Willis v. Cohn, IP 88-437-C.
| Decision Date | 26 September 1990 |
| Docket Number | No. IP 88-437-C.,IP 88-437-C. |
| Citation | 747 F. Supp. 1305 |
| Parties | Kenneth L. WILLIS, Petitioner, v. Edward COHN, et al., Respondents. |
| Court | U.S. District Court — Southern District of Indiana |
James B. Mitchell, Jr., Indianapolis, Ind., for petitioner.
David A. Nowak, Deputy Atty. Gen., Indianapolis, Ind., for respondents.
ENTRY
This cause comes before the Court on a petition for writ of habeas corpus and other related motions. Before discussing the numerous issues presented by this petition, the Court finds it necessary to set forth the factual and procedural background of this case.
This action involves a petition for writ of habeas corpus filed June 14, 1988, by petitioner Kenneth L. Willis pursuant to 28 U.S.C. § 2254. Due to the length of time which has transpired since this action initially was filed, in addition to the numerous motions and rulings made since that date, the current state of the record in this cause is somewhat clouded.1 Accordingly, the Court will review the chronological development of this case in some detail so as to clarify the record.
This action arises from Willis' arrest and conviction in connection with the March 16, 1984, armed robbery of Merchants National Bank in Speedway, Indiana. Following Willis' arrest, the state trial court appointed attorney Lawrence O. Sells to represent Willis.2 On February 9, 1985, a jury convicted Willis of robbery and conspiracy to commit robbery of Merchants National Bank. On February 27, 1985, Willis received a 40-year, executed sentence.
On April 26, 1985, attorney Sells filed a motion to correct errors, alleging six separate errors occurred during Willis' trial, including "all errors alleged in defendant's pro se motions filed as a result of his convictions herein." This motion was overruled by the trial judge on April 29, 1985.
Attorney William L. Soards was appointed by the trial court to represent Willis on direct appeal. As stated by the Indiana Supreme Court, Willis v. State, 510 N.E.2d 1354, 1355 (Ind.1987), Willis presented the following issues on direct appeal:
The "five other errors" presented in Willis' pro se motion to correct errors were described on appeal as follows:
Id. at 1358-59. On July 28, 1987, the Indiana Supreme Court unanimously affirmed Willis' conviction in all respects. Id. at 1360. Rehearing was denied, as was Willis' petition for writ of certioari to the United States Supreme Court. 484 U.S. 1015, 108 S.Ct. 721, 98 L.Ed.2d 670 (1988).
Finding these courts unwilling to grant him relief, Willis filed this federal habeas corpus action on June 14, 1988. The State responded June 29, 1988, by filing a motion to dismiss, claiming Willis only partially exhausted the issues raised in his habeas petition, thus requiring dismissal of the "mixed" petition per Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). On July 12, 1988, Willis filed his reply to the motion to dismiss, and on August 1, 1989, Willis filed a supplemental reply to the motion to dismiss.
Willis' habeas petition, as originally filed, presented the following four grounds for relief:
Pursuant to an Entry of August 23, 1989, this Court held that Willis' challenge to the videotape is barred by procedural default, because Willis' trial counsel failed to object to the videotape's admission into evidence. Willis attempted to use ineffective assistance of counsel as cause for his procedural default. However, citing Murray v. Carrier, 477 U.S. 478, 488-89, 106 S.Ct. 2639, 2645-46, 91 L.Ed.2d 397 (1986), the Court held that ineffective assistance of counsel cannot be used as cause for a procedural default until the ineffective counsel claim is presented to the state court for review. Because Willis had not (nor has he yet) presented this claim to the state court for review, this Court found that the ineffective assistance of counsel claim could not be used to establish cause for Willis' procedural default.
Nevertheless, the Court went on to examine whether Willis' challenge fell within the narrow "manifest injustice" exception to the cause and prejudice rule. See Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 2667, 91 L.Ed.2d 434 (1986). The Court determined that because of independent identification testimony, introduction of the videotape did not "skew the trial process" to the point that the manifest injustice exception applied to Willis' procedural default (Entry at 13-14).
Accordingly, pursuant to Willis' motion to withdraw unexhausted issues, the Court dismissed ground four from Willis' petition. The Court further found that Willis exhausted his state court remedies as to ground three. (The State did not dispute that issues one and two had been exhausted.) Therefore, the Court denied the State's motion to dismiss, and Ordered the State to file an answer addressing the remaining three grounds of Willis' petition.3
On October 20, 1989, the State filed the requested answer, asserting in part that Willis' habeas petition should be dismissed pursuant to the doctrine of procedural default. Attorney James B. Mitchell, appointed to represent Willis in this habeas proceeding, filed a memorandum opposing the State's answer April 3, 1990. Subsequently on April 6, 1990, the State filed its response. Willis then filed a pro se "Motion to Dismiss Respondent's Claim of Procedural Default" on May 8, 1990.
As a final twist to this procedural morass, in January of 1990, Willis filed a PCR petition in Marion Superior Court. In an Entry dated March 1, 1990, this Court noted that Willis' PCR petition appeared to contain issues similar to those raised in this habeas proceeding. This Court expressed to attorney Mitchell concern regarding the possible duplication of issues. In a March 19, 1990, letter to this Court, Willis stated that he was aware of the Court's concern regarding the possible duplication of issues between the two proceedings, but stressed that scrutiny of the PCR petition would reveal that there is in fact no duplication of issues.
Attorney Richard Culley represents Willis in his PCR proceeding. According to state court records, on March 22, 1990, Culley requested a continuance of the PCR proceeding pending resolution of Willis' petition for habeas corpus. Culley confirmed this fact with this Court.
Having established this factual and procedural background, the Court now turns to the issues raised in this habeas corpus proceeding. Willis' habeas petition, as amended by this Court's Entry of August 23, 1989, presents the following three grounds for relief:
Each of these grounds relates to certain statements made by Willis following his arrest. The record in this case reveals that an officer from the drug investigation unit of the Marion County Sheriff's Department choked Willis when Willis told the officer that the money taken in the robbery had been used to buy drugs, which had been consumed. The Indiana Supreme Court made this factual finding, and in this context these facts are presumed correct. 28 U.S.C. § 2254(d); Patton v. Yount, 467 U.S. 1025, 1037 n. 12, 104 S.Ct. 2885, 2892 n. 12, 81 L.Ed.2d 847 (1984); Sumner v. Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 768-69, 66 L.Ed.2d 722 (1981).
The State does not dispute that this choking incident occurred (See Respondent's Memorandum in Support of Answer at 10). Instead, the State argues that consideration of these grounds for relief is barred because of the doctrine of procedural default, because Willis failed to object at trial to the admission of these statement. As noted herein, this Court briefly discussed the doctrine of procedural default in its Entry of August 23, 1989, in relation to ground four of Willis' petition. Resolution of Willis' habeas petition thus requires this Court to revisit this area of the law.
The doctrine of procedural default, much like the exhaustion doctrine first set forth in Ex Parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886), attempts to balance comity and constitutional considerations. Pursuant to this doctrine, first adopted in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), a habeas petitioners' violation of state procedural rules generally prevents the petitioner from...
To continue reading
Request your trial
-
Resnover v. Pearson
...and should be procedurally defaulted under the above analysis of Harris v. Reed, and Teague v. Lane. Most recently in Willis v. Cohn, 747 F.Supp. 1305 (S.D.Ind.1990), Judge McKinney carefully delineated the teachings of Harris and Teague and their The court will now proceed to a considerati......
- Anna Ready Mix, Inc. v. NE Pierson Const. Co.
-
Willis v. State
...v. State (1987), Ind., 510 N.E.2d 1354, cert. denied, 484 U.S. 1015, 108 S.Ct. 721, 98 L.Ed.2d 670, habeas corpus dismissed, (S.D.Ind.1990), 747 F.Supp. 1305. Willis filed his pro se motion for a modification of sentence on February 28, 1989. The trial court denied this motion ruling that W......