Mishler v. Superintendent

Filing 18

OPINION AND ORDER: The Court DENIES the petition 1 and DENIES the petitioner a certificate of appealability. Signed by Judge Joseph S Van Bokkelen on 4/26/2016. (lhc)(cc: Mishler)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
PAUL MISHLER, JR.

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Petitioner,
v.
SUPERINTENDENT,
Respondent.

Case No. 3:14-CV-1953-JVB

OPINION AND ORDER
Paul Mishler, Jr., a pro se prisoner, filed a habeas petition under 28 U.S.C. § 2254
challenging a state conviction and thirty-eight year sentence for child molestation committed in
Elkhart County, Indiana in State v. Mishler, 20D03-0602-FA-3. (DE 1.)
I.

BACKGROUND
In deciding this habeas petition, the court must presume the facts set forth by the state courts

are correct. 28 U.S.C. § 2254(e)(1). It is Mishler’s burden to rebut this presumption with clear and
convincing evidence. Id. On direct appeal, the Indiana Court of Appeals set forth the facts
surrounding Mishler’s offenses as follows:
B.P. was born on October 6, 1995, and just before she began attending
kindergarten at age five, she was living in Elkhart County with her mother,
Angela Passerallo, twenty-nine-year-old Mishler, and a younger half-brother.
Mishler, who was engaged to Passerallo, is the father of her son.
Around the time that B.P. was in the second and fourth grades, Mishler
entered her bedroom during the night on two occasions. When the incidents
occurred, B.P. was living in different houses and attending different schools.
On the first occasion, which the State alleged occurred “on or between
May, 2005 through January, 2006,” appellant’s app. p. 72, Mishler pulled B.P.’s
pants to her knees and “started licking” her“private,” tr. p. 75–76. Mishler also
touched B.P.’s vagina with his finger in an “up and down” motion. Id. at 78–79,
92. Although B.P. pretended to be asleep during the incident, she watched
Mishler leave the room. On the second occasion, which allegedly occurred during

the same time period, Mishler put “his finger in [B.P.’s] private and licked it.”Id.
at 72.
On January 26, 2006, B.P. informed her school counselor, Victor Burson,
about the incidents. That same day, B.P. gave accounts of the touchings to
Shannon Simmons from child protective services and forensic interviewer Gayla
Konanz. During the videotaped interview, B.P. claimed that “almost every night,”
Mishler entered her “bedroom and licked her private.” Ex. 3. B.P. also told
Simmons that “Big Paul” had “touched her boobs over her clothes.” Appellant’s
App. p. 28.
After the interviews, Passerallo took the children to their grandmother’s
home so she could confront Mishler about the incidents. At some point, the
grandmother heard Passerallo ask B.P., “[d]id this really happen or was this a
dream?” Id. at 48. B.P. responded by becoming withdrawn, which her
grandmother described as B.P.’s typical reaction to scolding, accusations against
her, humiliation, and antagonizing behavior.
The following day, B.P. returned to Burson’s office with a “bland
expression.” Id. at 216–17. Burson asked B.P. “what was going on,” and B.P.
responded that “she ... thinks it was a dream.” Id. at 217. B.P. clarified that she
thought “[t]he part about [her] getting licked in [her] private parts” was a dream.
Id. Burson then permitted B.P. to call Passerallo. Burson overheard B.P. raise her
voice and angrily tell Passerallo, “I know what happened.” Id. at 219. Burson then
spoke with Passerallo and she acknowledged that she had suggested to B.P.
several times that the alleged incidents might have been a dream.
Thereafter, the State charged Mishler with two counts of class A felony
child molesting. Prior to trial, the State filed a “Notice to Defendant of Intent to
Introduce Statement/Videotape or Child Witness Statements/Video Tape Pursuant
to I.C. 35–37–4–6(f).” Appellant’s App. p. 14–15, 74–81. Mishler opposed the
motion, claiming that the admission of B.P.’s statements at trial would violate the
rule against hearsay evidence. At a pretrial hearing on the State’s motion, the
State presented testimony from B.P., Burson, Simmons, and Konanz. Thereafter,
the trial court granted the State’s request to admit B.P.’s statements and the
videotaped interview into evidence.
At a jury trial that commenced on September 24, 2007, B.P. testified that
Mishler “put his finger in [her] private and licked it.” Appellant’s App. p. 41.
However, on cross-examination, B.P. testified that the alleged incidents “may
have been a dream.” Id. at 42. B.P. further testified that Passerallo talked to her on
multiple occasions about the possibility that she had only dreamed about
Mishler’s actions. At the conclusion of the trial, Mishler was found guilty as
charged.
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Thereafter, Mishler was sentenced to fifty years of incarceration in the
Indiana Department of Correction on each count, to run concurrently. In support
of the sentence, the trial court identified the following aggravating circumstances:
(1) Mishler’s juvenile adjudications for acts that would be child molesting had
they been committed by an adult; (2) the failure to obtain sufficient counseling to
avoid reoccurences of that behavior; (3) the violation of a position of trust; and
(4) Mishler’s adult criminal history. The trial court found the absence of prior
felony convictions as the sole mitigating factor.
Mishler v. State, 894 N.E.2d 1095, 1097-99 (Ind. Ct. App. 2008). Ex. E (record citations
in original).
After his conviction, Mishler appealed, arguing: (1) the evidence was insufficient;
(2) the victim’s out-of-court statements were improperly admitted; and (3) that his
sentence was inappropriate. (DE 6-2; DE 6-3.) The Indiana Court of Appeals affirmed
Mishler’s convictions, but reversed and revised his sentence to thirty-eight years. (DE 65.) Mishler did not seek further review by the Indiana Supreme Court. (DE 6-2.) The trial
court entered a new sentencing order, revising Mishler’s sentence to thirty-eight years.
(DE 6-1.
On September 17, 2009, Mishler filed a petition for post-conviction relief in State
court. (DE 6-1.) After a hearing, the post-conviction court denied Mishler’s request for
post-conviction relief. (DE 6-1.) Mishler appealed, arguing that: (1) he was denied a full
post-conviction hearing; and (2) his trial, appellate, and post-conviction counsel were
ineffective. (DE 6-7 at 2.) The Indiana Court of Appeals denied Mishler’s appeal. (DE 69.) Mishler sought transfer to the Indiana Supreme Court, claiming: (1) the trial court
erred by using his juvenile adjudications as aggravating circumstances; (2) there was
insufficient evidence to prove when the charged offenses occurred; (3) his trial counsel
was ineffective for failing to call witnesses; and (4) the post-conviction court denied him
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due process by failing to issue subpoenas and by not entering written findings of fact and
conclusions of law. (DE 6-10 at 1, 2.) The Indiana Supreme Court denied transfer. (DE 66.)
On October 14, 2014, Mishler filed this federal habeas petition challenging his
convictions for child molestation, arguing that: (1) trial counsel was ineffective for
failing to argue for a directed verdict based on the testimony of the victim; (2) trial and
appellate counsel were ineffective for failing to challenge the trial court’s use of
aggravating factors at sentencing; (3) there was insufficient evidence to prove when the
charged offenses occurred possibly violating the Double Jeopardy clause; (4) trial
counsel was ineffective for failing to properly investigate his case and call witnesses to
impeach the victim; and, (5) the post-conviction court denied him due process by not
issuing subpoenas or entering findings of fact and conclusions of law. (DE 1 at 3, 4.)

