Conner v. Anderson

Decision Date15 January 2003
Docket NumberIP 99-1023-C-B/S.
Citation259 F.Supp.2d 741
PartiesKevin A. CONNER, Petitioner, v. Ron ANDERSON, Superintendent, Respondent.
CourtU.S. District Court — Southern District of Indiana

Kathy Lea Stinton-Glen, Attorney at Law, Linda M. Wagoner, Attorney at Law, Indianapolis, IN, for Plaintiff.

Timothy W. Beam, Deputy Attorney General, Indianapolis, IN, for Defendant.


BARKER, District Judge.

Kevin Conner was convicted in an Indiana state court for the murders of Anthony Moore, Bruce Voge, and Steve Wentland. He was sentenced to death for the murders of Moore and Voge, and to a term of 60 years for the murder of Wentland.

Conner now seeks a writ of habeas corpus. For the reasons explained" in this Entry, his petition must be denied.


Conner's convictions were affirmed on direct appeal in Conner v. State, 580 N.E.2d 214, 217 (Ind.1991)(Conner I.). The trial court's subsequent denial of Conner's petition for post-conviction relief was affirmed on appeal in Conner v. State, 711 N.E.2d 1238 (Ind.1999) (Conner II).


In the exercise of its habeas jurisdiction, a federal court may grant relief only if the petitioner shows that he is in custody "in violation of the Constitution or laws of the United States." 28 U.S.C. § 2254(a).

When a habeas petition is filed after enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA) on April 24, 1996, that Act's restrictions on federal review of state court rulings apply to the case. See Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Henderson v. Walls, 296 F.3d 541, 545 (7th Cir.2002).

Under the AEDPA, a federal court may not grant a writ of habeas corpus to a state prisoner with respect to any claim adjudicated on the merits unless (1) the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court," 28 U.S.C. § 2254(d)(1), or (2) the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings." § 2254(d)(2). A state court's legal decision is "contrary to" clearly established federal law under § 2254(d)(1) "if the court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. at 412-13, 120 S.Ct. 1495. An "unreasonable application" occurs when "the state court identified the correct legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. Under this standard, a state decision is not unreasonable simply because the federal court concludes that the state decision is erroneous or incorrect. Id. at 411, 120 S.Ct. 1495. Rather, the federal court must determine that the state court decision is an objectively unreasonable application of federal law. Id. at 410-12, 120 S.Ct. 1495.

The deferential standard just described, however, only applies to claims which the Indiana courts adjudicated on their merits. See Ouska v. Cahill-Masching, 246 F.3d 1036, 1046 (7th Cir.2001); Brawn v. Powell, 227 F.3d 908, 916-17 (7th Cir.2000). In the context of federal habeas proceedings, adjudication "on the merits" is a term of art that refers to whether a court's disposition of the case was substantive as opposed to procedural. Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997).

With respect to the review permitted pursuant to § 2254(d)(2), factual issues determined by a state court are presumed to be correct, and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence. Werts v. Vaughn, 228 F.3d 178, 196 (3d Cir.2000) (citing 28 U.S.C. § 2254(e)(1)). This is a "rigorous burden of proof." Sanchez v. Gilmore, 189 F.3d 619, 623 (7th Cir.1999). See also Green v. White, 232 F.3d 671, 672 n. 3 (9th Cir.2000) (although "the relationship between § 2254(d)(2) and § 2254(e)(1) is not entirely clear ... the standard of review appears to be clear error under both statutory provisions.").


In addition to the substantive standard set out above, "habeas corpus has its own peculiar set of hurdles a petitioner must clear before his claim is properly presented to the district court." Keeney v. Tamayo-Reyes, 504 U.S. 1, 14, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992) (O'Connor, J., dissenting) (internal citations omitted). "It is the rule in this country that assertions of error in criminal proceedings must first be raised in state court in order to form the basis for relief in habeas. Claims not so raised are considered defaulted." Breard v. Greene, 523 U.S. 371, 375, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998) (citing Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)). The purpose of the rule of procedural default is to "afford[ ] to the state courts an opportunity to correct a constitutional violation." Duckworth v. Serrano, 454 U.S. 1, 4, 102 S.Ct. 18, 70 L.Ed.2d 1 (1981).

Before a federal court will consider a habeas petition, a petitioner must satisfy several procedural requirements. First, a petitioner must exhaust state remedies—that is, give the state's highest court an opportunity to address each claim. See O'Sullivan v. Boerckel, 526 U.S. 838, 839, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Wilson v. Briley, 243 F.3d 325, 327 (7th Cir.2001). To satisfy this requirement, a petitioner must present to the state judiciary both the operative facts and legal principles that control each claim. See Wilson, 243 F.3d at 327. Second, the petitioner must comply with state rules to avoid procedurally defaulting his claims. See Boerckel v. O'Sullivan, 135 F.3d 1194, 1196-97 (7th Cir.1998), rev'd. on other grounds by O'Sullivan v. Boerckel, 526 U.S. 838, 849, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999).

Mahaffey v. Schomig, 294 F.3d 907, 914-15 (7th Cir.2002).

