Shepherd v. Finnan

• Decision Date: 13 May 2013
• Docket Number: No. 1:11-cv-759-RLY-DML,1:11-cv-759-RLY-DML
• Parties: MICHAEL J. SHEPHERD, Petitioner, v. ALAN FINNAN, Respondent.
• Court: U.S. District Court — Southern District of Indiana

MICHAEL J. SHEPHERD, Petitioner, v. ALAN FINNAN, Respondent.

No. 1:11-cv-759-RLY-DML

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

Dated: May 13, 2013

Entry Discussing Petition for Writ of Habeas

Corpus and Denying Certificate of Appealability

For the reasons explained in this Entry, the petition of Michael Shepherd for a writ of habeas corpus must be denied and the action dismissed with prejudice. In addition, the court finds that a certificate of appealability should not issue.

I. Background

Shepherd was convicted in an Indiana state court of dealing in cocaine and possession of cocaine. He was also found to be an habitual offender under Indiana law and sentenced accordingly. These convictions arose out of his role in a controlled buy of cocaine. Shepherd's convictions were affirmed on appeal in Shepherd v. State, No. 70A01-0504-CR-166 (Ind.Ct.App. 2006) (Shepherd I). Shepherd's petition for transfer was denied on March 16, 2006.

The trial court granted in part Shepherd's petition for post-conviction relief, finding that trial counsel provided ineffective assistance by failing to assert that Shepherd was within 1,000 feet of a park at the suggestion of a law enforcement officer. The post-conviction court reduced Shepherd's class A felony conviction to a class B felony conviction, his class B felony conviction to a class D felony conviction and remanded for resentencing. Shepherd was thenresentenced to a term of eighteen years for his class B felony dealing in cocaine conviction, which was enhanced by 25 years because he is a habitual offender and a concurrent term of two years for his class D felony possession of cocaine conviction.

Shepherd separately appealed the denial of post-conviction relief and resentencing. On appeal of partial denial of post-conviction relief, the Indiana Court of Appeals determined that there was an actual conflict of interest that adversely effected counsel's performance as to Shepherd's possession of cocaine conviction. In doing so, the Indiana Court of Appeals reversed the post-conviction court as to this issue on the possession of cocaine conviction and remanded with instructions to vacate the possession of cocaine conviction. The Indiana Court of Appeals affirmed the partial denial of post-conviction relief in all other respects. Shepherd v. State, 924 N.E.2d 1274 (Ind.Ct.App. Apr. 14, 2010) (Shepherd II). Shepherd's petition for transfer was denied by the Indiana Supreme Court on June 24, 2010. On appeal of resentencing, the Indiana Court of Appeals affirmed the trial court's resentencing order. Shepherd v. State, No. 70A01-0911-CR-529 (Ind.Ct.App. 2010). (Shepherd III). Shepherd did not seek transfer.

In Shepherd II, the Indiana Court of Appeals set forth the facts regarding Shepherd's conviction as follows:

On August 11, 2004, Rush County Sheriff's Department Detective Joseph Jarman was contacted by Mary Jane Smiley, who indicated a willingness to make a controlled buy of cocaine from Shepherd. Smiley subsequently arranged the deal by telling Shepherd that she "had hooked up with somebody" and "needed an eight ball." After Shepherd agreed to obtain the drugs, Smiley met with Detective Jarman who provided purchase money, which Smiley gave to Shepherd before he drove to Indianapolis. Smiley told Shepherd that she would be waiting at the Rushville Holiday Inn Express, and would call him later with the room number.

After Shepherd left for Indianapolis, Smiley met Detective Jarman at the Holiday Inn, as he had arranged. Detective Jarman provided money for the rental of two adjacent rooms, 120 and 122. Although Detective Jarman knew that the crime would be more serious if committed within 1,000 feet of a public park, he testified that he did not choose the location for its proximity to a local park,approximately 850 feet from the hotel rooms. Once the rooms were acquired, Smiley called Shepherd and told him to meet her in room 122.

When Shepherd arrived at the hotel room, he gave Smiley a small plastic bag of cocaine. She handed it to Detective Jarman, who then asked Shepherd if he could obtain more cocaine. Shepherd responded affirmatively. He was arrested, and a search of the car he had driven to Indianapolis revealed a cigarette package containing cocaine. Later tests indicated that Shepherd had provided Smiley with 1.53 grams of cocaine, and that .68 grams of cocaine were in the cigarette carton.

