Kelly v. Superintendent
Filing
17
OPINION AND ORDER denying 1 Petition for Writ of Habeas Corpus. The petition (DE #1) is DENIED, and the court DENIES the petitioner a certificate of appealability. ***Civil Case Terminated. Signed by Judge Rudy Lozano on 7/1/2014. (rmc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DWAYNE KELLY,
)
)
)
)
)
)
)
)
)
Petitioner,
vs.
SUPERINTENDENT,
Respondent.
CAUSE NO. 3:13-CV-1101
OPINION AND ORDER
This matter is before the Court on a petition under 28 U.S.C.
Paragraph 2254 for Writ of Habeas Corpus by a person in State
Custody, filed by Dwayne Kelly, a pro se prisoner, on October 17,
2013.
(DE #1.)
For the reasons set forth below, the petition (DE
#1) is DENIED, and the court DENIES the petitioner a certificate of
appealability.
BACKGROUND
Kelly is serving a 65-year sentence for a murder committed in
Grant County.
(DE #1 at 1.)
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 Kelly’s burden to rebut this
presumption with clear and convincing evidence.
Id.
On direct
appeal, the Indiana Court of Appeals set forth the facts underlying
Kelly’s conviction as follows:
On March 4, 2005, Kelly went to Heather Jones’s house in
Marion, Indiana, looking for Alonzo Coleman.
Steffan
Bobson and several friends were already at Jones’s house.
When Kelly entered the house, Bobson was sleeping on the
couch with a gun in his lap. Kelly took the gun from
Bobson’s lap and asked who owned the gun.
One of
Bobson’s friends testified that Kelly cocked the gun and
pointed it at his legs. Despite being urged by several
of the people present to return the gun to Bobson, Kelly
left with the gun. Kelly testified that he unloaded the
gun and hid it after he left Jones’s house.
The following day, Kelly went to Antoinette Sanders’s
house looking for Coleman. While Kelly was at Sanders’s
house, Bobson arrived. Bobson yelled at Kelly to return
his gun and acted as if he was going to hit Kelly. Kelly
jumped, causing onlookers to laugh. Kelly then left and
retrieved Bobson’s gun from its hiding place. Kelly told
his friends that he was going back to the house to “deal
with him,” or to “settle the problem[.]” Not long after
he first left Sanders’s house, Kelly returned and knocked
on the door. When Bobson answered, Kelly said, “Let me
holler at you.” Bobson partially shut the door and walked
away, but Kelly entered the house while holding the gun
in his hand.
Kelly raised the gun and pointed it at
Bobson. Kelly and Bobson struggled over the gun. During
the struggle, Bobson was shot and eventually died from a
“loose contact gun shot wound” to the chest.
Kelly
testified that it was a “surprise” to him when the gun
went off because he thought it was unloaded.
After the shooting, Kelly took the gun and walked away
from the scene. He gave the coat he was wearing to a
friend’s nephew and told him to wash it. He borrowed a
change of clothes and arranged a ride to Chicago with
friends. He told one of his friends that “he didn’t mean
[ ] for it to happen like that, he meant . . . to put him
in the wheelchair.”
Kelly was eventually arrested and charged with murder.
Kelly testified on his own behalf at his jury trial,
admitting to much of the State’s evidence, but claiming
that he believed the gun was unloaded, that he did not
have the gun in his hand when he entered Sanders’s house,
and that he does not know who pulled the trigger during
the struggle for the gun.
Kelly v. State, No.72A05-0610-CR-590, slip op. at 2-3 (Ind. Ct.
2
App. Mar. 28, 2008) (internal citations omitted).
Kelly guilty of murder.
Id. at 3.
The jury found
The court sentenced him to an
aggravated term of 65 years, based on his extensive criminal
history and the fact that he was on probation at the time of the
offense.
Id.
Kelly appealed, challenging the sufficiency of the
evidence and arguing that the trial court erred in imposing his
sentence.
at 11.
Id. at 2.
The Indiana Court of Appeals affirmed.
Id.
Kelly did not seek transfer in the Indiana Supreme Court,
nor did he seek review in the U.S. Supreme Court.
(See DE #1 at
1.)
Kelly then filed a state petition for post-conviction relief
alleging ineffective assistance of counsel on various grounds.
Kelly v. State, No. 27A01-1212-PC-568 (Ind. Ct. App. Aug. 2, 2013).
Following an evidentiary hearing at which Kelly was represented by
counsel, the petition was denied.
