Bennett v. Duckworth

• Citation: 909 F. Supp. 1169
• Decision Date: 29 November 1995
• Docket Number: No. 2:95cv079 AS.,2:95cv079 AS.
• Parties: Doran Ray BENNETT, Petitioner, v. Jack R. DUCKWORTH, Respondent.
• Court: U.S. District Court — Northern District of Indiana

909 F. Supp. 1169

Doran Ray BENNETT, Petitioner, v. Jack R. DUCKWORTH, Respondent.

No. 2:95cv079 AS.

United States District Court, N.D. Indiana, Hammond Division.

November 29, 1995.

COPYRIGHT MATERIAL OMITTED

Doran Ray Bennett, SR-INDIANA-30 Indiana Reformatory, Pendleton, IN, pro se.

Robert L. Collins, Office of Indiana Attorney General, Indianapolis, IN, Pamela Carter, Indiana Attorney General, Indianapolis, IN, for respondent.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

This case was reassigned to the undersigned by order of October 6, 1995. On February 16, 1995, pro se petitioner Doran Ray Bennett, an inmate at the Indiana Reformatory in Pendleton, Indiana, filed a petition seeking relief under 28 U.S.C. § 2254. The response filed by the respondent on April 28, 1995, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982). The petitioner filed a Traverse on June 27, 1995, and the state court record has been filed and examined pursuant to the mandates of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

The petitioner was convicted of six counts of robbery in 1988 by a jury verdict in the Lake Superior Court at Crown Point, Indiana. He was sentenced to consecutive terms of imprisonment totaling fifty years. A direct appeal was taken to the Court of Appeals of Indiana in 1989, and the Third District of that court, speaking through Judge Staton, affirmed the aforesaid conviction in an unpublished memorandum decision in which Judges Hoffman and Conover concurred. For the immediate reference of all concerned, the memorandum decision is marked as Appendix "A," attached hereto and incorporated herein. No petition to transfer to the Supreme Court of Indiana was taken.

Thereafter, this petitioner revisited the state trial court and initially filed a pro se petition for postconviction relief, but was later assisted by the Public Defender's Office of the State of Indiana. An amended postconviction relief petition was filed on his behalf and the state trial court held an evidentiary hearing, following which the court denied the amended postconviction petition. Another appeal was taken from that denial and a second opinion, authored by Judge Garrard, issued from the Court of Appeals on June 28, 1994. For the immediate reference of all concerned, the memorandum decision is marked as Appendix "B," attached hereto and incorporated herein. Judges Hoffman and Barteau concurred. On this decision, the Supreme Court of Indiana denied transfer.

The petitioner now alleges in this § 2254 petition that the state trial court denied his Sixth Amendment right to waive assistance of counsel, recognized by the Supreme Court of the United States in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). He also attempts to challenge the trial court's failure to articulate its reason(s) for imposing consecutive sentences as fundamental error. Finally, the petitioner attempts to raise questions regarding ineffective assistance of his trial counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), and his appellate counsel under Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985).

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 plaintiff'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 which suggest that the facts found by the highest court of a state are presumed to be correct. See, e.g., Milone v. Camp, 22 F.3d 693, 697 n. 2 (7th Cir.1994), cert. denied, ___ U.S. ___, 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, ___ U.S. ___, 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, 850, 74 L.Ed.2d 646 (1983); see also Mills v. Jordan, 979 F.2d 1273, 1279 (7th Cir.1992).

In Jackson v. Virginia, the Supreme Court set forth the test which federal habeas courts must apply:

We hold that in a challenge to a conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have otherwise been satisfied — the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.

Id. at 324, 99 S.Ct. at 2791-92 (footnote omitted); see also Sumner v. Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 768-69, 66 L.Ed.2d 722 (1981); Armstrong v. Young, 34 F.3d 421, 426 (7th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1369, 131 L.Ed.2d 224 (1995); Gomez v. Ahitow, 29 F.3d 1128, 1134 (7th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1122, 130 L.Ed.2d 1085 (1995); Johnson v. Trigg, 28 F.3d 639, 644 (7th Cir. 1994); Biskup v. McCaughtry, 20 F.3d 245, 248 (7th Cir.1994); Hockett v. Duckworth, 999 F.2d 1160, 1165 (7th Cir.1993). A review of the record in the light most favorable to the prosecution convinces the court that a rational trier of fact could readily have found the petitioner guilty beyond a reasonable doubt of robbery.

DISCUSSION

I. Waiver of Sixth Amendment Right to Counsel

The Sixth Amendment to the Constitution of the United States guarantees a criminal defendant the right "to have the Assistance of Counsel for his defence." U.S. CONST. amend VI. In Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942), the Supreme Court of the United States recognized that the Sixth Amendment right to the assistance of counsel implicitly embodies a "correlative right to dispense with a lawyer's help." 317 U.S. at 279, 63 S.Ct. at 241. Put another way, the Constitution does not itself force an attorney on an unwilling criminal defendant. More recently, in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court extended its decision in Adams to hold that the Sixth Amendment also forbids a state from forcing a lawyer upon a defendant who truly wants to defend himself:

The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of "that respect for the individual which is the lifeblood of the law."

Faretta, 422 U.S. at 834, 95 S.Ct. at 2541 (quoting Illinois v. Allen, 397 U.S. 337, 350-51, 90 S.Ct. 1057, 1064-65, 25 L.Ed.2d 353 (1970)).

When federal and state trial judges are confronted with requests for self-representation under Faretta, a number of very difficult obligations are placed on them.

A defendant who raises the possibility of representing himself at trial places the ... court between the Scylla of trammeling the defendant's constitutional right to present his own defense ... and the Charybdis of shirking its "constitutional duty to ensure that the defendant only represents himself with full awareness that the exercise of that right is fraught with dangers."

United States v. Sandles, 23 F.3d 1121, 1127 (7th Cir.1994) (quoting United States v. Moya-Gomez, 860 F.2d 706, 732 (7th Cir. 1988), cert. denied sub nom. Estevez v. United States, 492 U.S. 908, 109 S.Ct. 3221, 106 L.Ed.2d 571 (1989)). An accused who manages his own defense "relinquishes, as a purely factual matter, many of the traditional benefits associated with the right of counsel. For this reason, in order to represent himself, the accused must `knowingly and intelligently' forgo those relinquished benefits." Faretta, 422 U.S. at 835, 95 S.Ct. at 2541 (citing Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)). The trial court therefore must ensure that the defendant is "made aware of the dangers and disadvantages of self-representation, so that the record will establish that `he knows what he is doing and his choice is made with eyes open.'" Faretta, 422 U.S. at 835, 95 S.Ct. at 2541 (quoting Adams, 317 U.S. at 279, 63 S.Ct. at 241-42).

It is altogether appropriate then — indeed, it is...