McKnight v. Superintendent
Filing
22
OPINION AND ORDER: DENYING Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by aPerson in State Custody; DENYING 18 MOTION requesting the respondent to produce to the court the full and complete record as ordered filed by Myran D McKnight, Sr; DENYING a certificate of appealability, ***Civil Case Terminated, Motions terminated:. Signed by Judge Theresa L Springmann on 7/9/12. (jld)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
MYRAN D. McKNIGHT, SR.,
Petitioner,
v.
SUPERINTENDENT, MIAMI
CORRECTIONAL FACILITY,
Respondent.
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CAUSE NO.: 3:11-CV-19-TLS
OPINION AND ORDER
Myran McKnight, a prisoner confined at the Miami Correctional Facility, filed a Petition
for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his convictions in the
Elkhart Superior Court for dealing in cocaine, conspiracy to deliver cocaine, and for being
adjudicated as a habitual offender, for which he is serving a twenty-five year sentence. The
Indiana Court of Appeals affirmed the Petitioner’s convictions on July 29, 2009, and the Indiana
Supreme Court denied transfer on January 7, 2010. (See Appellate Case History, ECF No. 11-2
at 3–4.) The Petitioner did not seek post-conviction relief.
In reviewing a petition for federal collateral relief from a state court judgment of
conviction, this Court must presume as correct the facts as found by the state courts. 28 U.S.C.
§ 2254(e)(1); Sumner v. Mata, 449 U.S. 539, 547 (1981); Ruvalcaba v. Chandler, 416 F.3d 555,
559–60 (7th Cir. 2005). Moreover, the Petitioner has the burden of rebutting the presumption of
correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Ruvalcaba, 416 F.3d at
559–60.
BACKGROUND
As stated by the Indiana Court of Appeals on direct appeal, the facts in the Petitioner’s
case are as follows:
On May 9, 2007, McKnight called confidential informant CS–06–038 (“the
informant”) and asked him if he wanted to buy crack cocaine. The informant agreed
to purchase seven grams of crack cocaine for $200.00. The informant later met with
an undercover officer (“UC 120”) and traveled to a home in Elkhart, Indiana. When
they arrived, McKnight told them that only the informant could enter the house. The
informant went into the house with McKnight and purchased $200.00 worth of crack
cocaine using money that had been supplied by police officers. McKnight gave the
informant a bag containing .827 grams of crack cocaine, far less than the seven
grams the informant agreed to purchase.
On May 22, 2007, the informant spoke with McKnight and agreed to purchase more
crack cocaine from him. The informant again picked up UC 120. They drove to a
house on Main Street and McKnight appeared from the residence. UC 120 asked if
McKnight was “going to rip [him] off again” and McKnight said “no.” UC 120 asked
what he would get for $50.00 and McKnight said “you will get that,” as he pointed
to the $50.00. After taking the $50.00, McKnight went back into the residence. He
returned to tell UC 120 that his associates would not “bring the s*** here” and
walked away with the $50.00.
On May 30, 2007, the State charged McKnight with two counts of dealing in
cocaine, each as class B felonies. On June 6, 2007, attorney James D. Stevens
entered his appearance on behalf of McKnight. In August 2007, the State amended
its information to include an habitual substance offender allegation and to clarify that
Count II involved a conspiracy to deal in cocaine. On August 23, 2007, the parties
appeared before the trial court and a jury trial was set for February 4, 2008.
On August 28, 2007, and November 5, 2007, McKnight submitted handwritten
requests for a speedy trial, but because he was represented by counsel, the trial court
did not accept the motions. The trial court did send a copy of McKnight’s requests
to his counsel. On November 8, 2007, McKnight’s attorney, Mr. Stevens, withdrew
as McKnight’s counsel.
On January 23, 2008, the State moved to continue the trial due to court congestion.
Finding that an older case was scheduled for the same date, the trial court granted the
motion for a continuance, found that the delay was not attributable to the State, and
reset the case for a pre-trial conference.
On February 6, 2008, McKnight filed a motion for discharge pursuant to Criminal
Rule 4(B). After conducting a hearing, the trial court denied McKnight’s motion.
During the hearing, the trial court offered McKnight a first choice trial setting in July
2
2008, but he declined the offer. The trial was set for April 21, 2008, but there were
twelve other cases also set for trial on that date.
