Rowley v. Superintendent

Filing 12

OPINION AND ORDER: The Court DENIES habeas corpus relief; DENIES a certificate of appealability pursuant to Section 2254 Habeas Corpus Rule 11; DENIES leave to appeal in forma pauperis pursuant to 28 U.S.C. § 1915(a)(3); and DIRECTS the clerk to enter judgment in favor of the Respondent and against the Petitioner. Signed by Judge Rudy Lozano on 8/30/2017. (Copy mailed to pro se party)(lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
JOEL L. ROWLEY,
Petitioner,
vs.
SUPERINTENDENT,
Respondent.

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CAUSE NO. 2:15-CV-343

OPINION AND ORDER
This matter is before the Court on the 28 U.S.C. § 2254 Habeas
Corpus Petition by a Person in State Custody, filed by Joel L.
Rowley, a pro se prisoner, on September 22, 2015. For the reasons
set forth below, the Court DENIES habeas corpus relief; DENIES a
certificate of appealability pursuant to Section 2254 Habeas Corpus
Rule 11; DENIES leave to appeal in forma pauperis pursuant to 28
U.S.C. § 1915(a)(3); and DIRECTS the clerk to enter judgment in
favor of the Respondent and against the Petitioner.

BACKGROUND
Joel L. Rowley, a pro se prisoner, filed a habeas corpus
petition challenging his conviction and 75 year sentence for murder
by the Marion County Superior Court on January 19, 2011, under
cause number 49G02-1003-MR-17433. ECF 3 at 1. In deciding this
habeas petition, a court must presume the facts set forth by the

state courts are correct. 28 U.S.C. § 2254(e)(1). It is Rowley’s
burden

to

rebut

this

presumption

with

clear

and

convincing

evidence. Id. On direct appeal, the Indiana Court of Appeals set
forth the facts surrounding Rowley’s offense as follows:
In the early morning hours of March 5, 2010, Rowley
and some of his acquaintances were in involved in a bar
fight in Indianapolis. Rowley left the altercation and
went to his van, but instead of entering his van he went
back into the fray and shot Leon Pepper in the back.
Rowley then walked to his van and drove away. Pepper died
before emergency personnel could arrive.
Rowley turned himself in to authorities later that
day, and the State charged him with murder on March 8.
Following the presentation of evidence at his ensuing
jury trial, Rowley tendered the following jury
instruction on self-defense:
A. A person is justified in using
reasonable force against another person to
protect himself or a third person from what he
reasonably believes to be the imminent use of
unlawful force. However, a person is justified
in using deadly force only if he reasonably
believes that that force is necessary to
prevent serious bodily injury to himself or a
third person or the commission of a forcible
felony. No person in this State shall be
placed in legal jeopardy of any kind
whatsoever for protecting himself, his family
or a third person by reasonable means
necessary.
B. Notwithstanding the above a person is
not justified in using force if: 1. the person
is committing or is escaping after the
commission of a crime [;]
2. the person provokes unlawful action by
another person with intent to cause bodily
injury to the other person; or
3. the person has entered into combat
with another person or is the initial
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aggressor unless the person withdraws from the
encounter and communicates to the other person
the intent to do so and the other person
nevertheless
continues
or
threatens
to
continue unlawful action[.]
The State has the burden of disproving this
defense beyond a reasonable doubt.
Appellant’s App. at 170. The trial court accepted
Rowley’s tendered instruction as the court’s final
instruction number four. Id. at 156. The jury found
Rowley guilty as charged and the trial court entered its
judgment of conviction and sentence accordingly.
Rowley v. State, Cause No. 49A04-1102-CR-34 (Ind. Ct. App. August
26, 2011); ECF 8-3.
After his direct and post-conviction appeals concluded, Rowley
filed this federal habeas petition challenging his conviction and
sentence. Rowley argues that: (1) trial counsel was ineffective
because he did not offer a self-defense jury instruction that
highlighted the defendant’s perspective; (2) trial counsel was
ineffective for failing to interview Officer Hannon; (3) trial
counsel was ineffective for failing to advise Rowley to turn in the
gun that was used in the shooting to police; (4) appellate counsel
was

ineffective

for

failing

to

challenge

the

trial

court’s

exclusion of the victim’s reputation for carrying a gun; (5) the
post-conviction court violated his due process rights by not ruling
on one of his claims; (6) the Indiana Court of Appeals violated his
due process rights by issuing conflicting opinions; and (7) the
Indiana Court of Appeals violated Rowley’s due process rights when
it determined that Officer Hannon was credible. ECF 3 at 3-5.
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DISCUSSION
A. Standard
“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, 575 U.S. __, __; 135 S.Ct. 1372, 1376 (2015) (quotation
marks 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).

