Wickliffe v. Farley

Decision Date10 November 1992
Docket NumberCiv. No. S92-324(S).
PartiesLonnie WICKLIFFE, Petitioner, v. Robert FARLEY, and Indiana Attorney General, Respondents.
CourtU.S. District Court — Northern District of Indiana

Lonnie Wickliffe, pro se.

John T. Roy, Indianapolis, IN, for respondents.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

I. INTRODUCTION

On May 28, 1992, pro se petitioner, Lonnie Wickliffe, also known as Mutee El-Amin, an inmate at the Indiana State Prison, filed a petition seeking relief under 28 U.S.C. § 2254. The return filed by the respondents on August 27, 1992, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982). The state court record has been filed and examined pursuant to the mandates of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

The petitioner has also filed a "Petitioner' Motion for Summary Affirmance, for Acceptance of This Motion In Lieu of a Brief In Opposition to Respondent Return" on September 3, 1992, a "Motion for Certificate Pursuant to § 1292(b) AS PER., Certification" on September 3, 1992, a "Motion for Amendment of Pleadings to Show Jurisdiction and Consolidation of Cases Due to Recent Decision, Determination; Certification AS PER., § 1292(b)" on September 10, 1992, a "Petition for Certification, Scope of Application AS PER, 28 U.S.C. § 1292(b)" on September 11, 1992, and a "Notice of Appeal, and Probable Cause with Certificate to Clerk and" on September 24, 1992. The petitioner states that "this is an appeal from a judgment dismissing a Petition for a writ of habeas corpus," and apparently believes that the court's denial of his "verified petition to transfer, moves action, Supreme Court of Indiana PRO" on July 22, 1992 amounts to a dismissal of this action. The petitioner has not interpreted the posture of this case correctly. An appeal could not be considered until judgment has been entered on this cause.

II. BACKGROUND

This petitioner was tried in the Marion Superior Court, Marion County, Indiana, and was sentenced by the Honorable John B. Wilson, then a Judge of that court, to life imprisonment for murder on October 17, 1975, as a result of a jury verdict. This case has been through a number of judicial processes. Even before the jury verdict, this petitioner filed an original action for a writ of mandate in the Supreme Court of Indiana as reflected in State ex rel. Wickliffe v. Judge of Criminal Court, 263 Ind. 219, 328 N.E.2d 420 (1975). After his conviction, the petitioner took a direct appeal to the Supreme Court of Indiana. See Wickliffe v. State, 424 N.E.2d 1007 (Ind. 1981) ("Wickliffe I"). In his first request for post-conviction relief, the matter was denied by the Honorable Patricia J. Gifford, Judge of the Superior Court of Marion County, Indiana. That denial was affirmed unanimously by the Supreme Court of Indiana in Wickliffe v. State, 523 N.E.2d 1385 (Ind.1988) ("Wickliffe II").

A second petition for post-conviction relief was filed in the state trial court and the same was denied at the trial level. Said denial was affirmed by the Third District of the Court of Appeals of Indiana, speaking through Judge Staton in an unpublished memorandum opinion filed July 18, 1991, 576 N.E.2d 650. For the immediate reference of all concerned, the memorandum decision is marked as Appendix "A", attached hereto and incorporated herein.

III. ANALYSIS

In this proceeding, the petitioner asserts the following specifications or claims in order to justify a grant of a writ of habeas corpus under Title 28 U.S.C. § 2254. They are:

1. Ineffective assistance of trial counsel;
2. Ineffective assistance of appellate counsel;
3. Post-conviction court abuse of discretion;
4. Error by the Supreme Court of Indiana in denying petition for writ of mandamus;
5. Misconduct on behalf of the prosecutor and the state trial judge;
6. Violation of the Sixth Amendment right to confront witnesses;
7. Denial of equal protection and due process by circumstantial evidence;
8. Denial of full right of voir dire in trial.
A. Ineffective Assistance of Trial Counsel

In the petitioner's argument pertaining to the ineffectiveness of counsel, he asserts ten alleged errors:

1. Counsel failed to properly file a motion for a speedy trial.
2. Counsel failed to object to adoptive admissions.
3. Counsel should have filed motions in limine in addition to motions to suppress.
4. Counsel failed to subpoena the codefendant.
5. Counsel did not adequately prepare for trial.
6. Counsel did not file a motion to correct errors.
7. Counsel did not adequately object to the claim of custody of a tape recorded statement.
8. Counsel failed to object to statements which were inadmissible because of a failure to advise Petitioner of his Miranda rights.
9. Counsel waived right to speedy trial.
10. Counsel failed to subpoena important witnesses.

