Manges v. Superintendent

Filing 31

OPINION AND ORDER: that the Petition for Writ of Habeas Corpus is DENIED and a certificate of appealability is DENIED, ***Civil Case Terminated. Signed by Judge Rudy Lozano on 11/8/13. (jld)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
TIMOTHY P. MANGES,

)
)
)
)
)
)
)
)
)

Petitioner,
vs.
SUPERINTENDENT,
Respondent.

CAUSE NO. 3:11-CV-085

OPINION AND ORDER
This matter is before the Court on the Petition under 28
U.S.C. Paragraph 2254 for Writ of Habeas Corpus by a Person in
State Custody filed by Timothy P. Manges, a pro se prisoner, on
March 3, 2011. For the reasons set forth below, the Court DENIES
the

petition

for

writ

of

habeas

corpus

(DE

#1);

DENIES

a

certificate of appealability; and DIRECTS the Clerk to close this
case.

BACKGROUND
Timothy

P.

Manges

filed

this

habeas

corpus

petition

challenging his conviction and fifty year sentence for Child
Molesting by the Elkhart Superior Court under cause number 20D030012-CF-186. During the initial round of briefing, the Respondent
argued that the petition should be dismissed as untimely. Because
the petition is timely, that request was denied and the Respondent

was ordered to respond to the six grounds raised by Manges in the
habeas corpus petition. This case is now fully briefed.
In deciding a habeas petition, the Court must presume the
facts

set

forth

by

the

State

courts

are

correct

unless

the

Petitioner presents clear and convincing evidence rebutting that
presumption. 28 U.S.C. § 2254(e)(1). The Court of Appeals of
Indiana set forth the basic facts in its opinion on direct appeal.
A.M. was Joy Manges’ oldest child, who was born on
July 22, 1987. Joy and Timothy Manges were married in
1994 and had two children, M.M. and T.M. They were
divorced in 2000 with one of the reasons being that
Manges and A.M. did not get along. During the marriage,
Joy saw Manges doing what she thought were inappropriate
things with A.M., such as taking baths with her and lying
in bed with her while naked. Joy told Manges on numerous
occasions to stop these activities. Joy also wondered if
Manges had touched A.M., but she thought he was not
capable of it. After the divorce, Joy lived in Goshen and
maintained a friendly relationship with Manges.
Manges contacted Joy about spending the night at her
house in order to see his children perform at a church
program the next morning, and then take them on
visitation. Manges’ request to spend the night was not
unusual. After arriving, Manges watched a movie with Joy
and A.M. in Joy’s bedroom. When the movie was over Manges
was to spend the night in his children’s bedroom. Joy
went to sleep watching the movie. After the movie was
over, A.M. was not feeling well and went to bed in her
bedroom. Manges gave her Tylenol for her headache. Manges
then pulled A.M. off the bed and rubbed his penis against
her. Joy by then had awakened and noticed that Manges and
A.M. were not there. Joy went to check on A.M. and found
her in her bedroom with the lights turned off. Joy turned
the lights on and saw A.M. bending over the bed with her
feet on the floor and Manges standing right behind her.
Manges pushed A.M. onto the bed and quickly set down in
a chair. Joy told Manges to stand up. At first he
refused, but then did stand up. His penis was partially
erect. Manges left the room, and Joy spoke with A.M. who
was defensive. Joy then spoke with Manges. He admitted
that over a period of a couple of years he had been
2

rubbing A.M., and that he had touched her breast and
vagina.
Joy contacted the police. A.M. told them that in
1999 Manges had put his mouth on her vagina. Detective
Mackowiak took Manges’ statement after giving him the
Miranda warning. Manges said he had been touching A.M. in
an inappropriate manner for a year and a half, that he
had performed oral sex on her, and he had placed his
finger in her vagina.
Manges acted as his own attorney before, during, and
after the trial.
Manges v. State, 20A05-0504-CR-181 (Ind. Ct. App. January 24,
2007). (DE #17-3 at 4-5.)

