Corcoran v. Buss, No. 3:05-CV-389 AS.

CourtUnited States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
Writing for the CourtAllen Sharp
Citation483 F.Supp.2d 709
PartiesJoseph Edward CORCORAN, Petitioner, v. Ed BUSS, Respondent.
Docket NumberNo. 3:05-CV-389 AS.
Decision Date09 April 2007
483 F.Supp.2d 709
Joseph Edward CORCORAN, Petitioner,
v.
Ed BUSS, Respondent.
No. 3:05-CV-389 AS.
United States District Court, N.D. Indiana, South Bend Division.
April 9, 2007.

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COPYRIGHT MATERIAL OMITTED

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Alan M. Freedman PHV, Midwest Center for Justice Ltd., Evanston, IL, Laurence E. Komp PHV, Attorney at Law, Manchester, MO, for Petitioner.

Stephen R. Creason, James B. Martin, Indiana Attorney General's Office, Indianapolis, IN, for Respondent.

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OPINION AND ORDER

ALLEN SHARP, District Judge.


This proceeding is a habeas corpus petition filed by counsel on behalf of the petitioner, Joseph Edward Corcoran, seeking relief under 28 U.S.C. § 2254 from a state court criminal proceeding in which he was sentenced to death. Oral argument was held on the petition in Lafayette, Indiana on March 19, 2007. This court greatly appreciates the work of all counsel in this difficult matter, but specifically notes the able services rendered by appointed counsel for Mr. Corcoran.

I. FACTUAL AND PROCEDURAL BACKGROUND

The procedural history of this case is unusual and more convoluted than normal so it is particularly important to lay it out fully here. There are five published opinions of the Supreme Court of Indiana related to this case.

Corcoran v. State, 739 N.E.2d 649 (Ind. 2000)

Corcoran v. State, 774 N.E.2d 495 (Ind. 2002)

Corcoran v. State, 820 N.E.2d 655 (Ind. 2005)

Corcoran v. State, 827 N.E.2d 542 (Ind. 2005)

Corcoran v. State, 845 N.E.2d 1019 (Ind. 2006)

Each will be discussed later in this opinion as necessary. The state record has been filed and examined here pursuant to the mandates of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), as well as 28 U.S.C. § 2254.

Joseph E. Corcoran was under stress because his sister's upcoming marriage would necessitate his moving out of her house. And his brother said Corcoran could not move in with him.

He awoke one afternoon to hear his brother and others downstairs talking about him. Irritated, he loaded his rifle and went downstairs to intimidate them, but as Corcoran said later, "It just didn't happen that way." (R. at 1988.) Corcoran killed his brother, his sister's fiancé, and two other men in the ensuing incident.

Corcoran v. State, 774 N.E.2d 495, 497 (Ind.2002).

On July 26, 1997, Corcoran was lying on his bedroom floor and heard men's voices. He became upset because he thought the men were talking about him and took a semi-automatic rifle downstairs to confront them. In the living room were four men, including Corcoran's brother and future brother-in-law, both of whom lived in the house with Corcoran.

Corcoran shot and killed Jim Corcoran, Scott Turner and Timothy Bricker at close range. The final victim, Doug Stillwell, tried to escape, but Corcoran chased him into the kitchen and shot him in the head.

Corcoran v. State, 774 N.E.2d 495, 501 (Ind.2002)

On July 31, 1997, Mr. Corcoran was charged with four counts of murder. Trial Record at 29-36. Nine and a half months later, on May 11, 1998, the state withdrew from negotiations with the defendant. Trial Record at 151. Two days later, on May 13, 1998, the state filed four applications for the death penalty. Trial Record at 111-118. On May 10, 1999, the state filed four amended applications for the death penalty which were granted on May 13, 1999. Trial Record at 369-377. Jury Selection began on May 17, 1999. Trial Record 664. The selected jury was sworn on May 19, 1999. Trial Record at 1605-06. The trial, under cause number 02D04-9707-CF-465 began on May 20, 1999. Trial Record at 1609. The jury went out at 10:40 A.M. on May 22, 1999. Trial Record at 2207. Less than an hour later, Mr.

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Corcoran was found guilty on all four counts of murder. Trial Record at 460-63, 2209-10, and 2214. The penalty phase began on May 24, 1999. Trial Record at 2215. The jury went out at 9:30 a.m. on May 25, 1999. Trial Record at 2522. Less than two hours later, the jury recommended the death penalty on all four counts. Trial Record at 556-59, 2525-29, and 2533. On August 26, 1999, the judge imposed the death sentence. Trial Record at 2573-78.