On April 7, 2008, the State asked the trial court to continue the April 21st trial date
due to court congestion. Finding the calendar congested, the trial court granted the
motion for a continuance, found the delay was not attributable to the State, and reset
the case for a pre-trial conference.
On May 20, 2008, McKnight filed a “Motion to Object to Belated Trial and Lack of
Trial Setting.” A hearing on that motion was held on May 29, 2008, and a trial was
set for July 21, 2008. McKnight then filed a motion for discharge pursuant to Indiana
Criminal Rule 4(C) on June 5, 2008. On July 17, 2008, the trial court allowed the
State to delay response to this motion until after the trial.
(Mem. Decision 2–4, ECF No. 11-5 (internal record citations omitted).)
ANALYSIS
I.
Petitioner’s Motion Requesting the Respondent to Produce to the Court the Full
and Complete State Court Record
This Court ordered the Respondent to respond to the Petition for Writ of Habeas Corpus,
and to “submit the Petitioner’s full and complete state court record or advise the Court why the
complete state court record is not necessary.” (Order to Show Cause, ECF No. 7.) The
Respondent submitted portions of the Petitioner’s state court Record as attachments to his Return
to Order to Show Cause. (See Return to Order to Show Cause, ECF No. 11, & Exs. A–G.)
The Petitioner filed a Motion Requesting the Respondent to Produce to the Court the Full
and Complete Record as Ordered [ECF No. 18]. But in addition to the portions of the state court
record attached to the Return to Order to Show Cause, the Respondent also submitted separately
the complete state court record of the Petitioner’s state court proceedings. (ECF No. 14.)
Because the Respondent has already submitted the entire state court record as ordered, the Court
will deny the Petitioner’s request that the Court order the Respondent to produce the full and
3
complete state court record.1
II.
The Petitioner’s Sixth Amendment Speedy Trial Claim
In ground one of his Petition, the Petitioner asserts that the trial court violated his Sixth
Amendment right to a speedy trial. (Petition 6, ECF No. 1.) The Respondent argues that the
Petitioner procedurally defaulted this claim because he did not exhaust his state court remedies
by presenting it to the state courts in his direct appeal.
Title 28 U.S.C. § 2254(b)(1)(A) provides that a state prisoner’s application for a writ of
habeas corpus shall not be granted unless “the applicant has exhausted the remedies available in
the courts of the State.” Before considering the merits of a habeas petition, a federal court must
ensure that the petitioner has exhausted all available remedies in the state courts. Lewis v.
Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004).
To fully exhaust his state court remedies, a habeas petitioner must seek discretionary
review from the State’s highest court where that review is normal, simple, and an established
part of the State’s appellate review process. O’Sullivan v. Boerckel, 526 U.S. 838, 845–47
(1999). Failure to exhaust available state court remedies constitutes a procedural default. To
avoid a procedural default, a petitioner must have presented his federal claims to the state courts
before he seeks federal review of these claims. Id. at 844. It is the petitioner’s burden to prove
exhaustion. Baldwin v. Lewis, 442 F.2d 29, 35 (7th Cir. 1971).
The Exhaustion Doctrine requires that a habeas petitioner “fairly present” his federal
1
The Petitioner specifically requests submission of the Indiana Supreme Court’s Order denying
the Petition to Transfer, but the language he references is already included in the Appellate Case History,
ECF No. 11-2 at 4.
4
claims to the state courts before submitting them to the federal courts. Verdin v. O’Leary, 972
F.2d 1467, 1472–73 (7th Cir. 1992). Fair presentation requires that “both the operative facts and
the controlling legal principles must be submitted” to the state courts, and failure to present both
restricts the issues that a federal court may consider during collateral review. Id. at 1474
(quotation marks omitted).
In his state court appellate brief, the Petitioner frames the issue presented to the Indiana
Court of Appeals as follows: “This Appellant is entitled to discharge pursuant to Criminal Rule
4(C).” (Br. of the Appellant 6, ECF No. 11-3.) The Petitioner does not even mention the Sixth
Amendment in this portion of his appellate brief. All of the arguments the Petitioner presented to
the Indiana Court of Appeals refer to Indiana Rule of Criminal Procedure 4(C), and all of the
cases cited by him in this portion of his appellate brief are Indiana cases interpreting Rule 4(C).