DISCUSSION
The Respondent begins by renewing his assertion that the
petition is untimely. As previously explained (DE #13), pursuant to
Jimenez v. Quarterman, 555 U.S. 113, 121 (2009), the petition is
timely.
Ground One: Prosecutorial Statements to Witnesses
Manges argues that he was denied due process “when the State
failed to inform and concealed from Petitioner’s jury any promises
and/or threats made to State’s witnesses directly regarding their
testimony at trial and denied Petitioner the ability to inform the
jury of the promises and/or threats in violation of the Fifth,
Sixth,

and

Fourteenth

Amendments

to

the

United

States

Constitution.” (DE #1 at 3.) Manges further asserts that “the State
knowingly solicited false and misleading testimony from Joy Manges
(Jaquez) regarding her willingness to testify for the State . . .

3

.” (Id.) In his direct appeal, Manges raised these issues as
separate grounds:
A.

Was Manges denied Due Process of Law when counsel
for the State concealed from the jury that the
State had threatened State’s witnesses with
prosecution?

B.

Was Manges denied Due Process of Law when counsel
for the State intentionally solicited false and
misleading testimony from State’s witness?

Manges v. State, 20A05-0504-CR-181 (Ind. Ct. App. January 24,
2007). (DE #17-3 at 3.) Though Manges has briefed them as a single
issue in this Court and the Court of Appeals of Indiana addressed
them as a single issue, because of the need to analyze them
separately in this opinion, the Court will refer to them as subissue A and sub-issue B.
The

Respondent

asserts

that

Ground

One

is

procedurally

defaulted because the Court of Appeals of Indiana dismissed these
claims for independent and adequate state law reasons.
A state is entitled to treat as forfeited a proposition
that was not presented in the right court, in the right
way, and at the right time – as state rules define those
courts, ways, and times. Failure to comply with the
state’s procedural rules furnishes an independent and
adequate state ground of decision that blocks federal
collateral review.
Szabo v. Walls, 313 F.3d 392, 395 (7th Cir. 2002) (citations
omitted).
A state law ground is independent when the court actually
relied on the procedural bar as an independent basis for
its disposition of the case. A state law ground is
adequate when it is a firmly established and regularly
followed state practice at the time it is applied.
4

Thompkins v. Pfister, 698 F.3d 976, 986 (7th Cir. 2012) (quotation
marks and citations omitted).
Manges acknowledges that the State court “relied on three
separate procedural defaults in its decision on” (DE #30-1 at 4)
the issues he now presents in Ground One. However, he asserts that
two of those reasons are “employed infrequently, unexpectedly, or
freakishly.”

Id.

Specifically,

he

complains

that

the

Indiana

appellate courts do not consistently require “cogent reasoning,”
see Indiana Appellate Rule 46(A)(8)(a), or “a concise statement of
the applicable standard of review,” see Indiana Appellate Rule
46(A)(8)(b). In support of his argument, he attaches a list of 29
Indiana cases that he purports demonstrate that these requirements
“are waived in about 80% of civil cases but only about 50% of
criminal cases.” (DE #30-1 at 4.) Though it is unclear whether this
survey is accurate or representative of Indiana cases, a rule is
not

inadequate

merely

because

it

is

discretionary,

Beard

v.

Kindler, 130 S. Ct. 612, 618 (2009), or “frequently ignored” White
v. Peters, 990 F.2d 338, 340 n.1 (7th Cir. 1993) (“It may well be
that this rule is frequently ignored, [b]ut White has not argued
any persuasive, specific facts to negate the conclusion that the
rule is ‘solidly established.’”).
[A] rule need not be followed strictly in order for it to
constitute an adequate ground for the state court’s
decision. A state ground that is solidly established will
be respected even though not strictly followed. Whatever
inconsistencies there may be in the Illinois courts’
application of the rule, invocation of the rule as a
5

