Isby v. Brown, 2:11-cv-00326-JMS-DKL

• Decision Date: 29 August 2013
• Docket Number: 2:11-cv-00326-JMS-DKL
• Parties: AARON E. ISBY, Petitioner, v. DICK BROWN, Respondent.
• Court: U.S. District Court — Southern District of Indiana

AARON E. ISBY, Petitioner, v. DICK BROWN, Respondent.

2:11-cv-00326-JMS-DKL

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA TERRE HAUTE DIVISION

Dated: August 29, 2013

ENTRY DISCUSSING PETITION FOR WRIT OF HABEAS CORPUS

AND DENYING CERTIFICATE OF APPEALABILITY

Aaron Isby's Petition for Writ of Habeas Corpus challenges the state court's amendment of a 1992 sentence to specify that it was to run consecutively with a prior sentence as required by Indiana law. For the reasons explained in this Entry, Isby's habeas petition must be denied. In addition, the Court finds that a certificate of appealability should not issue.

I.BACKGROUND

Isby's Petition comes with a complicated procedural history, which the Court must untangle in order to resolve the issues before it.¹

A. Underlying Facts

The following underlying facts were set forth by the Indiana Court of Appeals, and are presumed to be correct because they have not been rebutted by Isby by clear and convincing evidence, 28 U.S.C. § 2254(e)(1):

[O]n October 12, 1990, Isby was incarcerated at the Indiana Reformatory in Pendleton, Indiana. On that day, when prison counselor David Miller walked through the segregation unit, Isby reached through the bars of his cell and grabbed Miller's helmet chinstrap. Isby then spit on Miller and struck him. Miller sustained a sore neck and a bruise under his eyelid as a result of the attack.

Following this incident, correctional officials decided to transfer Isby to a more secure cell. At approximately 11:30 a.m., officer Michael Wasson told Isby he was going to be moved. Isby refused to cooperate and Wasson told him that a "cell extraction team" would be contacted.

At approximately 1:10 p.m., an extraction team arrived at Isby's cell. The team comprised of five specially-trained officers who remove resistant inmates from their cells. Each officer wore a helmet, stab-proof vest, and other protective equipment. None of the officers were armed. The team was accompanied by a nurse, an officer carrying a videocassette recorder, and officer Douglas Darby and his dog. Officer David Abel asked Isby on two occasions to move back to the bars and allow himself to be handcuffed. Isby refused and his cell door was then opened. When Darby and his dog entered the cell, Isby lunged forward and stabbed Darby and his dog with a nine-inch shank. Officer William Layne then entered the cell to rescue Darby. Isby then lunged at Layne with "a slashing and stabbing attack."...

Darby and Layne were both injured in the attack. Darby sustained a stab wound to his throat which required five days of hospitalization and two surgeries. Expert testimony revealed that Darby's throat wound would have been life-threatening had it been one centimeter lower. Layne was stabbed fifteen or sixteen times, but none of the blows penetrated his protective vest. One blow did, however, cut his forehead.

At approximately 1:15 p.m., officer Robert Armstrong arrived at Isby's cell with a fire hose. After Isby refused to drop his weapon, Armstrong began spraying Isby with water. The force of the water pushed Isby to the back of his cell. While holding a mattress and shank, Isby overcame the force of the water and made his way to the front of the cell. Isby was then sprayed with tear gas, causing him to drop the weapon. Isby was then handcuffed. The next day, Isby made the following statement to one of the prison sergeants: "You f_ _ _ _ _s think you're safe but I'm going to get another one of you mother f_ _ _ _ _s."...

Isby was subsequently charged with the attempted murders of Darby and Layne, and battery on Miller. At the conclusion of a jury trial on July 21, 1992, Isby was found guilty as charged.

[Dkt. 19-24 at 3-5.]

As is evident from the foregoing facts, Isby was serving a sentence for a prior conviction at the time the above described crimes were committed. This is a significant circumstance because at the time Indiana Code § 35-50-1-2(d) provided:

If, after being arrested for one (1) crime, a person commits another crime:

(1) before the date the person is discharged from probation, parole, or a term of imprisonment imposed for the first crime;

* * *

the terms of imprisonment for the crimes shall be served consecutively, regardless of the order in which the crimes are tried and sentences are imposed.

The trial judge addressed this legal requirement during Isby's sentencing hearing, without objection, but did not specifically reference it in the first Abstract of Judgment ("First Abstract") that was issued following sentencing. Isby was sentenced to 40 years on Count I; 30 years on Count II, and 1 year on Count III. [Dkt. 1-7 at 1.]

