Steele v. Duckworth, No. 3:94cv0101 AS.

• Court: United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
• Writing for the Court: Michael R. Steele, Michigan City, IN, pro se
• Citation: 900 F. Supp. 1048
• Decision Date: 16 August 1994
• Docket Number: No. 3:94cv0101 AS.
• Parties: Michael R. STEELE, Petitioner, v. Jack DUCKWORTH, and Indiana Attorney General, Respondents.

900 F. Supp. 1048

Michael R. STEELE, Petitioner,
v.
Jack DUCKWORTH, and Indiana Attorney General, Respondents.

No. 3:94cv0101 AS.

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

August 16, 1994.

Michael R. Steele, Michigan City, IN, pro se.

Thomas D. Quigley, Office of Indiana Attorney General, Indianapolis, IN, for respondents.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

On February 7, 1994, pro se petitioner, Michael R. Steele, an inmate at the Indiana State Prison, Michigan City, Indiana, filed a petition seeking relief under 28 U.S.C. § 2254. The return filed by the respondents on August 8, 1994, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982).

This petitioner entered pleas of guilty in the Elkhart Circuit Court, Goshen, Indiana, of murder and attempted murder of a police officer. The Honorable Gene R. Duffin presided. The petitioner is presently serving a 60-year sentence imposed for murdering a police officer, and when that sentence is served, there is a consecutive 50-year sentence for the attempted murder of another

900 F. Supp. 1049

police officer. The state court record in six volumes was filed on February 7, 1994, and has been examined here

When these charges were pending in the Elkhart Circuit Court, this petitioner was facing a possible death penalty and apparently entered a plea of guilty to avoid the imposition of the death penalty. He entered a plea of guilty to both charges and was sentenced on August 31, 1989. He took a direct appeal to the Supreme Court of Indiana, and that court unanimously upheld the imposition of consecutive sentences, as reported in Steele v. State, 569 N.E.2d 652 (Ind.1991).

At this point, two observations are in order. The first is that under 28 U.S.C. § 2254(d), the facts unanimously found by the Supreme Court of Indiana, speaking through Justice Givan, at 569 N.E.2d 652-653, are presumed correct. 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), stated:

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.

Id. at 323, 99 S.Ct. at 2791. The Supreme Court in Jackson held:

We hold that in a challenge to a conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have otherwise been satisfied — the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at trial no rational trier of fact could have found proof beyond a reasonable doubt.

Id. (footnote omitted). See also Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); Dooley v. Duckworth, 832 F.2d 445 (7th Cir.1987), cert. denied, 485 U.S. 967, 108 S.Ct. 1239, 99 L.Ed.2d 438 (1988); United States ex rel. Haywood v. O'Leary, 827 F.2d 52 (7th Cir.1987); Bryan v. Warden, Indiana State Reformatory, 820 F.2d 217 (7th Cir.1987), cert. denied, 484 U.S. 867, 108 S.Ct. 190, 98 L.Ed.2d 142 (1987); Shepard v. Lane, 818 F.2d 615 (7th Cir.), cert. denied, 484 U.S. 929, 108 S.Ct. 296, 98 L.Ed.2d 256 (1987); and Perri v. Director, Department of Corrections, 817 F.2d 448 (7th Cir.), cert. denied, 484 U.S. 843, 108 S.Ct. 135, 98 L.Ed.2d 92 (1987).

A review of the record in the light most favorable to the prosecution convinces the court that a rational trier of fact could readily have found the petitioner guilty beyond a reasonable doubt of murder and attempted murder.

Following Jackson, supra, there is an increasingly long line of cases in this circuit that suggest that the facts found by the highest court of a state are presumed correct. See Andersen v. Thieret, 903 F.2d 526, 531 (7th Cir.1990).

Secondly, it would appear that the opinion just described by the Supreme Court of Indiana on April 12, 1991, was based primarily on state law, which would invoke the teaching of Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Given the formulation in Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), there certainly does not appear to be an Eighth Amendment issue in regard to the length of sentence in this case.