procedural bar could hardly be described as surprising .
. . .
Miranda v. Leibach, 394 F.3d 984, 995 (7th Cir. 2005) (citation,
parentheses, and quotation marks omitted). So too here. A litigant,
even a pro se litigant, cannot plausibly assert that it is a
surprise that he would be required to present “the applicable
standard of review” with “cogent reasoning” in his appellate brief.
Therefore, along with the requirement to contemporaneously object
to prosecutorial misconduct (which Manges did not contest) – all
three of the reasons identified by the Court of Appeals of Indiana
for dismissing the claims raised in Ground One are independent and
adequate State law reasons for procedural default.
Turning then to the applicability of these three reasons,
Manges argues, in regard to sub-issue A:
there appears to be no standard of review as to a claim
that the State failed to disclose to a jury any “evidence
of any understanding or agreement as to a future
prosecution.” Crivens v. Roth, 172 F.3d 991, 998 (7th
Cir. 1999) (citation omitted). The reviewing court is to
determine
from
the
record
if
an
agreement
or
understanding factually existed, Lott v. State, 690
N.E.2d 204 (Ind. 1997); see also Rubalcada v. State, 731
N.E.2d 1015 (Ind. 2000) (The prosecutor’s duty of
disclosure arises when there is a confirmed promise of
leniency in exchange for testimony), which the COA
refused to do.
(DE

#30-1

at

4-5)

(footnote

omitted,

underline

added).

This

argument is wholly unpersuasive. Clearly there are legal standards
for such claims – Manges cites to three in this paragraph alone.
Though there are others, this is sufficient to reject his argument

6

that it was impossible to have complied with the State rule. Manges
also argues that it was impossible for him to have objected to the
prosecutor’s failure to disclose the promises and threats made to
the witnesses. Even if true, the other two adequate and independent
grounds for procedural default are sufficient to find that subissue A is procedurally defaulted.
Manges argues that “[s]ince the State clearly understood
Petitioner’s claim, the argument was not so poor as to impede the
COA’s consideration of the error.” (DE #30-1 at 5) (citations
omitted). He also argues that his appellate brief “was entitled to
a more liberal construction” because he was proceeding pro se.
(Id.) However, “[a] federal court reviewing a habeas petition is
required to respect a state court’s finding, under state law, of
waiver or procedural default [because] Federal courts do not sit to
correct error made by state courts in the interpretation and
application of state law.” Bobo v. Kolb, 969 F.2d 391, 399 (7th
Cir. 1992) (quotation marks and citations omitted).
Because Ground One is procedurally defaulted and none of the
arguments presented by Manges provide a basis for excusing this
default, the Court cannot grant habeas corpus relief based on
Ground One.
Ground Two: Cross-Examination of Witness
Manges argues that he was denied “the ability to fully and
effectively cross-examine State’s witness . . . when the trial

7

court sustained the State’s objection that witness intimidation and
prosecutorial misconduct towards State’s witnesses had nothing to
do with Petitioner’s trial.” (DE #1 at 3.) The witness in question
was his ex-wife, the mother of the child he molested. This claim
was presented to, and adjudicated by, the Court of Appeals of
Indiana. It ruled that “[t]rial judges have wide latitude to impose
reasonable
prejudice,

limits

based

confusion

of

on
the

concerns
issues,

including

the

witness’

harassment,
safety,

or

interrogation that is repetitive or only marginally relevant.”
Manges v. State, 20A05-0504-CR-181 (Ind. Ct. App. January 24, 2007)
(DE #17-3 at 12). It concluded by holding that, “[t]he trial court
placed

reasonable

limitations

on

Manges

as

they

applied

to

prejudice, confusion, or interrogationas [sic] to issues that are
marginally relevant. There is no abuse of discretion. (Id.) (DE
#17-3 at 13) (citation omitted).
Pursuant to 28 U.S.C. § 2254(d), when a case is adjudicated on
the merits in a state court proceeding, a writ of habeas corpus can
only be granted if the state court’s decision resulted from either:
(1) an unreasonable application of clearly established federal law,
as determined by the United States Supreme Court, or (2) an
unreasonable determination of the facts in light of the evidence
presented

at

trial.

