Sherelis v. Duckworth

• Decision Date: 18 December 1987
• Docket Number: Civ. No. S 87-397.
• Citation: 675 F. Supp. 1144
• Parties: Robert T. SHERELIS, Petitioner, v. Jack R. DUCKWORTH and Indiana Attorney General, Respondents.
• Court: U.S. District Court — Northern District of Indiana

675 F. Supp. 1144

Robert T. SHERELIS, Petitioner, v. Jack R. DUCKWORTH and Indiana Attorney General, Respondents.

Civ. No. S 87-397.

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

December 18, 1987.

David Mernitz, Indianapolis, Ind., for petitioner.

David A. Nowak and David R. Treeter, Office of Atty. Gen., Indianapolis, Ind., for respondents.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

I.

The petitioner, Robert T. Sherelis, who is represented by retained counsel, filed this petition seeking relief under 28 U.S.C. § 2254 on July 9, 1987. The petitioner was convicted in the Elkhart Circuit Court at Goshen, Indiana, of four counts of delivery of a controlled substance in excess of three grams, and one count of a delivery of a controlled substance of less than three grams. Judge Gene R. Duffin of that court imposed a sentence of 30 years for the first four counts, and a sentence of 20 years for the last count. A direct appeal was taken to the Supreme Court of Indiana, which Court unanimously affirmed the aforesaid convictions in an opinion reported at 498 N.E.2d 973 (Ind.1986), and authored by Justice DeBruler.

This petition for a writ of habeas corpus raises three issues:

Ground One; the statute under which the petitioner was convicted does not proscribe the sale or delivery of the chemical substance which the proof at trial showed as delivered;

Ground Two: the statute under which the petitioner was convicted is unconstitutionally vague and ambiguous, and failed to give the petitioner fair warning that his conduct was proscribed by law;

Ground Three: the state failed to prove each and every element of the offense charged beyond a reasonable doubt, in violation of the Constitution.

This court has received and examined the record of the state court proceedings pursuant to the mandate of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

In his direct appeal to the Supreme Court of Indiana, the petitioner raised eight issues as follows:

1. Whether the trial court erred in its determination that cocaine hydrochloride is a controlled substance within the meaning of I.C. XX-XX-X-X;

2. Whether the trial court erred in admitting testimony concerning negotiations for purchase of weapons and a reference to John DeLorean;

3. Whether the trial court erred in limiting appellant's examination of two witnesses;

4. Whether the trial court erred in not permitting introduction of appellant's Exhibit "G";

5. Whether the trial court erred in refusing portions of appellant's tendered Preliminary Instruction No. 7 and Final Instruction No. 10;

6. Whether the trial court denied appellant due process and a fair trial;

7. Whether the trial court should be ordered to reduce the amount of bail in the event of reversal;

8. Whether the judgment was supported by the evidence.

II.

Respondents contend that petitioner's petition is one which is a "mixed" petition; i.e., one containing both exhausted and unexhausted issues. See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). It is axiomatic that a petition containing only unexhausted issues or a petition which is "mixed" must be dismissed. See Rose, supra, and Duckworth v. Serrano, 454 U.S. 1, 102 S.Ct. 18, 70 L.Ed.2d 1 (1981). Petitioner naturally contends that all three of the issues presented have been exhausted in the state courts.

Both petitioner and respondents agree that Ground One has been exhausted in the state courts.

In regard to Ground Two, petitioner asserts that this issue has been presented to the Supreme Court of Indiana, and the respondents contend that such issue has not been presented to the Supreme Court of Indiana. It appears from the record that the issue of whether the convicting statute was overbroad and vague was presented to the Supreme Court of Indiana. See pp. 44 et seq. of petitioner's state appellate brief. Petitioner, however, presented such issue within the context of the claim asserted in Ground One; i.e., whether the statute, I.C. XX-XX-X-X, prohibited the sale or delivery of cocaine hydrochloride.

