Conner v. McBride

• Decision Date: 20 July 2004
• Docket Number: No. 03-1951.,03-1951.
• Citation: 375 F.3d 643
• Parties: Kevin A. CONNER, Petitioner-Appellant, v. Daniel McBRIDE, Superintendent, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

375 F.3d 643

Kevin A. CONNER, Petitioner-Appellant, v. Daniel McBRIDE, Superintendent, Respondent-Appellee.

No. 03-1951.

United States Court of Appeals, Seventh Circuit.

Argued January 16, 2004.

Decided July 20, 2004.

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Linda M. Wagoner (argued), Indianapolis, IN, Kathy Lea Stinton-Glen, Zionsville, IN, for Petitioner-Appellant.

James B. Martin (argued), Office of the Attorney General, Indianapolis, IN, for Respondent-Appellee.

Before EASTERBROOK, KANNE, and ROVNER, Circuit Judges.

KANNE, Circuit Judge.

This habeas corpus appeal comes to us following Kevin Conner's October 7, 1988 conviction for three murders in Indiana. The jury recommended death for the killings and, subsequently, the state court judge sentenced Conner to two death sentences and a term of 60 years on November 3, 1988. After exhausting his state remedies, see Conner v. State, 580 N.E.2d 214, 217 (Ind.1991), cert. denied, 503 U.S. 946, 112 S.Ct. 1501, 117 L.Ed.2d 640 (1992) ("Conner I"); Conner v. State, 711 N.E.2d 1238 (Ind.1999), cert. denied, 531 U.S. 829, 121 S.Ct. 81, 148 L.Ed.2d 43 (2000) ("Conner 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. Background

The facts surrounding Conner's crimes, which occurred on the south side of Indianapolis, are essentially undisputed. Sometime during the early morning of January 26, 1988, Conner, Tony Moore, Bruce Voge, and Steve Wentland were drinking at Moore's house. When Conner, Moore, and Wentland went for a drive in Wentland's car, Voge stayed behind at the house. During the drive, an argument broke out between Moore, who was seated in the front, and Wentland, who was driving. As a result, Moore stabbed Wentland with Conner's knife, which caused Wentland to abandon the car and run. Conner, armed with the knife, pursued Wentland on foot, while Moore took control of the car and ran Wentland down. After Wentland was down, Conner beat him with his fists and stabbed him multiple times with the knife, eventually killing him.

Conner and Moore then drove to Conner's place of employment, where they awoke Conner's employer and were given access to a warehouse. Another argument ensued between Conner and Moore about what had just happened and what they should do. During the argument, Conner obtained his sawed-off shotgun, shot, and killed Moore. This reawakened Conner's employer, who confronted Conner as he exited the warehouse building. Conner replied that "he had to off Tony." Conner next left the warehouse and drove to Moore's house, where he shot and killed Voge, while Voge lay on the couch.

Conner then went about disposing of Moore's body with the aid of various friends, abandoned Wentland's automobile, and fled the area. He was apprehended in Texas on January 30, 1988 and returned to Indiana to face murder charges in the Marion County Superior Court in Indianapolis.

The trial lasted from October 3 to 7, 1988, and the jury found Conner guilty of each killing. The penalty phase hearing was held on October 9, and the jury recommended death, as sought by the state. Then on November 3, the state court sentenced Conner to death for the murders of Voge and Moore, and to a term of 60 years for the murder of Wentland.

On direct appeal in state court, Conner claimed fifteen errors had occurred in connection with his trial and sentencing, including that his confession was improperly admitted because it was obtained in violation of his Fifth Amendment rights, as outlined in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and its progeny. Conner I, 580 N.E.2d at 216, 219. The Supreme Court of Indiana ultimately affirmed the lower courts' rejection of all these arguments. Id. at 221.

Conner next sought post-conviction relief, which under Indiana law is a remedy limited to issues not known at trial or not available on direct appeal. See Conner II, 711 N.E.2d at 1244. He again asserted numerous errors, including: (1) his confession was obtained through manipulation, without regard to his mental disorders, and was therefore improperly admitted at trial;¹ (2) an improper ex parte communication between the jury and a bailiff took place during penalty-phase deliberations; and (3) he was denied effective assistance of trial counsel. Id. at 1244-45, 1247-48. After hearing testimony and receiving other evidence as to many of the issues raised, the original post-conviction court denied Conner's petition for relief. On appeal, because the Indiana Supreme Court did not find that the evidence unmistakably and unerringly led to a conclusion contrary to that reached by the post-conviction court below, it affirmed the denial of Conner's petition with respect to all issues. See id. at 1259.

