Ben-Yisrayl v. Davis, 3:01 CV 65 AS.
| Decision Date | 19 February 2003 |
| Docket Number | No. 3:01 CV 65 AS.,3:01 CV 65 AS. |
| Citation | 245 F.Supp.2d 973 |
| Parties | Obadyah BEN-YISRAYL, f/k/a Christopher Peterson, Petitioner, v. Cecil DAVIS, Superintendent, Indiana State Prison, Respondent. |
| Court | U.S. District Court — Northern District of Indiana |
Prentice H. Marshall, Jr., John H. Gallo, Denise D. Keliuotis, Kelly J. Cox, Sidley Austin Brown and Wood, Chicago, IL, for petitioner.
Thomas D. Perkins, Gary Damon Secrest, Indiana Attorney General, Indianapolis, IN, for respondent.
This case has now been pending in this Court for more than two years, having been filed under 28 U.S.C. § 2254 on January 23, 2001. The triggering event occurred more than 12 years ago on December 18, 1990 in Lake County, Indiana. This Court has previously heard oral arguments from counsel and entered a Memorandum and Order on December 27, 2002. The petitioner has filed a motion to amend and alter judgment on January 10, 2003, and this Court gave the Attorney General of Indiana until February 18, 2003 in which to file a responsive memorandum. The memorandum has not been filed as of this date. There are a number of concerns raised by the motion of January 10, 2003 on behalf of the petitioner. It needs to be understood from the get-go that this petitioner was involved in two different trials in two different counties before two different judges and two different juries. Each of those proceedings generated a massive state court record. It is the obligation in this case to deal with the state court record that emanated from the trial in Lake County, Indiana. It is obviously been the strategy and tactic on behalf of this petitioner to select and intermingle events in each trial. Obviously that tactic can and in this case has created confusion. It will be the intent of this Court to deal carefully and finally with the case that has now before it under this cause number and to wait until the case from Porter County is ripe and then give it separate, careful and independent consideration. In reality, the only real connection between the two cases is the fact that Christopher Peterson, now known as Obadyah Ben-Yisrayl, was the defendant in both cases. So the attention will return to the somewhat lengthy laundry list of complaints and concerns that are evident in the January 10 filing on behalf of this petitioner. Those issues may not be taken up in the precise order in which they are listed there.
In regard to Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), the petitioner's counsel simply says that it was "waived by the state." No citation to the record is cited. Apparently it is expected that this Court will search this voluminous record and find something of that species of waiver. It is certainly unclear whether this petitioner's counsel is now saying that there has been a waiver of any contention that the Fourth Amendment of the Constitution of the United States was invoked and has been followed. This Court is hard pressed to find in this record a concession by the Attorney General of Indiana, or indeed by the prosecuting authority in Indiana that has conceded that there has been a violation of the Fourth Amendment of the Constitution of the United States here. The arguments advanced by the Attorney General of Indiana leads to an entirely contrary conclusion. Stone has been a basic means established by the Supreme Court of the United States more than a quarter of a century ago to examine compliance with the Fourth Amendment of the Constitution of the United States and this Court is unable to find in this record that in any significant and relevant manner the Fourth Amendment has been violated to the disadvantage of this petitioner in this case. What this Court said about the possible applicability of Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) and County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) remains true and correct whatever the parties may or may not have agreed to with regard to Stone. Certainly in this circuit and in this Court following Gerstein was not, at least on one occasion, easy to do. This Court again cites Dommer v. Hatcher, 427 F.Supp. 1040 (N.D.Ind.1975), rev'd, 638 F.2d 1031 (7th Cir.1980), previous opinion withdrawn, 653 F.2d 289 (7th Cir.1981). Much of that concern is wrapped up and later dealt with by the Supreme Court of the United States in County of Riverside, and this Court remains of the view that the 36hour delay argued about is not a per se violation of either of the aforesaid Supreme Court decisions in either 1975 or 1991. It is hard to understand how any so-called waiver of Stone, if indeed there was one, makes a difference that enures to the benefit of this petitioner.
One thing that is clearly not referenced in the pleading filed on behalf of this petitioner on January 10, 2003 is the most recent unanimous decision of the Supreme Court of the United States which gives relevant and very important instructions as to how the state court record should be examined in cases such as this. This Court has no judicial license to ignore Woodford v. Visciotti, — U.S. ___, 123 S.Ct. 357, 360-61, 154 L.Ed.2d 279 (2002), and Early v. Packer, — U.S. ___, 123 S.Ct. 362, 154 L.Ed.2d 263 (November 4, 2002), a companion case in a non-capital setting. It is beyond any doubt that the procedural mandates by a unanimous Supreme Court within the last few months as reflected in Woodford apply here.
Much of the rest of the presentation made by the petitioner's counsel relates to a separate appeal in a Porter County case that is to be heard separately in the future. This Court will deal with the issues presented in that case at an appropriate time...
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