Manges

does

not

challenge

the

factual

determinations. Rather, he argues that cutting off his questioning
of the victim’s mother about her motivations for testifying was an

8

unreasonable application of Delaware v. Van Arsdall, 475 U.S. 673,
679 (1986) which held that “cutting off all questioning about an
event that the State conceded had taken place and that a jury might
reasonably have found furnished the witness a motive for favoring
the prosecution in his testimony, the court’s ruling violated
respondent’s rights secured by the Confrontation Clause.” Manges
also cites to Olden v. Kentucky, 488 U.S. 227, 231 (1988) and Davis
v. Alaska, 415 U.S. 308, 315-16 (1974).
However, Manges did not have all questioning cut off. Over the
objection of the prosecutor, he introduced an exhibit (signed by
his ex-wife) which described the prosecutor’s interaction with her
as follows:
PROSECUTOR INTIMIDATION
On February 21st, 2001, I sent a letter to the court
asking the prosecutor and the court to give Tim
probation, as there was a plea bargain hearing coming,
and I was afraid they would send him to jail for a long
time instead.
I did not want our family broken up over this, and said
so in the letter.
On the day of the hearing, February 23rd, I approached
the prosecutor in the hallway outside the courtroom,
before the hearing inquiring if he had received my
letter.
During our conversation, in an intimidating tone, he
confronted me about the letter by asking me “Whose side
are you on, anyway?”
Clearly he was angry about the letter. I felt very
frightened and intimidated.

9

He also asked why I was sitting with Tim, and I told him
it was to support him. He was unhappy about that as well.
I was quite upset when I reentered the courtroom.
I am very fearful of this prosecutor.
I feel he wants to break up this family, just to win a
case.
(Defendant’s Trial Exhibit A.) Using that exhibit, Manges then
asked her a series of questions, including:
Q
During your confrontation with Mr. Hill outside
the courtroom on February 23rd, did he frighten or
intimidate you?
A

Yes.

Q
Could you elaborate on how he did this, or what
took place?
A
I had asked him if he had received a letter
that I had written to him trying to put this back
together, or trying to put the family back together. And
he had told me – he was very firm and had told me that –
that there was no way that it was going to do any good,
that you had done what you had done. And that almost –
because of the letter that I was almost – because I was
trying to put the family back together, that I was almost
as guilty in not considering [A.M.] in the situation,
that I was almost as guilty as you. And – and that’s not
– and yeah, that – that scared me. That – that really
did. ‘Cause there’s no way that I can do what you did.
(Trial Record at 297-98.) In addition, he also elicited the
following information about her motivation for testifying.
Q

Okay. You stated that I asked for help.

A

Yes.

Q

Did I ask for any kind of help in particular?

A
You asked for counseling together. You asked
for help.
10

Q

Okay.

A
You asked for counseling. It was more than I
could handle.
Q
Okay. And did you feel that the police were
more than adequate to do that?
A

At least to guide you in the right way. Yes.

Q
Okay. At any point in time, did – did I
actually acquire counseling?
A

Yes.

Q
Okay. And since the – the night of the 16th,
have you seen any change?
A

In what?

Q

In myself. Due to this counseling.

A
In anger control, yes. As for admitting to your
guilt, you still evade the – the guilt. You still – Tim,
you’re trying so hard to prove that they did something
wrong to you, but look at what brought us here. You did
something to [A.M.] you shouldn’t have done. That’s what
brought us here. And no matter what they have done to
you, does not take away the fact that you touched [A.M.],
and you did something very wrong. And to put her on the
stand and put her through this is unbelievable. And what
you’ve done to your parents. I mean, you can strike my
statement if you want to, but you know what has brought
us here.
THE COURT: Ma’am.
THE WITNESS: Is what you have done.
(Trial Record at 306-07.)
In Olden v. Kentucky, 488 U.S. 227, 231 (1988), the United
States Supreme Court explained that the right to confront and
cross-examine a witness is “subject to the broad discretion of a