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B. Procedural Default
Before considering the merits of a habeas petition, a federal
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 requires the petitioner to
give the state courts a meaningful opportunity to pass upon the
substance of the claims later presented in federal court.” Id.
(quoting Rodriguez v. Scillia , 193 F.3d 913, 916 (7th Cir. 1999)).
In the interests of federal-state comity, both the operative facts
and controlling law must be put before the state courts. Ellsworth
v. Levenhagen, 248 F.3d 634, 639 (7th Cir. 2001) (citing Wilson v.
Briley, 243 F.3d 325, 327 (7th Cir. 2001);

Boyko, 259 F.3d at

788).
The Respondent is correct that in Rowley’s direct appeal
transfer petition, he raised only the issue of whether the trial
court erred in instructing the jury. ECF 8-6. It is also true that
in Rowley’s post-conviction transfer petition, he focused almost
exclusively on violations of Indiana law. ECF 8-11. “[T]he task of
the habeas court . . . is assessing, in concrete, practical terms,
whether the state court was sufficiently alerted to the federal
constitutional nature of the issue to permit it to resolve that

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issue on a federal basis.” Ellsworth v. Levenhagen, 248 F.3d 634,
639

(7th

Cir.

2001)

(quotation

marks

and

internal

citations

omitted). 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 (citing Boyko, 259
F.3d at 788). There are four (4) factors to consider in determining
whether a federal claim was fairly presented to the state courts:
“(1) whether the petitioner relied on federal cases that engage in
a constitutional analysis; (2) whether the petitioner relied on
state cases which apply a constitutional analysis to similar facts;
(3) whether the petitioner framed the claim in terms so particular
as to call to mind a specific constitutional right; and (4) whether
the petitioner alleged a pattern of facts that is well within the
mainstream of constitutional litigation.” Id. at 815.
Upon review of the petitions for transfer, it is clear that
Rowley only passingly mentioned various constitutional provisions.
He did not cite to any federal cases, and only one of the state
cases he cited involved a federal constitutional claim. Moreover,
in his post-conviction petition to transfer, the only pattern of
facts

that

were

alleged

to

be

within

the

mainstream

of

constitutional litigation were his claims of ineffective assistance
of counsel. There is no indication that he pursued the due process
claims in state court that he is pursuing here. Thus, it is clear

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that Rowley’s due process claims in grounds 5, 6 and 7 of his
habeas petition are procedurally defaulted.
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), cert. denied, 129 S. Ct. 2382 (2009). 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). Here, Rowley does not even attempt to argue
cause or prejudice. A habeas petitioner can also overcome a
procedural default by establishing that the court’s refusal to
consider

a

defaulted

claim

would

result

in

a

fundamental

miscarriage of justice. House v. Bell, 547 U.S. 518, 536 (2006). To
meet

this

exception,

the

petitioner

must

establish

that

“a

constitutional violation has resulted in the conviction of one who
is actually innocent of the crime.” Schlup v. Delo, 513 U.S. 298,
324 (1995). Rowley does not argue that any such fundamental
miscarriage of justice would occur.
Because Rowley cannot show cause for his failure to fairly
present these claims in one complete round of state review, or that
any fundamental miscarriage of justice would occur if the claims
are not addressed, these claims are procedurally defaulted and that

-7-

default is not excused. Nevertheless, 28 U.S.C. §2254(b)(2) allows
a court to deny a petition on the merits even if the petitioner
failed to exhaust he State court remedies. This Court chooses to do
so here and will address each of his seven claims below.
C. Merits of Rowley’s Petition
I. Ground One
Rowley contends that he received ineffective assistance of
counsel

based

on

trial

counsel’s

tendered

self

defense

jury

instruction. Rowley claims his trial counsel should have tendered
one that highlighted the requirement that when evaluating a self
defense claim the evidence should be viewed from the standpoint of
the

defendant.