After the direct appeal to the Supreme Court of Indiana, this petitioner again sought post-conviction relief on October 28, 1991, in a state trial court, namely the Elkhart Superior

900 F. Supp. 1050

Court, and the Honorable Stephen E. Platt, the Judge of that court, denied such post-conviction relief on March 11, 1993, resulting in an appeal to the Fifth District of the Court of Appeals of Indiana. That court, speaking through Judge Sharpnack on February 3, 1994, entered an unpublished, 11-page Memorandum Decision in which Judges Barteau and Staton concurred. For the immediate reference of all concerned, the memorandum decision is marked as Appendix "A", attached hereto and incorporated herein. No petition for transfer to the Supreme Court of Indiana was sought

This court has taken the trouble to be sure that the teaching announced by Judge Eschbach in Nutall v. Greer, 764 F.2d 462 (7th Cir.1985), remains the law in this circuit. It does. The teaching of Nutall remains in tact and has been applied to cases emanating from Illinois. See Mason v. Gramley, 9 F.3d 1345 (7th Cir.1993).

A facial examination of the Supreme Court of Indiana opinion at 569 N.E.2d 652, and a facial examination of Chief Judge Sharpnack's Memorandum Decision of February 3, 1994, will indicate with some precision the issues that were brought up both in the Supreme Court of Indiana and in the Court of Appeals of Indiana. In the Supreme Court of Indiana, the sole and only issue related to the imposition of consecutive sentences. In the Court of Appeals of Indiana Fifth District, there appears to be an issue as to the voluntariness of a plea of guilty under such cases as Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and an issue with regard to effective assistance of counsel in the post-conviction proceedings. An issue was also raised in the Indiana Court of Appeals with regard to prosecutorial misconduct, apparently in the post-conviction proceeding. As indicated above, the facts set forth by Chief Judge Sharpnack in this carefully crafted, 11-page opinion are certainly entitled to a presumption of correctness under 28 U.S.C. § 2254(d), and under Jackson. Also, Judge Platt, speaking for the post-conviction court, made written findings which were issued on March 11, 1993.

This petitioner is not here permitted to make a constitutional argument under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See also Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). The Supreme Court in Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), has foreclosed any such collateral review under 28 U.S.C. § 2254 as it relates to state post-conviction proceedings.

With regard to any issue of voluntariness under Boykin, it would appear that Judge Duffin, in taking the pleas of guilty, honored the elements that are constitutionally required. In fact, White v. State, 497 N.E.2d 893 (Ind.1986), certainly requires as much in this regard as does Boykin. In Schiro v. Clark, 754 F.Supp. 646 (N.D.Ind. 1990), aff'd, 963 F.2d 962 (7th Cir.1992), cert. granted, ___ U.S. ___, 113 S.Ct. 2330, 124 L.Ed.2d 243 (1993), aff'd, ___ U.S. ___, 114 S.Ct. 783, 127 L.Ed.2d 47 (1994), this court criticized the practice of either requiring or allowing a judge to testify about prior criminal proceedings in his or her court. Such a practice is certainly not one that is encouraged by this court. However, the post-conviction proceedings before the Elkhart Superior Court had the benefit of the testimony of the very experienced and highly competent state court judge, who took the guilty plea in the first instance. This is not to criticize either of these able and competent judges in Elkhart County, Indiana. It is obvious that both were attempting to be abundantly careful in a case in which the death penalty was in the background.

Certainly, the guilty plea as tested in the post-conviction proceedings passes muster under state law and also passes constitutional muster under § 2254. The defense counsel representing this petitioner involving the murder of a police officer certainly do not have an easy task. Compare Resnover v. Pearson, 754 F.Supp. 1374 (N.D.Ind.1991), aff'd, 965 F.2d 1453 (7th Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 2935, 124 L.Ed.2d 685 (1993).

When one looks at the findings implicit in Chief Judge Sharpnack's opinion in regard to the conduct of this petitioner's defense counsel, and has the advantage of parts of the state record, which has been filed and examined pursuant to Townsend v.

900 F. Supp. 1051

Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), there is no basis for finding that defense counsel was ineffective under the Sixth Amendment of the Constitution of the...