White v. Superintendent

Filing 17

OPINION AND ORDER denying 1 Petition for Writ of Habeas Corpus and White is DENIED a certificate of appealability. Signed by Judge Rudy Lozano on 3/19/2015. (rmc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
PHILLIP WHITE,

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)
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)
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)
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Petitioner,
vs.
SUPERINTENDENT,
Respondent.

CAUSE NO. 3:13-CV-004

OPINION AND ORDER
This matter is before the Court on the Petition under 28
U.S.C. Paragraph 2254 for Writ of Habeas Corpus filed by Phillip
White, a pro se prisoner, on January 2, 2013. For the reasons set
forth below, the petition (DE #1) is DENIED and White is DENIED a
certificate of appealability.

BACKGROUND
Phillip White is challenging his conviction and 55 year
sentence for murder by the Delaware Circuit Court on July 17, 2006,
under cause number 18C05-0506-MR-2. White filed a direct appeal;
the Court of Appeals of Indiana affirmed in an unpublished opinion,
White v. State, 870 N.E.2d 1093 (table), 18A02-0607-CR-604 (Ind.
Ct. App. 2007) (DE 9-5); and the Indiana Supreme Court denied
transfer. White filed a petition for post-conviction relief which
was denied; the Court of Appeals of Indiana affirmed in White v.

State, 971 N.E.2d 203 (Ind. Ct. App. 2012) (DE #9-11); and the
Indiana Supreme Court denied transfer.
In this habeas corpus petition, White argues that he “was
denied the right to the effective assistance of appellate counsel
in violation of the Fifth, Sixth, and Fourteenth Amendments when
appellate counsel failed to argue his conviction for felony murder
violates the Proportionality Clause of the Indiana Constitution
because involuntary manslaughter has identical elements but carries
a lesser penalty.” (DE #1 at 4.)

DISCUSSION
White raised this claim during his post-conviction proceedings
and it was denied 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). Under this deferential standard, a federal
habeas court must “attend closely” to the decisions of state courts
and “give them full effect when their findings and judgments are
consistent with federal law.” Williams v. Taylor, 529 U.S. 362, 383
2

(2000). A state court decision is contrary to federal law if the
state court arrives at a conclusion opposite to that reached by the
U.S.

Supreme

Court

or

reaches

an

opposite

result

in

a

case

involving facts materially indistinguishable from relevant U.S.
Supreme Court precedent. Bell v. Cone, 535 U.S. 685, 694 (2002). To
warrant

relief,

a

state

court’s

decision

must

be

more

than

incorrect or erroneous; it must be “objectively” unreasonable.
Wiggins v. Smith, 539 U.S. 510, 520 (2003). This is a difficult
standard to meet, and “[a] state court’s determination that a claim
lacks merit precludes federal habeas relief so long as fairminded
jurists could disagree on the correctness of the state court’s
decision.” Harrington v. Richter, 562 U.S. __, __; 131 S. Ct. 770,
786 (2011).
Under Strickland v. Washington, [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
3

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).
Appellate lawyers are not required to present every
nonfrivolous claim on behalf of their clients – such a
requirement would serve to bury strong arguments in weak
ones – but they are expected to select the most promising
issues for review. For this reason, if [counsel]
abandoned a nonfrivolous claim that was both obvious and
clearly stronger than the claim that he actually
presented, his performance was deficient, unless his
choice had a strategic justification. This standard is
difficult to meet because the comparative strength of two
claims is usually debatable. But Smith [v. Robbins, 528
U.S. 259, 288 (2000)] confirms that the theory is
available. We evaluate [counsel]’s performance from the
perspective of a reasonable attorney at the time of [the]
appeal, taking care to avoid the distorting effects of
hindsight.
Shaw, 721 F.3d at 915 (quotation marks, brackets, and citations
omitted).
In affirming the denial of post-conviction relief, the Court
of

Appeals

of

Indiana

found

that

the

Proportionality

Clause

argument that White argues should have been raised was meritless.
Had his appellate counsel raised this argument under the
guise of Poling [v. State, 853 N.E.2d 1270 (Ind. Ct. App.
2006)], this court would have soundly rejected it. On
these facts, felony murder and involuntary manslaughter
are different crimes with different statutory elements
and, thus, the different sentences for these crimes
presents
no
constitutional
issue
under
the
Proportionality Clause. Accordingly, White cannot
demonstrate that this issue was either significant and
obvious from the face of the record or clearly stronger
than the issues his appellate counsel did raise.
White v. State, 971 N.E.2d 203, 209 (Ind. Ct. App. 2012).
4

White argues that this was clearly erroneous because “[t]he
post-conviction court and the Indiana Court of Appeals rendered
erroneous decisions based on an erroneous interpretation of the
current statute on felony murder.” (DE 14-1 at 9-10.)
But it is only noncompliance with federal law that
renders a State’s criminal judgment susceptible to
collateral attack in the federal courts. The habeas
statute unambiguously provides that a federal court may
issue the writ to a state prisoner “only on the ground
that he is in custody in violation of the Constitution or
laws or treaties of the United States.” 28 U.S.C. §
2254(a). And we have repeatedly held that “‘federal
habeas corpus relief does not lie for errors of state
law.’” Estelle v. McGuire, 502 U.S. 62, 67 (1991)
(quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)).
“[I]t is not the province of a federal habeas court to
reexamine state-court determinations on state-law
questions.” 502 U.S., at 67–68, 112 S. Ct. 475.
Wilson v. Corcoran, 131 S.Ct. 13, 16 (2011). Thus, even if White is
correct that the Indiana courts have incorrectly applied Indiana
law, that is not a basis for habeas corpus relief. Thus, this Court
must accept that the Proportionality Clause argument that White is
asserting would have been wholly meritless if it had been raised on
direct appeal. As such, it was not an unreasonable determination to
have found that it was neither obvious nor clearly stronger than
the issues raised on appeal, no matter how weak they might have
been.

Certificate of Appealability
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases,
the

court

must

consider

whether
5

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).
Here, White has not made such a showing and will be denied a
certificate of appealability.

CONCLUSION
For the reasons set forth above, the habeas corpus petition
(DE

#1)

is

DENIED

and

White

is

DENIED

a

certificate

appealability.

DATED: March 19, 2015

/s/RUDY LOZANO, Judge
United State District Court

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