Wickliffe v. Duckworth

Decision Date16 November 1983
Docket NumberNo. S 83-207.,S 83-207.
Citation574 F. Supp. 979
PartiesLonnie WICKLIFFE a/k/a Mutee El-Amin, Petitioner, v. Jack R. DUCKWORTH, Respondent.
CourtU.S. District Court — Northern District of Indiana

COPYRIGHT MATERIAL OMITTED

Lonnie Wickliffe, pro se.

Sabra Weliever, Deputy Atty. Gen., Indianapolis, Ind., for respondent.

MEMORANDUM AND ORDER

SHARP, Chief Judge.

This case is presently before the court on a petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. In accord with the dictates of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the complete state court record has been filed with, and carefully examined by, this court. Both sides having briefed their respective positions, this matter is now ripe for ruling.

The petitioner, an inmate at the Indiana State Prison in Michigan City, Indiana, was convicted of first degree murder in an Indiana state court jury trial and received a sentence of life imprisonment. On direct appeal to the Supreme Court of Indiana, petitioner's conviction was unanimously affirmed. Wickliffe v. State, Ind., 424 N.E.2d 1007 (1981). Petitioner now seeks federal habeas review of his conviction.

In his application for a writ of habeas corpus, petitioner raises the following four issues: (1) improper admission of hearsay evidence at his trial; (2) insufficiency of the evidence at his trial; (3) ineffective assistance of trial counsel as a result of unduly restrictive voir dire by the trial court; and, (4) totality of the circumstances.1 It appears that the petitioner has exhausted his available state court remedies as to these issues.2 28 U.S.C. § 2254(b), (c); Anderson v. Harless, ___ U.S. ___, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982); Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Duckworth v. Serrano, 454 U.S. 1, 102 S.Ct. 18, 70 L.Ed.2d 1 (1981). However, and before proceeding to an examination of each of the above issues, two matters must first be addressed: petitioner's motion for appointment of counsel, and his request for an evidentiary hearing.3

There is no constitutional right to appointed counsel in a civil case. Thomas v. Pate, 493 F.2d 151 (7th Cir.), cert. denied, 419 U.S. 879, 95 S.Ct. 143, 42 L.Ed.2d 119 (1974). Rather, the decision whether to appoint counsel in a case rests within the sound discretion of the court. McBride v. Soos, 594 F.2d 610 (7th Cir.1979). When considering motions for appointed counsel, this court is guided by the standards set forth in Maclin v. Freake, 650 F.2d 885 (7th Cir.1981). These standards include, but are not necessarily limited to, such considerations as the legal and factual merits of the claim presented, the degree of complexity of the issues involved, and the movant's apparent physical and intellectual abilities to prosecute the action. See also, Merritt v. Faulkner, 697 F.2d 761 (7th Cir.1983); McKeever v. Israel, 689 F.2d 1315 (7th Cir.1982). This court is also mindful of a point not often made in these matters, and that is that the operative word in 28 U.S.C. § 1915(d) is "request", not "appoint", i.e., "the Court may request an attorney to represent any such person unable to employ counsel." See David Ashley Bagwell, "Procedural Aspects of Prisoner § 1983 Cases in the Fifth and Eleventh Circuits," 95 F.R.D. 435, 443 (1982).

Reviewing the petition in light of the above, this court concludes that petitioner is not entitled to appointed counsel. The issues raised herein have already been addressed by the Supreme Court of Indiana, and can be carefully examined by this court as well by virtue of the state court record now before it. As for the merits of petitioner's claims, each issue raised has been the subject of numerous Supreme Court and Seventh Circuit decisions. Thus, whatever the factual aspects of petitioner's claims, the legal aspects thereof can be subjected to carefully delineated guidelines, e.g., the appropriate standard for determining a counsel's effectiveness at trial, or the litmus test for ascertaining whether the evidence adduced at trial was sufficient to sustain a conviction under 28 U.S.C. § 2254.

Finally, and perhaps most critically, this court notes that, irrespective of any physical or mental impairments the petitioner may suffer from,4 he is being very ably represented by Joseph M. Kalady, a fellow inmate and lay advocate. Unlike most prison legal assistants, Mr. Kalady has considerable experience in prosecuting inmate petitions, both under 42 U.S.C. § 1983 and 28 U.S.C. § 2254, in federal court. He has appeared before this court on behalf of fellow inmates on numerous occasions. It is this court's understanding that Mr. Kalady holds a Master's degree in philosophy from DePaul University, and worked for two Chicago Loop law firms prior to his incarceration. Mr. Kalady has been representing the petitioner from the inception of this case.