Similarly, in his Petition to Transfer, the Petitioner only raised Rule 4(C) arguments and did not
raise a Sixth Amendment speedy trial claim.
In his Traverse, the Petitioner points to several portions of the state court record where he
asserts that he presented a Sixth Amendment speedy trial claim to the trial court. (Mem. in Supp.
of Pet’r’s Traverse 3, ECF No. 17-1.) But the exhaustion doctrine requires that a habeas
applicant present his Constitutional claims to the state’s appellate courts, O’Sullivan, 526 U.S. at
847, and the state court record establishes that the Petitioner did not do this.
The Petitioner also argues in his Traverse that “[t]he Indiana Appellate Court reached the
merits of this Petitioner’s Sixth Amendment speedy trial claim in a written decision that rest[s]
primarily on federal law and is interwoven with the Federal law in such a fashion that no
procedural default can apply by way of an adequate and independent state law ground.” (Mem.
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in Supp. of Pet’r’s Traverse 1.) That argument is completely without merit. The Indiana Court of
Appeals did state in its opinion that “[t]he right of an accused to a speedy trial is guaranteed by
the Sixth Amendment to the United States Constitution and by Article 1, Section 12 of the
Indiana Constitution.” (Mem. Decision 5.) But then the court turned to Criminal Rule 4, and the
rest of that portion of its order addresses the Petitioner’s Criminal Rule 4 claim. Nothing in the
Court of Appeals opinion suggests that the Court of Appeals considered a Sixth Amendment
speedy trial claim. Nor did the Petitioner present a Sixth Amendment claim to the Indiana
Supreme Court. Because the Petitioner did not present to the Indiana Supreme Court the facts
and arguments he advances in his habeas Petition regarding the Constitution’s Sixth Amendment
he has not exhausted those claims, and they are procedurally defaulted.
A habeas petitioner can overcome a procedural default, including failure to exhaust, by
showing both cause for his failure 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 “ordinarily requires a showing of some external
impediment preventing counsel from constructing or raising the claim.” Murray v. Carrier, 477
U.S. 478, 492 (1986). The Petitioner does not present any argument that would establish cause
for his failure to exhaust his state court remedies on his Sixth Amendment speedy trial claim.
A habeas petitioner may 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). Under this narrow exception, a habeas applicant must
establish that “a constitutional violation has probably resulted in the conviction of one who is
actually innocent.” Schlup v. Delo, 513 U.S. 298, 324 (1995) (quoting Carrier, 477 U.S. at 496).
6
A petitioner who asserts actual innocence “must demonstrate innocence; the burden is his, not
the state’s.” Buie v. McAdory, 341 F.3d 623, 626–27 (7th Cir. 2003). “It is important to note in
this regard that ‘actual innocence’ means factual innocence, not mere legal insufficiency.”
Bousley v. United States, 523 U.S. 614, 623 (1998).The Petitioner has not presented a
fundamental miscarriage of justice argument. His argument that he should have been discharged
because the State of Indiana delayed his prosecution beyond the time limits established by state
law does not suggest that he is actually innocent of the charges against him.
Because the Petitioner’s Sixth Amendment speedy trial argument is procedurally
defaulted, the Court will deny this claim for habeas relief.
III.
Alleged Exclusion of Evidence During Cross Examination
In ground two of his Petition, the Petitioner asserts that he “was denied a fair trial . . . by
improper limitation of cross examination.” (Petition 6.) He specifically asserts that the trial court
prohibited him from utilizing evidence of racial bias when cross-examining the State’s
witnesses, thereby violating his Sixth Amendment right to confrontation. (Mem. in Supp. of
Section 2254 Pet. 30, ECF No. 1-1.) The Respondent argues that the evidence of alleged racial
bias was in fact presented to the jury by the State, and the Petitioner had opportunity to crossexamine on this point. The Respondent argues, further, that the Indiana Court of Appeals
correctly applied federal law in denying the Petitioner’s claim on this issue.