At

the

post-conviction

hearing,

trial

counsel

testified
The theory of defense was that the victim was adverse to
Mr. Rowley and his friends and that he was getting up, he
reached for his pants [during a fight] and [Rowley]
believe he was pulling a gun out and so he shot him in
the back to defend the other person [Rowley] believed he
was about to shoot.
(PCR Tr. at 9.) Trial counsel offered his self defense jury
instruction to emphasize the “defense of another.” (Id. at 8-9.) He
attempted to highlight the subjective components during closing
argument. Id. at 11.
Under the Sixth Amendment, a criminal defendant is entitled to
“effective assistance of counsel—that is, representation that does
not fall below an objective standard of reasonableness in light of
prevailing professional norms.” Bobby v. Van Hook, 558 U.S. 4, 16
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(2009). To prevail on such a claim, the petitioner must show that
counsel’s

performance

was

deficient

and

that

the

deficient

performance prejudiced him. Strickland v. Washington, 466 U.S. 668
(1984). The test for prejudice is whether there was a reasonable
probability that “but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694. A
reasonable probability is a probability “sufficient to undermine
confidence in the outcome.” Id. at 693. In assessing prejudice
under Strickland “[t]he likelihood of a different result must be
substantial, not just conceivable.” Harrington v. Richter, 562 U.S.
86, 112 (2011). Where it is expedient to do so, a court may resolve
an ineffective assistance claim solely on the prejudice prong; in
other words, where the petitioner cannot establish prejudice, there
is no need to consider in detail whether counsel’s performance was
constitutionally deficient. See Strickland, 466 U.S. at 697; Watson
v. Anglin, 560 F.3d 687, 689-90 (7th Cir. 2009).
On habeas review, [the] inquiry is now whether the state court
unreasonably applied Strickland . . . .” McNary v. Lemke, 708 F.3d
905, 914 (7th Cir. 2013). In addition, “because the Strickland
standard is a general standard, a state court has even more
latitude to reasonably determine that a defendant has not satisfied
that standard.” Id. (citing Youngblood v. Alvarado, 541 U.S. 652,
664 (2004)). This creates a “doubly deferential” standard of review
here. Id. “Given this high standard, even ‘egregious’ failures of
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counsel do not always warrant relief.” McNary, 708 F.3d at 914.
The Indiana Court of Appeals cited the Strickland standard
and, upon examining the record, found that
Here, the self defense instruction . . . essentially
tracks the pertinent language of the self defense
statute. Ind. Code § 35-41-3-2 (2006). In Washington v.
State, 997 N.E.2d 342, 349 (Ind. 2013), the Supreme Court
emphasized the holding that the “self-defense statute
requires both a subjective belief that force was
necessary to prevent serious bodily injury and that a
reasonable person under the circumstances would have such
an actual belief.” Therefore, self defense comprises both
a subjective and objective component. In considering
“standpoint of the defendant” language, the Supreme Court
has
emphasized
that
“the
jury
should
examine
circumstances as they appeared to the defendant. But,
while the defendant’s own account is critically relevant,
the stand is still the reasonableness of the defendant.”
Id. “Focusing on the ‘standpoint of the defendant’ means
at least two things: (1) the trier of fact must consider
the circumstances as they appeared to the defendant,
rather than to the victim or anyone else; and (2) the
defendant’s own account, although not required to be
believed, is critically relevant testimony.” Id. at 350.
***
Further, the instruction that was given did instruct the
jury that the standard to be used was what Rowley
reasonably believed at the time of the infliction of
injury. The post-conviction noted that the tendered
instruction was nearly identical to the instruction of
the trial court intended to give, but did not because
Rowley’s was better and more appropriate. This was so
because Rowley’s instruction added more language
regarding the protection of third persons, which was at
the heard of Rowley’s defense.
Rowley’s trial counsel testified that he believed that
during closing argument he did highlight the “standpoint
of the defendant.” The record reflects that trial counsel
argued to the jury that Rowley acted reasonably and was
justified in shooting the victim because he believed the
victim was going to shoot his friend. Therefore, trial
counsel did effectively inform the jury that the proper
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perspective from which to evaluate the evidence was the
defendant’s viewpoint. Rowley’s counsel correctly argued
the law to the jury. See id. at 348-49. Rowley has not
met his burden of establishing that he was denied
effective assistance of counsel.
State v. Rowley, Case No. 49A05-1408-PC-413 (Ind. Ct. App. April
20, 2015); ECF 8-9.
Based on the record, the state court’s resolution of this
claim was not objectively unreasonable. 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 as fairminded jurists could
disagree on the correctness of the state court’ s decision.”
Harrington v. Richter, 562 U.S. 86, 101 (2011) (quotation marks
omitted). Here, Rowley has not met this burden.
Rowley’s argument is essentially that there is a reasonable
probability he would have been acquitted of murder if the jury had
been

