Burris v. Farley, 3:92cv0755 AS.
| Decision Date | 27 January 1994 |
| Docket Number | No. 3:92cv0755 AS.,3:92cv0755 AS. |
| Parties | Gary BURRIS, Petitioner, v. Robert A. FARLEY, Respondent. |
| Court | U.S. District Court — Northern District of Indiana |
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David E. Vandercoy, Valparaiso, IN, for petitioner.
Wayne Uhl, Indianapolis, IN, for respondent.
On December 9, 1992, the petitioner, Gary Burris, filed a petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On March 19, 1993, the respondent through the Attorney General of Indiana filed a "Response to Order to Show Cause." On June 30, 1993, the petitioner filed a "Memorandum in Support of Habeas Petition." Next, on September 3, 1993, the respondent filed a "Supplemental Memorandum and Reply to Petitioner's Memorandum in Support of Amended Habeas Petition." On September 27, the petitioner filed a "Reply Brief." The relevant 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). In addition, this court held proceedings in Lafayette, Indiana, on September 7, 1993.
On January 29, 1980, the body of Kenneth W. Chambers was found dead in an alley in the 3200 block of East Fallcreek Parkway in Indianapolis, Indiana. The petitioner, Gary Burris, was charged with murder; and on December 4, 1980, a jury in the Marion Superior Court Criminal Division found him guilty. The state trial court imposed the death penalty on February 20, 1981.
The petitioner appealed to the Supreme Court of Indiana, and that Court affirmed the petitioner's conviction in an extensive opinion dealing with 11 major issues. See Burris v. State, 465 N.E.2d 171 (Ind.1984), cert. denied, 469 U.S. 1132, 105 S.Ct. 816, 83 L.Ed.2d 809 (1985) ("Burris I"). This court notes that all of the Justices on the Supreme Court of Indiana concurred in this 23-page opinion. The petitioner also filed for certiorari to the United States Supreme Court. The Supreme Court refused to grant certiorari.1 Id.
Next, the petitioner pursued the available remedies outlined in the Indiana post-conviction rules. The post-conviction court denied the motion. The petitioner appealed the denial of the post-conviction motion to the Supreme Court of Indiana. See Burris v. State, 558 N.E.2d 1067 (Ind.1990) ("Burris II"). In Burris II, the Indiana Supreme Court, in a majority opinion authored by Chief Justice Shepard, and concurred in by Justices De-Bruler, Dickson, Givan, and Pivarnik ordered the state trial court to hold a new penalty phase proceeding.2
At the hearing on September 7, 1993, the Attorney General reiterated that pursuant to the direction of the Indiana Supreme Court in Burris II, supra, the petitioner was entitled to a new penalty phase proceeding. In addition, the Attorney General indicated that such a proceeding was held, and that the petitioner again received the death penalty. The petitioner has appealed this action to the Indiana Supreme Court, and as of the date of this opinion, that action is still pending. There is a strong possibility that this petitioner may file another habeas petition based on any constitutional errors that may have occurred during the most recent penalty proceeding. See, e.g., Schiro v. Clark, 754 F.Supp. 646 (N.D.Ind.1990), aff'd, 963 F.2d 962 (7th Cir.1992), aff'd, ___ U.S. ___, 114 S.Ct. 783, 127 L.Ed.2d 47 (1994). At the hearing on the petition for habeas corpus, the Attorney General waived any arguments based on the doctrine of the exhaustion of state remedies. Therefore, this court will not consider the ramifications of this issue. Thus, this case and proceeding under 28 U.S.C. § 2254 relates only to the guilt phase of the trial conducted before the late John Tranberg as a Judge of the Marion Superior Court Criminal Division.
In pursuing a writ of habeas corpus on the basis of any constitutional errors at the guilt/innocence phase, the petitioner makes several claims. First, the petitioner claims that a jury instruction given at the conclusion of the guilt phase was improper and violated his due process rights. In addition, the petitioner asserts several claims based on prosecutorial misconduct. Next, the petitioner asserts a claim based on the content of the indictment. Finally, the petitioner also lists a plethora of allegations, and specifically asserts each scenario as a violation of his Sixth Amendment right to effective counsel.
The petitioner's first claim is based on the jury instructions. This court notes that at the conclusion of the guilt/innocence phase of the trial, the state trial court judge gave the following jury instruction defining the crime at issue in the trial in the following fashion:
See Final Jury Instruction 23.
The other requisites to the petitioner's claim are the statutory definitions of murder, involuntary manslaughter, and robbery. This court notes that murder in the Indiana criminal code is defined in the following fashion:
See Ind.Code § 35-42-1-1.
Involuntary manslaughter is defined as:
See Ind.Code § 35-42-1-4.
Finally, robbery is defined as:
See Ind.Code § 35-42-5-1.
The gist of the petitioner's due process claim is that the judge based the jury instruction for purposes of felony murder on Class C robbery. The petitioner asserts that "the robbery statute defined three (3) different crimes: 1) simple robbery graded as a Class C felony; 2) Class B robbery which required the presence of an additional element, committing robbery while armed with a deadly weapon; and 3) if a different, additional element was present, i.e., bodily injury, the crime was Class A robbery." See Petitioner's Memorandum. Therefore, in light of the abovementioned jury instruction, the petitioner asserts that "the charge expressly advised the jury that simple robbery, a Class C felony, would support a felony murder conviction." Id. This court notes that a reading of the felony murder statute suggests no impropriety in such a construction; however, the petitioner asserts that "by statutory definition, a killing which occurs during the commission of a Class C felony which inherently poses a risk of serious bodily injury constitutes involuntary manslaughter." Id. A reading of the involuntary manslaughter statute in that fashion is also plausible. Therefore, argues the petitioner, insofar as "robbery obviously poses an inherent risk of serious bodily injury ... a killing which occurs during the course of a Class C robbery constitutes involuntary manslaughter." Id. In so doing, the petitioner also asserts that the abovementioned statutes as reflected by the jury instructions are ambiguous.
This court notes that the petitioner's counsel failed to object to the jury instructions during the trial and also failed to include this issue on direct appeal to the Indiana Supreme Court. In post-conviction proceedings, the petitioner "argued that Class C robbery will not support a felony murder charge and asserted that the required predicate must be Class A robbery, robbery which results in bodily injury." Id. On this issue, the post-conviction court indicated that this issue has been waived because the petitioner failed to raise the issue on direct appeal. The petitioner appealed and the Indiana Supreme Court agreed with the post-conviction court that the issue had been waived. Burris II, 558 N.E.2d at 1077. See also Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); Ylst v. Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991).
The petitioner concedes that this court is barred from considering this issue insofar as there is a procedural default bar.3 Furthermore, the petitioner also concedes that to assert a claim that has been procedurally defaulted, there must be a showing of cause and prejudice.4 On this issue, this court notes that it is axiomatic that "a federal habeas petitioner who failed to comply with state procedural rules must show cause for the procedural default and prejudice attributable thereto in order to obtain review of his defaulted constitutional claim." Madyun v. Young, 852 F.2d...
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