Mamon v. Superintendent

Filing 23

OPINION AND ORDER: DENYING 5 AMENDED PETITION FOR WRIT OF HABEAS CORPUS against Superintendent, filed by Kevin J Mamon and DENYING the petitioner a certificate of appealability. Signed by Senior Judge James T Moody on 1/8/2016. (lhc)(cc: Mamon)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
KEVIN J. MAMON,
Petitioner,
v.
SUPERINTENDENT,
Respondent.

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No. 3:14 CV 2060

OPINION AND ORDER
Kevin J. Mamon, a pro se prisoner, is serving a 3-year sentence for a conviction of
battery by bodily waste in the Hancock County Circuit Court. State v. Mamon, 30C011211-FD-1791. He filed this petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 raising two grounds. First, Mamon claims that the trial court denied him the
right to present an intoxication and insanity defense. Second, he asserts that the trial
court lost jurisdiction to bring him to trial once he filed a petition for removal to federal
court. The respondent argues that the petition should be denied because Mamon’s first
claim is procedurally defaulted and second claim is without merit. This court agrees.
For the reasons stated below, the petition is denied and this case is dismissed.
I.

FACTS
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 Mamon’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 Mamon’s offenses as follows:

Mamon was an inmate at the Hancock County Jail. On August 7, 2012,
Mamon submitted the following comment into the jail’s grievance report
system after being denied a position as an inmate employee:
I CANNOT FOLLOW THE BASIC RULES OF THE JAIL? I[‘]M
NOT INSTITUTIONALIZED. SORRY. I[‘]M NOT YOUR
MODEL INMATE. WHAT DOES THAT HAVE TO DO WITH
OCCUPYING MY TIME SO I STAY OUT OF TROUBLE.
NOTHING. SCREW YOU AND INMATE WORKERS[.] I[‘]LL
CONTINUE TO DO WHAT THE FU*K I WANT THEN. AND
THERE[‘]’S NOT MUCH YOU CAN DO WHEN YOU GET
SH*T AND PI*S THROWN ON YOU. KEEP FU**ING
AROUND.
Tr. p. 132-34. On September 12, 2012, Mamon again threatened to throw urine
when he refused to be moved to a segregated unit. Sometime during the
evening of November 20, 2012, an inmate worker reported that Mamon spit
on him. Based on this report, Mamon was moved into an administrative
segregation padded cell with a solid door. Although the cell had an attached
bathroom, Mamon was not able to access that bathroom because of a locked
door. Most inmates who are placed in a padded cell are typically not
provided with access to the bathroom. Instead, the cell is equipped with a
special floor toilet with is flushed from outside the cell.
During the night, the guards offered Mamon water on an hourly basis, but
Mamon generally refused the drinks. Mamon spent most of the night yelling
at the officers. Mamon also threw feces on the walls and covered one of the
security cameras with feces. According to the sergeant in charge of the night
shift, Mamon was offered the opportunity to leave the cell and to clean the
feces, but he refused to leave.
Around 5:00 a.m. on November 21, 2012, jail officer Ryan Garrity opened the
cell door to offer Mamon some water. Mamon grabbed a cup filled with
yellow liquid and threw it at Officer Garrity. The liquid hit Officer Garrity on
the side of the face, and some of it went into his mouth and an eye. Based on
the color, the officer knew that the liquid was urine. Mamon stated, “I got
you[,] that was my piss” or “how did my piss taste?” Tr. p. 162, 203. A review
of the security footage appears to show Mamon hiding the cup and possibly
filling the cup with urine earlier in the morning, but the image is largely
obstructed by Mamon’s feces (Ex. F).

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Mamon v. State, 30A05-1309-CR-440, slip op. 2-3 (Ind. Ct. App. March 31, 2014); (DE #116.)

The State charged Mamon with battery by bodily waste, a class D felony, on
November 21, 2012. (DE #11-1; 11-6.) On January 9, 2013, Mamon filed a petition for
removal of the case from the Hancock Circuit Court to the United States District Court
for the Southern District of Indiana. (Id.) Mamon proceeded pro se at a jury trial that
commenced on February 26, 2013, and he was found guilty as charged. (Id.) On May 8,
2013, the United States District Court terminated Mamon’s removal by remanding the
case. (Id.) On June 3, 2013, the trial court entered judgment and sentenced Mamon to a
three year term of imprisonment. (Id.)
On direct appeal, Mamon raised four arguments: (1) whether the trial court
improperly excluded evidence regarding involuntary intoxication and insanity defenses
under Indiana law; (2) whether the sentence was inappropriate; (3) whether the trial
court improperly conducted a trial while his petition for removal was pending in
federal court; and (4) whether the trial court lost jurisdiction due to a delay in
sentencing. (DE #11-2; 11-3.) On March 31, 2014, the Indiana Court of Appeals affirmed
his conviction and sentence. (DE #11-6.) Mamon then sought transfer to the Indiana
Supreme Court where he argued that the trial court erred in conducting a trial while his
petition for removal was pending and that the trial court lost jurisdiction and could not