11

trial judge . . . .” Manges disagrees with how the trial judge
exercised that discretion here. He disagrees with the Court of
Appeals of Indiana’s holding that it was not an abuse of discretion
to have cut off further questioning. Though other trial judges
might have let him proceed further, that is not the question before
this court. The test here is whether the State appellate court’s
ruling was an unreasonable application of clearly established
federal law. 28 U.S.C. § 2254(d)(1). “In order for a federal court
to find a state court’s application of [United States Supreme
Court] precedent ‘unreasonable,’ the state court’s decision must
have been more than incorrect or erroneous. The state court’s
application must have been ‘objectively unreasonable.’” Wiggins v.
Smith, 539 U.S. 510, 520-521 (2003) (citations omitted). Here, it
was not. Manges was not denied every opportunity to cross-examine
his ex-wife about her interactions with the prosecutor. He was not
denied any chance to present the jury with impeachment evidence
about her motivations for testifying about the molestation of her
daughter. Certainly, reasonable jurists could debate whether Manges
should have been permitted additional questions on this subject.
But it was not objectively unreasonable for the Court of Appeals of
Indiana to have found that it was not an abuse of discretion to
have allowed him to go only this far, and no further. Thus Ground
Two presents no basis for habeas corpus relief.

12

Ground Three: Failure to Record Custodial Interrogation
In his petition, Manges argues that he was denied due process
by “the failure to record his custodial interrogation by the
improperly shifting the burden from the State to the Petitioner to
prove statement was voluntary . . . .” (DE #1 at 4.) In his
petition, he makes no mention of whether the interviewing officer
acted in bad faith. Nevertheless, in his traverse, he argues that,
“[t]he claim is NOT that the interview was required to be recorded
but that the record evinces that Detective Mackowiak acted in bad
faith when he purposely did not record the custodial interview of
Petitioner.” (DE #30-1 at 11.) Under either theory, Ground Three
presents no basis for habeas corpus relief.
Manges suggests that this Court conduct a de novo review of
this claim because the Court of Appeals of Indiana made no mention
of federal law in resolving this issue. However, “[w]hen a federal
claim has been presented to a state court and the state court has
denied relief, it may be presumed that the state court adjudicated
the claim on the merits.” Harrington v. Richter, 562 U.S. __, __;
131 S. Ct. 770, 784 (2011). This is true whether the State court
summarily rejects every claim or is merely silent as to a federal
claim. Johnson v. Williams, 568 U.S. __, __; 133 S. Ct. 1088, 1091
(2013). Therefore, habeas corpus relief is only available if the
State’s denial of this claim was an unreasonable application of

13

clearly established United States Supreme Court law. 28 U.S.C. §
2254(d)(1).
However, Manges does not cite to any United States Supreme
Court case that requires the recording of custodial interrogations
– and this Court knows of no such case. There being no clearly
established United States Supreme Court law on the subject, it is
impossible to say that the State court did not properly apply that
law. See Wright v. Van Patten, 552 U.S. 120, 126 (2008) (“Because
our cases give no clear answer to the question presented . . . it
cannot be said that the state court unreasonably applied clearly
established Federal law.”) (quotation marks, brackets, and citation
omitted).
His argument that the failure to record was done in bad faith
fares no better. He argues that,
Definitions of “bad faith” in the handling of evidence
include “destruction for the purpose of hiding adverse
information,” Trask-Morton v. Motel 6 Operating L.P., 536
F3d 672, 681 (7th Cir. 2008), and a “conscious effort to
suppress exculpatory evidence,” United States v.
Chaparro-Alcantara, 226 F.3d 616, 624 (7th Cir. 2000).
“The Supreme Court in Youngblood said that ‘the presence
or absence of bad faith by the police for purposes of the
Due Process Clause must necessarily turn on the police’s
knowledge of the exculpatory value of the evidence at the
time it was lost or destroyed.’” Id. (citation omitted).
(DE #30-1 at 11-12) (underlines added). Here, there was no evidence
that was destroyed, hidden, suppressed, or lost. There was no
custodial interview recording to destroy, hide, suppress, or lose.
Moreover, knowledge of what happened during the interview was not