The question which must be answered as to whether an issue has been fairly presented to the state courts is whether that issue has been placed before the state courts in a manner such that the constitutional issue is clear. Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982). In determining whether a petitioner's habeas corpus claim has been fairly presented to the state court, the test is "whether any of petitioner's claims is so clearly distinct from the claims he has already presented to the state courts that it may fairly be said that the state courts have had no opportunity to pass on the claim." United States ex rel. Cole v. Lane, 752 F.2d 1210, 1219 (7th Cir.1985), citing Humphrey v. Cady, 405 U.S. 504, 517 n. 18, 92 S.Ct. 1048, 1056 n. 18, 31 L.Ed.2d 394 (1972). See also Barrera v. Young, 794 F.2d 1264 (7th Cir.1986). Compare United States ex rel. Miller v. O'Leary, 651 F.Supp. 174 (N.D.Ill.1986), aff'd without opinion, 828 F.2d 22 (7th Cir. 1987). The Court of Appeals for the Seventh Circuit has further held that where a question is fairly presented to the state court, and the state court had an opportunity to rule on the same question, that question may be considered by a federal court even if the state court did not rule on the question. Arrowood v. Clusen, 732 F.2d 1364 (7th Cir.1984). "A federal habeas corpus petitioner has `fairly represented' a claim to a state court if he has clearly informed the state court of the factual basis of that claim and has argued to the state court that those facts constituted a violation of the petitioner's constitutional rights." Toney v. Franzen, 687 F.2d 1016, 1021 (7th Cir.1982).

This court will be the first to single out that Ground Two was not specifically designated as an issue on appeal in the state court. However, Ground Two is so inextricably woven into the claim in Ground One that it would be difficult to rule on Ground Two alone. It must be remembered that petitioner did contest the constitutionality of I.C. XX-XX-X-X in his state appellate brief, supra. The Supreme Court of Indiana, however, did not specifically mention the constitutionality of the said statute in affirming petitioner's conviction. See Arrowood v. Clusen, supra. It is also readily apparent that the issue in Ground Two is not so distinct from the claims petitioner has already presented in state court that the state courts have not already had an opportunity to consider the issue in Ground Two. See United States ex rel. Cole v. Lane, supra. Though the issue in Ground Two was covered more directly and comprehensively by petitioner in his habeas petition than on direct appeal from his criminal conviction, this court finds that such issue has been placed before the Indiana state courts in a manner such that the constitutional issue was clear. See Anderson v. Harless, supra. Even if the issue in Ground Two had not been presented to the Supreme Court of Indiana, again, it is so inextricably woven into the issue in Ground One that it would be extremely difficult to consider the two issues separately. With caution, this court will consider the issue in Ground Two.

In Ground Three, the issue is whether the state failed to prove each and every element of the offense charged beyond a reasonable doubt in violation of the Constitution. On direct appeal, the petitioner raised the issue of whether the judgment was supported by the evidence. Respondents contend that petitioner did not exhaust the issue in Ground Three in the state courts. It may be arguable that Ground Three was, in fact, raised and presented to the Supreme Court of Indiana. However, it is beyond any argument that the issue as to the constitutionality of the conviction was raised. While the semantics may be at a variance, the substance of Ground Three has been fairly presented to the Supreme Court of Indiana. There has merely been a change in form and not substance.

Thus, all three grounds presented in petitioner's petition have been exhausted in the state courts. The court will consider Grounds One and Two together, and then Ground Three.

Before proceeding further, it must be emphasized that there is no assertion in this record that the petitioner's trial or appellate counsel were ineffective within the meaning of the Sixth Amendment of the Constitution of the United States as defined in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

III.

In Ground One, petitioner asserts that the statute under which he was convicted, I.C. XX-XX-X-X, does not proscribe the sale or delivery of cocaine hydrochloride. In Ground Two, petitioner contends that I.C. XX-XX-X-X is unconstitutionally vague and ambiguous and did not provide a fair warning to him that his conduct was proscribed. Inherent in Ground Two is the issue in Ground One. Perhaps the discussion of the Supreme Court of Indiana in light of I.C. XX-XX-X-X best captures petitioner's contentions:

Appellant contends that the trial court erred in its determination that cocaine hydrochloride is a controlled substance within the meaning of I.C. XX-XX-X-X. Appellant was charged with five counts of violation of I.C. XX-XX-X-X. The pertinent statute is set forth below:

XX-XX-X-X. Dealing in a narcotic drug.—A person who;

(1) Knowingly or intentionally manufactures or delivers cocaine or a narcotic drug, pure or adulterated, classified in schedule I or II; or

(2) Possesses, with intent to manufacture or deliver, cocaine or a narcotic drug, pure or adulterated, classified in schedule I or II;

commits dealing in cocaine or a narcotic drug, a class B felony. However, the offense is a class A felony if the amount of the drug involved weighs three 3 grams or more, or if the person delivered the drug to a person under eighteen 18 years of age at least three 3 years his junior.

Initially appellant focuses on I.C. XX-XX-X-X(1), "knowingly

...