Gerald v. Duckworth, No. 93-1192

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore FAIRCHILD, FLAUM and KANNE; ALLEN SHARP
Citation46 F.3d 1133
PartiesNOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. Donzell GERALD, Petitioner-Appellant, v. Jack R. DUCKWORTH and Attorney General of the State of Indiana, Respondents-Appellees. . Submitted:
Decision Date20 December 1994
Docket NumberNo. 93-1192

Page 1133

46 F.3d 1133
NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.
Donzell GERALD, Petitioner-Appellant,
v.
Jack R. DUCKWORTH and Attorney General of the State of
Indiana, Respondents-Appellees.
No. 93-1192.
United States Court of Appeals, Seventh Circuit.
Submitted: Dec. 20, 1994. *
Decided: Jan. 27, 1995.

Before FAIRCHILD, FLAUM and KANNE, Circuit Judges.

ORDER

Donzell Gerald, a prisoner at the Indiana State Reformatory in Pendleton, Indiana, serving a sixty year sentence for a conviction of murder, filed the present petition for a writ of habeas corpus alleging that: (1) the evidence was insufficient to support his state court conviction of murder; (2) he was denied a trial before a fair and impartial judge; (3) the prosecutor engaged in misconduct; and (4) he was denied effective assistance of counsel on appeal and at trial. On direct appeal, the Indiana Supreme Court rejected Gerald's argument regarding the sufficiency of the evidence and affirmed his conviction, Gerald v. State, 490 N.E.2d 336 (Ind. 1986). Gerald then petitioned the state for post-conviction relief arguing that: (1) the prosecution used perjured testimony; (2) the confrontation clause was violated; (3) he was denied a trial before an impartial judge; (4) he received ineffective assistance of counsel at trial and on appeal; and (5) he was deprived of a complete transcript. Post-conviction relief was denied and affirmed by the Indiana Court of Appeals, Gerald v. State, No. 45A03-9006-PC-254 (Ind. App. July 29, 1991) (unpublished). After Gerald's petition to transfer to the Indiana Supreme Court was denied, Gerald filed the instant action in the appropriate United States District Court. 28 U.S.C. Sec. 2254. The district court entered judgment denying Gerald's petition.

In reviewing a district court's denial of a petition for a writ of habeas corpus, this court reviews all questions of law de novo, Montgomery v. Greer, 956 F.2d 677, 680 (7th Cir.), cert. denied, 113 S. Ct. 460 (1992). Factual issues that have been determined by the state trial or appellate courts are presumed correct. 28 U.S.C. Sec. 2254(d); Montgomery, 956 F.2d at 680.

In denying Gerald's petition, the district court reviewed the sufficiency of the evidence under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 323 (1979) and found the evidence sufficient to support the murder conviction. See Anderson v. Thieret, 903 F.2d 526, 531 (7th Cir. 1990) (holding that facts found by the highest court of a state are presumed correct). Although the majority of Gerald's claims regarding the impartiality of the trial judge had been held to be waived by the Indiana Court of Appeals in the post-conviction proceeding, the district court considered the merits of the claims because Gerald also alleged ineffective assistance of counsel. See Coleman v. Thompson, 501 U.S. 722 (1991). The district court found no constitutional error. With regard to the alleged partiality in the state trial judge's evidentiary rulings, the district court also found no constitutional error in light of precedent denying federal habeas corpus relief for errors of state law. See Estelle v. McGuire, 112 S. Ct. 475, 480 (1991); Bell v. Duckworth, 861 F.2d 169 (7th Cir. 1988), cert. denied, 489 U.S. 1088 (1989). With regard to the trial judge's alleged partiality in failing to instruct the jury regarding circumstantial evidence, the district court found no constitutional violation. The district court next addressed Gerald's allegations of prosecutorial misconduct, finding that Gerald failed to present the majority of these claims to the state courts and, therefore, these claims were procedurally defaulted. With regard to the non-defaulted misconduct claims, the district court concluded that the record does not establish that the prosecutor knowingly used perjured testimony or that the prosecutor's actions violated Gerald's right of confrontation. Finally, the district court concluded that Gerald received the effective assistance of counsel both at trial and on appeal.

After reviewing the record de novo, we AFFIRM for the reasons stated in the attached Memorandum and Order of the district court dated December 18, 1992.

ATTACHMENT

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

Donzell Gerald, Petitioner

v.

