Beech v Superintendent

Filing 44

OPINION AND ORDER DISMISSING 2254 PETITION, denying certificate of appealability and closing case. Signed by Judge Jon E DeGuilio on 5/31/11. (smp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
HUGH D. BEECH,
Petitioner,
v.
SUPERINTENDENT,
Respondent.

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Case No. 3:08-CV-269 JD

OPINION AND ORDER
Petitioner Hugh Beech filed this petition for writ of habeas corpus pursuant to 28 U.S.C. §
2254, challenging his 1995 Marion County conviction for burglary, for which he was sentenced to
eight years imprisonment. In 2004, that conviction was used to support Beech’s adjudication as an
habitual offender when he pled guilty to charges of burglary, theft, and possession of drug
paraphernalia. Beech asserts that the 1995 burglary conviction was entered by a Master
Commissioner who lacked jurisdiction to do so, and is therefore invalid and should not be available
to support his adjudication as an habitual offender.
The Respondent initially asserted that Beech had not exhausted his state court remedies, as
required by 28 U.S.C. 2254(b)(1)(A). On January 9, 2009, this Court concluded that “it appears that
proceedings remain before the Court of Appeals of Indiana” pertaining to the conviction Beech
challenges, and stayed this case “until the Court of Appeals of Indiana has ruled on the motion to
dismiss the . . . appeal there” [DE 14]. The Court lifted the stay after the Petitioner reported that
proceedings in the Court of Appeals of Indiana were concluded [DE 24]. The Respondent filed a
second response to the order in which he argued that Beech could not attack his 1995 conviction
because “United States Supreme Court precedent clearly establishes that federal habeas relief is not

available with respect to the conviction challenged by the instant petition” [DE 35 at 4]. The
Petitioner has filed a traverse.
Beech was convicted of the 1995 burglary charge in a bench trial presided over by Master
Commissioner Stephanie Roth [DE 35-2 at 2]. His petition for writ of habeas corpus raises one
issue:
Petitioner asserts his restraint is illegal and his remedy is a[n] “immediate discharge”
as the Master Commissioner Stephanie Roth lacked jurisdiction over the subject
matter to render such a Judgment of Conviction/Sentence and order/sign the Abstract
of Judgment under this cause/action . . .
[DE 1 at 2].
The Respondent argues that Beech may not attack his 1995 conviction by means of § 2254
because it is fully expired and is no longer open to direct or collateral attack in its own right.
Beech’s traverse does not address the specific issue raised by the Respondent. Rather, it goes into
detail about the 2004 plea bargain and habitual offender proceedings. On pages 11 through 13 of
his traverse, Beech discusses his 1995 conviction, but he addresses the merits of his claim, not the
Respondent’s argument that he is procedurally precluded from challenging his 1995 conviction.
Federal courts have jurisdiction to hear state prisoner habeas petitions only from persons
who are “in custody pursuant to the judgment of a State court[.]” 28 U.S.C. § 2254(a); see also
Maleng v. Cook, 490 U.S. 488, 490 (1989) (holding that under some circumstances, a prisoner
may be considered “in custody” for the purposes of challenging a conviction used to enhance a
conviction on which he is currently serving a sentence).
Maleng holds that when sentence A has expired but has been used to augment
sentence B, the prisoner is “in custody” only on sentence B. The consequences of
sentence A for sentence B do not yield continued “custody” on sentence A, the
Court concluded. Lowery holds that a person in custody on sentence B may
contend that custody violates the Constitution if it was augmented because of an
invalid sentence A.
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Crank v. Duckworth, 905 F.2d 1090, 1091 (7th Cir. 1990) (citing Maleng, 490 U.S. 488; Lowery
v. Young, 887 F.2d 1309 (7th Cir. 1989)). To obtain relief under § 2254 the prisoner must show
that his current confinement violates the Constitution or laws of the United States, which only
occurs if the prior judgment is not only invalid but also was used to augment the current one. Id.
(citing Hendrix v. Lynaugh, 888 F.2d 336 (5th Cir.1989)). To challenge a prior conviction,
therefore, a prisoner must establish a “positive and demonstrable nexus between the current
custody and the prior conviction.” Lowery, 887 F.2d at 1312 (quoting Young v. Lynaugh, 821
F.2d 1133, 1137 (5th Cir.1987)).
Beech meets the “in custody” requirement on his 1995 burglary conviction because that
conviction was used to enhance the 2004 sentence he is currently serving. That, however, does
not end the Court’s inquiry. The Court must also determine if the 1995 burglary conviction is
still open to direct or collateral attack in its own right. Lackawanna County Dist. Attorney v.
Coss, 532 U.S. 394, 401-02 (2001).
[O]nce a state conviction is no longer open to direct or collateral attack in its own
right because the defendant failed to pursue those remedies while they were
available (or because the defendant did so unsuccessfully), the conviction may be
regarded as conclusively valid. If that conviction is later used to enhance a
criminal sentence, the defendant generally may not challenge the enhanced
sentence through a petition under § 2254 on the ground that the prior conviction
was unconstitutionally obtained.
Id. at 403-04 (citing Daniels v. United States, 532 U.S. 374, 382 (2001) (addressing § 2255
petitions)). The only “single exception” to this rule is where the prior conviction was obtained in
violation of Gideon v. Wainwright, 372 U.S. 335 (1963), because the defendant was not
appointed counsel. Grigsby v. Cotton, 456 F.3d 727, 730 (7th Cir. 2006). Because the state