II.

ANALYSIS
Mishler’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 can grant an application for habeas relief if it meets the
requirements of 28 U.S.C. § 2254(d), which provides:
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
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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.

A.

Procedurally defaulted claims
As a threshold matter, the Respondent argues that the first four of Mishler’s five claims

are procedurally defaulted. Before considering the merits of a habeas petition, a federal court
must ensure that the petitioner has exhausted all available remedies in state court. 28 U.S.C. §
2254(b)(1)(A); Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). The exhaustion
requirement is premised on concerns of comity; the state courts must 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); Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir. 2004). For
that opportunity to be meaningful, the petitioner must fairly present his constitutional claims in
one complete round of state review. 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 habeas petition when either: (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

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U.S. 722, 735 (1991); Perruquet, 390 F.3d at 514. When a habeas petitioner fails to fairly
present his claim to the state courts and the opportunity to raise that claim has now passed, the
claim is procedurally defaulted. Boerckel, 526 U.S. at 853-54.
The record indicates that Mishler did not raise his first claim - trial counsel’s
ineffectiveness for failing to argue for a directed verdict based on the victim’s testimony- to the
Indiana Supreme Court. (DE 6-7, 6-9.) In his traverse, Mishler attempts to argue that this claim
is not defaulted because he raised the issue before the Indiana Court of Appeals. (DE 16-3.)
Although whether he actually raised the issue is questionable, (See DE 6-7), it is clear that he
never raised it to the Indiana Supreme Court, (DE 6-10), which he was required to do. The
record also indicates that he did not raise his second claim - trial and appellate counsel’s
ineffectiveness for failing to object to the aggravating sentencing factors - was not presented as
an independent claim before the Indiana Court of Appeals or Indiana Supreme Court. (DE 6-7;
6-10.) Although Mishler complained about the use of aggravating sentencing factors, he did not
argue that the errors were incidents of ineffective assistance of counsel. Mishler’s third claim - a
double jeopardy violation due to the State’s failure to present evidence as to when the crimes
occurred - was raised before the Indiana Supreme Court, (DE 6-11), but was not presented as an
independent claim to the Indiana Court of Appeals. (DE 6-7.) Mishler concedes as much.1 (DE
16-3.) Indiana law forbids parties from raising new claims in a petition to transfer, in a petition