Id. at 3. Kelly appealed,
raising three arguments: his counsel was ineffective in opening the
door to prejudicial character evidence; his counsel was ineffective
in failing to object to certain testimony about threats to two of
the witnesses; and his counsel was ineffective in failing to raise
an argument based on admission of the threat evidence on direct
appeal.
Id. at 4.
The Court of Appeals affirmed the denial of
post-conviction relief.
Id. at 12.
Kelly sought transfer raising
the same claims (DE #8-11), but his petition was denied.
6.) He did not seek review in the U.S. Supreme Court.
3
(DE #8-
(DE #1 at
2.)
Thereafter, Kelly filed a federal habeas petition raising the
following claims: (1) his counsel was ineffective in opening the
door to prejudicial character evidence and in failing to object to
the threat evidence; and (2) his counsel was ineffective in failing
to raise an argument based on admission of the threat evidence on
direct appeal.
(DE #1 at 3-4.)
DISCUSSION
Kelly’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).
The 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 can grant an application for habeas relief 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
4
(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 materially indistinguishable from relevant U.S. Supreme Court
precedent.
A
Bell v. Cone, 535 U.S. 685, 694 (2002).
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
petitioner’s case.
warrant
relief,
that
principle
to
the
facts
of
the
Wiggins v. Smith, 539 U.S. 510, 520 (2003). To
a
state
court’s
decision
must
be
more
than
incorrect or erroneous; it must be “objectively” unreasonable. Id.
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,
—U.S.—, 131 S. Ct. 770, 786 (2011). To obtain relief, a petitioner
must
show
that
the
state
court’s
5
ruling
was
“so
lacking
in
justification
that
there
was
an
error
well
understood
and
comprehended in existing law beyond any possibility for fairminded
disagreement.”
Id. at 786-87.
Both of Kelly’s claims are based on ineffective assistance of
counsel.
Under the Sixth Amendment, a criminal defendant is
entitled
to
“effective
assistance
of
counsel—that
is,
representation that does not fall below an objective standard of
reasonableness in light of prevailing professional norms.”
v. Van Hook, 558 U.S. 4, 16 (2009).
Bobby
To prevail on such a claim,
the petitioner must show that counsel’s performance was deficient
and that the deficient performance prejudiced him.
Washington, 466 U.S. 668 (1984).
Strickland v.
On the deficiency prong, the
central question is “whether an attorney’s representation amounted
to incompetence under prevailing professional norms, not whether it
deviated from best practices[.]”
Richter, 131 S. Ct. at 788.
The
court’s review of counsel’s performance is deferential, and there
is an added layer of deference when the claim is raised in a habeas
proceeding; “the question is not whether counsel’s actions were
reasonable.
The question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.”
Id.
Furthermore, “counsel need not be perfect, indeed not even
very good, to be constitutionally adequate.”
McAfee v. Thurmer,
589 F.3d 353, 355-56 (7th Cir. 2009) (citation omitted).
In assessing counsel’s performance, the court must “evaluate
6
[counsel’s] performance as a whole rather than focus on a single
failing or oversight,” Ebert v. Gaetz, 610 F.3d 404, 412 (7th Cir.
2010), and must respect its “limited role in determining whether
there
was
manifest
deficiency
available to counsel.”
in
light
of
information
then
Premo v. Moore, —U.S.—, 131 S. Ct. 733, 741
(2011). Counsel is given significant discretion to select a t rial
strategy based on the information known to him at the time. See Yu
Tian Li v. United States, 648 F.3d 524, 528 (7th Cir. 2011) (“So
long as an attorney articulates a strategic reason for a decision
that was sound at the time it was made, the decision generally
cannot support a claim of ineffective assistance of counsel.”);
United States v. Lathrop, 634 F.3d 931, 937 (7th Cir. 2011)
(observing that as long as counsel’s reasons were not “so far off
the wall that we can refuse the usual deference that we give
tactical decisions by counsel, his performance will not qualify as
deficient.”).
On the prejudice prong, the petitioner must show there is a
reasonable probability that “but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
A reasonable probability is a
probability “sufficient to undermine confidence in the outcome.”
Id. at 693. In assessing prejudice under Strickland, “the question
is not whether a court can be certain counsel’s performance had no
effect on the outcome or whether it is possible a reasonable doubt
7
might have been established if counsel had acted differently.”
Richter, 131 S. Ct. at 791.
“The likelihood of a different result
must be substantial, not just conceivable.”
Id. at 792.
When the
petitioner wanted counsel to raise an argument that itself had no
merit, an ineffective assistance claim cannot succeed, because
“[f]ailure to raise a losing argument, whether at trial or on
appeal, does not constitute ineffective assistance of counsel.”
