Heffern v. Indiana

• Decision Date: 03 October 2018
• Docket Number: No. 2:17-cv-00410-WTL-DLP,2:17-cv-00410-WTL-DLP
• Parties: MICHAEL P. HEFFERN, Petitioner, v. STATE OF INDIANA, DICK BROWN, Respondents.
• Court: U.S. District Court — Southern District of Indiana

MICHAEL P. HEFFERN, Petitioner, v. STATE OF INDIANA, DICK BROWN, Respondents.

No. 2:17-cv-00410-WTL-DLP

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA TERRE HAUTE DIVISION

October 3, 2018

Order Denying Petition for Writ of Habeas Corpus And Denying a Certificate of Appealability

Petitioner Michael P. Heffern is serving a 75-year sentence for his 2010 Jay County, Indiana convictions for murder and robbery. He brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons that follow, Mr. Heffern's petition for a writ of habeas corpus is denied and the action is dismissed with prejudice. In addition, the Court finds that a certificate of appealability should not issue.

I. Factual and Procedural Background

District court review of a habeas petition presumes all factual findings of the state court to be correct, absent clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1); Daniels v. Knight, 476 F.3d 426, 434 (7th Cir. 2007). On direct appeal, the Indiana Court of Appeals summarized the relevant facts:

In September 2008, Heffern was staying at the home of Joseph Randall, who lived at 117 South Munson Avenue in Portland. On the evening of September 7, Heffern, Addison Pijnapples, her husband Tom Smith, and Rod Berry were at the home of Tina Whiting, a neighbor of Randall. The group snorted crushed Valium and then drove to Ohio, where Berry purchased one or two thirty-packs of beer. After having dinner with his girlfriend, Randall went to Whiting's home to watch a football game on television. Randall's young daughter, Heffern, Pijnapples, her husband Tom Smith, and Rod Berry were also there. At some point, while Randall was watching television, Heffern and Whiting were talking in the kitchen. Whiting told Heffern "about a guy that she was having problems with," and Heffern "asked her if she wanted him to beat him up for her, get him to leave him [sic] alone or leave her alone." Transcript at 30. Whiting told Heffern that if he beat up the guy "he might have some pills [Heffern] could take from him." Id. Randall then left the apartment with his child.

Heffern told Pijnapples, Smith, and Berry that Shawn Buckner had raped Whiting. Heffern also talked to them about "going to get Shawn so he could beat his ass." Id. at 268. The group continued to ingest Valium pills, drank beer, and discussed a plan to beat up Buckner and take prescription pills from him. Specifically, Whiting and Pijnapples were to offer to have a joint sexual encounter with Buckner in order to lure him to Whiting's apartment. The three men were to wait in hiding in the apartment and, when Buckner arrived, Heffern wanted to "initiate the action" against Buckner because he wanted to "beat up Shawn." Id. at 275.

Whiting and Pijnapples left to find Buckner. About the same time, Berry moved his car from in front of Whiting's home so that Buckner would not know that anyone else was there. Whiting and Pijnapples found Buckner at his uncle's home, helping his uncle clean copper for resale. Buckner said he was busy and asked them to come back in twenty minutes. When the women returned thirty minutes later, Buckner washed his hands and told his uncle that the women had asked if Buckner wanted to "have a threesome." Transcript at 42. Buckner borrowed twenty dollars from his uncle and left with Whiting and Pijnapples.

Whiting, Pijnapples, and Buckner arrived at Whiting's home, where Heffern, Smith, and Berry were hiding in a back room. When Whiting gave a previously agreed upon code word, the men came out of hiding, and Heffern began punching Buckner. Buckner tried to escape, but Berry grabbed him and began hitting Buckner as well. At one point Smith pushed Buckner to the kitchen floor. Heffern, Berry, and Smith kicked and punched Buckner's head and body numerous times while he was on the floor. During the assault, Buckner moaned. The men then removed Buckner's clothing and took twenty dollars they had found in his sock. Smith gave the money to Pijnapples and told her to buy more beer. Smith threatened to cut off Buckner's penis, but Heffern would not allow it.

The men wrapped Buckner in blankets and carried him to Berry's Jeep. The men then left the apartment in the Jeep, with Berry driving, Heffern and Smith as passengers, and Buckner moaning loudly in the back. Smith called Buckner a child molester. In the rear view mirror, Berry saw Heffern reach back and punch Buckner rapidly at least ten times. Buckner stopped moaning. At some point Berry stopped the Jeep on a secluded road near a cornfield. After Heffern and Smith opened the Jeep's back hatch and removed Buckner, Berry drove down the road to find a place to turn the vehicle around. When he returned to the site where the others had exited the vehicle, Berry saw no one beside the road. He stopped the Jeep and waited, but when no one appeared, he exited the vehicle.

