Ballard v. Duckworth

• Decision Date: 06 March 1986
• Docket Number: No. S85-224.,S85-224.
• Parties: James N. BALLARD, Chris P. Vickers, Petitioners, v. Jack R. DUCKWORTH, Indiana Attorney General, Respondents.
• Court: U.S. District Court — Northern District of Indiana

656 F. Supp. 693

James N. BALLARD, Chris P. Vickers, Petitioners, v. Jack R. DUCKWORTH, Indiana Attorney General, Respondents.

No. S85-224.

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

March 6, 1986.

James N. Ballard, Chris P. Vickers, pro se.

Robert B. Wente, Deputy Atty. Gen., Indianapolis, Ind., for respondents.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

Petitioners, James N. Ballard and Chris P. Vickers, inmates at the Indiana State Prison, Michigan City, Indiana, have filed this joint petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondents have filed a motion to dismiss as part of their Return to Order to Show Cause. In accord with the dictates of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the complete state court record has been filed with, and carefully examined by, this court.

A careful examination of the underlying state court record and the opinion of the Supreme Court of Indiana on direct appeal, Ballard v. State, 270 Ind. 337, 385 N.E.2d 1126 (1979), as well as, the opinion of the Supreme Court of Indiana on appeal of the denial of post-conviction relief petition, Vickers v. State, ___ Ind. ___, 466 N.E.2d 3 (1984), reveals that the petitioners have exhausted their available state court remedies per 28 U.S.C. § 2254(b) and (c); Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982). Both sides having briefed their respective issues, this petition is now ripe for ruling.

The petitioners were convicted in a state court jury trial of kidnapping, rape and the commission of a felony while armed, for which each received sentences of fifteen (15) years, twenty-one (21) years, and life, respectively on the convictions. Their convictions were unanimously affirmed on appeal by the Supreme Court of Indiana. Following unfavorable action on their post-conviction filings in the state court, petitioners now bring this petition for a federal writ of habeas corpus.

On April 12, 1985, petitioners filed a motion for the appointment of counsel. This court ordered the petitioners to show what, if any, efforts they had made to obtain counsel on their own and granted sixty (60) days to do so. Petitioners have failed to comply with this court's order.

There is no constitutional right to appointed counsel in a civil case. Thomas v. Pate, 493 F.2d 151 (7th Cir.), cert. denied, 419 U.S. 879, 95 S.Ct. 143, 42 L.Ed.2d 119 (1974). Rather, the decision whether to appoint counsel in a case rests within the sound discretion of the court. McBride v. Soos, 594 F.2d 610 (7th Cir.1979). When considering motions for appointed counsel, this court is guided by the standards set forth in Maclin v. Freake, 650 F.2d 885 (7th Cir.1981). These standards include, but are not necessarily limited to, such considerations as the legal and factual merits of the claim presented, the degree of complexity of the issues involved, and the movant's apparent physical and intellectual abilities to prosecute the action. See also Merritt v. Faulkner, 697 F.2d 761 (7th Cir.1983); McKeever v. Israel, 689 F.2d 1315 (7th Cir.1982). This court is also mindful of a point not often made in these matters, and that is that the operative word in 28 U.S.C. § 1915(d) is "request", not "appoint", i.e., "the Court may request an attorney to represent any such person unable to employ counsel." See David Ashley Bagwell, "Procedural Aspects of Prisoner § 1983 and § 2254 Cases in the Fifth and Eleventh Circuits," 95 F.R.D. 435, 443 (1982).

These basic concepts as to the so-called appointment of counsel were carefully and fully outlined by this court in Williams v. Duckworth, 562 F.Supp. 506 (N.D.Ind. 1983), aff'd by unpublished order, 749 F.2d 34 (7th Cir.1984).

Based on the foregoing criteria, this court finds that the petitioners do not meet the prerequisite criteria and that the appointment of counsel is unwarranted. Therefore, this court denies petitioners' motion for appointment of counsel.

This court also finds that the petitioners filed a motion for enlargement of time to respond to respondents' Return to Order to Show Cause. This court granted petitioners up to and including July 26, 1985, to file their response. Petitioners have not filed a response nor requested further continuances. The time to respond having long been up, this petition is ripe for ruling.

Petitioners raise the following issues in this application for habeas relief.