Stone v. Farley, 86 F.3d 712, 717 (7th Cir. 1996).
Where it is
expedient to do so, the court may resolve an ineffective assistance
claim solely on the prejudice prong, because if the petitioner
cannot establish prejudice, there is no need to “grade” counsel’s
performance.
Strickland, 466 U.S. at 697.
A claim of ineffective assistance of appellate counsel is also
subject to the Strickland analysis.
Howard v. Gramley, 225 F.3d
784,
the
789-90
(7th
Cir.
2000).
On
deficiency
prong,
the
petitioner must show that counsel failed to present a “significant
and obvious” issue on appeal.
Id. at 790.
However, counsel “need
not (and should not) raise every nonfrivolous claim, but rather may
select from among them in order to maximize the likelihood of
success on appeal.”
Smith v. Robbins, 528 U.S. 259, 288 (2000).
On the prejudice prong, the petitioner must demonstrate that if the
argument had been raised, there is “a reasonable probability that
his case would have been remanded for a new trial or that the
decision of the state trial court would have been otherwise
8
modified on appeal.”
Howard, 225 F.3d at 790.
A. Ineffective Assistance of Trial Counsel
The record reflects that Kelly was represented by Grant County
Public Defender C. Robert Rittman at trial and on appeal. (DE 10,
State Court Record, Post-Conviction Hearing (“PCR”) Transcript
(“Tr.”) at 6.)
Kelly first claims that Rittman was deficient in
opening the door to improper character evidence by questioning a
witness about Kelly’s reputation for peacefulness. (DE #1 at 3.)
In rejecting this claim on post-conviction review, the Indiana
Court of Appeals properly identified Strickland as the governing
standard, and concluded that Kelly did not make the requisite
showing of prejudice. Kelly, No. 27A01-1212-PC-568, slip op. at 4.
Based on the record, the state court’s resolution of this claim was
not objectively unreasonable.
During the presentation of the defense’s evidence at trial,
Rittman asked witness Gina Wilcox about Kelly’s “reputation for
peacefulness.”
Id. at 5. She responded “[h]e’s really nice to me”
and stated she had “[n]ever” known Kelly to be violent.
Id. During
cross-examination, the prosecutor asked her if she knew “anything”
about Kelly battering a girlfriend in the past, and whether she
knew if Kelly had “been arrested and conviction of multiple
batteries on Jackie Sanders.”
Id. at 6.
Wilcox responded “No,
sir” and stated that Kelly never threatened or attacked her.
Id.
Kelly then testified, admitting that he earned his income from
9
selling cocaine, that he carried a gun due to his drug-dealing
activities, and that at the time he took Bobson’s gun he was
carrying his own gun and had another gun in his car.
State
Court
Record,
Trial
Tr.
at
645-51.)
(DE #10,
During
his
cross-examination, he acknowledged “criminal records for beating up
[his] girlfriend” and past battery convictions.
(Id. at 683.)
Rittman objected, and during a sidebar, he successfully argued that
the
prosecutor
should
not
be
permitted
to
inquire
into
the
specifics of these incidents. (Id.) Kelly now argues that Rittman
was deficient, and that his deficient performance prejudiced him in
connection with this testimony.
As outlined above, this was not an easy case to defend.
Several witnesses saw Kelly take Bobson’s gun; heard him say he was
going back to the house to “deal with” Bobson; heard him tell
Bobson “you want me to put somethin’ in ya” and push his way in the
house as Bobson was trying to close the door; saw him take out the
gun from his waistband and point it at Bobson’s head; and saw him
wrestling with Bobson over the gun.
There was also evidence that
he fled to Chicago after the shooting, disposed of his clothing,
and told a friend he only meant to put Bobson “in a wheelchair.”
Faced with this evidence, counsel decided to adopt a strategy under
which the defense admitted to certain matters even though they
“shed some bad light” on Kelly, in hopes that the jury would
believe he was being truthful when he testified that he did not
10
intend to kill Bobson.
8.
Kelly, No. 27A01-1212-PC-568, slip op. at
In essence, counsel’s goal was to try to obtain a conviction on
some lesser offense than murder.
Tr. at 6, 10-11.)
(DE #10, State Court Record, PCR
This strategy was not without risks, but given
the damning evidence against Kelly, counsel’s strategy was not “so
far off the wall” as to constitute deficient performance.
Lathrop, 634 F.3d at 937.
See
Indeed, admitting to certain bad
behavior was necessary given Kelly’s decision to testify, since he
could permissibly be questioned about his criminal record and other
matters bearing on his credibility.1
The trial record reflects that counsel vigorously pursued the
defense
theory
he
selected,
making
arguments
and
eliciting
testimony from witnesses in support of the theory that the shooting
was accidental.