14

kept from Manges because he was there – he was the one being
interviewed. The failure to record the interview did not conceal
any evidence from him. Nor did it shift the State’s burden to prove
the voluntariness of his confession. See United States v. Stewart,
536 F.3d 714, 719 (7th Cir. 2008) (“The government bears the burden
of demonstrating the admissibility of a confession.”) Therefore
Ground Three presents no basis for habeas corpus relief.
Ground Four: Adequacy of the Charging Information
Manges argues that he was denied due process because “the
Charging Information did not contain all the elements necessary to
constitute a violation of any criminal statute under Indiana law .
. . .” (DE #1 at 4.) The Respondent argues that this claim is
procedurally defaulted.
Manges raised this claim during his direct appeal (DE #17-9 at
45-47), but he did not include it in his petition to transfer to
the Indiana Supreme Court. (See DE #17-12 at 4.) Thus, he did not
exhaust this claim on direct appeal.
Inherent in the habeas petitioner’s obligation to
exhaust his state court remedies before seeking relief in
habeas corpus, see 28 U.S.C. § 2254(b)(1)(A), is the duty
to fairly present his federal claims to the state courts.
Baldwin v. Reese, 541 U.S. 27 (2004); O’Sullivan v.
Boerckel, 526 U.S. 838, 844-45 (1999); Picard v. Connor,
404 U.S. 270, 275 (1971). “Only if the state courts have
had the first opportunity to hear the claim sought to be
vindicated in the federal habeas proceeding does it make
sense to speak of the exhaustion of state remedies.” Id.
at 276. Fair presentment in turn requires 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. Boerckel,
15

526 U.S. at 845. 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. Ibid.
Lewis

v.

Sternes,

390

F.3d

1019,

1025-1026

(7th

Cir.

2004)

his

post-

(parallel citations omitted).
Though

Manges

raised

this

claim

again

during

conviction relief proceedings (DE #17-13 at 4), the Court of
Appeals of Indiana refused to consider it because it was barred by
res judicata. Manges v. State, 20A05-1003-PC-186 (Ind. Ct. App.
September 16, 2010) (DE #17-5 at 7) (“[B]ecause Manges already
raised the issue on direct appeal, based on the doctrine of res
judicata, the post-conviction court did not err when it denied his
petition.”). Manges does not argue that this is not an independent
and adequate State law reason for dismissing this claim, nor does
he provide a basis for excusing this default, therefore the Court
cannot grant habeas corpus relief based on Ground Four. See Szabo
v. Walls, 313 F.3d 392, 395 (7th Cir. 2002).
Ground Five: Prosecutorial Comments
Manges argues that the prosecutor made “repeated and numerous
improper

statements

directed

at

Petitioner’s

exercising

his

Constitutional rights . . . .” (DE #1 at 5.) In addressing this
issue, the Court of Appeals of Indiana identified four subparts:
(A) the State improperly commented on his right to remain silent,
Manges v. State, 20A05-0504-CR-181 (Ind. Ct. App. January 24, 2007)
(DE #17-3 at 7); (B) “the State improperly commented on the burden
16

of proof and the presumption of innocence during voir dire and
closing argument,” Id. at 8; (C) “the State improperly vouched for
the credibility of the State’s witnesses,” Id.; and (D) “the State
improperly vouched for the State’s case, evidence, and the State
itself.” Id. at 9. The State court found that the last three subissues (B, C, and D) were waived because Manges did not make a
contemporaneous objection during trial and did not present a cogent
argument on appeal. The Respondent argues that these three subissues are procedurally defaulted. It does not appear that Manges
specifically responded to the procedural default of these three
sub-issues in Ground Five. However, to the extent that his response
was included in Ground One, these three sub-issues are procedurally
defaulted for the reasons previously explained in this Court’s
opinion on Ground One.
As to sub-issue A, Manges argues that, “[t]he State of Indiana
directly commented on Petitioner’s not testifying at trial to the
jury

