Kingery v. Superintendent

Filing 14

OPINION AND ORDER: The respondent's request for dismissal of the petition 6 Response to Order to Show Cause is DENIED; Respondent given to 8/29/2014 to file supplemental return; Petitioner given to 9/30/2014 to file a traverse. Signed by Judge Joseph S Van Bokkelen on 6/2/14. (jld)

United States District Court
Northern District of Indiana
CHARLES KINGERY,
Petitioner,
vs.
SUPERINTENDENT,
Respondent.

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Civil Action No. 3:13-CV-1012 JVB

OPINION AND ORDER
Charles Kingery, a pro se prisoner, is serving a 55-year sentence for a murder and
robbery committed in Marion County, Indiana. State v. Kingery, No. 49G03-9302-CF-01748. He
filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (DE 1.) The respondent
argues that the petition is untimely and Kingery’s sole claim procedurally defaulted, and
therefore requests dismissal of the petition with prejudice. (DE 6.) For the reasons stated below,
the court finds the respondent’s arguments unavailing, and orders further briefing on the merits.
I.

BACKGROUND
This case has a convoluted and unusual procedural history. In deciding the petition, the

court must presume the facts set forth by the state courts are correct. 28 U.S.C. § 2254(e)(1). It is
Kingery’s burden to rebut this presumption with clear and convincing evidence. Id. On direct
appeal, the Indiana Supreme Court set forth the facts underlying this case as follows:
Late in the afternoon of April 1, 1991, the victim, George Wildrick, arrived at Van’s
Tavern, an establishment which Wildrick frequently patronized. Van’s Tavern was
hosting a pool tournament, and about 7:00 p.m., Charles Kingery and a friend, John
Smith, arrived to compete in that tournament. George Wildrick spent several hours
in Van’s, displaying large amounts of cash, consuming several drinks, and
announcing his plan to visit later another tavern, the Goldfinger Lounge. Witnesses
who spoke with George Wildrick as he left Van’s Tavern at closing, between 2:30
and 3:00 a.m., testified that Wildrick again stated his plan to have another drink at
the Goldfinger Lounge, and was looking for someone to join him there.

Kingery and Smith played pool at Van’s Tavern until approximately 1:00 a.m. Smith
then left for home. Kingery told Smith that he intended to head home shortly.
However, Melissa Haynes, the woman with whom Kingery lived, testified that
Kingery did not arrive home until more than two hours later, a little after 3:00 a.m.
State’s witness Heidi Marter was awake that morning around 3:00 a.m. when she
heard, outside her home near the Goldfinger Lounge, three gunshots. Peering out her
window, she saw a person, motionless, sitting upright in a large pickup truck parked
near the lounge. A man, standing outside the truck, reached inside, opened the
driver’s side door, lifted the person from inside the truck and placed that motionless
individual on the ground. Marter then saw the man look under the truck’s seats and
wipe down the truck’s interior, particularly the passenger area and the steering
wheel. He ran his hands up and down the length of the motionless individual’s body.
Using a rag, the man rolled up the truck’s window, left the rag in the window, shut
the door and walked toward the Goldfinger Lounge.
Marter left her home and drove over to the scene. She found the victim, George
Wildrick, laying on his left side in a pool of blood. She quickly returned home to call
the police. After notifying the police, she again looked out her window, and saw that
the man whom she had seen earlier had returned. He pulled up next to the body in
a small, light-colored pickup truck, got out of the truck, turned the lights of the
victim’s truck off, wiped down the inside of the victim’s truck a second time,
returned to his truck, and drove away.
Witness Steven Ross was driving toward the Goldfinger Lounge around 3:30 a.m.
when he saw a small white truck speeding in the opposite direction. Finding police
at the lounge when he arrived, and discovering that they were looking for a white
truck, he told them that he had just seen a white truck speeding away from the
Goldfinger.
Arriving at the crime scene at approximately 4:30 that morning, a deputy coroner
recovered several items from Wildrick’s body, including a pair of sunglasses. These
sunglasses were later found to contain a bloody fingerprint which the State
demonstrated belonged to Kingery.
Kingery v. State, No. 49S00-9403-CR-226, slip op. at *2-4 (Ind. Dec. 22, 1995). Following a
jury trial, Kingery was found guilty of murder and robbery. Id. at *4. The court imposed an
aggravated 55-year sentence for the murder conviction and an aggravated 15-year sentence for
the robbery conviction, to be served consecutively. Kingery v. State, No. 49A02-1204-CR-317,
slip op at *2 (Ind. Ct. App. Jan. 25, 2013).