instructed

determination

that

differently.
the

self

However,
defense

the

State

instruction

court’s

given

was

sufficient was not objectively unreasonable. Indeed, though his
counsel did not tender the instructions highlighting his subjective
belief as he now requests, the tendered instruction was a complete
and accurate statement of Indiana law. See Washington, 997 N.E.2d
at 349. Moreover, the video evidence of the killing makes it
unlikely that the self-defense theory would be accepted by the

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jury, no matter what form the jury instructions were in. See State
Ex. 3.
This Court cannot make a probabilistic determination that a
reasonable jury would reach a different result if it was provided
with additional jury instructions focusing on Rowley’s subjective
belief. Reasonable jurists could disagree as to whether (or to what
extent)

different

variations

of

the

self-defense

instruction

impacted the decision making process of the jury. But fairminded
disagreement is not a basis for habeas corpus relief. Indeed,
fairminded

disagreement

precludes

habeas

corpus

relief.

Id.

Therefore the habeas corpus petition must be denied.
ii. Ground Two
Rowley asserts that his trial counsel was ineffective for
failing

to

interview

Officer

Derrick

Hannon

regarding

how

intoxicated Rowley was just before he gave a statement to police.
ECF 3 at 3, 4. Rowley claims that if his counsel would have spoken
with Officer Hannon, he would have realized that Rowley was
intoxicated at the time he gave his initial statement to police.
The argument goes, then, that trial counsel could have moved to
suppress that statement. Id.
Under the Sixth Amendment, counsel has “a duty to make
reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary.” Strickland, 466 U.S.
at 690-91. The decision whether to investigate must be assessed for

-12-

reasonableness

based

on

the

circumstances,

“applying

a

heavy

measure of deference to counsel’s judgments.” Id. at 691. To
establish

prejudice

in

connection

with

counsel’s

failure

to

investigate, the petitioner must make a “comprehensive showing” of
what further investigation would have revealed. United States v.
Zillges, 978 F.2d 369, 373 (7th Cir. 1992). The Indiana Court of
Appeals

cited

the

appropriate

Strickland

standard

and,

upon

examining the record, found that
Rowley’s testimony did not establish that he was so
intoxicated that he did not know what he was saying when
he was interviewed by police officers. In addition, his
trial testimony did not indicate that he was claiming he
was intoxicated when speaking with police officers.
Therefore, Rowley has not established that a motion to
suppress his statement to police as involuntary due to
intoxication would have been granted if raised.
Consequently, Rowley has not established that trial
counsel’s failure to interview Officer Hannon and then
call him as a witness at trial prejudiced his defense. We
find no error here.
ECF 8-9, p. 14.
Here, the Indiana Court of Appeals rejected Rowley’s failure
to investigate claim, concluding that there was no apparent reason
for counsel to interview Officer Hannon. Id. Based on the record,
this determination was not unreasonable. Officer Hannon testified
at the post-conviction proceedings. After the shooting, Officer
Hannon, an acquaintance of Rowley’s, arranged to meet him at a bar.
(PCR Tr. 22-26.) When Hannon arrived at the bar, Rowley was sitting
at the bar finishing his drink. Id. at 27. Hannon testified, “[The
drink] may not have even been alcohol. But I assumed it was a mixed
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drink.” Id. After Rowley finished his drink, Hannon took him to the
police station. Id. at 28. Officer Hannon testified that, in his 17
years as a police officer, he had observed intoxicated individuals,
that he is a state certified breath test operation, and that, when
he and Rowley left the bar, Rowley did not appear to be intoxicated
“at all.” Id. Clearly, Officer Hannon’s testimony would not have
helped Rowley’s suppression argument at trial. Moreover, this Court
has independently reviewed Rowley’s interview with police officers
and finds nothing in it to suggest that Rowley was intoxicated at
the time. State Ex. 8. Rowley does not tell the officers that he is
intoxicated nor does he appear to be. Because the Indiana Court of
Appeals reasonably found that trial counsel’s failure to interview
Hannon was not prejudicial, this is not a basis for habeas relief.
iii. Ground Three
Rowley asserts that his trial counsel was ineffective when he
advised Rowley not to turn over the murder weapon until the
prosecutor requested it. ECF 3 at 4. The Indiana Court of Appeals
again using the appropriate Strickland standard and, upon examining
the record, found that:
Had counsel advised Rowley to surrender the gun, this
conduct would not have refuted the State’s contention
that Rowley’s conduct - leaving the scene of the murder
rather than staying and immediately turning the gun over
to police - constituted evidence of Rowley’s guilty
conscience, instead of the righteous defense of a friend.
If Rowley had surrendered the weapon to authorities after
consulting with his attorney, the State could have argued
that he fled the scene of the murder with the murder
weapon and only surrendered it upon the advice of
-14-