Shepherd II, 924 N.E.2d at 1277-78 (citations and footnote omitted).

Shepherd now seeks a writ of habeas corpus. Shepherd claims that: (i) trial counsel was ineffective as to a conflict of interest issue; (ii) trial counsel and appellate counsel were ineffective for failing to properly raise a challenge to Shepherd's eligibility as habitual offender; (iii) he was improperly sentenced and (iv) there was a Batson violation when the State challenged the only African-American juror, who became the first person dismissed from the jury.

II. Applicable Law

In the exercise of its habeas jurisdiction, a federal court may grant relief only if the petitioner shows that he is in custody "in violation of the Constitution or laws of the United States." 28 U.S.C. § 2254(a). When a habeas petition is filed after enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA) on April 24, 1996, that Act's restrictions on federal review of state court rulings apply to the case. See Williams v. Taylor, 529 U.S. 362 (2000); Henderson v. Walls, 296 F.3d 541, 545 (7th Cir. 2002).

AEDPA provides that if a constitutional claim was adjudicated on the merits by the state courts, a federal court may only grant habeas relief based on that claim if the state court's decision was "contrary to" or an "unreasonable application of" federal law as determined by the Supreme Court of the United States, 28 U.S.C. § 2254(d)(1), or if the state court's determination of the facts was unreasonable in light of the evidence presented. See id. at § 2254(d)(2).

Williams v. Davis, 301 F.3d 625, 631 (7th Cir. 2002).

With regard to the law governing § 2254(d)(1), "contrary to" established Supreme Court precedent means "substantially different from the relevant precedent." Boss v. Pierce, 263 F.3d 734, 739 (7th Cir. 2001), cert. denied, 122 S.Ct. 1961 (2002). "For example, a state court decision applying a rule that contradicts the governing law . . . would qualify . . . [or] a decision that involves a set of facts materially indistinguishable from a Supreme Court case that arrives at a different result." Id. (citing Williams v. Taylor, 529 U.S. at 405-06).

A state court decision is an unreasonable application of federal law under § 2254(d)(2) "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413. The reasonableness of the state court's application of federal law is to be evaluated by an objective standard. See id. at 409-10. The Supreme Court has cautioned:

[i]n § 2254(d)(1), Congress specifically used the word "unreasonable," and not a term like "erroneous" or "incorrect." Under § 2254(d)(1)'s "unreasonable application" clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.

Id. at 411. Furthermore, the Supreme Court recently explained,

If [the §2254(d)] standard is difficult to meet, that is because it was meant to be. As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther.

Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (internal citation and parenthetical citation omitted). Factual issues determined by a state court are presumed to be correct, and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence. Werts v. Vaughn, 228 F.3d 178, 196 (3d Cir. 2000) (citing 28 U.S.C. § 2254(e)(1)), cert. denied, 532 U.S. 980 (2001). This is a "rigorous burden of proof." Sanchez v. Gilmore, 189 F.3d 619, 623 (7thCir. 1999), cert. denied, 529 U.S. 1089 (2000).

III. Discussion

A. Ineffective Assistance of Counsel

Shepherd contends that he was denied the effective assistance of counsel at trial. The Sixth Amendment right to counsel exists "in order to protect the fundamental right to a fair trial." Strickland v. Washington, 466 U.S. 668, 684 (1984). The purpose of the right is to ensure a fair trial, and the benchmark for judging any claim of ineffectiveness is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686.

To support an ineffective assistance of counsel claim under Strickland, Shepherd must show (1) that counsel's performance fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the defense. Strickland, 466 U.S. at 695. A failure to establish either prong would result in a denial of Shepherd's claim. See Rastafari v. Anderson, 278 F.3d 673, 688 (7th Cir. 2001). The first prong is satisfied by a showing that counsel's performance fell below the "objective standard of reasonableness" guaranteed under the Sixth Amendment. Barker v. United States, 7 F.3d 629, 633 (7th Cir. 1993) (quoting Strickland, 466 U.S. at 688). In evaluating whether counsel's performance was deficient, "the court must defer to counsel's tactical decisions," avoid "the distorting effects of hindsight" and give counsel the benefit of a strong presumption of...