Finding no relief in the state courts, Conner filed a petition for habeas corpus relief in federal district court. Conner III, 259 F.Supp.2d at 752. Among other myriad issues, Conner again raised the propriety of the admission of his confession at trial, the alleged ex parte communication between a bailiff and the jury, and the ineffective assistance of trial counsel. Id. After an exhaustive analysis of each of the issues raised by Conner, the district court denied relief. Id. at 769. He now appeals this denial, but only with respect to the three issues listed above. And for the reasons that follow, we affirm.

II. Analysis

A. Legal Standards

A federal court may grant habeas relief only if the petitioner demonstrates that he is in custody "in violation of the Constitution or laws . . . of the United States." 28 U.S.C. § 2254(a) (1996). In this case, the particular contours of our habeas review are restricted by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).

However, to even raise any claim of error in habeas, state remedies must be exhausted. Mahaffey v. Schomig, 294 F.3d 907, 914 (7th Cir.2002). In other words, each claim of error must be raised first in state court, Breard v. Greene, 523 U.S. 371, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998), so that the state courts have an opportunity to correct constitutional violations, Duckworth v. Serrano, 454 U.S. 1, 3, 102 S.Ct. 18, 70 L.Ed.2d 1 (1981). If a petitioner fails to exhaust, and the court to which he would have been permitted to present his claims would now find such claims procedurally barred, then those claims are procedurally defaulted for habeas purposes. Coleman v. Thompson, 501 U.S. 722, 729 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Likewise, procedural default also occurs if the state court decision rests on a state procedural rule that is independent of the federal question and adequate to support the judgment. Id. at 729, 111 S.Ct. 2546; see also Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991) (explaining when such a rule is "adequate"). However, in either situation, all may not be lost — a federal court may still hear a petitioner's claim if he can demonstrate either (a) cause for the default and prejudice (i.e., the errors worked to the petitioner's "actual and substantial disadvantage," United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (emphasis in original)); or (b) that failure to consider his claim would result in a fundamental miscarriage of justice (i.e., a claim of actual innocence, Sawyer v. Whitley, 505 U.S. 333, 339, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992)). See McCleskey v. Zant, 499 U.S. 467, 493-95, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991); Coleman, 501 U.S. at 750, 111 S.Ct. 2546. Here, neither exhaustion nor procedural default are materially at issue with respect to Conner's three claims, with one minor exception discussed later.

Turning to the substantive restrictions AEDPA places upon habeas review, when a claim has been adjudicated by the state courts on the merits, that is, substantively and not procedurally, see, e.g., Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997), a writ should be granted only if the state court's decision was "contrary to" clearly established federal law as determined by the Supreme Court, § 2254(d)(1), involved an "unreasonable" application of the same, id., or was based upon an "unreasonable" determination of the facts in light of the evidence presented in the state court proceedings, § 2254(d)(2).

These restrictions have been further explained by numerous cases, a handful of which are noted herein. First, a state court decision is "contrary to" federal law if the state court either incorrectly laid out governing Supreme Court precedent, or, having identified the correct rule of law, decided a case differently than a materially factually indistinguishable Supreme Court case. Williams v. Taylor, 529 U.S. 362, 405-06, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also Hammer v. Karlen, 342 F.3d 807, 810 (7th Cir.2003).

Next, a state court's application of a correct statement of federal law is "unreasonable" if it is objectively so, and not merely erroneous or incorrect. Williams, 529 U.S.at 410-12, 120 S.Ct. 1495; A.M. v. Butler, 360 F.3d 787, 794-95 (7th Cir.2004) (citing Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003)). Specifically, a state court's decision "minimally consistent with the facts and circumstances of the case" is not unreasonable, Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir.1997), while a determination "lying well outside the boundaries of permissible differences of opinion" is, Hardaway v. Young, 302 F.3d 757, 762 (7th Cir.2002), cited in Ward v. Sternes, 334 F.3d 696, 703 (7th Cir.2003).

Last, factual determinations of a state court are presumed to be correct and hence not "unreasonable," unless a petitioner can show otherwise by clear and convincing evidence. See Ward, 334 F.3d at 704 (citing 28...