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Kingery appealed, raising the following claims: the evidence was insufficient to support
his convictions; there was an error in the jury instructions; the trial court improperly allowed
testimony which suggested to jurors that he had a prior criminal record; his Class B robbery
conviction was improper based on the instructions given the jury; and the trial court erred at
sentencing in several respects. Kingery, No. 49S00-9403-CR-226, slip op. at *2. The Indiana
Supreme Court affirmed Kingery’s murder conviction and sentence in all respects. Id. at *18. As
to the robbery conviction, the court determined that Kingery was guilty of Class C robbery rather
than Class B robbery. Id. at *11-13. The court affirmed the conviction as modified, but remanded
for a new sentencing hearing on the robbery count. Id. at *18. However, for reasons not fully
explained in the record, the resentencing hearing did not occur for nearly 18 years.1
In the interim, Kingery pursued state post-conviction relief, asserting numerous grounds
of ineffective assistance of trial counsel.2 Kingery v. Indiana, No. 49A02-0806-PC-478, slip op.
at *4 (Ind. App. Ct. Nov. 19, 2008). Following several evidentiary hearings, the petition was
denied. Id. at *4-7. Kingery appealed, and the Indiana Court of Appeals affirmed the denial of
post-conviction relief. Id. at *25. He sought transfer to the Indiana Supreme Court, but his
petition was denied on January 15, 2009. (DE 6-8 at 2.) He did not seek review in the U.S.
Supreme Court. (DE 1 at 2.)

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It appears the hearing did not occur immediately after the remand due to an oversight. By the time of the
resentencing hearing in 2012, the original trial judge was no longer on the bench. The newly assigned judge noted
that a review of the file indicated the Indiana Supreme Court never sent a certified copy of its opinion, which would
have triggered the resentencing hearing. (See DE 8, State Court Record, Resentencing Hearing Tr., Vol. I at 2-3.) It
is unclear from the record why Kingery’s counsel and/or the prosecutor did not take steps to have him resentenced in
a timely fashion.
2

The record reflects that Kingery filed a petition for post-conviction relief in April 2001. (DE 1 at 22.)
Upon his request, the petition was dismissed without prejudice in November 2002. (Id. at 28-29.) In February 2006,
Kingery field a new petition, which proceeded to a determination on the merits. (Id. at 29-51.)

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In February 2011, Kingery filed a pro se motion requesting that he be resentenced on the
robbery conviction in accordance with the Indiana Supreme Court’s 1995 remand order. (DE 1 at
56.) The court appointed counsel to represent him. (Id.) Through counsel, Kingery further
requested that the court vacate his murder sentence and resentence him on both counts in
accordance with Blakely v. Washington, 542 U.S. 296 (2004). (Id. at 57.) The trial court denied
the request as to the murder conviction, but granted the request on the robbery conviction. (Id. at
58.) At resentencing, the prosecutor opted not to pursue an enhanced sentence, and on March 30,
2012, Kingery was sentenced to the presumptive four-year term for robbery, to run concurrently
with his 55-year sentence for the murder conviction. Kingery v. State, No. 49A02-1204-CR-317,
slip op. at *4 (Ind. Ct. App. Jan. 25, 2013). The trial court issued a new judgment and order of
conviction encompassing the complete sentence for both counts. (DE 8, State Court Record,
Appellant’s Appx. Vol. I, at 74-75.)
Kingery thereafter pursued a second round of direct appeals. (DE 6-15.) He did not
challenge the robbery sentence that was imposed, but argued that that he was entitled to
resentencing on his murder conviction in accordance with Blakely. (Id.) The Indiana Court of
Appeals rejected Kingery’s claim. Kingery, No. 49A02-1204-CR-317, slip op. at *2-7. The court
concluded that under state law, the trial court lacked jurisdiction to exceed the scope of the
Indiana Supreme Court’s remand order and resentence Kingery on the murder conviction. Id. at
*7. The court further concluded that Kingery was not entitled to the benefit of resentencing
under Blakely, because his case was no longer “pending” when Blakely was decided. Id. at *4-7.
The court therefore affirmed the sentence imposed by the trial court. Id. at *7. Kingery sought
review in the Indiana Supreme Court raising his Blakely claim, but his petition to transfer was

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denied in April 2013. (DE 6-14 at 2; DE 6-19.) He did not seek review in the U.S. Supreme
Court. (DE 1 at 2.) In September 2013, he filed a federal habeas petition raising one claim: that
his enhanced murder sentence violates Blakely. (DE 1 at 4.)
II.