The Constitution’s Sixth Amendment provides that a criminal defendant has the right “to
be confronted with the witnesses against him [or her],” which includes not only the right to
physically confront a witness but also “the opportunity of cross-examination.” Delaware v. Van
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Arsdall, 475 U.S. 673, 678–79 (1986) (quoting Davis v. Alaska, 415 U.S. 308, 315–16 (1974)).
Exposing a witness’s motivation in testifying is an “important function” of cross-examination.
Id. at 679 (quoting Davis, 415 U.S. at 316–17). However, an opponent’s cross-examination to
expose potential bias is not limitless and trial courts “retain wide latitude” to impose “reasonable
limits” on cross-examination inquiries. Id. Trial courts may limit the inquiry based upon
concerns of “harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation
that is repetitive or only marginally relevant.” Id. A defendant is not entitled to
“cross-examination that is effective in whatever way, and to whatever extent, the defense might
wish.” Id. (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985)).
In reviewing the Petitioner’s appeal of his conviction, the Indiana Court of Appeals
properly identified the Delaware v. VanArsdall standard as governing the resolution of his
confrontation and cross-examination claim. (See Mem. Decision 15–16.) Accordingly, this Court
must determine whether its application of VanArsdall was unreasonable. In regard to the
Petitioner’s confrontation claim, the Indiana Court of Appeals concluded that:
The subject of racial bias was not relevant to the cocaine charges, had a great chance
of prejudicing the jury about the case, and a significant chance of confusing the
issues for the jury. We cannot say that the trial court abused its discretion in barring
discussion of racial bias. Because the court’s limitation of McKnight’s cross
examination was reasonable, his due process claim fails. See, e.g., Jenkins [v. State],
729 N.E.2d [147,] 149 [(Ind. 2000)] (holding that marginally relevant evidence may
be excluded when its probative value is outweighed by possibility of prejudice or
confusion).
(Id. 16.)
A federal court may grant habeas relief if the state court identifies the correct legal
principle from Supreme Court precedent but unreasonably applies that principle to the facts of
the petitioner’s case. Wiggins v. Smith, 539 U.S. 510, 520 (2003); 28 U.S.C. § 2254(d) (stating
8
that a § 2254 petition should be granted if the State court adjudication “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”). But here the Indiana Court of Appeals
reviewed the Petitioner’s claims under the proper standard, reasonably applied that standard to
his confrontation and cross-examination claim, and rejected that claim. This was not a situation
where the Petitioner was denied the opportunity to engage in “otherwise appropriate” cross
examination. VanArsdall, 475 U.S. at 680. Rather, as the Indiana Court of Appeals noted, the
purported racial bias of the informant was irrelevant to the cocaine charges and posed a
significant danger of confusing the issues. Because the Indiana Court of Appeals reasonably
applied Delaware v. VanArsdall to the Petitioner’s claim and found it to be unsubstantiated, his
claim is without merit on habeas review pursuant to 28 U.S.C. § 2254(d). Accordingly, the Court
will deny this claim.2
The Court notes that it appears from the trial transcript that the Petitioner would have
been allowed to raise the racial bias of any witness if he had laid an appropriate foundation. The
trial court granted a motion to exclude evidence of the Petitioner’s perception of racial bias, not
evidence of the actual racial bias of the informant or any other witness. (See Trial Tr. vol. 1, 12,
July 21, 2008.) The trial judge specifically informed the Petitioner that nothing about his ruling
2
The Petitioner additionally urges that Judge James T. Moody’s Opinion and Order of October
29, 2008, dismissing the Petitioner’s 42 U.S.C. § 1983 claim, should operate to prove his argument under
the doctrine of collateral estoppel. In the 2008 Opinion and Order, Judge Moody stated that “the racial
motivation of an informant is a relevant basis for challenging the veracity of the information or testimony
provided by that informant.” (Opinion & Order, ECF No. 1-2 at 28.) The Court finds Judge Moody’s
general statement of the principle that racial bias may be used as an avenue for cross examination
irrelevant to the question of whether the trial court correctly limited the Petitioner’s cross examination.
The Indiana Court of Appeals found that the trial court did not abuse its discretion, and this Court finds
that the Indiana Court of Appeals reasonably applied the Delaware v. VanArsdall standard.