counsel.
This would not have altered the outcome of the trial. The
State introduced a video tape showing Rowley shooting the
unarmed victim in the back. Rowley has not demonstrated
how trial counsel’s failure to advise him to turn the gun
over to police prior to trial would have produced a
different outcome at trial. We find no prejudice here.
ECF 8-9 at 14, 15.
The Indiana Court of Appeals’ decision was not unreasonable.
Moreover, Rowley does not explain how it could have been possible
the outcome could have been different in the State court had he
turned the weapon over to the prosecution. Upon review, it was not
objectively unreasonable for the State court to have found that
Rowley had not demonstrated that his trial counsel’s actions
prejudiced his case.
iv.
Rowley

Ground Four

claims

his

appellate

counsel

was

ineffective

for

failing to challenge a pretrial ruling excluding the victim’s
reputation for carrying a gun. Typically, proof of character of the
deceased is inadmissible. Phillips v. State, 550 N.E.2d 1290, 1297
(Ind.

1990).

However,

when

a

self-defense

claim

is

raised,

“[e]vidence of specific bad acts by the victim is then admissible
to show that the victim had a violent character and that the
defendant had reason to fear the victim, but it is incumbent on the
defendant to make a foundational showing that he had knowledge of
those specific bad acts prior to the [crime] before such evidence
was admitted.” Id.
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The Indiana Court of Appeals determined that appellate counsel
was not ineffective for failing to challenging the exclusion of the
victim’s reputation for carrying a gun on appeal. The court of
appeals first noted that appellate counsel was unable to do so
because the issue was not preserved for direct appellate review and
Rowley failed to argue or demonstrate that the exclusion of this
evidence would have constituted a fundamental error. ECF 8-9 at 18.
And, moreover, the court of appeals explained that Rowley did not
present any evidence at trial or at his post-conviction proceeding
that at the time of the murder he had any knowledge that the victim
had a reputation for carrying a gun or a reputation for violence.
Id. at 19.
Although Rowley now claims his appellate counsel should have
raised this issue, he has not made any showing that the Indiana
Court of Appeals’ decision was unreasonable. Nor does this court
find the decision to be so. Indeed, Rowley had never met the victim
and did not know anything about him prior to the night of the
shooting. (Tr. p. 328). Thus, his appellate counsel would not have
succeeded on that argument, Phillips, 550 N.E.2d at 1297, and
counsel’s failure to raise a meritless claim on appeal is not
ineffective. Warren v. Baenen, 712 F.3d 1090, 1104 (7th Cir. 2013).
v.

Ground Five

Rowley claims that the post-conviction court erred in not
ruling on one of the issues he raised in his post-conviction

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proceedings. On post-conviction, he argued that his trial counsel
was ineffective for failing to interview and call as a witness
Officer Hannon. The post-conviction court failed to rule on that
issue. That is inconsequential, however, because the Indiana Court
of Appeals did. ECF 8-9 at 6, 7. Therefore, it is irrelevant
whether the post-conviction trial judge failed to rule on that
issue.
Moreover, this claim is not cognizable in these proceedings.
Although Rowley included the words “due process,” in order to open
the habeas door, his claim is premised on alleged errors committed
by the state court on post-conviction review. Federal habeas relief
is not available for errors occurring in the state post-conviction
proceedings, since such errors do not implicate the legality of the
petitioner’s confinement. See Pennsylvania v. Finley, 481 U.S. 551,
557 (1987); see Jones v. Butler, 778 F.3d 575, 586 (7th Cir. 2015)
(holding that post-conviction court’s denial of evidentiary hearing
was simply a challenge to state law post-conviction procedures and
not cognizable on habeas review); Jackson v. Duckworth, 112 F.3d
878 (7th Cir. 1997). Rowley may not “transform a state-law issue
into a federal one merely by asserting a violation of due process.”
Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996). Because
Rowley’s

