Moore v. Parke

• Decision Date: 19 August 1998
• Docket Number: No. 97-3357,97-3357
• Citation: 148 F.3d 705
• Parties: Elijah MOORE, Petitioner-Appellant, v. Al C. PARKE, Warden, Indiana State Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 705

148 F.3d 705

Elijah MOORE, Petitioner-Appellant, v.Al C. PARKE, Warden, Indiana State Prison, Respondent-Appellee.

No. 97-3357.

United States Court of Appeals Seventh Circuit.

Argued Feb. 20, 1998.

Decided June 17, 1998.

Rehearing Denied Aug. 19, 1998.

Hal R. Culbertson(argued), South Bend, IN, for Petitioner-Appellant.

Geoff Davis(argued), Jeffrey A. Modisett, Office of the Attorney General, Indianapolis, IN, for Respondent-Appellee.

Before CUMMINGS, KANNE, and EVANS, Circuit Judges.

KANNE, Circuit Judge.

Elijah Moore filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the jury's finding that he was an habitual offender under the laws of Indiana.Because we find that the state did not prove the necessary elements to support an habitual offender determination under Indiana law, we grant Moore habeas relief on the habitual offender count.

I.HISTORY

On September 2, 1983, a jury found Moore guilty of four counts of robbery and determined that he was an habitual offender.The judge sentenced Moore to four separate terms of twenty years in prison for each robbery conviction, with the terms to run concurrently.The judge also enhanced Moore's sentence by thirty years for the habitual offender determination.The facts underlying the robbery conviction are set forth in Moore v. Parke, 968 F.Supp. 1338, 1340(N.D.Ind.1997).

Moore appealed his conviction to the Indiana Supreme Court, challenging only the propriety of the robbery convictions.On November 19, 1985, the Indiana Supreme Court affirmed the convictions.SeeMoore v. State, 485 N.E.2d 62(Ind.1985).

On October 12, 1989, Moore filed a pro se petition for post-conviction relief in the Indiana courts, alleging improprieties in the habitual offender determination.On January 14, 1994, Moore, by counsel, filed an amended petition for post-conviction relief which included claims that the evidence of sequencing was insufficient to convict Moore of the habitual offender charge and that Moore's counsel was ineffective.On October 3, 1994, the post-conviction court denied Moore's petition, stating:

Petitioner was tried and convicted of four (4) counts of Robbery and Habitual Offender in a bifurcated trial by jury in 1983.His direct appeal to the Indiana Supreme Court was rejected in Moore v. State, 485 N.E.2d 62(1985).

He returns to this court, not alleging he is or was innocent, but complaining that this jury was misinformed of the proper sequence of prior unrelated convictions and that he should be relieved of the jury finding of being an Habitual Offender.

Since Weatherford v. State, 619 N.E.2d 915(1993), it is not enough that petitioners show mistakes in procedure.Unlike a trial or appeal in the first instance, petitioner must show in a Petition for Post-Conviction Relief that he in fact is not an Habitual Offender.It is his burden to show the offenses were not committed in the proper sequence.

Moore v. State, No. 2CR 135 783 540, slip op. at 1(Superior Ct.Oct. 3, 1994).Since Moore did not make the proper allegations, and conceded during an evidentiary hearing in 1994 that the convictions were in fact in the correct sequence, the Indiana court denied his petition.The court did not reach the issue of ineffectiveness of Moore's trial and appellate counsel.

Moore appealed to the Indiana Court of Appeals.The court of appeals affirmed, citing Moore's failure to allege his innocence as required by Weatherford.The court rejected Moore's ineffective assistance of counsel claim based on Lingler v. State, 644 N.E.2d 131(Ind.1994).Lingler held that petitioners could not claim their counsel rendered ineffective assistance in failing to challenge the sufficiency of the evidence on an habitual offender finding when they do not meet the burden imposed by Weatherford.The court did not address Moore's claim that the Weatherford rule violated due process.

Moore sought transfer to the Indiana Supreme Court.The supreme court denied transfer.

On September 5, 1996, Moore filed a petition for federal habeas corpus relief pursuant to 28 U.S.C. § 2254.On June 25, 1997, the District Court for the Northern District of Indiana denied Moore's petition, finding that his claims were procedurally defaulted.Moore appealed to this Court.

