Moore v. Parke

• Decision Date: 25 June 1997
• Docket Number: No. 3:96-CV-0665 AS.,3:96-CV-0665 AS.
• Citation: 968 F.Supp. 1338
• Parties: Elijah MOORE, Petitioner, v. Al C. PARKE, Respondent.
• Court: U.S. District Court — Northern District of Indiana

968 F.Supp. 1338

Elijah MOORE, Petitioner, v. Al C. PARKE, Respondent.

No. 3:96-CV-0665 AS.

United States District Court, N.D. Indiana, South Bend Division.

June 25, 1997.

Elijah Moore, Michigan City, MI, pro se.

Charles A. Asher, Hal R. Culbertson, South Bend, IN, for petitioner.

Rafal Ofierski, Indiana Attorney General, Geoffrey Davis, Office of the Attorney General, Indianapolis, IN, for respondent.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

On September 5, 1996, the petitioner, Elijah Moore ("Moore"), filed the present petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this court, challenging an habitual offender determination imposed by the State of Indiana. Moore is currently incarcerated at the Indiana State Prison in Michigan City, Indiana, and is represented by counsel on his petition.

I. FACTS AND PROCEDURAL HISTORY

On September 2, 1983, Moore was convicted on four counts of robbery and determined to be an habitual offender by a jury in the Lake County Superior Court. As a result of these convictions and the habitual offender determination, Moore was sentenced to four separate terms of twenty years in prison for each robbery conviction, each term to run concurrently. In addition, Moore's sentence was enhanced by thirty years for the habitual offender determination. The facts underlying the robbery convictions are as follows:

... on October 27, 1982, Priscilla Johnson, Ernest and Emily Knott, John Broods, Fred Marrell and Gwendolyn Robinson were playing cards in the Knotts' basement in Hammond, Indiana. Two armed black males entered the basement around 10:30 p.m. and announced a robbery. They ordered all persons to lie on the floor and took money and jewelry from them, including Mrs. Johnson's watch and Emily Knott's ring. As the robbers were preparing to leave, Hammond Police Officers Thomas and Shelton drove up to the house. Officer Thomas entered the house through an open window, illuminating the area with his flashlight. He noticed a man coming out of the kitchen carrying a sawed-off shotgun. When Thomas commanded the subject to halt, the subject raised his shot-gun and Thomas fired two shots. The suspect fled to the back bedroom and was apprehended there in a bedroom closet. The sawed-off shotgun was found under a nearby bed. Officer Thomas identified the suspect as Defendant Moore. During a strip search of Defendant Moore, Officer Frank Hughes of the Lake County Police Department confiscated a ring belonging to Mrs. Knott. The other robber, Defendant Williams, was apprehended while fleeing the scene. He was lying on the ground between two nearby houses, a black mask next to him. One of the robbers was identified by the victims as wearing a black mask and carrying a handgun. Other items discovered in Defendant Williams' flight path were gloves and a Colt pistol. When Defendant Williams was booked, a DeLock's liquor store receipt and over $600.00 were found on him.

Priscilla Johnson stated that prior to the robbery, she, Mrs. Knott, and Mrs. Robinson had gone to the Jewel store to cash Johnson's paycheck. After receiving $227.00, the women stopped at DeLock's Liquor store for Johnson to make a purchase. Johnson, owing Knott, gave Knott some wine and change from the store. Knott placed the bills and receipt in her bra.

Moore v. State, 485 N.E.2d 62, 64 (Ind.1985).

On direct appeal of these convictions, Moore presented several claims, all of which challenged the propriety of the robbery convictions. On November 19, 1985, the Supreme Court of Indiana affirmed the convictions and habitual offender determination. See Moore v. State, supra.

Several years later, on October 12, 1989, Moore filed a petition for post-conviction relief ("PCR") in the state trial court. In his PCR petition, Moore presented three separate issues. First, Moore claimed that the evidence upon which his habitual offender determination was based was insufficient. Second, Moore alleged that the state trial court erred in instructing the jury on the elements of the habitual offender determination. Third, Moore complained that he received ineffective assistance of trial and appellate counsel. After holding a hearing on the petition, the state trial court denied Moore's PCR petition. Moore subsequently appealed that decision to the Court of Appeals for the State of Indiana. On June 23, 1995, the Indiana Court of Appeals affirmed the state trial court's decision.

II. ARGUMENTS

Moore turned to federal court by filing the present petition for writ of habeas corpus in this court on September 5, 1996. In this petition, Moore raises three claims which challenge the constitutionality of his habitual offender determination. First, Moore claims that he was found to be an habitual offender without sufficient proof of the sequence in which he had committed the predicate felonies, thus, violating his due process rights under the Fourteenth Amendment to the United States Constitution. Second, Moore contends that his trial and appellate counsel were ineffective under the Sixth Amendment to the United States Constitution because counsel failed to raise the insufficiency of evidence claim. Third, Moore submits that his burden of proof on the insufficiency of the evidence in the PCR petition violates his rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Thus, Moore requests that this court grant him habeas relief on his habitual offender determination.

On March 3, 1997, the State filed its answer to order to show cause, demonstrating the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982). In its response, the State argues that Moore defaulted federal review of his sufficiency of the evidence claim. Specifically, the State contends that the state court's denial of his PCR petition was based upon an adequate and independent state ground-that Moore failed to satisfy his burden of proof on the sufficiency of evidence claim pursuant to Weatherford v. State, 619 N.E.2d 915, 916-17 (Ind.1993). Further, the State submits that the petitioner cannot show cause and prejudice for his procedural default. Therefore, the State argues that the merits of Moore's insufficiency of the evidence claim should not be addressed. On the petitioner's ineffective assistance claim, the State asserts that Moore cannot establish the requisite prejudice from the allegedly deficient performance of his counsel since his habitual offender determination was neither unfair nor suspect. As a result, the State requests that this court deny the petitioner's request for habeas relief.

On May 1, 1997, the petitioner filed a reply to the State's answer to order to show cause. In his reply, Moore argues that the State's procedural default defense is unavailing since the Weatherford decision was not a firmly established and regularly followed rule when the Indiana Court of Appeals affirmed the denial of his PCR petition. In addition, Moore submits that he can establish the necessary cause for his procedural default and the prejudice resulting therefrom. As a result, the petitioner reiterates his request that this court vacate his habitual offender determination.

On April 10, 1997, this court heard oral argument on this petition in South Bend, Indiana. Subsequently, on April 29, 1997, this court ordered the respondent to produce the state court record, which this court has reviewed pursuant to the mandates of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). Additionally, this court ordered the parties to brief the applicability of the decision of the United States Court of Appeals for the Seventh Circuit in Williams v. Duckworth, 738 F.2d 828 (7th Cir.1984), cert. denied, 469 U.S. 1229, 105 S.Ct. 1229, 84 L.Ed.2d 367 (1985). On May 16, 1997, the petitioner filed his brief regarding Williams, while the respondent filed its brief on May 19, 1997. With these preliminaries aside, the court will now address the merits of the claims presented by the petitioner and the defenses raised by the State.

III. STANDARDS OF REVIEW

A claim under 28 U.S.C. § 2254 requires the federal habeas court to ensure that the state criminal conviction was not achieved at the expense of the petitioner's constitutional rights. Justice Stewart, speaking for the Supreme Court of the United States in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), described the role of the federal district courts in habeas proceedings:

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 § 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. 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, 99 S.Ct. at 2791 (citation omitted).

The Congress of the United States has recently codified the holdings of Jackson and its progeny through the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA"), which amended 28 U.S.C. § 2254, in relevant part, as follows:

In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State...