Splunge v. Parke
| Decision Date | 28 May 1996 |
| Docket Number | No. 3:95-cv-0688 AS.,3:95-cv-0688 AS. |
| Citation | 929 F. Supp. 1137 |
| Parties | Charles B. SPLUNGE, Petitioner, v. Al C. PARKE, Respondent. |
| Court | U.S. District Court — Northern District of Indiana |
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Charles B. Splunge, Michigan City, IN, Pro Se.
Christopher L. Lafuse, Indiana Attorney General, Indiana Government Center South, Indianapolis, IN, for Respondent.
On August 17, 1995, petitioner, Charles B. Splunge ("Splunge"), filed the present petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this court, challenging a conviction imposed by the State of Indiana. Splunge is currently incarcerated at the Indiana State Prison in Michigan City, Indiana, and filed his petition pro se.
In April 1986, Splunge entered into an agreement with Ms. Tara Fox ("Fox") whereby he and Fox would search for a person to rob and then steal that person's automobile. After searching for a potential victim, Splunge decided upon Mr. Kenneth Wallace ("Wallace"), who at the time was a customer inside the Apollo Liquor Store in Evansville, Indiana. As Wallace exited the liquor store, Splunge and Fox approached Wallace and asked him for a ride. Wallace agreed, and Splunge and Fox provided him with an address where they wished to go. When Wallace arrived at the destination, Fox pulled a handgun to effectuate the intended robbery. The gun discharged and, in the ensuing excitement, Fox fired a second shot. Both gunshots struck Wallace, fatally wounding him in the hip and abdomen. After the shots were fired, Splunge pushed Wallace from the vehicle, leaving Wallace lie on the pavement of the intersection as he and Fox sped away.
Several persons were present at the intersection and observed the activity. One of the witnesses, Mr. Louis Moschener, was in a vehicle directly behind Wallace's automobile a the intersection. When Mr. Moschener observed Splunge and Fox speed away after pushing Wallace from the automobile, he followed them. After a short chase, Splunge attempted to negotiate a turn at high speed and crashed into a house. Both Splunge and Fox fled the scene. However, Fox was captured a short time later and Splunge was taken into custody the next day.1
On April 14, 1986, the State of Indiana charged Splunge by information with murder and robbery. On August 14, 1986, after a trial by jury in the Superior Court of Vanderburgh County, Splunge was found guilty of both murder and robbery as a class A felony. As a result, on September 15, 1986, Judge Thomas Lockyear sentenced Splunge to sixty (60) years in prison. Splunge appealed his convictions directly to the Supreme Court of Indiana. Consequently, on November 28, 1988, the Supreme Court affirmed the jury's verdict and Judge Lockyear's sentence. See Splunge v. State, 526 N.E.2d 977 (Ind.1988), cert. denied, 490 U.S. 1110, 109 S.Ct. 3165, 104 L.Ed.2d 1028 (1989).
Splunge filed his first petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this court on September 11, 1990. In that petition, Splunge challenged the state prosecutor's use of preemptory challenges at trial. In a memorandum and order dated February 14, 1991, this court held that the state prosecutor had exercised one preemptory challenge on the basis of race in violation of the Fourteenth Amendment. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Consequently, this court granted Splunge's petition for writ of habeas corpus under § 2254, a decision which was affirmed by the United States Court of Appeals for the Seventh Circuit in Splunge v. Clark, 960 F.2d 705 (7th Cir.1992).
In January 1993, Splunge received a new trial in the Vanderburgh County Superior Court. However, the second jury could not reach a verdict. As a result, a third trial commenced in March 1993. On April 1, 1993, a third jury convicted Splunge of murder and robbery as a class A felony. As a result, on April 23, 1993, Judge Lockyear again sentenced Splunge to sixty (60) years in prison. Splunge appealed these convictions to the Supreme Court of Indiana, which on October 17, 1994, affirmed the third jury's verdict and Judge Lockyear's sentence. See Splunge v. State, 641 N.E.2d 628 (Ind.1994).