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At the Indiana Court of Appeals, Mishler raised the issue that his counsel was ineffective for filing to raise a
double jeopardy violation. At the Indiana Supreme Court and here, Mishler raised only an underlying double jeopardy
violation. Now Mishler claims that he meant to couch his arguments here and to the Indiana Supreme Court as
“ineffective assistance of counsel for failing to argue double jeopardy.” (DE 16 at 5.) But, he did not.
Nevertheless, even if he did, the outcome would be the same. The Indiana Court of Appeals found that his underlying
double jeopardy claim was without merit and therefore, counsel could not have been ineffective for failing to raise it.
(DE 6-9.) This is a proper application of Strickland v. Washington. Bell v. Cone, 535 U.S. 685, 699 (2002).

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for rehearing, or in a reply brief. See Donnegan v. State, 889 N.E.2d 886, 893 (Ind. Ct. App.
2008) (citing Bunch v. State, 778 N.E.2d 1285, 1290 n. 3 (Ind. 2002) (affirming that an issue not
raised in the appellant’s principal brief is waived); Paramo v. Edwards, 563 N.E.2d 595, 600
(Ind. 1990) (finding that the defendants waived an issue raised for the first time in their brief in
support of petition to transfer). As a result, Mishler’s first three claims are procedurally
defaulted.
Mishler failed to fully and fairly present his fourth claim - trial counsel was ineffective
for failing to investigate and call witnesses to impeach the victim - to the Indiana Court of
Appeals. (DE 6-9 at 11.) While he vaguely raised this issue on direct appeal, the court of appeals
determined that he “fail[ed] to develop cogent argument explaining how counsel could have,
within the bounds of the law, achieved a different outcome. . . . Mishler’s bald assertions of
counsel’s omissions or mistakes are inadequate to support a post-conviction claim of
ineffectiveness of counsel.” (Id.) (citation omitted.) Moreover, Mishler’s claim underlying this
ineffective assistance of counsel claim - seeking more investigation and witnesses to impeach the
victim - was denied on an independent and adequate state law ground. In evaluating Mishler’s
claim that he was denied the ability to show trial counsel’s ineffectiveness because the postconviction court denied his request to issue subpoenas, the Indiana Court of Appeals provided:
The post-conviction court denied Mishler’s requested subpoenas for five
individuals: Rodney Dellinger, Aylissa Dellinger, Deb Peddler, Tina Passerallo,
and Luann Todd. Mishler’s affidavits in support of his requests for subpoenas of
these persons were generally speculative and exploratory, or anticipated hearsay
testimony. Mishler responded to the denials by requesting that the post-conviction
court certify its order for discretionary interlocutory appeal by this Court.
At a hearing addressing the motion, Mishler advised the post-conviction
court that Rodney Dellinger’s anticipated testimony was that Mishler’s trial
counsel failed to contact him regarding what information Rodney’s daughter,
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Aylissa Dellinger, might have. He succinctly explained to the court, “the whole,
primary [reason] for those five witnesses is the fact that Mr. Stevens never
established contact with them to do a proper investigation because they did retain
information to my case.” (P.C.R. Tr. 46-47) Mishler conceded that Rodney
Dellinger lacked knowledge of the facts of the case: “He couldn’t even come in
here and say anything about it because he did not even know that his daughter had
came [sic] and told Deb Peddler some information that B.P. had said to her.”
(P.C.E. Tr. 47) Ultimately, however, Mishler hoped to produce evidence that
“Aylissa came forth on January 26 [2006] and told that B.P. was going to do
whatever it took to get me kicked out of my house” and that, after the trial, “B.P.
had came [sic] forward and said to Tina and her daughter…that she did this, what
she did, or she made this stuff up to go live with grandma. And again Mr. Stevens
never contacted her.” (P.C.E. Tr. 47-48) Mishler conceded that the latter
statement, having been made after trial, could not have been available to his trial
counsel. Finally, Mishler stated that he expected Luann Todd, B.P.’s therapist, to
render a “professional opinion” that B.P. had failed to specifically identify
Mishler as her assailant, causing Todd to disbelieve that Mishler was the
perpetrator of crimes against B.P. (P.C.E. Tr. 49.)
In sum, Mishler contended that, had his trial counsel been sufficiently
diligent in his investigation, he would have uncovered more evidence to
undermine B.P.’s credibility. He does not establish, however, that hearsay
statements or confidential statements to a health care provider would have been
admissible for such a purpose [footnote omitted]. As for the statement allegedly
made after trial, Mishler contended that appellate counsel should have uncovered
its existence. The post-conviction court correctly concluded that appellate counsel
was not required to seek factual information outside the trial record.
We find no abuse of discretion in the post-conviction court’s refusal to
permit Mishler to elicit hearsay (in some instances, double hearsay) testimony or
privileged information. Nor was the court required to assist Mishler in pursuing
potential and speculative challenges to the credibility of trial witnesses. Postconviction proceedings are not designed to permit attacks upon trial witness
credibility, but rather to address issues demonstrably unavailable at trial and on
direct appeal.
(Ex. I at 5-7.)
The Indiana Court of Appeals demonstrated that Mishler did not present any evidence to
support a challenge to his trial counsel’s alleged failure to investigate. And, further, he failed to
show that any witness he wanted to present would have provided any admissible or supportive