B. The First Set of Appeals and the First Habeas Petition

Isby directly appealed his conviction to the Indiana Court of Appeals, arguing that: (1) the jury was improperly instructed as to the offense of attempted murder; (2) the trial court improperly refused his tendered instruction on self-defense; and (3) the trial court erred in permitting the jury to hear evidence of prior bad acts that he allegedly committed. [Id. at 5.] The Indiana Court of Appeals affirmed the conviction and sentence on April 6, 1995. [Id. at 2-9.]

On February 15, 1996, Isby filed a pro se petition for post-conviction relief. [Dkt. 19-1 at 9.] On July 7, 1999, he amended his petition for post-conviction relief by counsel, and the state court held a hearing on the petition on December 10, 2001. [Id. at 10.] The state court ordered that his Count III charge be changed from a Class A Misdemeanor to a Class B Misdemeanor, and that his sentence on that count be reduced from one year to six months. [Id.] The state court also, however, rejected Isby's argument that "he was somehow harmed because the trial judge sent final instructions to the jury room that contained strike-overs, additions and modification and were not re-typed." [Id. at 11.] The state court found that Isby had waived that issuebecause he did not raise it on direct appeal, and denied relief from the post-conviction petition on January 28, 2002. [Id.]

Isby appealed the denial of post-conviction relief to the Indiana Court of Appeals, which affirmed the state court's decision on September 6, 2002. [Dkts. 19-19 at 3-4; 19-20; 19-21.] On November 7, 2002, the Indiana Supreme Court denied Isby's petition to transfer. [Dkt. 19-19 at 4.]

Isby then filed a Petition for Writ of Habeas Corpus in the United States District Court for the Southern District of Indiana, 1:03-cv-1368-JDT-WTL, on September 19, 2003, challenging his convictions and sentences ("the First Petition"). [Dkt. 19-22.] In the First Petition, Isby raised only one issue:

Whether Petitioner was denied his fundamental right to a fair trial in violation of Amendment XIV to the U.S. Constitution and Art. I, §§ 12, 13 and 19 of the Indiana Constitution and Ind. Code § 35-37-2-2(6), for the trial court to give a copy of the final instructions to the jury after deliberation commenced, which contained extraneous information and materials.

[Id. at 4-5.]

On April 26, 2004, the United States District Court for the Southern District of Indiana denied Isby's First Petition, finding that he had procedurally defaulted with respect to the issue raised because he did not object to it at trial and did not include it in his direct appeal. [Dkt. 19-23 at 4.]

C. The Second Abstract

In March 2009, as Isby's prior sentences were near completion, the Indiana Department of Correction ("DOC") requested that Judge Fredrick Spencer, the state court judge who had presided over Isby's trial, review Isby's sentence and "provide us with some direction" regarding "whether the 40.5 year sentence should be run concurrently or consecutively with the previoussentences issued in Allen and Grant counties." [Dkt. 1-2 at 1.] As noted, the First Abstract was silent on the issue of consecutive versus concurrent sentences, [dkt. 1-7], but Judge Spencer did orally advise Isby during his sentencing hearing that Indiana law required him to impose the sentence consecutively, rather than concurrently, to the sentences he was serving at the time of the crimes for which Judge Spencer was sentencing him. [See dkt. 19-4 at 3-4 ("I'm required to link your sentence consecutive. I don't think it's discretionary when you, when you commit an offense in the Department of Correction it has to be a consecutive sentence").]

In April 2009, in an apparent response to the DOC's request and consistent with his statement during Isby's sentencing, Judge Spencer issued a Second Amended Abstract of Judgment ("Second Abstract") which provided for a sentence of 40 years on Count I; 40 years on Count II, and 6 months on Count III. [Dkt. 1-4 at 1.] The original sentence for Count II had been 30 years. [Dkt. 1-7 at 1.] The Second Abstract also specified that: "THE SENTENCE IS TO BE SERVED CONSECUTIVE TO ANY SENTENCE THE DEFENDANT WAS SERVING AT THE DATE OF THE OFFENSE." [Dkt. 1-4 at 1.]

In May 2009, Isby filed a Motion for Relief from Judgment relating to the Second Abstract, which the state court denied on July 22, 2009. [Dkt. 1-1 at 10.]

D. The Second Set of Appeals and Second Petition for Writ of Habeas Corpus

In October 2009, Isby appealed the state court's denial of the Motion for Relief from Judgment relating to the Second Abstract, arguing that: (1) the trial court did not have jurisdiction to impose additional consecutive sentences "almost two decades after imposition of the original sentence," and violated his due process rights by doing so; (2) the trial court's unlawful increase of his sentence "after service begun," violated the double jeopardy clause; and(3) the trial court's imposition of consecutive sentences in April 2009 violated his right to equal protection. [Dkt. 19-6 at 6.]

Subsequently, the Indiana Court of Appeals issued an Order stating that it could not discern whether Isby had already raised the issues in his first round of post-conviction relief from 1995 to 2002. [Dkt. 19-7 at 2.] It ordered Isby to...