Calhoun v. Farley, 2:94cv243AS.

• Citation: 913 F. Supp. 1218
• Decision Date: 27 December 1995
• Docket Number: No. 2:94cv243AS.,2:94cv243AS.
• Parties: Charles CALHOUN, Petitioner, v. Robert FARLEY, Respondent.
• Court: United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana

913 F. Supp. 1218

Charles CALHOUN, Petitioner, v. Robert FARLEY, Respondent.

No. 2:94cv243AS.

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

December 27, 1995.

Charles Calhoun, Jr., Michigan City, pro se.

Randall Koester, Office of Indiana Attorney General, Indianapolis, IN, for Robert A. Farley and Al C. Parke.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

I. INTRODUCTION

On July 28, 1994 Petitioner Charles Calhoun ("Calhoun") filed an amended petition under 28 U.S.C. § 2254 alleging that his murder and habitual offender convictions in a jury trial before the Honorable James E. Letsinger, judge of the Lake County Superior Court were obtained in violation of the United States Constitution. Respondent Farley's Return to Order to Show Cause by the Indiana Attorney General complies with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). In his Return, Farley alleges that the petition is barred by the procedural issues of failing to exhaust state remedies and procedural default.¹

II. FACTS

The facts found by the Indiana Supreme Court in Calhoun v. State, 484 N.E.2d 7 (Ind.1985) are presumed correct. 28 U.S.C. § 2254(d). See also, Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Andersen v. Thieret, 903 F.2d 526, 531 (7th Cir.1990).

On March 17, 1982, appellant entered the Double B Barbershop in Gary, Indiana to purchase a lottery ticket. The proprietor informed appellant that it was too late to purchase a ticket; consequently, he offered to sell appellant a lottery ticket for the next day. Thereafter, the victim Ronald Johnson staggered into the barbershop. The victim was noticeably intoxicated.² The victim offered appellant a drink of wine from his bottle. Appellant responded, "I'm not a winehead," and then he hit the victim, knocking him back. Immediately afterwards, appellant grabbed the victim by the collar and exclaimed, "I'll kill you your mother fucking ass." Then, appellant pulled out his gun, and he shot the victim. The bullet entered the victim's cheek, and it lodged in the victim's skull. Appellant laid the victim down on the floor, and he told the proprietor, "It's all over." The victim died from the gunshot wound.

Id. at 8-9.

Because several witnesses in the barbershop knew both Calhoun and Johnson, there was never any question that Calhoun shot Johnson. At trial, Calhoun's attorney was faced with the difficult chore of persuading the jury that Calhoun was justified in shooting the intoxicated and gregarious visitor. His attorney was unsuccessful and Calhoun was convicted of murder. Because this was not Calhoun's first conviction, he was subject to sentencing under the habitual offender statute. Calhoun was convicted of robbing a federal credit union by the Hammond Division of this court, Cause No. 3913, on April 19, 1968 and he received a ten year sentence. Calhoun soon resumed his criminal ways and was convicted of robbery by the Lake County Superior Court and received another ten years sentence. Finally, on December 17, 1982 Calhoun received fifty (50) years for murdering Johnson and thirty (30) years for being a habitual offender.

Dissatisfied with the verdict and his sentence, Calhoun filed a Motion to Correct errors. The trial court denied the motion on January 25, 1983. Calhoun then filed his direct appeal to the Indiana Supreme Court alleging the following four issues.

1. Whether the trial court erred in refusing to submit to the jury his tendered accidental homicide instruction # 2;

2. Whether he was denied effective assistance of counsel;

3. Whether his sentence violates the double jeopardy clause in that the trial court enhanced the presumptive sentence and the enhanced it further on the basis of the habitual offender determination;

4. Whether the trial court erred in not permitting him to be present at the hearing on the belated motion to correct errors.

On October 24, 1985 the Indiana Supreme Court affirmed the trial court. The Court found that the jury "received the substance of Calhoun's tendered instruction two (# 2) through the court's own final instruction fourteen (# 14)." Calhoun, 484 N.E.2d at 9. The Court also rejected Calhoun's ineffective assistance of counsel claim premised on failing to call witnesses. The court found that "there had already been ample testimony about the lottery operation at the barbershop to permit a fair determination by the jury of the proprietor's credibility" and that statements from Calhoun's wife would have been hearsay. The Court rejected the double jeopardy argument outright and also held Calhoun was not prejudiced his absence at the Belated Motion to Correct Errors hearing.