II.ANALYSIS

A.Standard of Review

The parties dispute whether the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996, which amended 28 U.S.C. § 2254, applies to this case.The only provision relevant to this case is § 2254(d):

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

A prerequisite for applying this section is that the state court adjudicated the issue before us on the merits.In this case, the state court denied Moore's petition because he failed to satisfy the rule articulated in Weatherford, a rule that both parties describe as procedural.¹Therefore, the state courts did not address Moore's sufficiency of the evidence argument on the merits, and the new standard of review in AEDPA does not apply.

Because the Indiana courts require that the state prove habitual offender status beyond a reasonable doubt, we apply the standard of review articulated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979).SeeWilliams v. Duckworth, 738 F.2d 828, 831(7th Cir.1984)(applying Jackson standard to habeas petition "because [Indiana] requires that an habitual offender finding must be supported by proof beyond a reasonable doubt").Under Jackson, a state prisoner can establish a violation of his due process rights only if he can show that no rational trier of fact could have found him guilty beyond a reasonable doubt based on the evidence adduced at the trial.SeeJackson, 443 U.S. at 324, 99 S.Ct. 2781.

B.Procedural Default

1.Generally

Before addressing the merits of Moore's habeas petition, we must establish that Moore provided the state courts with a full and fair opportunity to review his claims.SeePicard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 30 L.Ed.2d 438(1971);Boerckel v. O'Sullivan, 135 F.3d 1194, 1196(7th Cir.1998).Providing a full and fair opportunity requires that Moore have exhausted his state remedies, see28 U.S.C. § 2254(b), (c), and have avoided procedurally defaulting his claims during the state court proceedings, seeUnited States ex rel. Simmons v. Gramley, 915 F.2d 1128, 1132(7th Cir.1990).If Moore failed to meet either of these requirements, we are barred from reaching the merits of his claims on federal habeas review.SeeBoerckel, 135 F.3d at 1196.

Exhaustion is not at issue in this case.However, the respondent affirmatively raised the question of procedural default and we therefore focus our attention on that issue.The doctrine of procedural default considers the effect on federal habeas review of a "state court declin[ing] to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement."Coleman v. Thompson, 501 U.S. 722, 730, 111 S.Ct. 2546, 115 L.Ed.2d 640(1991).A state court decision declining to hear the merits of the claim will bar federal habeas review if the state court decision rests on a state law ground that is both "independent of the federal question and adequate to support the judgment."Id. at 729, 111 S.Ct. 2546.

Moore does not challenge the independence of the state law from the federal question.Instead, he focuses his assault on the adequacy of the state law ground.A state law procedural rule is not adequate to prevent federal review if the petitioner could not have been "deemed to have been apprised of [the rule's] existence" at the time he omitted the procedural step in question.SeeNAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 457, 78 S.Ct. 1163, 2 L.Ed.2d 1488(1958);see alsoBarr v. Columbia, 378 U.S. 146, 149, 84 S.Ct. 1734, 12 L.Ed.2d 766(1964)(State procedural rules "not strictly or regularly followed" do not bar review.).In other words, we are barred from reviewing a state court decision resting on a procedural ground only if the petitioner could have known of the procedural requirement and yet still failed to follow it.

2.Weatherford v. State

The procedural requirement at issue is the rule announced in Weatherford v. State, 619 N.E.2d 915(Ind.1993).In Weatherford, the Indiana Supreme Court held that a petitioner who raises a sufficiency of the evidence claim on an habitual offender determination for the first time in a petition for post-conviction relief has the burden of demonstrating that he was in fact not an habitual offender under the laws of Indiana.Seeid. at 917-18.In other words, when a petitioner makes this claim for the first time in post-conviction proceedings, he is not permitted to require the state to establish his habitual offender status as he could on direct appeal.Seeid.Instead, the petitioner"must demonstrate that his various convictions did not in fact occur in the required order."Id. at 918.

Prior to Weatherford, Indiana courts allowed challenges to the sufficiency of the evidence supporting an habitual offender determination at the post-conviction stage regardless of whether it had been raised on direct review.See, e.g., Lee v. State, 550 N.E.2d 304, 305(Ind.1990)(holding that post-conviction petition alleging sufficiency of evidence claim on habitual offender count should be addressed on the merits...