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would prohibit the Petitioner from asking questions about the racial bias of witnesses, or making
arguments about racial bias. (Id.) The Court agrees with the Respondent that at trial it was the
Petitioner’s failure to lay an appropriate foundation for the evidence of racial bias on which he
wanted to cross examine State witnesses that resulted in its exclusion during the Petitioner’s
cross examination of UC 120, not a blanket ruling excluding such evidence by the trial court.
Furthermore, the evidence in question was actually admitted and played for the jury by the State
during its direct examination of the informant. Once the evidence had been admitted, the
Petitioner did not attempt to cross examine on the topic of racial bias. It is unclear why the
Petitioner did not attempt to use this avenue for cross examination, but he was not foreclosed
from doing so. In any case, because the Court of Appeals correctly applied the relevant Supreme
Court precedent, the Court finds that any limitations actually placed on the Petitioner’s ability to
cross examine do not merit habeas relief.3
IV.
Alleged Withholding of Exculpatory Material
In ground three of his Petition, the Petitioner asserts that “[t]he State barred exculpatory
evidence.” (Petition 7.) In his attached memorandum, the Petitioner states that he filed a motion
to compel the disclosure of “who prepared a specific Surveillance Activity Report,” but that “the
State answered that the State did not know who prepared the Surveillance Report.” (Mem. in
Supp. of Section 2254 Pet. 40–41.) The Petitioner claims the State’s failure to provide him the
3
The Petitioner argues he was foreclosed from cross examining the informant about his use of a
racial expletive while testifying in court. The trial judge examined the record and found that the informant
did not actually utter the expletive in court. (Trial Tr. vol. 2, 187, 189, July 22, 2008.) In light of that
finding, the Court finds that the trial judge’s decision to silence the Petitioner on this point comports with
the standards set forth in Delaware v. VanArsdall.
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name of the person who prepared the Surveillance Activity Report amounted to withholding of
exculpatory material in violation of the Fourteenth Amendment’s due process clause.
The Respondent argues that this claim is procedurally defaulted because the Petitioner
did not present it to the Indiana appellate courts. The Petitioner responds that he attempted to
present this claim to the Indiana Court of Appeals, but that court did not address it and argues
that where a state appellate court fails to address a federal claim or misconstrues it, then the
exhaustion doctrine is satisfied.
Neither the Petitioner’s state Appellate Brief nor his Petition to Transfer list withholding
of exculpatory evidence in violation of Fourteenth Amendment due process as an issue raised to
the state courts. (Br. of the Appellant 3; Pet. to Transfer 2–3, ECF No. 11-7.) In his Appellate
Brief’s statement of the facts, the Petitioner stated that he filed a motion to compel the disclosure
of the name of the person who prepared the Surveillance Activity Report for the May 9, 2008,
controlled buy, but that the State responded that it did not know who authored that report. (Br. of
the Appellant 2.) Additionally, he mentions the Surveillance Activity Report and the withholding
of exculpatory evidence as part of his argument that the State presented insufficient evidence to
support his conviction on Count I. (Id. 5.) He also mentions the Surveillance Activity Report as
part of his claim that the prosecution offered false testimony. (Id.) But nowhere in his brief does
the Petitioner make a legal argument that the prosecutor’s inability to provide the name of the
person who prepared the Surveillance Activity Report violated the Fourteenth Amendment. Nor
did he present such an argument to the Indiana Supreme Court.
Because he did not present a claim that the State withheld exculpatory evidence in
violation of the Fourteenth Amendment to either the Indiana Court of Appeals or the Indiana
Supreme Court, the Petitioner procedurally defaulted this claim. The Petitioner does not assert
11
cause for his failure to present this issue to the state appellate courts. However, in his Traverse
the Petitioner asserts that he is actually innocent, and that if he “can get the federal court to reach
the merits of the Surveillance Activity Report a miscarriage of justice will rise.” (Mem. in Supp.
of Pet’rs’ Traverse 16.) But nothing in the record suggests that there has been an actual
miscarriage of justice, or that this Court would be justified in granting his habeas petition and
setting aside his conviction. Therefore, the Petitioner’s fundamental miscarriage of justice
argument does not overcome his procedural default.