ANALYSIS
Kingery’s petition is governed by the provisions of the Anti-Terrorism and Effective

Death Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 336 (1997).
AEDPA allows a district court to issue a writ of habeas corpus on behalf of a person in custody
pursuant to a state court judgment “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). The court may grant
an application for habeas relief only if it meets the stringent requirements of 28 U.S.C.
§ 2254(d), set forth as follows:
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.
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 (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
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materially indistinguishable from relevant U.S. Supreme Court precedent. Bell v. Cone, 535 U.S.
685, 694 (2002). A federal court may grant habeas relief under the “unreasonable application”
clause if the state court identifies the correct legal principle from U.S. 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). To warrant relief, a state court’s decision must be more than incorrect or
erroneous; it must be “objectively” unreasonable. Id. “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, —U.S.—, 131 S. Ct. 770, 786
(2011). “[E]ven a strong case for relief does not mean the state court’s contrary conclusion was
unreasonable.” Id.
A.

Timeliness

The respondent first argues that the petition is untimely. (DE 6 at 7-11.) Under AEDPA,
habeas petitions are subject to a strict one-year statute of limitations, set forth as follows:
(1) A 1-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State
court. The limitation period shall run from the latest of—
(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created
by State action in violation of the Constitution or laws of the United
States is removed, if the applicant was prevented from filing by such
State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively applicable
to cases on collateral review; or

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(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
28 U.S.C. § 2244(d).
Here, the respondent argues that Kingery’s murder conviction became “final” for
purposes of Section 2244(d)(1)(A) when the Indiana Supreme Court affirmed his conviction in
1995. (DE 6 at 7-11.) In the respondent’s view, the petition is untimely by nearly two decades.
The court disagrees. As described above, on direct appeal the Indiana Supreme Court remanded
part of the case for resentencing. Kingery, No. 49S00-9403-CR-226, slip op. at *18. The
resentencing hearing was significantly delayed through no fault of Kingery’s, but when it was
ultimately held in March 2012, the court issued a new judgment and order of conviction. This
document set forth the new sentence imposed on the robbery conviction, as well as the 55-year
sentence on the murder conviction, and ordered the two sentences to run concurrently. (DE 8,
State Court Record, Appellant’s Appx. Vol. I, at 72-75.) After this new judgment was entered,
Kingery was afforded a second round of direct appeals. See Kingery, No. 49A02-1204-CR-317.
A related situation was addressed by the U.S. Supreme Court in Burton v. Stewart, 549
U.S. 147 (2007). In that case, the state court remanded for resentencing on direct appeal. Id. at
150. Before the resentencing proceedings were concluded, the petitioner filed a habeas petition
in federal court. Id. at 151. He asserted claims regarding the constitutionality of his underlying
convictions, and those claims proceeded to a determination on the merits. Id. After the
resentencing proceedings concluded, the petitioner filed a second federal habeas petition, this
time asserting claims pertaining to his sentence. Id. at 152. His petition was rejected as an
unauthorized successive petition. Id. The petitioner argued that if he had “waited until state

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review of his sentencing claims was complete” to file his petition, “he risked losing the
opportunity to challenge his conviction in federal court due to AEDPA’s 1-year statute of
limitations.” Id. at 156. The U.S. Supreme Court rejected this argument, concluding that the
petitioner was misreading AEDPA. Id. The Court observed, “Final judgment in a criminal case
means sentence.” Id. Thus, the Court held, the federal deadline did not begin to run in the
petitioner’s case “until both his conviction and sentence became final by the conclusion of direct
review or the expiration of the time for seeking such review.” Id. at 156-57 (emphasis in
original).
In a similar vein, the U.S. Supreme Court held in Jimenez v. Quarterman, 555 U.S. 113
(2009), that when a state grants a criminal defendant the right to file a belated direct appeal, his
conviction is not “final” for purposes of 28 U.S.C. § 2244(d)(1)(A) until the belated appeal
proceedings are concluded. The Court concluded that finality cannot attach until the appeals
process is completed, since the petitioner’s conviction remains “capable of modification through
direct appeal to the state courts and to this Court on certiorari review.” Id. at 120. Thus, “[t]he
statute requires a federal court, presented with an individual’s first petition for habeas relief, to
make use of the date on which the entirety of the state direct appeal review process was
completed.” Id. at 121.
Based on the above case law, the court concludes that Kingery’s conviction did not
become “final” for purposes of Section 2244(d)(1)(A) until the state direct review proceedings
concluded after his resentencing. Pursuant to Jimenez, the court is to “make use of the date on
which the entirety of the state direct appeal review process was completed.” Jimenez, 555 U.S. at
121. That occurred in April 2013, when the Indiana Supreme Court denied transfer after his

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second round of direct appeals. (DE 6-14 at 2.) The federal deadline began running 90 days later
when the time for seeking review in the U.S. Supreme Court expired. See Anderson v. Litscher,
281 F.3d 672, 674-75 (7th Cir. 2002). Kingery had one year from that date, or until
approximately July 2014, to file a federal petition. 28 U.S.C. § 2244(d)(1)(A). His petition filed
in September 2013 was therefore timely.
B.

Procedural Default

The respondent next argues that Kingery’s Blakely claim is procedurally defaulted and
cannot be considered on the merits. (See DE 6 at 11-13.) Before considering the merits of a
claim, the court must ensure that the petitioner exhausted all available remedies in the state
courts. 28 U.S.C. § 2254(b)(1)(A); Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004).
Interests of comity require that the state courts be given the first opportunity to address and
correct violations of their prisoner’s federal rights. O’Sullivan v. Boerckel, 526 U.S. 838, 845
(1999). For that opportunity to be meaningful, the petitioner must fairly present his constitutional
claim in one complete round of state review, including with the state court of last resort. Baldwin
v. Reese, 541 U.S. 27, 30-31 (2004); Boerckel, 526 U.S. at 845. The companion procedural
default doctrine, also rooted in comity concerns, precludes a federal court 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 law 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). A habeas petitioner can
overcome a procedural default by showing cause for failing to properly present his claims in
state court and a resulting prejudice. McQuiggin v. Perkins, —U.S.—, 133 S. Ct. 1924, 1931-33

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(2013); Wainwright v. Sykes, 433 U.S. 72, 90 (1977). Alternatively, he can overcome a
procedural default by establishing that the federal 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).
Before turning to the application of those principles here, it is worth defining the legal
basis of Kingery’s claim. The constitutional right at issue is a defendant’s Sixth Amendment
right to a jury verdict based on proof beyond reasonable doubt. See Apprendi v. New Jersey, 530
U.S. 466 (2000). In a line of cases beginning with Apprendi, the U.S. Supreme Court held that
“[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” Id. at 490. In Blakely, the Court further refined the rule to hold that “statutory maximum”
means the maximum sentence a judge may impose solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant, not the maximum sentence a judge may impose after
finding additional facts.3 Blakely, 542 U.S. at 303-04. In light of the decision in Blakely Indiana
revised its sentencing structure; under current Indiana law, if a judge imposes a sentence above
the “presumptive” sentence, the enhanced sentence must be based on factual findings made by a
jury. See Smylie v. State, 823 N.E.2d 679 (Ind. 2005). There is no question that Kingery
presented a Blakely claim to the state courts in his second round of direct appeals. See Kingery,
No. 49A02-1204-CR-317, slip op. at *2. However, the respondent argues that the state court

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Apprendi and Blakely have not been made retroactive to cases on collateral review. See Wilson v. United
States, 414 F.3d 829, 831 (7th Cir. 2005) (“decisions in the Apprendi sequence do not apply retroactively on
collateral review”). However, if a case was still “pending” when Apprendi or Blakely were decided, the defendant
would be entitled to the benefit of resentencing in accordance with these cases. See White v. Battaglia, 454 F.3d 705,
706 (7th Cir. 2006) (petitioner could assert Apprendi claim even though he was convicted in 1996, since his direct
appeal was still pending when Apprendi was decided).