by

the

repeated

use

of

‘uncontroverted’

during

closing

argument.” (DE #1 at 5.) The Court of Appeals of Indiana addressed
this part of the claim on the merits:
Comment on the lack of evidence by the defense
concerning otherwise incriminating evidence against him
is proper as long as the State focuses on the absence of
any evidence to contradict the State’s evidence and not
on the accused’s failure to testify. Channell, 658 N.E.2d
at 932. In the present case, Manges stated in his closing
argument that there was reasonable doubt about his guilt.
In response on rebuttal, the State argued that there was
no reasonable doubt regarding Manges’ guilt because of
the uncontroverted nature of the State’s evidence.
17

Manges v. State, 20A05-0504-CR-181 (Ind. Ct. App. January 24, 2007)
(DE #17-3 at 8).
The argument presented in sub-issue A is the same claim that
was raised and rejected in Yancey v. Gilmore, 113 F.3d 104 (7th
Cir. 1997). As Yancy clarifies, the prosecutor’s comments during
closing argument were an indirect comment, not a direct comment
about the fact that Manges did not testify. The prosecutor said
that the evidence was uncontroverted, not that Manges did not
testify. This is an important distinction because “[c]omments by
the prosecutor on the state of the evidence that may indirectly
refer to the defendant’s silence . . . have not been the subject of
direct Supreme Court guidance.” Yancey v. Gilmore, 113 F.3d 104,
106-107 (7th Cir. 1997) (quoting Freeman v. Lane, 962 F.2d 1252,
1260 (7th Cir. 1992)). Because there is no clearly established
United States Supreme Court law on this subject, it is impossible
to say that the State court did not properly apply that law. See
Wright v. Van Patten, 552 U.S. 120, 126 (2008) (“Because our cases
give no clear answer to the question presented . . . it cannot be
said that the state court unreasonably applied clearly established
Federal law.”) (quotation marks, brackets, and citation omitted).
Therefore Ground Five is not a basis for habeas corpus relief
because Manges has not offered any explanation to excuse his
procedural default.
Ground Six: Withdrawal of Plea Bargain

18

Manges argues that the prosecutor punished him for firing his
defense attorney and proceeding pro se by withdrawing an offer for
a plea bargain. The Court of Appeals of Indiana denied this claim
by noting that “[a] prosecutor is under no duty to plea bargain at
all, or to keep an offer open, as the offer remains in the
discretion of the prosecutor.” Manges v. State, 20A05-0504-CR-181
(Ind. Ct. App. January 24, 2007) (DE #17-3 at 9). Manges argues
that the State court’s ruling was an unreasonable determination of
the facts, but he does not say what fact the court unreasonably
determined. Despite the Respondent’s objection in this Court, (see
DE #18 at 18 n.3), the Court of Appeals of Indiana found that the
prosecutor had, “offered a plea agreement allowing Manges to plead
to a lesser felony.” Manges v. State, 20A05-0504-CR-181 (Ind. Ct.
App. January 24, 2007) (DE #17-3 at 9). It further found that
“[t]he State withdrew the offer after Manges fired his appointed
counsel and proceeded pro se.” Id. Manges does not explain what
fact the State court found that was unreasonable. Neither has he
explained how these facts are inconsistent with the argument he is
presenting. Rather, he merely argues that it was wrong for the
prosecutor to withdraw the plea offer after he fired his lawyer.
This is an argument that the State court unreasonably applied the
law, not the facts.
“There
prosecutor

is
need

no

constitutional

not

do

so

if

19

he

right

to

prefers

plea
to

bargain;

go

to

the

trial.”

Weatherford v. Bursey, 429 U.S. 545, 561 (1977). Manges agrees,
“there are no cases found with these precise circumstances . . . .”
(DE #30-1 at 13.) That alone is enough to foreclose the possibility
of habeas corpus relief. See Wright v. Van Patten, 552 U.S. 120,
126

(2008).

Nevertheless,

Manges

argues

that

he

had

a

Constitutional right to proceed pro se and that it was wrong for
the prosecutor to have conditioned the plea offer on Manges’
continuing to be represented by counsel.
The Prosecutor’s authority to conditionalize the exercise of
Constitutional rights in the context of a plea bargain is vast.
Corcoran v. Buss, 551 F.3d 703, 711-12 (7th Cir. 2008). Corcoran
held that it was permissible for a prosecutor to decide to seek the
death penalty based on whether the defendant waived his right to a
jury trial. Corcoran explained that “[a] defendant may waive many
other fundamental protections along with the right to a jury trial,
in the context of plea negotiations, such as . . . the right to
counsel . . . .” Corcoran v. Buss, 551 F.3d 703, 711-12 (7th Cir.
2008). Based on Corcoran, it was not wrong for the prosecutor to
have withdrawn the plea offer because Manges decided to represent
himself.
Because the State court’s rejection of this claim was not an
unreasonable application of clearly established United States
Supreme Court law, Ground Six presents no basis for habeas corpus
relief.

20

Certificate of Appealability
As a final matter, pursuant to Rule 11 of the Rules Governing
Section 2254 Cases, this Court must consider whether to grant or
deny a certificate of 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. McDaniel, 529
U.S. 473, 484 (2000). To obtain a certificate of appealability when
the court dismisses a claim on procedural grounds, the petitioner
must show that reasonable jurists would find it debatable (1)
whether the court was correct in its procedural ruling and (2)
whether

the

petition

states

a

valid

claim

for

denial

of

a

constitutional right. Id.
Grounds One, Four, and Five (sub-issues B, C, and D) were
dismissed for procedural reasons. For none of these grounds has
Manges presented a valid justification to excuse his procedural
default. Therefore reasonable jurists could not debate whether
these claims should have been resolved in a different manner.
Grounds Three, Five (sub-issue A), and Six, were dismissed on the
merits. But for none of these grounds did Manges identify any
clearly established federal law, as determined by the United States

21

Supreme Court, that was unreasonably applied. In the absence of any
such law, reasonable jurists could not debate whether these claims
should have been resolved in a different manner. Therefore a
certificate of appealability will be denied as to Grounds One,
Three, Four, Five, and Six.
Ground Two was dismissed on the merits and Manges identified
Olden v. Kentucky, 488 U.S. 227, 231 (1988) as controlling the
discretion afforded trial judges in cross-examining witnesses.
Though reasonable jurists could debate whether the trial judge
should have permitted additional questioning, that is not the
question in this habeas corpus case. Though reasonable jurists
could debate whether the appellate court should have found that not
permitting additional questions was an abuse of discretion by the
trial judge, that too is not the question in this habeas corpus
case. The question here is whether reasonable jurists could debate
whether it was unreasonable for the appellate court to have not
found that it was an abuse of discretion for the trial judge to
have not permitted additional questioning. The answer to this final
question is no. Based on the facts of this claim, the discretion
vested in the trial court, the deference given by appellate courts
before finding an abuse of discretion, and the high level of
deference required by 28 U.S.C. § 2254(d), it was not unreasonable
for the Court of Appeals of Indiana to have affirmed the trial
court’s ruling – and reasonable jurists would not debate this

22

question. Therefore a certificate of appealability will be denied
as to Ground Two.

CONCLUSION
For the reasons set forth above, the Court DENIES the petition
for

writ

of

habeas

corpus

(DE

#1);

DENIES

a

certificate

appealability; and DIRECTS the Clerk to close this case.

DATED: November 8, 2012

/s/RUDY LOZANO, Judge
United State District Court

23

of