Even were the Court to reach the merits of this Fourteenth Amendment due process
claim, the Petitioner’s arguments are unavailing. The record establishes that the State provided
the Surveillance Activity Report itself to the Petitioner before trial, so the evidence was available
to the Petitioner. To support a Fourteenth Amendment claim that the prosecution withheld
exculpatory evidence by withholding the name of the person who authored that report, the
Petitioner would have to establish that the prosecution actually knew who prepared the report yet
did not reveal the name, and also that knowing the name of the author of the report would have
assisted him in defending against the criminal charges against him. But the Petitioner does not
point to any portion of the record that would suggest, let alone establish, that the prosecutor
knew who prepared the report and intentionally withheld that information from the Petitioner.
Neither is the Court persuaded by the Petitioner’s arguments that knowing the identify of the
official who prepared the Surveillance Activity Report would have assisted the Petitioner in
avoiding a conviction. At trial, the State admitted audio recordings of the actual drug buys. The
Surveillance Activity Report was a summary of those drug buys, and thus cumulative evidence.
The trial court denied the Petitioner’s attempts to admit the Surveillance Activity Report itself
because he had failed to authenticate it, and the State’s failure to produce evidence that it did not
possess—in this case the identity of the report’s author—did not amount to withholding
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exculpatory evidence.
V.
Alleged False Testimony Condoned by the Prosecutor
In ground four of his Petition, the Petitioner asserts that “(f)alse testimony was used
against this Petitioner at the state trial.” (Petition 7.) In his Memorandum in Support, the
Petitioner states that the informant testified at trial that he gave the buy money directly to the
Petitioner, although at the time of the buy he said he gave the money to an “unidentified black
male,” and that the informant also lied when he “denied in testimony that he offered to give this
Petitioner drugs.” (Mem. in Supp. of Section 2254 Pet. 45–46.)
The State may not knowingly use false testimony against a criminal defendant, and must
correct testimony it knows to be false. Napue v. Illinois, 360 U.S. 264, 269 (1959); Giglio v.
United States, 405 U.S. 150, 153–54 (1972). The Seventh Circuit will order a new trial because
of “false testimony only if (1) the prosecution’s case included perjured testimony; (2) the
prosecution knew or should have known of the perjury; and (3) there is any likelihood that the
false testimony could have affected the judgment of the jury.” United States v. Thornton, 197
F.3d 241, 250 (7th Cir. 1999). “To constitute a due process violation, the prosecutorial
misconduct must be of sufficient significance to result in the denial of the defendant’s right to a
fair trial.” Greer v. Miller, 483 U.S. 756, 765 (1987) (quotation marks omitted).
On direct appeal, the Indiana Court of Appeals rejected the claim that the prosecutor
knowingly elicited false testimony, stating that:
Here, McKnight alleges that the prosecutor knew the informant did not give
McKnight the buy money, but still allowed the informant to testify that he gave
McKnight the buy money directly. However, McKnight at most offers evidence that
the informant offered contradictory or inconsistent testimony about whether he gave
13
the buy money to McKnight directly or to an unidentified older man. McKnight
presented no evidence that (1) the prosecutor knew the informant’s testimony at trial
was false or (2) that the informant’s testimony was false. Because McKnight fails to
present evidence that the prosecutor knew the informant was lying, we cannot say
that the prosecutor committed prosecutorial misconduct.
(Mem. Decision 14.)
In Napue v. Illinois, a prosecutor failed to correct a response he elicited from a witness.
The witness testified that he had received no promise or consideration in return for his testimony,
when in fact the witness had been promised consideration by that prosecutor. Napue, 360 U.S. at
265. But here, as the Indiana Court of Appeals noted, the Petitioner failed to point to any express
evidence that the State knew the confidential informant was lying on the stand. The Indiana
Court of Appeals reasonably adjudicated this claim, and the Petitioner has not established that its
disposition of this claim was contrary to Napue, or other applicable United States Supreme Court
authority. Because the Petitioner has failed to show that the prosecutor knowingly suborned
perjury, the Court will deny this claim for habeas relief.
The Petitioner also argues that the record demonstrates that the confidential informant
was lying when he denied offering drugs to the Petitioner. In its review of this claim, the Indiana
Court of Appeals held that:
McKnight also claims that the informant perjured himself by denying that the
informant offered McKnight drugs. McKnight does not develop this argument and
simply makes the conclusory statement that “it is shown that informant’s perjury at
trial was material to this cause, verdict, and the credibility of this witness.”