Exhaustion, or more specifically, non-exhaustion, is not an issue in this action, but procedural default is a facet of certain of Conner's habeas claims. Procedural default occurs either: (1) when a petitioner failed to exhaust state remedies and the court to which he would have been permitted to present his claims would now find such claims procedurally barred, Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); or (2) "if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Id., at 729, 111 S.Ct. 2546; see also Williams v. Parke, 133 F.3d 971, 973 (7th Cir.1997); Aliwoli v. Gilmore, 127 F.3d 632, 634 (7th Cir.1997). A state procedural rule is "adequate" only if it is "firmly established and regularly followed" at the time the alleged procedural default occurred. Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991).

Insofar as pertinent here, the following parameters are recognized under Indiana law with respect to the need to present issues in a direct appeal and the consequence of failing to do so.

A post-conviction relief proceeding is not a substitute for trial and appeal, but is a process for raising issues that were unknown or not available at trial. Davidson v. State, 763 N.E.2d 441, 443 (Ind. 2002). If an issue was available on direct appeal but not litigated, it is deemed waived. Madden v. State, 656 N.E.2d 524, 526 (Ind.Ct.App.1995). However, waiver of an issue may be avoided if the failure to present an issue on direct appeal was due to the ineffectiveness of appellate counsel. Sharp v. State, 684 N.E.2d 544, 546 (Ind.Ct.App. 1997), trans. denied 690 N.E.2d 1187 (Ind.1997).

Smith v. State, 774 N.E.2d 1021, 1022 (Ind. Ct.App.2002). See also Lane v. Richards, 957 F.2d 363, 366 (7th Cir.) (issues were not presented on direct appeal and relief would be barred by procedural default), cert. denied, 506 U.S. 842, 113 S.Ct. 127, 121 L.Ed.2d 82 (1992). It has recently been emphasized that for the Indiana state courts to engage in appellate review of a claim under the doctrine of fundamental error in an action for post-conviction relief,

any issue set forth in a post-conviction petition must be raised within the purview of the post-conviction rules, e.g., deprivation of the Sixth Amendment right to effective assistance of counsel, or [as] an issue demonstrably unavailable to the petitioner at the time of his trial and direct appeal. Therefore, in a post-conviction petition an allegation of the denial of the petitioner's due process rights may not be raised in the "free standing" form of an allegation of fundamental error.

Woodson v. State, 778 N.E.2d 475, 478 (Ind.Ct.App.2002) (on petition for rehearing).

With respect to the rules concerning the doctrine of procedural default and the inclusion of claims in a post-conviction action, the rule in Indiana is this: "In seeking post-conviction relief, a petitioner must assert all available grounds for relief in his original post-conviction petition." Kirk v. State, 632 N.E.2d 776 (Ind.Ct.App. 1994) (citing Indiana's post-conviction Rule 1(8)).

The consequence of presenting in a federal habeas petition a claim which has been procedurally defaulted is quite clear:

In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.


To continue reading

Request your trial
17 cases
  • Miller v. State, CR-08-1413
    • United States
    • Alabama Court of Criminal Appeals
    • July 8, 2011
    ...781 (Miss. 2003), cert, denied, 540 U.S. 1197 (2004); Battenfield v. State, 953 P. 2d 1123 (Okla. Crim. App. 1998); Conner v. Anderson, 259 F. Supp. 2d 741 (S.D. Ind. 2003); Smith v. Cockrell, 311 F.3d 661 (5th Cir. 2002); Duckett v. Mullin, 306 F.3d 982 (10th Cir. 2002), cert, denied, 123 ......
  • Ward v. Wilson
    • United States
    • U.S. District Court — Southern District of Indiana
    • September 22, 2015
    ...on direct appeal but not litigated, it is deemed waived. Madden v. State, 656 N.E.2d 524, 526 (Ind.Ct.App. 1995).Conner v. Anderson, 259 F.Supp.2d 741, 750 (S.D.Ind. 2003)(quoting Smith v. State, 774 N.E.2d 1021, 1022 (Ind.Ct.App. 2002)), aff'd, 375 F.3d 643 (7th Cir. 2004). This is a findi......
  • McWhorter v. State
    • United States
    • Alabama Court of Criminal Appeals
    • October 4, 2011
    ...781 (Miss. 2003), cert. denied, 540 U.S. 1197 (2004); Battenfield v. State, 95 3 P. 2d 1123 (Okla. Crim. App. 1998); Conner v. Anderson, 259 F. Supp. 2d 741 (S.D. Ind.2003); Smith v. Cockrell, 311 F.3d 661 (5th Cir. 2002); Duckett v. Mullin, 306 F.3d 982 (10th Cir. 2002), cert. denied, 123 ......
  • Conner v. McBride
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • July 20, 2004
    ...II"), Conner then filed a petition for federal habeas corpus relief, which the district court denied, Conner v. Anderson, 259 F.Supp.2d 741, 769 (S.D.Ind.2003) ("Conner III"). I. The facts surrounding Conner's crimes, which occurred on the south side of Indianapolis, are essentially undispu......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT