Markey v. Superintendent
OPINION AND ORDER denying 1 Petition for Writ of Habeas Corpus. Bernard Markey is DENIED a certificate of appealability. Signed by Judge Joseph S Van Bokkelen on 2/24/2015. (rmc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
Case No. 3:11-CV-398-JVB
OPINION AND ORDER
Bernard Markey, a pro se prisoner, filed a habeas corpus petition (DE 1) pursuant to 28
U.S.C. § 2254 challenging his convictions and 40 year sentence imposed on February 13, 2004
by the Marion Superior Court under cause number 49G20-0207-FA-197917. On August 7, 2014,
the respondent filed a brief arguing that habeas corpus relief should be denied. Markey has not
replied and the time for doing so has long since passed. See N.D. Ind. L. Cr. R. 47-2 (“A party
who files a petition under 28 U.S.C. § 2254 . . . must file any reply brief within 28 days after the
answer brief is served.”). Therefore the court will now rule on the petition.
In the petition, Markey presents ten grounds for habeas corpus relief. The respondent
argues that all but one claim of ineffective assistance of trial counsel are procedurally defaulted.
“To avoid procedural default, a habeas petitioner must fully and fairly present his federal claims
to the state courts.” Anderson v. Benik, 471 F.3d 811, 814-15 (7th Cir. 2006) (quotation marks
and citation omitted). Under the procedural default doctrine, a federal habeas court is precluded
from reaching the merits of a claim when: (1) the claim was presented to the state courts and was
denied on the basis of an adequate and independent state procedural ground; or (2) the claim was
not presented to the state courts and it is clear those courts would now find the claim
procedurally barred under state law. Coleman v. Thompson, 501 U.S. 722, 735 (1991).
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, 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
Lewis v. Sternes, 390 F.3d 1019, 1025-1026 (7th Cir. 2004) (parallel citations omitted).
Markey filed a direct appeal, but he did not seek transfer to the Indiana Supreme Court.
See DE 18-2 at 2. Therefore he did not exhaust any claims during his direct appeal. He filed a
post-conviction relief petition and appealed the denial of that petition. As a part of the appeal
process, he raised four issues in his petition to transfer filed with the Indiana Supreme Court. DE
18-10. First, he argued that his trial counsel was ineffective for failing to object at trial to
evidence that was the subject of a motion to suppress. Second, he argued that his trial counsel
was ineffective for failing to request a circumstantial evidence instruction. Third, he argued that
his appellate counsel failed to appeal the denial of the requested mere presence instruction.
Fourth, he argued that his appellate counsel failed to raise sufficiency of the evidence. These are
the only four issues that Markey exhausted.
However, he has only included one of those claims in his request for habeas corpus relief.
In Ground Two, he lists three reasons why his trial counsel was ineffective. The first reason is
because trial counsel failed to object at trial to evidence that was the subject of the motion to
suppress. This is the only claim raised in this habeas corpus proceeding which was previously
presented to the Indiana Supreme Court. Therefore it is the only exhausted claim and the only
one this court may consider as a basis for habeas corpus relief. The other nine grounds and the
other two reasons he believes that his trial counsel was ineffective were not presented to the
Indiana Supreme Court.
In Ground One, he argues that he “did not receive a full and fair hearing to litigate United
States Constitution Fourth Amendment claims.” DE 1 at 3. In Ground Two, he argues that his
trial counsel was ineffective because “he stipulated to the lab report” and “failed to interview and
call as a witness Shannon Burton . . ..” Id. In Ground Three, he argues that “no rational trier of
fact could have found proof of guilt beyond reasonable doubt . . ..” DE 1 at 4. In Ground Four,
he argues that the “Prosecutor used knowingly false testimony . . ..” Id. In Ground Five, he
argues that “I was charged with two bags of drugs, record only mention one (1) bag of drugs - I
was found guilty of two (2) bags of drugs” DE 1 at 5. In Ground Six, he argues that the
“charging information omitted elements that were admitted to the jury.” Id. In Ground Seven, he
argues that the judge was “biased and prejudice in regard to him not recusing himself when he
charged me with perjury during my trial.” Id. In Ground Eight, he argues that his perjury was
“statements made under duress and involuntary.” Id. In Ground Nine, he argues that “illegal
tampering with evidence contaminated evidence.” Id. In Ground Ten, he argues that the “officer
lied on the report probable cause affidavit.” Id. All of these grounds are procedurally defaulted
because they were not presented to the Indiana Supreme Court. Because they are procedurally
defaulted, this court cannot consider them as a basis for habeas corpus relief.
Returning now to the one remaining claim before the court, Markey argues that his trial
counsel failed to object at trial to evidence that was the subject of the motion to suppress.
Under Strickland v. Washington, [466 U.S. 668 (1984), counsel] cannot be
found to be constitutionally ineffective unless (1) his performance was deficient,
meaning it fell below an objective standard of reasonableness informed by
prevailing professional norms and (2) his deficient performance [was]
prejudic[al], meaning that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. In
evaluating an attorney’s performance, courts must defer to any strategic decision
the lawyer made that falls within the wide range of reasonable professional
assistance, even if that strategy was ultimately unsuccessful. And because of
AEDPA an extra layer of deference enters the picture: we will defer to the Indiana
appellate court’s determination [of] effective assistance of counsel unless that
determination is contrary to, or an unreasonable application of, clearly established
Supreme Court precedent, or was based on an unreasonable determination of the
facts. An application of Supreme Court precedent is reasonable – even if wrong in
our view – so long as fairminded jurists could disagree over its correctness. The
combination of Strickland and Section 2254(d) requires deference upon deference
from federal courts reviewing the constitutionality of state criminal convictions.