On March 28, 1988 Calhoun filed a pro se petition for post-conviction relief in the Lake County Superior Court. Calhoun amended his post-conviction petition on October 16, 1989 and hearings on the matter were conducted on August 8, 1990, September 5, 1990, October 24, 1990, and June 11, 1991. Calhoun alleges that the issues raised in the post-conviction court were ineffective assistance of appellate counsel, prosecutorial misconduct, abuse of discretion by the trial court, improper admission of prejudicial evidence including his prior criminal history, omission of trial record. Nothing appears in the record to indicate that a decision on the above issues has been made by the post-conviction court. In fact, nothing has been filed by either the State of Indiana or Calhoun for almost two years.

Unhappy with the delay in the state courts, Calhoun turned to the federal courts. On September 8, 1994, Calhoun filed in the Hammond Division of this court a petition under 28 U.S.C. § 2254. That complaint was subsequently amended on July 28, 1995 and in his amended petition Calhoun alleges ineffective assistance of appellate counsel, prosecutorial misconduct, judicial misconduct, improper admission of his prior criminal history, and improper omission of critical parts of the trial record. Respondent Farley, through the Indiana Attorney General argues the petition is barred by the doctrines of failure to exhaust state remedies and procedural default.

III. ISSUES

The sequential issues are: Should Calhoun exhaust his state remedies; if not, has Calhoun procedurally default his issues; if not, do the following consolidated issues have any merit?

A. Effectiveness of appellate counsel.

B. Prosecutorial Misconduct.

C. Judicial Misconduct.

D. Omission of the trial record.

IV. DISCUSSION

While the concepts of comity and federalism often require a federal court to await state judicial determinations, there comes point when delay in those state proceedings becomes so great that it outweighs the concerns of comity and federalism. Such has occurred in this case. Therefore, this court finds that pursuant to Lowe v. Duckworth, 663 F.2d 42 (7th Cir.1981) and Dozie v. Cady, 430 F.2d 637 (7th Cir.1970) sufficient time has passed to excuse the need for exhausting state remedies.

Respondent also argues that further consideration of Calhoun's issues is barred by the doctrine of procedural default. The doctrine of procedural default essentially prohibits Calhoun from raising any issue in the district court if he did not raise the issue in a prior state court. Cawley v. Detella, 71 F.3d 691, 693 (7th Cir.1995) (citations omitted). "Failure to take such claims all the way to the highest state court results in procedural default, unless the petitioner can show cause and prejudice." Id. at 694. See also, Wainwright v. Sykes, 433 U.S. 72, 86-91, 97 S.Ct. 2497, 2506-08, 53 L.Ed.2d 594 (1977). This procedural default would present an independent and adequate state ground that would preempt the need for further federal review. Jenkins v. Gramley, 8 F.3d 505, 507 (7th Cir.1993).

None of issues raised in the current petition were clearly presented to Indiana's highest court. Therefore, it is likely that the state post-conviction court would find the issues barred on the independent state ground that "uncorrected errors of law that were available to the defendant at the time of direct appeal, but are first raised in a petition for post-conviction relief, are not available in the post-conviction action." Lowery v. State, 640 N.E.2d 1031, 1036-7 (Ind.1994). However, this court will not rely on that likelihood. Since there has been no decision from the post-conviction court, there is no independent and adequate state ground precluding this court's review. Therefore, this court will address Calhoun's issues on the merits.

Prior to addressing the issues, it needs to be emphasized that this court does not sit as a trier de novo in state court criminal proceedings and does not sit as a court of general common law review. The collateral review that is envisioned by § 2254 focuses on violations of the federal Constitution. See Bell v. Duckworth, 861 F.2d 169 (7th Cir.1988), cert. den., 489 U.S. 1088, 109 S.Ct. 1552, 103 L.Ed.2d 855 (1989).

It also needs to be remembered that the federal question jurisdiction of this court is not involved with determining whether state officials have violated state law. See Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991).

A. EFFECTIVENESS OF APPELLATE COUNSEL

Calhoun has the right to effective assistance of appellate counsel. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1984); Hollenback v. United States, 987 F.2d 1272 (7th Cir.1993). The effectiveness of appellant counsel is examined under the same constitutional mandates as trial counsel. 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). In United States v. Grizales, 859 F.2d 442 (7th Cir. 1988), Judge Eschbach, speaking for the court stated:

The Supreme Court has instructed that in evaluating the performance of a trial attorney we are to "indulge a strong presumption that counsel's conduct falls within the wide range of

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