Jack Duckworth; and Indiana Attorney General, Respondents

Civil No. S 92-372(S)

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

On June 15, 1992, pro se petitioner, Donzell Gerald, an inmate at the Indiana Reformatory, filed a petition seeking relief under 28 U.S.C. Sec. 2254. The return filed by the respondents on September 3, 1992, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). This court has also examined the Traverse filed by the petitioner on November 9, 1992, along with proposed Interrogatories directed to Edward Irons and John Roby. The state court record has been filed and examined pursuant to the mandates of Townsend v. Sain, 372 U.S. 293 (1963).

The petitioner was convicted in the Lake Superior Court of one count of murder and was sentenced by Judge James Letsinger of that court to a term of 60 years imprisonment. A direct appeal was taken to the Supreme Court of Indiana and that court unanimously, speaking through then Justice, now Chief Justice Shepard, affirmed the aforesaid conviction on the sole and single issue of the sufficiency of evidence. Thereafter, this petitioner sought post-conviction relief in the state trial court and that court denied such relief. That denial was affirmed by the Third District of the Court of Appeals of Indiana, speaking through Judge Garrard on July 29, 1991, and joined in by Judges Hoffman and Conover in an unpublished memorandum decision. For the immediate reference of all concerned, the memorandum decision is marked as Appendix "A", attached hereto and incorporated herein.

The basic facts with reference to the crime are more than adequately outlined in the opinion of the Supreme Court of Indiana in Gerald v. State, 490 N.E.2d 336 (Ind. 1986). With reference to the decision of the Court of Appeals entered on July 29, 1991, the Supreme Court of Indiana denied transfer.

The petitioner alleges that there was insufficient evidence to support his conviction. Justice Stewart, speaking for the Supreme Court of the United States in Jackson v. Virginia, 443 U.S. 307 (1979), stated:

A judgment by a state appellate court rejecting a challenge to evidentiary sufficiency is of course entitled to deference by the federal courts, as is any judgment affirming a criminal conviction. But Congress in Sec. 2254 has selected the federal district courts as precisely the forums that are responsible for determining whether state convictions have been secured in accord with federal constitutional law. The federal habeas corpus statute presumes the norm of a fair trial in the state court and adequate state postconviction remedies to redress possible error. See 28 U.S.C. Sec. 2254(b), (d). What it does not presume is that these state proceedings will always be without error in the constitutional sense. The duty of a federal habeas corpus court to appraise a claim that constitutional error did occur -- reflecting as it does the belief that the "finality" of a deprivation of liberty through the invocation of the criminal sanction is simply not to be achieved at the expense of a constitutional right -- is not one that can be so lightly abjured.

Id. at 323. Furthermore, the Supreme Court in Jackson held:

We hold that in a challenge to a conviction brought under 28 U.S.C. Sec. 2254 -- if the settled procedural prerequisites for such a claim have otherwise been satisfied -- the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at trial no rational trier of fact could have found proof beyond a reasonable doubt.

Id. (footnote omitted). See also Sumner v. Mata, 449 U.S. 539 (1981); Dooley v. Duckworth, 832 F.2d 445 (7th Cir. 1987), cert. denied, 485 U.S. 967 (1988); United States ex rel. Haywood v. O'Leary, 827 F.2d 52 (7th Cir. 1987); Bryan v. Warden, Indiana State Reformatory, 820 F.2d 217 (7th Cir. 1987), cert. denied, 484 U.S. 867 (1987); Shepard v. Lane, 818 F.2d 615 (7th Cir.), cert. denied, 484 U.S. 929 (1987); and Perri v. Director, Department of Corrections, 817 F.2d 448 (7th Cir.), cert. denied, 484 U.S. 843 (1987).

A review of the record in the light most favorable to the prosecution convinces the court that a rational trier of fact could readily have found the petitioner guilty beyond a reasonable doubt of murder.

Following Jackson, supra, there is an increasingly long line of cases in this circuit that suggest that the facts found by the highest court of a state are presumed correct. The most recent statement of that principle is found in Andersen v. Thieret, 903 F.2d 526, 531 (7th Cir. 1990). The Seventh Circuit in Branion v. Gramly, 855 F.2d 1256, 1266 (7th Cir. 1988), cert. denied, 490 U.S. 1008, speaking through Judge Easterbrook, addressed the issue of whether the evidence is sufficient to sustain the conviction:

The only appropriate inquiry for this court under Jackson is whether, assuming the jury resolved all disputes in the state's favor and drew all inferences from that evidence, it would have been rational to convict. Not whether we would convict, but whether thoughtful people would convict.

Id.

The Supreme Court revisited this issue in Wright v. West, 112 S.Ct. 2482, 2493-93 (1992), and took the occasion to accentuate the parameters of this review:

In Jackson, we emphasized repeatedly the deference owed to the trier of fact and, correspondingly, the sharply limited nature of constitutionally sufficiency review. We said that "all of the...

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