Ziebell v. Superintendent

• Decision Date: 24 May 2021
• Docket Number: CAUSE NO. 3:12-CV-774-MGG
• Parties: RUMERO ZIEBELL, Petitioner, v. SUPERINTENDENT, Respondent.
• Court: U.S. District Court — Northern District of Indiana

RUMERO ZIEBELL, Petitioner, v. SUPERINTENDENT, Respondent.

CAUSE NO. 3:12-CV-774-MGG

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION

May 24, 2021

OPINION AND ORDER

Rumero Ziebell, a prisoner without a lawyer, filed a habeas corpus petition to challenge his convictions for murder, conspiracy to commit murder, criminal confinement, and battery, under Case No. 82D02-109-CF-652. Following a jury trial, on May 31, 2002, the Vanderburgh Superior Court sentenced him to one hundred twenty-three years of incarceration.

FACTUAL BACKGROUND

In deciding this habeas petition, the court must presume the facts set forth by the state courts are correct unless they are rebutted with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The Court of Appeals of Indiana summarized the evidence presented at trial:

On March 19, 2001, the State charged Ziebell with three counts of dealing in methamphetamine and one count of dealing in marijuana. Ziebell thought that a "snitch" named Mackey was involved in the charges. Transcript at 116. In fact, Mackey was not the confidential informant. However, in late May of 2001, Ziebell told Al Gross and Dean Everett that he wanted to kill Mackey and offered Gross or Everett $1500 to do so. Everett agreed to kill Mackey.

On May 27, 2001, Everett and Ronald Mackey were driving in Mackey's van. The evidence at trial demonstrated that Ziebell, Everett, and Gross actually intended to kill Dallas Mackey, Ronald's brother, and mistook Ronald for Dallas. Ziebell and Gross followed the van. After stopping, Mackey was removed from the van and severely beaten. Mackey was then put back into the van, and Everett drove him to Kentucky. Everett then shot Mackey in the head with Ziebell's shotgun. Ziebell and Gross drove Everett back to Indiana. Ziebell admitted that he participated in Mackey's murder.

The State charged Ziebell with murder, conspiracy to commit murder, a class A felony, confinement, a class B felony, battery, a class C felony, and being an habitual offender. During the jury trial, the trial court admitted photographs of the crime scene and Mackey's injuries over Ziebell's objections. The trial court also admitted evidence of Ziebell's prior drug dealing over his objections and refused to grant a mistrial based upon the admission of the prior drug dealing evidence. However, the trial court admonished the jury to consider the evidence of Ziebell's drug dealing only as to motive. The jury found Ziebell guilty of murder, conspiracy to commit murder, confinement, and battery.

* * *

The jury found Ziebell guilty of being an habitual offender.

The trial court sentenced Ziebell to: (1) ninety-five years in the Indiana Department of Correction for the murder conviction enhanced by Ziebell's status as an habitual offender; (2) fifty years for the conspiracy to commit murder conviction to run concurrent with the sentence for the murder conviction; (3) twenty years for the confinement conviction to run consecutive to the sentence for the murder conviction; and (4) eight years for the battery conviction to run consecutive to the sentence for the confinement conviction. Thus, Ziebell received an aggregate sentence of 123 years in the Indiana Department of Correction.

ECF 7-5 at 3-5; Ziebell v. State, 788 N.E.2d 902, 906-07 (Ind. App. 2003).

PROCEDURAL DEFAULT

Before considering the merits of a habeas petition, the court must ensure that the petitioner has exhausted all available remedies in state court. 28 U.S.C. § 2254(b)(1)(A);Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). To avoid procedural default, a habeas petitioner must fully and fairly present his federal claims to the state courts. Boyko v. Parke, 259 F.3d 781, 788 (7th Cir. 2001). Fair presentment "does not require a hypertechnical congruence between the claims made in the federal and state courts; it merely requires that the factual and legal substance remain the same." Anderson v. Brevik, 471 F.3d 811, 814-15 (7th Cir. 2006) (citing Boyko, 259 F.3d at 788). It does, however, require "the petitioner to assert his federal claim through one complete round of state-court review, either on direct appeal of his conviction or in post-conviction proceedings." Lewis, 390 F.3d at 1025 (internal quotations and citations omitted). "This means that the petitioner must raise the issue at each and every level in the state court system, including levels at which review is discretionary rather than mandatory." Id. "A habeas petitioner who has exhausted his state court remedies without properly asserting his federal claim at each level of state court review has procedurally defaulted that claim." Id.

In the petition, Ziebell asserts forty grounds for habeas relief, including claims or trial court error, ineffective assistance of counsel, and prosecutorial misconduct. By contrast, he included only five of these grounds in his petition to transfer to the Indiana Supreme Court at the post-conviction stage, and, on direct appeal, he declined to file petition to transfer. ECF 7-10. Additionally, the Court of Appeals of Indiana found that Ziebell had waived one of these five grounds, the claim that the prosecution improperly suggested that Ziebell intended to kill the victim rather than the victim's brother, by failing to raise it on direct appeal. ECF 7-9 at 5-6. Therefore, the court will consider themerits of the claims that he had a conflict of interest with respect to appellate counsel and that trial counsel provided ineffective assistance by failing to call Vedelski Miller, by failing to cross-examine Edward Chumley, and by failing to object to hearsay statement during the testimony of Phyllis Gross. The remaining claims are procedurally defaulted.

Ziebell asserts that ineffective assistance of appellate counsel caused him to waive the claim that the prosecution improperly suggested that Ziebell intended to kill the victim rather than the victim's brother. A habeas petitioner can overcome a procedural default by showing both cause for failing to abide by state procedural rules and a resulting prejudice from that failure. Wainwright v. Sykes, 433 U.S. 72, 90 (1977); Wrinkles v. Buss, 537 F.3d 804, 812 (7th Cir. 2008). Cause sufficient to excuse procedural default is defined as "some objective factor external to the defense" which prevented a petitioner from pursuing his constitutional claim in state court. Murray v. Carrier, 477 U.S. 478, 492 (1986). "Meritorious claims of ineffective assistance can excuse a procedural default." Richardson v. Lemke, 745 F.3d 258, 272 (7th Cir. 2014). "But those claims must themselves be preserved; in order to use the independent constitutional claims of ineffective assistance of trial and appellate counsel as cause to excuse a procedural default, a petitioner is required to raise the claims through one full round of state court review, or face procedural default of those claims as well." Id. This assertion of cause-and-prejudice and the underlying claim of prosecutorial misconduct are closely related to Ziebell's fairly presented claims, so the court will discuss these issue at greater length below.

STANDARD OF REVIEW

"Federal habeas review . . . exists as a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal." Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (quotations and citation omitted).

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

[This] standard is intentionally difficult to meet. We have explained that clearly established Federal law for purposes of §2254(d)(1) includes only the holdings, as opposed to the dicta, of this Court's decisions. And an unreasonable application of those holdings must be objectively unreasonable, not merely wrong; even clear error will not suffice. To satisfy this high bar, a habeas petitioner is required to show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.

Woods, 135 S. Ct. at 1376 (quotation marks and citations omitted). Criminal defendants are entitled to a fair trial but not a perfect one. Rose v. Clark, 478 U.S. 570, 579 (1986). To warrant relief, a state court's decision must be more than incorrect or erroneous; it must be objectively unreasonable. Wiggins v. Smith, 539 U.S. 510, 520 (2003). "A state court's determination that a claim lacks merit precludes federal habeas relief so long asfairminded jurists could disagree on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) (quotation marks omitted).

ANALYSIS

Prosecutorial Misconduct

Ziebell's arguments during post-conviction proceedings in State court and in this habeas case focus on a complicated but coherent theory. According to Ziebell, the information obtained by the prosecution indicated that Ziebell believed that the victim's brother was the confidential informant; that Ziebell intended to murder the confidential informant; and that the victim was murdered as a result of mistaken identity. However, the prosecution opted to conceal this nuance from their case and coached witnesses to craft their testimony to also conceal this nuance. Similarly, trial counsel declined to call witnesses, including Vedelski Miller, that would have...