(1) Petitioners herein were denied due process of law under the Indiana and United States Constitutions when the trial court failed to admonish the jury to disregard the rude handcuffing of petitioners, and to disregard an apparent altercation involving the petitioners, which was in essence an altercation between one of petitioners' attorneys and a court baliff (sic), all of which prejudiced petitioners' fundamental rights because it occurred in the presence and plain view of the jury.

(2) Petitioners were subjected to vindictive punishment in violation of the United States Constitution and in violation of the Indiana Constitution, Article I, Section 18, when they were sentenced to mandatory life imprisonment under the pre-1977 penal code.

(3) Petitioners were denied due process of law under the Indiana and United States Constitutions and I.C. XX-X-XX-X (1976 Ed.) when the trial court allowed the alternate juror to be present during jury deliberations.

(4) Petitioners were denied effective assistance of counsel, under the Indiana and United States Constitutions where appointed trial counsel failed to meaningfully consult with petitioners, failed to investigate possible defenses, failed to prepare for a jury trial, and failed to interview potential witnesses. Counsel rendered ineffective assistance in that he informed petitioner-defendant could no longer accept the State's plea offer of ten (10) years because the jury had been selected.

(5) Petitioners were denied effective representation by counsel and due process of law, under the Indiana and United States Constitutions, where the arresting officer testified falsely under oath with respect to the pre-trial statements made by the then-defendants, and in conjunction, the prosecutor relief upon this false testimony in his closing argument to the jury.

(6) Petitioners were denied effective assistance of counsel and the right to confrontation where statements of both Ballard and Vickers were introduced into evidence at their joint jury trial and neither of them had testified at trial, and no motion for separate trial had been made. Petitioner Vickers had requested of his attorney a Motion for Separate Trials.

Petitioners' first issue arises out of an incident which occurred during a recess in the trial. Petitioners contend that as they were escorted out of the courtroom, Vickers' attorney and the court bailiff exchanged loud verbal comments regarding Vickers' girlfriend being able to talk to Vickers. The bailiff then placed the handcuffs on the petitioners in a manner in which petitioners claim was rough causing them to lose their balance. Petitioners claim that this altercation took place in the same hallway at the same time the jury was exiting into the hallway for the recess.

Petitioners contend that the occurrence of such an altercation in the presence of the jury unduly prejudiced their case and denied them a fair trial.

It is axiomatic that a criminal defendant has the right to appear before the jury free from shackles or other forms of physical restraint. Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353 (1970); Harrell v. Israel, 672 F.2d 632, 635 (7th Cir.1982); Osborne v. Duckworth, 567 F.Supp. 427, 432 (N.D.Ind. 1983). Under "normal" conditions defendants have a right to appear before a jury during trial free from shackles or other forms of restraint. Id. However, the use of physical restraints has been upheld to restrain disruptive conduct, Illinois v. Allen, supra, and to maintain courtroom security even in the absence of disruptive conduct. Loux v. United States, 389 F.2d 911, 919 (9th Cir.), cert. denied, 393 U.S. 867, 89 S.Ct. 151, 21 L.Ed.2d 135 (1968).

This court in Osborne v. Duckworth, supra, granted a writ because the petitioner had been observed in handcuffs by some of the veniremen. The Seventh Circuit reversed the decision in an unpublished opinion. As in the Osborne case, the facts of this case show that petitioners were handcuffed for the purpose of supervising and transporting. Furthermore, petitioner Vickers testified at the hearing on the post-conviction petition that the trial court judge immediately approached his bailiff and in a low voice told his bailiff to "keep it down".

The purpose of a public trial is to guarantee that an accused receive a fair trial. Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). Based on the facts that the altercation had nothing to do with the merits of the case, the altercation was between the bailiff and attorney, the court made diligent effort to correct the situation, and the lack of any evidence which shows that the jury actually saw or heard what occurred, this court finds that petitioners' claim does not amount to a deprivation which could possibly be interpreted as undermining the complete fairness of the trial. Cramer v. Fahner, 683 F.2d 1376 (1982).

In their second claim, petitioners argue that the life sentence they received for the kidnapping conviction was "vindictive justice" under both, the Constitution of the State of Indiana and the Constitution of the United States.

Petitioners base their argument of State constitutional violation on a charge in the penal code which took place during the year of their trial and sentencing. Petitioners argue that they should have been sentenced under the new penal code rather than the old penal code. The Supreme Court of Indiana when addressing this issue on appeal stated:

Appellants next argue that their sentences of life

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