Shaw v. Wilson, 721 F.3d 908, 914 (7th Cir. 2013) (quotation marks and citations omitted).
The Court of Appeals of Indiana adjudicated this claim on the merits.
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). After explaining the standards set out in Strickland, the Court of Appeals of
Indiana affirmed the denial of post-conviction relief on his ineffective assistance of trial counsel
Markey claims that his trial counsel was ineffective for failing to object to
the admission of the cocaine found in the house. Markey claims that the police
improperly entered and searched the house and that the cocaine found therein
should have been inadmissible. He therefore claims that his trial counsel should
have objected to the introduction of the cocaine and that the failure to so object
constituted ineffective assistance of trial counsel. We are unable to agree.
First, Markey’s trial counsel explained at the post-conviction hearing why
he did not object to the cocaine at trial:
As to the [cocaine] evidence, there was – well there were two
reasons. One there was a standing issue. At the suppression
hearing there was testimony by the officers that they found
clothing and other items that would tie Mr. Markey to the – to the
property. That did not come out at trial. We didn’t feel that it was
relevant, in fact it would hurt Mr. Markey I think in the defense
that we were preparing. So I thought there was a standing issue.
And then also the whole crux of our defense was that whatever
was there was not Mr. Markey’s. And I think that rather than draw
attention to the cocaine and to – to make a big thing about it, it was
better to focus on the fact that where it was, wasn’t near where Mr.
Markey was. And in fact . . . it would have been impossible for Mr.
Markey to have done what the officer stated that they saw.
P-C. R. Tr. p. 16. When asked if it was a conscious strategy decision not to
preserve the evidentiary issue for appeal, Markey’s trial counsel explained, “No,
it wouldn’t have been a conscious effort not to preserve the . . . suppression issue.
It would have been a conscious effort not to argue it in front of the jury.” Id. at
17. From this, it is clear that Markey’s trial counsel made a strategic decision to
not object to the introduction of the cocaine evidence. To argue the standing issue
would have required Markey’s trial counsel to argue that Markey had an interest
in the house where he was located because of the clothing he had in the bag found
at the house. The trial strategy, however, was to claim that that [sic] the cocaine
did not belong to Markey and not to mention the clothing in the bag. Although
this strategy was ultimately unsuccessful, this does not mean that the strategy
was so deficient as to fall below an objective standard of reasonableness. See
Fugate v. State, 608 N.E.2d 1370, 1373 (Ind. 1993) (noting that an unsuccessful
defense strategy does not always indicate that the strategy was a poor one, nor
does it indicate trial counsel’s ineffectiveness). “[W]e will not speculate about
more advantageous strategies which could have been employed by trial counsel.”
Because we conclude that the performance of Markey’s trial counsel did
not fall below an objective standard of reasonableness, we need not decide
whether Markey was prejudiced by his counsel’s alleged errors. See Timberlake,
753 N.E.2d at 603 (noting that two prongs of the Strickland test are separate and
independent inquiries). But even if we were to assume arguendo that his trial
counsel’s failure to object to the cocaine did constitute deficient performance, he
must still show that he was prejudiced by this alleged error. See id. This he cannot
In the context of a claim of ineffective counsel for failure to object, the
defendant must prove that an objection would have been sustained if made and
that he was prejudiced by the failure. Wrinkles v. State, 749 N.E.2d 1179, 1192
(Ind. 2001). Markey cannot show that his objection would have been sustained or
that he was prejudiced by the failure to object. This is so because his objection to
the search and seizure of the cocaine would have been meritless even if it had
been preserved. Markey claims that he had standing to challenge the search
because he “was an invited guest in the residence and thus could challenge the
search.” Appellant’s Br. at 6. In support of this proposition, Markey cites
Mi1mesota v. Cat1er, 525 U.S. 83, 89-90 (1998). The Court in Carter actually
held, however, that “an overnight guest in a home may claim the protection of the
Fourth Amendment, but one who is merely present with the consent of the
householder may not.” Id. at 90 (emphasis added).
Here, the evidence indicates that Markey was not an overnight guest. Although
the owner of the home showed the police a bag of clothing that belonged to
Markey, Markey never claimed that he had been an overnight guest at the house.
To the contrary, he told the arresting officer that he had simply been at the house
“partying.” Suppression Tr. p. 6. Under these facts and circumstances, we cannot
say that Markey met his burden of establishing that he had standing to challenge
the search which led to the seizure of the cocaine. Thus, even if his counsel had
objected at trial to the introduction of the cocaine evidence, this objection,
properly, would not have been sustained because Markey lacked standing to
challenge the search of a house where he was simply “partying.”
Markey v. State, 49A02-1003-PC-371, slip op. at 4-7 (Ind. Ct. App. 2010), DE 18-9 at 4-7.
Markey has not provided any explanation for why or how it was an unreasonable
application of Strickland for the Court of Appeals of Indiana to have determined that his trial
counsel was not ineffective. Neither does this court find that the State court’s conclusion was
unreasonable. Therefore trial counsel’s failure to object at trial to evidence that was the subject
of the motion to suppress is not a basis for habeas corpus relief.
Finally, pursuant to Rule 11 of the Rules Governing Section 2254 Cases, the court must
consider whether to grant 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). As previously explained, all but one of Markey’s grounds are procedurally
defaulted and the one exhausted claim was not unreasonably adjudicated by the Court of Appeals
of Indiana. Reasonable jurists would not debate these findings. Therefore this case does not
deserve encouragement to proceed further.
For the foregoing reasons, the habeas corpus petition (DE 1) is DENIED. Bernard
Markey is DENIED a certificate of appealability.
SO ORDERED on February 24, 2015.
s/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?