Although the defense strategy ultimately proved
unsuccessful, this can be attributed to the strength of the
evidence inculpating Kelly rather than an error by counsel.
The
state’s evidence included the testimony of eyewitnesses about
Kelly’s aggressive actions and threats to Bobson, including his
pointing a gun at Bobson’s head, his flight from the state after
the shooting, and his “wheelchair” comment. Kelly’s own testimony
that the shooting was accidental was thoroughly impeached by the
1
The record shows that Kelly had an extensive criminal record dating back
to when he was 17 years old, including six prior felony convictions, three
misdemeanor convictions, and two probation violations. (DE #10, State Court
Record, Appellant’s Appx. at 6-8.) He was also on probation at the time he
committed this offense. (Id. at 6.)
11
prosecutor.
The jury also heard evidence of his criminal record
for offenses other than the battery convictions, and also learned
that he was on probation at the time of the offense.
Based on the
record, Kelly has not demonstrated that in the absence of an error
by counsel in connection with Wilcox’s testimony, the result of the
proceeding likely would have been different.
Thus, the state
court’s resolution of this claim was not objectively unreasonable.
In a related vein, Kelly argues that counsel was deficient
because he failed to properly object to certain testimony regarding
threats made to two witnesses, Latea Ford and Antoinette Sanders.
(DE
#1
at
3.)
At
trial,
Ford,
who
was
present
for
the
confrontation before the shooting, was asked on direct if she had
received any threats related to her testimony. She replied that she
had not, but stated that “people” had asked her if she was “goin’
to Court” and what she would “say in Court.”
Record, Trial Tr. at 313.)
(DE 10, State Court
Ford testified that a man named Jay
came to her house and “he just axed [sic] me, was I goin’ to Court
and said that Dwayne wanted me——”
(Id.)
At this point, Kelly’s
counsel objected, but the trial court overruled the objection.
(Id.)
The state then asked Ford what she had said to Jay.
(Id.)
Defense counsel objected again, but his objection was overruled.
(Id. at 314.)
Ford testified that she told Jay not to return to
her house and that she did not want to talk to him.
concluded the state’s questioning on the matter.
12
(Id.)
(Id.)
That
During the testimony of Sanders, she testified that she lived
with her children at the home where the shooting occurred, but was
not at the home at the time of the shooting.
(Id. at 283, 287–88.)
The prosecutor asked her why she left town a few days after the
shooting.
(Id. at 293.)
Kelly’s counsel objected, but the trial
court overruled the objection and allowed Sanders to answer. (Id.)
She responded, “I was threatened that if I came to Court or if I
told what happened that me and my kids, somethin’ was going to
happen
to
me
and
my
kids,
so
I
left
and
it
was
just
like
embarrasin’ to me that this happened in my house, so I left.”
(Id.)
There were no further questions on this matter.
(Id.)
Under Indiana law, evidence of a threat to a witness by a
third party is admissible, provided the state establishes a proper
foundation
that
the
third
party
made
defendant’s knowledge or authorization.”
N.E.2d 302, 306 (Ind. 1983).
the
threats
“with
the
Kimble v. State, 451
As noted above, Kelly’s counsel did
raise objections to the testimony of Ford and Sanders, but his
objections were overruled.
Although Kelly appears to believe
counsel should have done more to keep this testimony out, he
presented nothing in the post-conviction proceedings to suggest
that the trial court would have sustained some other type of
objection to this evidence.
Furthermore, the Indiana Court of Appeals concluded that Kelly
failed to establish prejudice in connection with this testimony in
13
light of the other evidence of his guilt.
Kelly, No. 27A01-1212-
PC-568, slip op. at 8-11. This determination was not unreasonable.
As the state court pointed out, the evidence about the threats was
quite limited and brief, and one of the witnesses expressly denied
having been threatened.
The other witness stated that she decided
to leave town, in essence, because she was embarrassed this had
occurred in her home.
On the other hand, the evidence of Kelly’s
guilt was substantial. This included Kelly’s own admissions about
his drug activities and his habit of carrying firearms, the
eyewitness testimony that Kelly pointed a firearm at Bobson’s head,
and the inculpatory statement he made to a friend after the
shooting.
Based on the record, Kelly has not established that
counsel was deficient, or that in the absence of an error by
counsel in connection with this testimony, there is a substantial
likelihood that the proceeding would have had a different outcome.
Richter, 131 S. Ct. at 792.
The state court’s resolution of this
claim was not objectively unreasonable.