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sentence him due to a delay in sentencing. (DE #11-7.) The Indiana Supreme Court
denied transfer on July 24, 2014. (DE #11-2.)
On January 16, 2015, Mamon filed this federal habeas petition raising two
grounds for relief: (1) the trial court denied his right to present a defense; and (2) the
trial court lost jurisdiction and the ability to bring him to trial once he filed a petition for
removal under 28 U.S.C. § 1443 in federal district court. (DE #5.)
II.

ANALYSIS
This petition is governed by the provisions of the Anti-Terrorism and 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 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 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.

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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 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.
A. Claim One
In his first claim, Mamon claims that the trial court’s exclusion of evidence that
he intended to introduce to support defenses of involuntary intoxication and temporary
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insanity violated his federal constitutional right to present a defense. (DE #5.) However,
the record reflects that Mamon did not raise that claim before the Indiana Supreme
Court in his petition to transfer. (DE #11-7.) Because he did not raise this claim in one
complete round of state review, the claim is procedurally defaulted. Boerckel, 526 U.S. at
848 (a prisoner who fails to present his claims in a petition for discretionary review to a
state court of last resort has not properly presented his claims to the state courts); Hough
v. Anderson, 272 F.3d 878, 892 (7th Cir. 2001) (petitioner who failed to raise his claims in
a petition to transfer with the Indiana Supreme Court procedurally defaulted those
claims).
In addition to failing to present any challenge to the Indiana Supreme Court,
Mamon failed to present a federal constitutional claim before the Indiana Court of
Appeals when he challenged the exclusion of this evidence. He only challenged it on
state law grounds. Because the Indiana Court of Appeals dismissed Mamon’s claim
based on state law, his claim is also defaulted based on an independent and adequate
state law ground. Coleman, 501 U.S. at 729.
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
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(1986). Mamon filed a traverse in support of his petition, but does not allege any
grounds in his traverse for excusing this procedural default, and instead focuses on the
merits of this claim. (See DE #22.) However, because this claim is defaulted, the court
cannot reach the claim on its merits.
A habeas petitioner may also overcome a procedural default by establishing that
the court’s refusal to consider a defaulted claim on the merits would result in a
fundamental miscarriage of justice. House v. Bell, 547 U.S. 518, 536 (2006); Coleman, 501
U.S. at 750. Under this narrow 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). A petitioner who asserts actual
innocence “must demonstrate innocence; the burden is his, not the state’s . . . .” Buie v.
McAdory, 341 F.3d 623, 626-27 (7th Cir. 2003) (emphasis in original). Mamon does not
show any fundamental miscarriage of justice would occur, nor does the court find that
to be that case.
B. Claim Two
In his second claim, Mamon asserts that the trial court lost jurisdiction over his
state criminal proceeding when he filed a petition for removal to federal court before
the trial commenced. Pursuant to federal statute:
The filing of a notice of removal of a criminal prosecution shall not
prevent the State court in which such prosecution is pending from
proceeding further, except that a judgment of conviction shall not be
entered unless the prosecution is first remanded.

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28 U.S.C. § 1455(b)(2). The Indiana Court of Appeals held that 28 U.S.C. § 1455(b)(2)
permits state courts to conduct proceedings in a criminal case while a removal petition
is pending. The Indiana Court of Appeals held that 28 U.S.C. § 1455(b)(2) permits state
courts to conduct proceedings in a criminal case while a removal petition is pending. In
addition, as stated above in the factual summary, on May 8, 2013, the United States
District Court remanded the case, prior to the state court entering a judgment of
conviction on June 3, 2013. (DE #11-6.)
Under the deferential standard under which the court operates in habeas
proceedings, it 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). 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, 562 U.S. 86, 101 (2011). Based upon the plain language of the
statute, and no case law to the contrary, the Indiana Court of Appeals’ adjudication was
not unreasonable. As such, this claim is not a basis for habeas relief.
As a final matter, 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
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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, Mamon’s claims are not cognizable in this
proceeding or are otherwise without merit under AEDPA standards. The court finds no
basis to conclude that jurists of reason could debate the outcome of the petition or find a
reason to encourage Mamon to proceed further. Accordingly, the court declines to issue
Mamon a certificate of appealability.
III.

CONCLUSION
For the reasons set forth above, the petition (DE #5) is DENIED, and the

petitioner is DENIED a certificate of appealability.

SO ORDERED.
Date: January 8, 2016
/s James T, Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT