumner v. Mata, 449 U.S. 539, 547 (1981); Ruvalcaba v. Chandler, 416 F.3d 555, 559-60 (7th Cir. 2005). The petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Ruvalcaba, 416 F.3d at 559-60.
The Indiana Supreme Court set forth the facts regarding Azania's crimes on direct appeal as follows:
The facts tend to show that on August 11, 1981, at about noon, the Gary National Bank at 3600 Broadway, Gary, Indiana, was robbed by three men. Gary Police Officer Lieutenant George Yaros was killed by gunfire in a shootout with the robbers as they attempted their escape.
Witness William E. Pendleton was in the Bank parking lot by his automobile when he saw three masked people, one of them quite well dressed, run toward the Bank and enter it. When Pendleton observed this, he did not enter the Bank. Elton Bourseir, a security guard at the Bank, stated that an armed man came up behind him, took his gun, and pushed him into the lobby, telling him to lie on the floor. Bourseir did so. The man was about 6'3'', a very dark complexioned black man with an "afro" hairdo, sunglasses, a light blue coat, and black gloves. The firearm taken from Bourseir was a .38 Colt nickel-plated, pearl handled, two inch revolver. Employees of the Bank testified that the three men came into the branch with weapons drawn, had everyone lie down on the floor, and took money belonging to the Bank. Louis Lepp, the Assistant Manager of the Bank branch, testified to these events. As he lay down, he reached for an alarm button and set off the alarm. This button also activated a Diebold security camera. The alarm button activated an alarm in the office of the alarm company and notified the police department. Mavis Reeves testified she was sitting at her typewriter where she could see the back door. The back door opened and a man with a gun ran in and jumped over the counter, holding the gun to a guard's head. Two other men with guns and masks ran in. The first man was pushing the guard to get him out into the lobby. This man had a large gun in his hands and was wearing a blue suit. One of the other two men wore a shirt and vest and the third wore a plaid shirt. When it was apparent the police were on the scene, the three men started to leave the Bank. Mrs. Reeves saw them standing between the two sets of doors at the back of the Bank, shooting out. The man in the blue suit still had the long gun. Witnesses on the outside, includingPendleton, saw Officer Yaros pull up, block the exit lane of the Bank parking lot in a marked police car, and step out in an attempt to apprehend the robbers. He was in full police uniform. All three of the perpetrators opened fire on him and he fell to the ground. He was speaking into his walkie-talkie as he fell and other police officers testified they received a dispatch from him that indicated there was a robbery in progress and he needed help. The three robbers then ran past the squad car to get to their own vehicle. Two of them, the one in the sleeveless vest and the one in the plaid shirt, entered the car. The one in the blue suit went over to the police officer and kicked his pistol away from him. This individual then held his hand gun close to the police officer and fired another shot into his body. All three of them then left hurriedly in a light blue sedan type automobile. Officer Walter Jagilea was on the scene in a marked vehicle and saw the shooting of Yaros. He advised Officer Pastoret as to the identity of the two-tone blue four-door Ford in which the perpetrators were making their escape and Pastoret closely pursued them. Jagilea attempted to give aid to Yaros. Corporal Charles Oliver, of the Patrol Division of the Gary Police Department, was close behind Pastoret in pursuing the blue Ford. The subjects in the blue Ford leaned out of the side windows of the automobile, and shot back at the police officers while the pursuit took place. The vehicles reached speeds of 80 to 100 m.p.h. while going through the streets of Gary. The blue car finally struck a tree and was forced to stop. One of the occupants jumped out and ran south down 25th Street. Pastoret continued to pursue the automobile and finally apprehended defendants North and Hutson. Oliver pursued the man on foot and saw that this person was wearing a dark blue shirt, a light blue jacket, and light blue sports trousers. Oliver saw the man throw a wig to the ground while running down the alley and later recovered this wig. He saw the suspect run to the back of the second house on the left, which had a six foot fence at the rear, and saw the suspect jump over it. Oliver ent through a gate and then realized too much time had passed to pursue the suspect any further on foot, so he jumped back into his automobile and circled to 26th Avenue. The suspect was no longer in sight but there was a street crew working and Oliver asked them if they had seen the man. One of the workers came up and gave Oliver directions, stating that the man he wanted had gone east to Buchanan Street. This witness was James Charles McGrew, who stated he was working for Vulcan Basement Waterproofing at Lincoln Street around 26th Avenue when he heard gunshots. McGrew looked up twice. The second time he saw a black man in a blue jacket. The black man reached into the waist band of his trousers, removed a pistol and placed it in the bushes. After he walked four steps further and placed a bag into the bushes, he walked a few more steps and put his jacket into the bushes. McGrew watched the man cross the street very slowly and start walking towards thenext corner. At this point, the police officer came by and McGrew advised him as to the direction in which this man had gone. Oliver then went in that direction and found defendant Averhart slowly walking north. His clothing closely matched that of the suspect he had been following. Oliver stopped him and handcuffed him. McGrew identified Averhart as being the same man he saw come by and place the items he had described into the bushes. Oliver
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