On direct appeal, Mr. Corcoran sought review of only his death sentence. By counsel, he explicitly waived an appeal of the findings of guilt. Appendix to Appellant's Brief, file marked March 30, 2004, at 205. In his affidavit, he stated,

[A]t this time I confirm my position that I do wish to waive my appeal of the underlying murder convictions in this case ... I am requesting a review of my sentencing in this case ... I understand that a waiver of my murder convictions is a final decision and is irreversible ....

Appendix to Appellant's Brief, file marked March 30, 2004, at 206. His appellate brief closed by asking, "that the death penalty in this case should be set aside and requests the Court to do so." Docket # 32-3 at 69. The Supreme Court of Indiana recognized that Mr. Corcoran did not seek review nor reversal of his convictions.

Appealing from the trial court judgment, the defendant does not challenge the guilt phase proceedings or his resulting convictions. His appellate claims concern only the penalty and sentencing proceedings and his death sentence.

Corcoran v. State, 739 N.E.2d 649, 651 (Ind.2000).

On December 6, 2000, a unanimous Indiana Supreme Court vacated the death sentences and remanded the case for resentencing. Corcoran v. State, 739 N.E.2d 649 (Ind.2000). Justice Dickson wrote the opinion and was joined by three other justices; Chief Justice Shepard concurred in the decision with a separate opinion.

From the combination of the trial court's remarks in open court that she was "convinced in her heart of hearts" that the defendant, "if given the opportunity, would murder again," Record at 2916, and of the court's written references in the sentencing statement to the innocence of the victims and the heinousness of the murders, we find a significant possibility that the trial court may have relied upon non-statutory aggravating factors in deciding whether to impose the death penalty. We therefore remand this cause to the trial court to redetermine from the evidence already presented whether to impose the death sentence, life without parole, or a term of years, based only upon mitigating and proper aggravating circumstances, and to issue a new sentencing statement.

Corcoran v. State, 739 N.E.2d 649, 657 (Ind.2000).

On September 30, 2001, Mr. Corcoran was re-sentenced to death. Supplemental Record at 46-50. Again the case returned to the Indiana Supreme Court which affirmed on September 5, 2002. Corcoran v. State, 774 N.E.2d 495 (Ind.2002). Chief Justice Shepard wrote the opinion and was joined by three other justices; Justice Rucker dissented with a written opinion. He began by stating "I respectfully dissent because I do not believe a sentence of death is appropriate for a person suffering a severe mental illness." Corcoran v. State, 774 N.E.2d 495, 502 (Ind.2002) (Rucker J., dissenting). The petition for rehearing was denied in an unpublished opinion on March 4, 2003. Docket # 1-4.

On May 8, 2003, the trial court submitted a proposed case management schedule to the Supreme Court of Indiana. Docket # 32-14 at 3. On May 30, 2003, the Supreme

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Court of Indiana approved the proposed case management schedule and set the date for filing a petition for post-conviction relief for September 9, 2003. Docket # 32-14 at 4. On August 27, 2003, post-conviction counsel filed a motion seeking to extend that deadline stating,

Due to our client's mental illness outlined in the Notice of Intent filed on April 2, 2003, counsel's ability to `confer with petitioner and ascertain all grounds for relief pursuant to Ind. Post-Conviction Rule 1(9)(c) and to fulfill our duty to investigate the case pursuant to ABA Standards for Criminal Justice Prosecution Function and Defense Function 4-4.1 has been severely inhibited. This obstacle makes it extremely difficult for counsel to file an initial Petition for Post-Conviction Relief by September 9, 2003.

Appendix to Appellant's Brief, file marked March 30, 2004, at 55-56. That motion was denied by the post-conviction court on August 29, 2003. Appendix to Appellant's Brief, file marked March 30, 2004, at 58.

On September 9, 2003, the last day before the deadline expired, post-conviction counsel filed an unverified Petition for Post-Conviction Relief. Appendix to Appellant's Brief, file marked March 30, 2004, at 88-136 and also 142-190. At the same time, counsel also filed a motion to determine competency, stating, "Joseph E. Corcoran did not sign his Petition for Post-Conviction Relief...." Appendix to Appellant's Brief, file marked March 30, 2004, at 59. On September 30, 2003, the post-conviction court struck the post-conviction relief petition.

Pursuant to the Supreme Court's Order of May 30, 2003, approving the Trial Court's Case Management Schedule, the defendant was to file his Petition for Post-Conviction Relief on or before September 9, 2003.

