Boyko v. Parke, 1:97cv042 AS.

Decision Date21 September 1999
Docket NumberNo. 1:97cv042 AS.,1:97cv042 AS.
PartiesRodney Lee BOYKO Petitioner v. Al C. PARKE Respondent
CourtU.S. District Court — Northern District of Indiana

Howard B. Eisenberg, Milwaukee, WI, for petitioner.

Michael A. Hurst, James B. Martin, Indiana Attorney General, Indianapolis, IN, for respondent.


ALLEN SHARP, District Judge.

This petition for relief under Title 28 U.S.C. § 2254 was first filed in the Fort Wayne Division of this Court on or about November 18, 1997. The current docket sheet discloses eighty-three items through September 7, 1999. More recently in this case this petitioner, Rodney Lee Boyko, has had the excellent professional services of Dean Howard B. Eisenberg of Milwaukee, Wisconsin and this Court is greatly appreciative of those professional services. This Court is also immediately aware of the published decision of the Court of Appeals in Boyko v. Anderson, 185 F.3d 672, and it is the intent of this Court to comply with the final mandate in that decision. Certainly the discussions there clearly indicate that any judicial tinkering in the District Court after the filing of a Notice of Appeal and during the pendency of a Notice of Appeal, however well intentioned, is to be avoided.

The petitioner has sought to expand the record, undertake further discovery and delay disposition, all of which are DENIED since this Court will proceed as it must on the extensive record presently available to this Court and to the Court of Appeals requires a walking through elongated proceeding. More here needs to be said with reference to this effort by the petitioner to expand the record, undertake discovery and delay the disposition of the petition. This Court has repeatedly said that its principal concern throughout these proceedings is that it made a mistake with regard to the time requirements under 28 U.S.C. § 2244(d)(1). That concern remains paramount with this Court.

It is necessary to be clear about the statutory preconditions and the statutory limitations on U.S. District Court review of state court criminal convictions as presently exists in 28 U.S.C. § 2254. There are some conceptual difficulties found in recent Court of Appeals decisions that may come into play with regard to ruling on a Rule 60(b) motion as the same may play out in reference to the inhibitions of and limitations for successive petitions under 28 U.S.C. § 2244. This Court and the Court of Appeals wrestled mightily with this very problem in Burris v. Parke, 130 F.3d 782 (7th Cir.1997), but the teaching of Burris v. Parke about which this Court is completely conversant is not the only inhibition in regard to the efforts of this petitioner to greatly expand this record and the issues here. Certainly the decisions of the Court of Appeals of Indiana and especially the most recent one deal extensively with issues regarding ineffective assistance of counsel and deal with same under a series of state law claims but the analysis there is consistent with the analysis of the Supreme Court of the United States in 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).

There is also a rule problem with the purported expansion of the record beyond that which was already generated in the State Court system and thus far in the Federal District Court and the Court of Appeals. Close attention must be given also to Rule 7 of the rules governing § 2254 cases in the United States District Court. It is true that there is some discretion, although not total, at the District Court level to provide for the expansion of a record to include "additional materials relevant to the determination of the merits of the petition". The primary legislative purpose of this rule is to permit United States District Courts to dispose of § 2254 petitions that may not be disposed of on the pleadings without the time and expense required for an evidentiary hearing.

This Court does not conceive that this case is a candidate for an evidentiary hearing in the Court under its Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992), and the formal record here including two extensive decisions by the Court of Appeals of Indiana does not require further expansion. The more recent Congressional Enactment as reflected in 28 U.S.C. § 2254(e)(2) is a further inhibition upon permitting the litigation of issues raised for the first time in the United States District Court which were not subject to their presentation to the State Court under Castille v. Peoples, 489 U.S. 346, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989); see also Cawley v. DeTella, 71 F.3d 691 (7th Cir.1995). This idea was driven home pointedly by the Supreme Court more recently in O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999).

With regard to discovery, Rule 6 of the rules governing § 2254 cases is also relevant. It precludes discovery except when conducted pursuant to leave of court and then only after the party seeking the discovery in the collateral proceeding shows good cause. The distinction between § 2254 cases and cases under 42 U.S.C. § 1983 was pointedly made in this regard by the Supreme Court of the United States in Bracy v. Gramley, 520 U.S. 899, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997). See also Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). The clear teaching of Bracy v. Gramley is that a petitioner in a § 2254 case is not entitled to discovery as a matter of course. The factual setting of that case is informative especially in view of its being a death penalty case.

Thus, this Court will proceed to a consideration of the merits of this case on the basis of the extensive record before it and will and does presume as correct the findings of fact of the Court of Appeals of Indiana made both in 1991 and 1996 under 28 U.S.C. § 2254(e)(1). The first opinion was authored by Judge Staton in Boyko v. State, 566 N.E.2d 1060 (Ind.App.1991) and the second opinion was an unpublished opinion authored by Judge Hoffman on December 16, 1996 and concurred in by Judges Staton (the author of the 1991 opinion) and Judge Najam. For purposes of immediate reference this December 16, 1996 opinion is attached hereto and incorporated herein as Appendix A. An independent examination of the record in this case and the two opinions of the Court of Appeals of Indiana leads this Court to conclude that the constitutional values that inhere in Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993) and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) have not been violated.

The question also was raised as to prosecutorial misconduct. For example see U.S. v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983), a case emanating from this Circuit. See also Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). The Attorney General of Indiana proposes to wave aside the issue with regard to prosecutorial misconduct under the concept of procedural default, but this Court chooses to do otherwise. At least under state law the Court of Appeals of Indiana, in its most recent opinion, determined that the remarks of the prosecutor in final argument did not constitute prosecutorial misconduct and were not so serious that they poisoned the entire atmosphere of the trial. See United States v. Pirovolos, 844 F.2d 415 (7th Cir. 1988); see also U.S. v. Gonzalez, 933 F.2d 417 (7th Cir.1991). Consistent with Pirovolos and consistent with the factual analysis in the 1996 of the opinion of the Court of Appeals of Indiana, this Court cannot find consistent with 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) that these prosecutorial remarks did in fact poison in a constitutional way the entire atmosphere of the trial. Additionally it must be added that they are in the category of things that might have best been left unsaid.

The standards with regard to the ineffective assistance of Appellate counsel under Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985) involved basically the same constitutional standards as evidenced in 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). This Court has failed to find under the constitution, particularly the Fourteenth Amendment and Sixth Amendment, that the record fails to disclose ineffective assistance of trial counsel. The failure of Appellate counsel to raise that issue cannot be gainsaid as ineffective as to those same issues.

This trial was had in Fort Wayne, Indiana ten years ago and it has been reviewed by two different panels of the Court of Appeals of Indiana with overlapping membership. Both Judges Hoffman and Staton are thirty year veterans of that Court and it must be said that they gave the claims that were presented to them careful consideration under state law and it is the burden of this Court to independently examine those issues under the Constitution of the United States particularly here the Fourteenth Amendment and the Sixth Amendment.

This case is subject to the review standards in the Anti-Terrorism and Death Penalty Act particularly under § 2254(d) under which a writ of habeas corpus shall not be granted if adjudicated on the merits in a state court unless that state court adjudication 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 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.

Specifically, it is the view of this Court that the two decisions of the...

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