On September 7, 1995, Splunge filed the petition for writ of habeas corpus now before this court. In his petition, Splunge challenges the constitutionality of his April 1993 convictions, specifically raising several claims under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. First, Splunge claims that several statements made by the state prosecutor during closing arguments of the third trial amounted to prosecutorial misconduct and violated his right to a fair trial. Second, he claims that he was denied a fair trial when the state prosecutor commented on his right not to testify at trial in closing arguments. Third, he contends that the state trial court also denied him a fair trial when defense counsel was allegedly denied the opportunity to cross-examine Tara Fox, a witness for the State, concerning the possibility that her sentence would be modified in exchange for her testimony against Splunge. Fourth, he contends that the State denied him a fair trial by improperly introducing mug shots into evidence when his identity was not at issue. Finally, he claims that the state trial court violated his right to a fair trial when he was denied the opportunity to impeach the testimony of various state witnesses through the use of prior inconsistent statements.
On December 14, 1995, the respondent filed his return to order to show cause, demonstrating the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). Further, the respondent's have filed the state court record, which has been carefully examined by the court under the mandates of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).
In the return, the respondent raises the following arguments. First, the respondent argues that the state prosecutor did not commit any acts of prosecutorial misconduct during the third trial. Second, the respondent contends that the state prosecutor's comment on Splunge's decision not to testify on his own behalf did not violate Splunge's Fifth Amendment rights. Third, the respondent argues that the remaining grounds raised by the petitioner do not allow for the issuance of a writ of habeas corpus because the claims are based solely on issues of state law and do not rise to the level of a denial of fundamental fairness or a specific constitutional right. See Bell v. Duckworth, 861 F.2d 169 (7th Cir.1988), cert. denied, 489 U.S. 1088, 109 S.Ct. 1552, 103 L.Ed.2d 855 (1989). Further, the respondent argues that these state law claims do not even amount to trial errors on their merits. Thus, the respondent requests that the court deny Mr. Splunge's request for habeas corpus relief in this case.
The petitioner filed his traverse to respondent's return to order to show cause on April 24, 1996. In his traverse, Splunge responds to the arguments raised by the respondent, and also restates and expands upon the arguments raised in his petition.
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. See 28 U.S.C. § 2254(b), (d). 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.
Following Jackson, supra, there is an increasingly long line of cases in this circuit, including the very recent decision in Brumley v. Detella, 83 F.3d 856 (7th Cir.1996), which suggest that the facts found by the highest court of a state are presumed to be correct. See also, Milone v. Camp, 22 F.3d 693, 697 n. 2 (7th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 720, 130 L.Ed.2d 626 (1995); Cuppett v. Duckworth, 8 F.3d 1132, 1141 (7th Cir.1993) (en banc), cert. denied, 510 U.S. 1180, 114 S.Ct. 1226, 127 L.Ed.2d 571 (1994); Andersen v. Thieret, 903 F.2d 526, 531 (7th Cir.1990). Marshall v. Lonberger, 459 U.S. 422, 432, 103 S.Ct. 843, 850, 74 L.Ed.2d 646 (1983); see also Mills v. Jordan, 979 F.2d 1273, 1279 (7th Cir.1992). Thus, the court now acknowledges that the explicit findings of fact in Justice Givan's opinion for the Supreme Court of Indiana in Splunge v. State, 641 N.E.2d 628 (Ind.1994), are certainly entitled to a presumption of correctness under § 2254(d).
It also must be understood that this...
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Splunge v. Parke
...likewise must be upset, and yet another trial held. The district court denied his petition for a writ of habeas corpus. 929 F.Supp. 1137 (N.D.Ind.1996). Because the petition was filed before April 24, 1996, we do not use the amended version of 28 U.S.C. § 2254(d). See Lindh v. Murphy, 521 U......