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testimony. Ultimately, Mishler failed to fully and fairly present his claim to the state appellate
courts and his underlying claim was denied on an independent and adequate state law claim.
Therefore, Mishler did not properly present any of these four claims in one complete round of
state review, and they cannot be reached on the merits unless he provides grounds for excusing
his two levels of default.
A habeas petitioner can overcome a procedural default by showing both cause for failing
to abide by state procedural rules and a resulting prejudice from that failure. Wainwright v.
Sykes, 433 U.S. 72, 90 (1977); Wrinkles v. Buss, 537 F.3d 804, 812 (7th Cir. 2008), cert. denied,
129 S. Ct. 2382 (2009). Cause sufficient to excuse procedural default is defined as “some
objective factor external to the defense” which prevented a petitioner from pursuing his
constitutional claim in state court. Murray v. Carrier, 477 U.S. 478, 492 (1986). Here, Mishler
does not even attempt to argue cause or prejudice. A habeas petitioner can also overcome a
procedural default by establishing that the 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). To meet
this exception, the petitioner must establish that “a constitutional violation has resulted in the
conviction of one who is actually innocent of the crime.” Schlup v. Delo, 513 U.S. 298, 324
(1995). Mishler does not argue that any such fundamental miscarriage of justice would occur.
Because Mishler can not show cause for his failure to present these claims in one
complete round of state review or that any fundamental miscarriage of justice would occur if the
claims are not addressed, these claims are procedurally defaulted and cannot be reviewed on
their merits.

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B.

Mishler’s due process challenge to the post-conviction court
Mishler has preserved his claim that the post-conviction court did not issue subpoenas for

requested witnesses and failed to enter written findings of facts and conclusions of law.
Nevertheless, the respondent argues that, even though these claims are preserved, they are not
cognizable. The Court agrees. Although Mishler included the words “due process,” his claims
are premised on alleged errors committed by the state court on post-conviction review. (DE 1 at
4.) Federal habeas relief is not available for errors occurring in the state post-conviction
proceedings, since such errors do not implicate the legality of the petitioner’s confinement. See
Pennsylvania v. Finley, 481 U.S. 551, 557 (1987); see Jones v. Butler, 778 F.3d 575, 586 (7th
Cir. 2015) (holding that post-conviction court’s denial of evidentiary hearing was simply a
challenge to state law post-conviction procedures and not cognizable on habeas review); Jackson
v. Duckworth, 112 F.3d 878 (7th Cir. 1997). Mishler may not “transform a state-law issue into a
federal one merely by asserting a violation of due process.” Langford v. Day, 110 F.3d 1380,
1389 (9th Cir. 1996). Because Mishler’s claim does not present an independent basis for
overturning his conviction, it is not a basis for habeas relief.
Finally, Mishler complains that the post-conviction court should not have allowed his
post-conviction counsel to withdraw from the case. Even assuming Mishler could establish the
factual basis for this claim, he had no right to counsel during the state post-conviction
proceedings. Finley, 481 U.S. at 555; Wainwright, 455 U.S. at 587. Therefore, he cannot claim
the court deprived him of any constitutional rights. Nor can he allege any ineffective assistance
of counsel under the Sixth Amendment based on counsel’s alleged deficient performance.
Coleman, 501 U.S. 752; Anderson v. Cowan, 227 F.3d 893, 901 (7th Cir. 2000).

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C.

Certificate of Appealability
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 quotation marks and citation
omitted). For the reasons fully explained above, four of Mishler’s claims are procedurally
defaulted, and he has not provided any meritorious basis for excusing his default. As to his fifth
claim, Mishler has not made a substantial showing of the denial of a constitutional right, nor
could jurists of reason debate the outcome of the claim or find a reason to encourage him to
proceed further. Accordingly, the court declines to issue Mishler a certificate of appealability.

III.

CONCLUSION
For the reasons set forth above, the court:
(1) DENIES the petition (DE 1);
(2) DENIES the petitioner a certificate of appealability.

SO ORDERED on April 26, 2016.
s/ Joseph S. Van Bokkelen
Joseph S. Van Bokkelen
United States District Judge
Hammond Division
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