claim

does

not

present

an

independent

basis

for

overturning his conviction, it is not a basis for habeas relief.

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vi.

Ground Six

Rowley claims that he has been denied due process because the
Indiana Court of Appeals issued an opinion an direct appeal that
conflicts

with

their

opinion

on

his

post-conviction

appeal

regarding the self-defense instruction. Again, this type of claim
is not cognizable in habeas proceedings. Rowley may not “transform
a

state-law

issue

into

a

federal

one

merely

by

asserting

a

violation of due process.” Id.
Moreover, though, these opinions do not conflict with one
another. On direct appeal, the issue was whether the tendered selfdefense jury instruction was adequate. The court of appeals found
that any error in the tendered self-defense instruction was invited
by Rowley, and thus not subject to appellate review. ECF 8-3 at 3.
On

post-conviction,

the

issue

was

whether

trial

counsel

was

ineffective for tendering the instruction. The court of appeals
found that counsel was not ineffective because the instruction was
appropriate. ECF 8-9 at 8-10. Clearly, the issue was different on
direct appeal than it was on appeal from the denial of postconviction relief. Thus, the appellate court opinions were not in
conflict with one another.
vii. Ground Seven
Rowley asserts that the Indiana Court of Appeals erred when it
ruled on his ineffective assistance of counsel for failing to
interview and call as a witness Officer Hannon. Rowley argues that

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because the post-conviction trial court failed to rule on this
issue, the court of appeals should have remanded it back to the
trial court instead of ruling on it. This, Rowley claims, is a due
process violation.
As he did earlier, Rowley raises a claim that he labels “due
process,” which is premised on alleged errors committed by the
state court on post-conviction review. Again, this type of claim is
not cognizable here. Federal habeas relief is not available for
errors occurring in the state post-conviction proceedings. See
Finley, 481 U.S. 557; see Jones, 778 F.3d at 586; Jackson, 112 F.3d
878. “[S]tate court evidentiary rulings rarely will serve as
grounds for granting a writ of habeas corpus.” Lilly v. Gilmore,
988 F.2d 783, 789 (7th Cir. 1993)(citations omitted). “Unless it is
shown that ‘a specific constitutional right has been violated, a
federal court can issue a writ of habeas corpus only when a state
evidentiary

ruling

violates

the

defendant’s

right

to

a

fundamentally fair trial’ under the Due Process Clause.” Id. Here,
Rowley does not identify or cite to any specific constitutional
right that he believes has been violated due to the court of
appeals’ consideration of the evidence.

C. Certificate of Appealability
Pursuant to Section 2254 Habeas Corpus Rule 11, the Court must
grant

or

deny

a

certificate

of

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appealability.

To

obtain

a

certificate

of

appealability

under

28

U.S.C.

§

2253(c),

the

petitioner must make a substantial showing of the denial of a
constitutional right by establishing “that reasonable jurists could
debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues
presented

were

adequate

to

deserve

encouragement

to

proceed

further.” Slack v. McDonnell, 529 U.S. 473, 484 (2000). For the
reasons explained in this opinion for denying habeas corpus relief,
there is no basis for encouraging Rowley to proceed further. Thus,
a certificate of appealability must be denied. For the same
reasons, he may not appeal in forma pauperis because an appeal
could not be taken in good faith.

CONCLUSION
For the reasons set forth above, the Court DENIES habeas
corpus relief; DENIES a certificate of appealability pursuant to
Section 2254 Habeas Corpus Rule 11; DENIES leave to appeal in forma
pauperis pursuant to 28 U.S.C. § 1915(a)(3); and DIRECTS the clerk
to enter judgment in favor of the Respondent and against the
Petitioner.

DATED: August 30, 2017

/s/RUDY LOZANO, Judge
United States District Court

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