On the issue of ineffectiveness of counsel, the Seventh Circuit in United States v. Grizales, 859 F.2d 442 (7th Cir.1988), indicated:

The Supreme Court has instructed that in evaluating the performance of a trial attorney we are to "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland v. Washington, 466 U.S. 668 at 689, 104 S.Ct. 2052 at 2054 80 L.Ed.2d 674. Appellant "has a heavy burden in proving a claim of ineffectiveness of counsel." Jarrett v. United States, 822 F.2d 1438, 1441 (7th Cir.1987) (citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064). The Supreme Court has further cautioned appellate courts to resist the temptation to "second-guess" the actions of trial counsel after conviction. Id. It is clear that the performance of trial counsel should not be deemed constitutionally deficient merely because of a tactical decision made at trial that in hindsight appears not to have been the wisest choice.
See Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; United States v. Kennedy, 797 F.2d 540, 543 (7th Cir.1986).

See also Fagan v. Washington, 942 F.2d 1155 (7th Cir.1991); D.S.A. v. Circuit Court Branch 1, 942 F.2d 1143 (7th Cir. 1991), cert. denied, ___ U.S. ____, 112 S.Ct. 1196, 117 L.Ed.2d 436 (1992); United States ex rel. Simmons v. Gramley, 915 F.2d 1128 (7th Cir.1990); Page v. United States, 884 F.2d 300 (7th Cir.1989); United States v. Adamo, 882 F.2d 1218 (7th Cir. 1989); United States ex rel. Thomas v. O'Leary, 856 F.2d 1011 (7th Cir.1988); Buelow v. Dickey, 847 F.2d 420 (7th Cir. 1988), cert. denied, 489 U.S. 1032, 109 S.Ct. 1168, 103 L.Ed.2d 227 (1989); United States v. Queen, 847 F.2d 346 (7th Cir. 1988); United States v. Gerrity, 804 F.2d 1330 (7th Cir.1986); United States v. Liefer, 778 F.2d 1236 (7th Cir.1985); Clark v. Duckworth, 770 F.Supp. 1316 (N.D.Ind. 1991).

In light of the aforementioned cases, the specific test in an ineffective assistance of counsel claim mandates a two part evaluation. The petitioner must illustrate that counsel's performance fell below an objective standard of reasonableness. First, the petitioner must specify the particular acts or omissions precipitating the respective claim. To evaluate the performance, the Strickland court explained that a court "must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. After specifying the particular acts or omissions, the petitioner must then explain how counsel's failure to meet a reasonableness standard of performance caused actual prejudice to the petitioner's case. See Sullivan v. Fairman, 819 F.2d 1382, 1390 (7th Cir.1987). In demonstrating the requisite prejudice, the petitioner must illustrate that there is a reasonable probability that the result of the proceeding would have been different without the alleged unprofessional error of counsel. If petitioner can not make this showing, the court need not determine whether the attorney's performance was in fact deficient. See United States v. Slaughter, 900 F.2d 1119, 1124-25 (7th Cir.1990).1

Several of the petitioner's assertions are not supported by the record and can be dismissed by a factual assessment of the record. Petitioner's claims enumerated at numbers two, seven, and eight are incongruent with the facts in the record. Specifically, with regard to adoptive admissions, counsel apparently made the requisite objection whereupon a hearing was held outside the presence of the jury. Additionally, when counsel's objection was overruled, he made a continuing objection to this line of testimony to preserve the record. On the chain of custody issue, counsel objected and after viewing the tapes, he was certain of their authenticity and accuracy. Finally, with regard to the Miranda issue, counsel objected and the trial judge found that the petitioner knowingly and voluntarily waived his rights.

Petitioner's enumerated assertions at four, five, and ten concern the calling of certain witnesses. For example, among the complaints of the deficiencies of this petitioner's trial counsel are the failure to subpoena a co-defendant, namely Edmund Powell. It is highly doubtful that having Edmund Powell testify would have enured to the benefit of this petitioner in his trial, and certainly that is a strategic decision that should not be gainsaid here. The Court of Appeals in this circuit has clearly established; a defendant, once convicted, claiming ineffective assistance of counsel because his lawyer did not call a certain witness, has some burden to establish that that witness would have in some way changed the outcome of the trial. Specifically, in order for counsel's failure to call witnesses to equate with an inference of ineffective representation, the petitioner must illustrate that the witness would have provided exculpatory testimony. United States v. Muehlbauer, 892 F.2d 664, 669 (7th Cir.1990). Furthermore, as indicated in United States ex...

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