On September 9, 2003, counsel for the defendant filed, by certified mail, documents entitled "Petition for Post-Conviction Relief' and "Verified Motion to Determine Competency."

The document entitled "Petition for Post-Conviction Relief is neither signed by the defendant, nor verified to contain all grounds known to defendant for vacating, setting aside, or correcting the conviction and sentence."

Pursuant to long standing case law, [the most recent being White v. State, 793 N.E.2d 1127 (Ind.App.2003)] and the rules governing post-conviction relief requiring signature by the defendant and verification, the Court orders the Petition returned to counsel, stricken from the record and notifies the Supreme Court by this Order of the defendant's failure to comply with the Trial Court's Case Management Schedule, and his failure to comply with the Rules for Post-Conviction Relief.

The pleading entitled "Verified Motion to...

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9 practice notes
  • Corcoran v. Buss, No. 07-2093.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 31 Diciembre 2008
    ...jury trial, and as such, was "objectively unreasonable" under the United States Supreme Court's decision in Jackson. Corcoran v. Buss, 483 F.Supp.2d 709, 723-24 (N.D.Ind.2007) (Corcoran V). The district court distinguished Bordenkircher from the instant case, by finding that the State's sec......
  • Corcoran v. Buss, CAUSE NO. 3:05-CV-389 JD
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • 10 Enero 2013
    ...jury trial, and as such, was "objectively unreasonable" under the United States Supreme Court's decision in Jackson. Corcoran v. Buss, 483 F.Supp.2d 709, 723-24 (N.D.Ind. 2007) ("Corcoran V"). The district court distinguished Bordenkircher from the instant case, by finding that the State's ......
  • Butler v. Quarterman, Civil Action No. H-07-2103.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • 4 Septiembre 2008
    ...(1986). "Something that comes from a source within the petitioner is unlikely to qualify as an external impediment." Corcoran v. Buss, 483 F.Supp.2d 709, 728 The cases cited by Butler do not support his argument. Holt v. Bowersox, 191 F.3d 970 (8th Cir.1999), is distinguishable. In Holt the......
  • Corcoran v. Neal, No. 13–1318.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 14 Abril 2015
    ...v. Levenhagen, 558 U.S. 1, 130 S.Ct. 8, 175 L.Ed.2d 1 (2009) ; Corcoran v. Buss, 551 F.3d 703 (7th Cir.2008) ; and Corcoran v. Buss, 483 F.Supp.2d 709 (N.D.Ind.2007).5 Corcoran also argues that the trial judge erred by not reconsidering all of his proposed mitigators on remand. The Indiana ......
  • Request a trial to view additional results
9 cases
  • Corcoran v. Buss, CAUSE NO. 3:05-CV-389 JD
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • 10 Enero 2013
    ...and as such, was "objectively unreasonable" under the United States Supreme Court's decision in Jackson. Corcoran v. Buss, 483 F.Supp.2d 709, 723-24 (N.D.Ind. 2007) ("Corcoran V"). The district court distinguished Bordenkircher from the instant case, by finding that the ......
  • Corcoran v. Buss, No. 07-2093.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 31 Diciembre 2008
    ...and as such, was "objectively unreasonable" under the United States Supreme Court's decision in Jackson. Corcoran v. Buss, 483 F.Supp.2d 709, 723-24 (N.D.Ind.2007) (Corcoran V). The district court distinguished Bordenkircher from the instant case, by finding that the State's secon......
  • Butler v. Quarterman, Civil Action No. H-07-2103.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • 4 Septiembre 2008
    ...that comes from a source within the petitioner is unlikely to qualify as an external impediment." Corcoran v. Buss, 483 F.Supp.2d 709, 728 The cases cited by Butler do not support his argument. Holt v. Bowersox, 191 F.3d 970 (8th Cir.1999), is distinguishable. In Holt the petitioner di......
  • Corcoran v. Neal, No. 13–1318.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 14 Abril 2015
    ...v. Levenhagen, 558 U.S. 1, 130 S.Ct. 8, 175 L.Ed.2d 1 (2009) ; Corcoran v. Buss, 551 F.3d 703 (7th Cir.2008) ; and Corcoran v. Buss, 483 F.Supp.2d 709 (N.D.Ind.2007).5 Corcoran also argues that the trial judge erred by not reconsidering all of his proposed mitigators on remand. The Indiana ......
  • Request a trial to view additional results

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