Accordingly, based on the above considerations and acting within its discretion, this court now DENIES petitioner's request for appointed counsel. Wilson v. Duckworth, 716 F.2d 415 (7th Cir.1983) (upholding, inter alia, district court's denial of appointed counsel in § 2254 petition); Childs v. Duckworth, 705 F.2d 915 (7th Cir.1983) (same in § 1983 action).5

Petitioner also asks this court to hold an evidentiary hearing "on the merits of this petition." The criteria against which such requests must be measured are set forth at 28 U.S.C. § 2254(d)6. Essentially, that statute declares that evidentiary hearings in federal habeas proceedings are necessary only when the petitioner establishes, or the respondent admits, or it "otherwise appears", that the State court's determinations of factual questions evidenced by written findings lack sufficient indicia of reliability. As this court said in Rodriguez v. Broglin, 563 F.Supp. 661 (N.D.Ind.1983):

It is true that mixed determinations of law and fact are not entitled to a presumption of correctness under 28 U.S.C. § 2254(d). Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). However, where the petitioner received a full and fair hearing on the factual issue(s) as represented by written opinion, an evidentiary hearing is unnecessary. Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); United States ex rel. Ross v. Franzen, 668 F.2d 933 (7th Cir.1982). Thus, absent a showing that the state proceedings were less than full and fair, a federal habeas court is required to accept factual determinations of the state court(s) if those findings are supported by the record. Holleman v. Duckworth, 700 F.2d 391 (7th Cir.1983).

Rodriguez, supra, 563 F.Supp. at 664.

Applying the above standards to the claims set forth in this petition, it is apparent that an evidentiary hearing is unnecessary here. As noted above, the issues presented can be squarely addressed from the state court record. Further, the Supreme Court of Indiana has already addressed all but the "totality of circumstances" issue raised here. Finally, this court notes that none of the eight listed exceptions to § 2254(d) are present in this action. Accordingly, petitioner's request for an evidentiary hearing is hereby DENIED.

I.

Petitioner contends that his right to confront witnesses was violated by the admission of allegedly hearsay testimony against him. In particular he complains of the testimony of Richard Carter that Edmund Powell stated, in petitioner's presence, he loved petitioner because he was "coldhearted" (R. 254) and petitioner made him "kill that nigger" (R. 254), he "dug the shit" out of the way petitioner "stabbed that nigger" (R. 254), he and petitioner went over to a house by Ayr-Way, pulled somebody's door off, went in the house and Joe (the victim) was running and they caught him and started beating him, sawing on him, and cutting him, (R. 255, 256), he (Powell) pulled back on Joe's hair and shot him in the head (R. 256) while petitioner was cutting, stabbing and beating the victim. (R. 257). Petitioner also complains of the testimony of Charles Armstrong that Powell said petitioner made him "kill a mother fucker" (R. 316, 317), they tore a door off the hinges and went inside the house and "beat up a guy," (R. 319), he "dug the shit" out of the way petitioner hit the guy with a bottle and stabbed him (R. 320, 324, 327), and they pulled back his head, put the gun up to it and "his head exploded" (R. 331). Ronald Sides also testified that Powell said he "dug" the way he had "killed that nigger" and he "dug" the way petitioner beat and stabbed Joe. (R. 361, 363). Petitioner contends that this evidence was hearsay and he was denied his right to confront and cross-examine Edmund Powell.

Richard Carter testified that Powell was talking to petitioner at the time Powell made the statements about which Carter testified. They clapped hands (R. 258) and petitioner did not deny any of Powell's statements; rather, he nodded his head and grinned. (R. 254). Armstrong testified that in the course of the conversation he related, Powell and petitioner "gave each other five" and petitioner was laughing. (R. 324). Sides testified that Powell and petitioner "gave each other five," they were both laughing, and every time Powell would say something petitioner would shake his head in assent. (R. 36).

The record is clear that petitioner adopted the admissions made by Edmund Powell regarding the murder of Joseph Copper. He was present at the time the statements were made, he heard the statements and he neither denied, contradicted nor objected to them. Furthermore, he demonstrated his agreement by laughing, slapping hands with Powell and nodding. Under these circumstances, the testimony of Carter, Armstrong and Sides regarding Powell's statements was admissible.

For example, Rule 801(d)(2)(B), Federal Rules of Evidence, provides that "A statement is not hearsay if ... the statement is offered against a party and is ... a statement of which he has manifested his adoption or...

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