Although unclear, Kelly may also be claiming that counsel’s
overall performance was deficient and that he essentially abandoned
his role as Kelly’s advocate.
The record belies any such claim.
Instead, the record reflects that trial counsel was well versed in
the facts and advocated vigorously on Kelly’s behalf throughout the
trial proceedings.
He argued a motion
in limine, conducted
extensive voir dire questioning of prospective jurors, made a
14
lengthy opening statement, cross-examined the state’s witnesses
(including eliciting testimony that certain witnesses had prior
criminal records or had lied to police in the past), raised
numerous objections, argued in closing that Kelly’s conduct was
merely reckless, and argued for leniency at sentencing.
(DE #10,
State Court Record, Trial Tr. Vol. I-IV.)
In short, Kelly has not established that counsel failed to
serve in his role as an advocate, or that counsel’s overall
performance fell below the minimum standard required by Strickland.
Furthermore, given the substantial evidence in the record of his
guilt, as well as the evidence impugning his credibility as a
witness, he has not made the necessary showing of prejudice. Based
on the record, the state court’s resolution of Kelly’s claims
pertaining to trial counsel’s performance did not constitute an
unreasonable application of Strickland. Accordingly, these claims
are denied.
B.
Ineffective Assistance of Appellate Counsel
Kelly also claims that counsel was ineffective in failing to
raise an argument on direct appeal regarding admission of the
threat evidence.
(DE #1 at 3.)
In rejecting this claim on post-
conviction review, the Indiana Court of Appeals Petitioner properly
identified Strickland as the governing standard. Kelly, No. 02A041107-PC-398, slip op. at 4.
The court concluded that Kelly failed
to establish deficient performance or prejudice in connection with
15
this claim.
Id. at 11-12.
Based on the record, the state court’s
resolution of the claim was not objectively unreasonable.
Under Strickland, appellate counsel “need not (and should not)
raise every nonfrivolous claim, but rather may select from among
them in order to maximize the likelihood of success on appeal.”
Smith, 528 U.S. at 288.
Here, the record reflects that counsel
filed an 18-page appellate brief on Kelly’s behalf, raising two
arguments and citing various state and federal cases. (DE #8-3.)
One of the arguments challenged the sufficiency of the evidence on
the issue of intent; if successful, this would have resulted in the
murder conviction being vacated.
(See id.)
The other argument
challenged Kelly’s sentence, asserting error under Apprendi v. New
Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296
(2004).
If successful, this argument would have resulted in a
substantial reduction in Kelly’s 65-year sentence.
The Indiana
Court of Appeals found enough merit to these arguments to warrant
an 11-page opinion analyzing the facts and applicable law.
No. 27A05-0610-CR-590.
Kelly,
Indeed, the court agreed with counsel that
the trial court had committed errors under Apprendi and Blakely,
but ultimately found these errors harmless.
Id. at 8-11.
Kelly has not established that the argument regarding the
threat evidence was significantly stronger than the arguments
counsel chose to raise.
the
threat
testimony
As recounted above, counsel objected to
during
trial,
16
but
his
objections
were
overruled by the trial court.
Kelly has not provided any basis to
conclude that further investigation or other action by counsel
would have led to a different decision by the trial court regarding
the admissibility of this evidence. Furthermore, the Indiana Court
of Appeals considered this argument on post-conviction review, and
concluded that Kelly was not prejudiced by the admission of the
threat evidence. Kelly, No. 27A01-1212-PC-568, at 11. There is no
indication Kelly’s argument would have fared any better on direct
appeal.
Accordingly, Kelly has not made the necessary showing of
prejudice.
See Howard, 225 F.3d at 790; Stone, 86 F.3d at 717.
Based on the record, the state court’s resolution of this claim was
not objectively unreasonable, and therefore the claim is denied.
Pursuant to RULE 11
OF THE
RULES GOVERNING SECTION 2254 CASES, the
court must either issue or deny a certificate of appealability in
all cases where it enters a final order adverse to the petitioner.
To obtain a certificate of appealability, 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) (internal quote marks and citation omitted).
As is fully explained above, Kelly’s claims are without merit under
AEDPA standards. Nothing before the court suggests that jurists of
17
reason could debate the outcome of the petition or find a reason to
encourage
Kelly
to
proceed
further.
Accordingly,
the
court
declines to issue him a certificate of appealability.
CONCLUSION
For the reasons set forth above, the petition (DE #1) is
DENIED, and the court DENIES the petitioner a certificate of
appealability.
DATED: July 1, 2014
/s/ RUDY LOZANO, Judge
United States District Court
18
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