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court record establishes that Beech was represented by counsel at all stages of the proceedings
against him [DE 35 at 3], the Gideon exception does not apply here.
Under Lackawanna v. Coss, a fully expired prior conviction becomes presumptively valid
and may not be challenged on federal habeas review, even when current custody has been
enhanced pursuant to the prior conviction. 532 U.S. at 403-04. In this case, the state court
record establishes that Beech unsuccessfully filed a direct appeal [DE 35-1], which did not raise
the issue he presents in this habeas petition [DE 35-2]. Beech does not assert that he ever
brought a collateral attack against his 1995 conviction, and the record does not reflect that he did
so. Beech’s 1995 conviction is fully expired because he was unsuccessful on appeal and failed
to pursue his other available remedies as to the claim he presents here while those remedies were
available to him. Accordingly, his 1995 conviction is not now subject to direct or collateral
attack in its own right. See Martin v. Deuth, 298 F.3d 669 (7th Cir. 2002) (petitioner was
precluded from obtaining habeas relief on the basis of a prior conviction used to enhance his
current sentence because prior conviction was no longer open to attack in its own right and he
did not allege that conviction was obtained in violation of Gideon).
Pursuant to RULE 11 OF THE RULES GOVERNING SECTION 2254 CASES, the Court must
consider whether to grant Beech a certificate of appealability. To obtain a certificate of
appealability, a 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. McDaniel, 529 U.S. 473, 484
(2000) (citations omitted).
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When a district court dismisses a petition on procedural grounds, the determination of
whether a certificate of appealability should issue has two components. Id. at 484–85. First, the
petitioner must show that reasonable jurists would find it debatable whether the court was correct
in its procedural ruling. Id. at 484. Next, the petitioner must show that reasonable jurists would
find it debatable whether the petition states a valid claim for denial of a constitutional right. Id.
To obtain a certificate of appealability, the petitioner must satisfy both components. Id. at 485.
For the reasons stated in this memorandum, the Court concludes that Beech’s petition is
barred by Lackawanna v. Coss, which provides that a fully-expired prior conviction becomes
presumptively valid and may not be challenged on federal habeas review, even when current
custody has been enhanced pursuant to the prior conviction. 532 U.S. at 403-04. Nothing in
Beech’s petition or its attachments suggests that jurists of reason could debate the correctness of
this procedural ruling or find a reason to encourage him to proceed further. Accordingly, the
Court declines to issue Beech a certificate of appealability.
For the foregoing reasons, the court DISMISSES this petition for writ of habeas corpus,
DENIES the Petitioner a certificate of appealability, and DIRECTS the Clerk to close this case.
SO ORDERED.
ENTERED: May 31, 2011

/s/ JON E. DEGUILIO
Judge
United States District Court

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