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resolved this claim on the basis of an adequate and independent state ground, thus precluding
federal review. (DE 6 at 11-13.)
Under the adequate and independent state ground doctrine, “when a state court refuses to
reach the merits of a petitioner’s federal claims because they were not raised in accord with the
state’s procedural rules. . . that decision rests on independent and adequate state procedural
grounds.” Richardson v. Lemke, 745 F.3d 258, 268-69 (7th Cir. 2014) (internal citation omitted).
The doctrine does not serve as a jurisdictional bar, and is instead based on “equitable
considerations of federalism and comity,” which ensure “that the States’ interest in correcting
their own mistakes is respected in all federal habeas cases.” Id. at 268. The “adequacy” of a
particular ground is a question of federal law, and a ground will be considered adequate only if
the state court applies the rule in a “consistent and principled way.”Promotor v. Pollard, 628
F.3d 878, 885 (7th Cir. 2010). Furthermore, for the bar to apply, “[t]he state court must actually
have relied on that rule—and not on a parallel or interwoven federal basis.” Richardson, 745
F.3d at 269. Any ambiguity in the record is construed in favor of the petitioner: if it at least
“fairly appears” that the state court rested its decision on a question of federal law, or that its
analysis was “interwoven” with federal law, the claim may be reviewed on the merits in federal
court. Id.
Here, in rejecting Kingery’s claim, the Indiana Court of Appeals held that the trial court
did not have authority to deviate from the remand instruction under Indiana law to resentence
him on the murder conviction. See Kingery, No. 49A02-1204-CR-317, slip op. at *7. It is clear
that the remand rule is a well settled principle of Indiana law. See, e.g., Lane v. State, 727 N.E.2d
454, 456 (Ind. Ct. App. 2000); Jordan v. State, 631 N.E.2d 537, 538 (Ind. Ct. App. 1994).

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However, the Indiana Court of Appeals did not rely exclusively on this rule to resolve Kingery’s
claim. Instead, the court went on to determine that Kingery was not entitled to the benefit of
resentencing under Blakely because his conviction was no longer “pending” when Blakely was
decided. In the court’s view, Kingery’s murder conviction became “final” in 1995 when the
Indiana Supreme Court issued its opinion in the first round of direct appeals; therefore, the
Blakely decision issued in 2004 was inapplicable to his case. Kingery, No. 49A02-1204-CR-317,
slip op. at *4-6.
The court’s analysis notwithstanding, finality and the applicability of a new rule of
criminal procedure announced by the U.S. Supreme Court is a matter of federal law, not state
law. See Greene v. Fisher, —U.S—, 132 S. Ct. 38, 44 (2011) (“[A] prisoner seeking federal
habeas relief may rely on new constitutional rules of criminal procedure announced before the
prisoner’s conviction became final. . . . Finality occurs when direct state appeals have been
exhausted and a petition for writ of certiorari from this Court has become time barred or has been
disposed of.”); Davis v. United States, —U.S—, 131 S. Ct. 2419, 2430 (2011) (“[N]ewly
announced rules of constitutional criminal procedure must apply retroactively to all cases, state
or federal, pending on direct review or not yet final, with no exception.”); Griffith v. Kentucky,
479 U.S. 314, 321-22 & n. 6 (1987) (defining “final,” for retroactively purposes, to mean “a case
in which a judgment of conviction has been rendered, the availability of appeal exhausted, and
the time for a petition for certiorari elapsed or a petition for certiorari finally denied,” and
concluding that “failure to apply a newly declared constitutional rule to criminal cases pending
on direct review violates basic norms of constitutional adjudication”).

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Because it fairly appears that the state court’s resolution of Kingery’s claim was based on
or at least “interwoven” with federal law, the adequate and independent state ground doctrine
does not bar this court’s review of the claim. See Richardson, 745 F.3d at 269. Accordingly, the
respondent’s request for dismissal of the petition will be denied. In the interest of justice, the
respondent’s request for an additional opportunity to brief the merits of the petition will be
granted. (See DE 6 at 14 n. 5.)
IV.

CONCLUSION
For the reasons set forth above, the respondent’s request for dismissal of the petition (DE

6) is DENIED. The respondent is GRANTED to and including August 29, 2014, to file a
supplemental return addressing the merits of the petition. The petitioner is GRANTED to and
including September 30, 2014, to file a traverse responding to the state’s arguments.
SO ORDERED on June 2, 2014.
s/ Joseph S. Van Bokkelen
Joseph S. Van Bokkelen
United States District Judge
Hammond Division

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