Appellant’s Brief at 29. Because McKnight does not develop a cogent argument, this
issue is waived. See, e.g., Cooper v. State, 854 N.E.2d 831, 834 n.1 (Ind. 2006)
(holding that the defendant’s contention was waived because it was “supported
neither by cogent argument nor citation to authority”); Shane v. State, 716 N.E.2d
391, 398 n.3 (Ind. 1999) (holding that defendant waived argument on appeal by
failing to develop a cogent argument).
(Mem. Decision 14 n.6.)
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A “valid state procedural rule,” such as waiver, “constitutes an ‘adequate and
independent state ground’ for resolving an issue, precluding” collateral review. Wrinkles, 537
F.3d at 811 (quoting Wainwright, 433 U.S. at 81). Additionally, the Petitioner has not shown
cause for his procedural default, nor does he present a valid argument that the failure to consider
these claims will result in a fundamental miscarriage of justice. Accordingly, this claim for
habeas relief is procedurally defaulted and will be denied.
VI.
Alleged Inaccuracies in the Trial Transcript
As ground five of his Petition, the Petitioner asserts, as fundamental error, that “[t]he
transcripts of the State Appeal were not a fair representation” of the record. (Petition 2.) In his
Memorandum in Support, he asserts that “the right to a fair and complete appeal has been denied
by the trial court’s act of not recording a section of the criminal trial.” (Mem. in Supp. of Section
2254 Pet. 56.) The Petitioner argues that during the cross-examination of the informant, the tape
machine was stopped and played back, that arguments made to the court by the Petitioner and the
prosecutor during the time the tape was stopped were not recorded, and that he “is certain the rerecording of the trial did not start at the correct position on the tape.” (Id. 57.)
The Respondent argues that the Petitioner did not raise this issue in his Petition to
Transfer, and that he is procedurally barred from raising this claim. The Petitioner’s state court
Appellate Brief establishes that he did argue on appeal that the transcript was incomplete and
deficient. (Br. of the Appellant, ECF No. 11-3 at 35–37.) But the record also establishes that he
did not present this issue to the Indiana Supreme Court in his Petition to Transfer. (See Pet. to
Transfer.)
15
A habeas petitioner may not resort to federal court without first giving the state courts a
full and fair opportunity to address his federal claims and to correct any error of constitutional
magnitude, Wilson v. Briley, 243 F.3d 325, 327 (7th Cir. 2001), and to exhaust his state court
remedies, a habeas petitioner must have presented his claims to the state’s highest court.
O’Sullivan, 526 U.S. at 845. Because the Petitioner did not include his claim regarding the
accuracy of the transcript in his Petition to Transfer, he has procedurally defaulted the claim, and
he does not show cause for the procedural default or that the failure to consider that claim will
result in a fundamental miscarriage of justice. Accordingly, habeas review is precluded on this
claim.
CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, the Court must consider
whether to grant the Petitioner 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) (quotation marks omitted).
When the 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, a certificate
of appealability should be issued “when the [petitioner] shows, at least, that jurists of reason
would find it debatable whether the petition states a valid claim of the denial of a constitutional
right.” Id. at 484. Second, the petitioner must also show “that jurists of reason would find it
16
debatable whether the district court was correct in its procedural ruling.” Id. To obtain a
certificate of appealability, the petitioner must satisfy both components. Id. at 485.
For the reasons stated in this Opinion and Order, the Court concludes that the Petitioner
is not entitled to relief because his claims are either barred by the doctrine of procedural default
because he did not exhaust his state court remedies or because they are substantively without
merit. The Petitioner has not established that jurists of reason could debate the correctness of
these rulings or find a reason to encourage him to proceed further. Accordingly, the Court
declines to issue him a certificate of appealability.
CONCLUSION
For the foregoing reasons, the court DENIES the Petitioner’s Motion Requesting the
Respondent to Produce to the Court the Full and Complete Record as Ordered [ECF No. 18].
Further, the Court DENIES the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a
Person in State Custody [ECF No. 1], DENIES the Petitioner a certificate of appealability, and
DIRECTS the Clerk to close this case.
SO ORDERED on July 9, 2012.
s/ Theresa L. Springmann
THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
FORT WAYNE DIVISION
17
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