Berry walked into the cornfield, looking for Heffern and Smith. Eventually he saw two silhouettes, Heffern and Smith. Buckner was lying on the ground nearby. Smith handed Berry a knife, told Berry he had stabbed Buckner, and instructed Berry to do the same. Buckner was not making any noise, and Berry believed him to be dead. Berry stabbed Buckner in the lower side twice. Berry left the knife on Buckner's chest and walked back to the Jeep. Smith and Heffern followed a minute later. As Berry drove, he began to worry that leaving the knife at the scene could implicate him, but Smith said he had the knife and showed Berry that it was sticking out of his pocket.

When the men arrived at Whiting's home, Whiting and Pijnapples were not yet there. Although it appeared that the home had been cleaned some since the struggle, the men worked to clean the scene of any evidence of Buckner's beating and gathered anything with blood on it. When Whiting and Pijnapples arrived, all five took off any item of clothing that could have come into contact with Buckner. They placed the clothing and items from the house tainted by the struggle into a trash bag. When Smith and Berry later left, Heffern was burning something, not food, on the grill.

Taking the trash bag with them, Berry and Smith drove to a gas station where Smith bought gas for Berry's Jeep. Berry and Smith threw the knife over a bridge. They then drove to the country and burned the trash bag and its contents in a cornfield. From Whiting's home, Heffern went to see Sierra Ferrara, the mother of his children. When she saw scrapes on his knuckles, he said that he had been in a fight on the way to her house. Some days later, Heffern called Ferrara and told her that, if police questioned her, she should say that Heffern had spent the night with her on September 7.

Two or three days after the murder, Berry, Smith, and Pijnapples used Berry's Jeep to move Buckner's body from the cornfield. They buried the body behind a barn belonging to a friend. Berry had told the friend that they were burying a dog. A missing persons report was filed regarding Buckner, and police officers found the burial site on or around September 10.

On September 11, the State charged Heffern with murder, a felony, and robbery resulting in bodily injury, as a Class B felony. The robbery charge alleged in part that Heffern had knowingly taken property, money, from Buckner "by using force, to-wit: by punching, kicking, and choking; said act resulting in bodily injury to Shawn M. Buckner, to-wit: lacerations and bruising Appellant's App. at 14. On October 14, 2009, the State moved to amend the robbery count to charge robbery resulting in serious bodily injury, a Class A felony. Heffern filed a motion to strike the amendment. Following a hearing, the trial court denied that motion.

On December 10, 2009, the State filed a second amendment to the robbery charge ("Second Amendment"). The Second Amendment alleged that Heffern hadknowingly taken property from Buckner "by using force, while armed with a deadly weapon, to-wit: a knife ...." Id. at 113. And on January 21, 2010, the State amended the information by adding count 3, which alleged that Heffern had committed felony murder. Heffern filed a motion to strike the amendment adding count 3. After a hearing, the trial court denied that motion.

On June 4, 2010, Heffern filed a motion objecting to the admission of portions of the transcript of police interrogations and videotapes of those interrogations. The jury trial commenced on June 14, at which time the trial court overruled Heffern's objection but agreed to give a "limiting instruction and admonishment[.]" Transcript at 5. The trial proceeded through June 17. Following deliberations, the jury returned a verdict finding Heffern guilty on all three counts. The court entered judgment on the verdict as to murder and robbery and sentenced Heffern to an aggregate term of seventy-five years.

Heffern v. State, 2011 WL 1565999, at *1-3 (Ind. Ct. App. Apr. 26, 2011) (footnotes omitted), trans. denied.; Dkt. No. 14-5 at 2-7 (Slip Opinion).

Mr. Heffern appealed, raising four issues: (1) that the amendment to the robbery charging information violated Indiana law and his right to due process; (2) that the trial court should have given a limiting instruction about the police officers' statements during the recorded interview under the Indiana Rules of Evidence; (3) that the evidence was insufficient to convict him of murder and robbery; and (4) that his convictions for murder and robbery violated federal and state double jeopardy. Dkt. No. 14-5 at 2. On April 26, 2011, the Indiana Court of Appeals affirmed the conviction and sentence. Heffern, 2011 WL 1565999, at *11. The Indiana Court of Appeals held that: (1) Mr. Heffern waived his argument about the charging information by failing to object at trial and, in any case, he failed to show fundamental error; (2) Mr. Heffern waived his argument about the jury instruction, but that, in any case, the Indiana Rules of Evidence did not require the trial court to...