Hart v. Superintendent

Filing 12

OPINION AND ORDER DENYING 1 PETITION for Writ of Habeas Corpus filed by Petitioner Elwin Hart. Petitioner is DENIED a certificate of appealability. This case is DISMISSED. Signed by Judge Theresa L Springmann on 1/11/17. (cc: Elwin Hart). (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
ELWIN HART,
Petitioner,
v.
SUPERINTENDENT,
Respondent.

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CAUSE NO.: 3:15-CV-172-TLS

OPINION AND ORDER
Elwin Hart, a prisoner proceeding pro se, filed a habeas corpus petition challenging his
state court convictions for murder, carrying a handgun without a license, and possession of
marijuana by the Marion Superior Court under cause number 49G01-1002-MR-13454, for which
he received an aggregate 110 year sentence on June 10, 2010. The Respondent argues that all
four of Hart’s claims are procedurally defaulted and, alternatively, not cognizable in this federal
habeas proceeding. For the reasons set forth below, the Court agrees. Accordingly, the Court
DENIES the Petition, DENIES the Petitioner a certificate of appealability, and DISMISSES the
case.

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 Hart’s burden to rebut this presumption with
clear and convincing evidence. Id. On appeal from the denial of post-conviction relief, the
Indiana Court of Appeals set forth the facts surrounding Hart’s offenses as follows:
In February 2010, Chad Nickle, his girlfriend Elizabeth Newcomer, his mother
Linda Nickle, and Linda’s boyfriend Hart all lived together in a house on the
southwest-side of Indianapolis. Chad and Elizabeth, who were engaged to be

married, had recently moved in with Linda and Hart to help them pay bills. In
addition, Linda and Hart had recently purchased a white Chevy Silverado truck
that Hart drove.
Chad worked out of state for eleven months of the year doing environmental
demolition and was in Milwaukee, Wisconsin, on February 20, 2010. On that
morning, Elizabeth called Chad and told him that she had found a baggie of white
powder that she suspected to be cocaine. Chad instructed Elizabeth and Linda to
go to a nearby bike shop, Thugs Incorporated Choppers, so that his friend Dennis
Gibson could test the white powder. Dennis, who had experimented with cocaine
before, tasted the powder and concluded that it was cocaine. Based on this
information, Chad told Elizabeth to tell his mother that Hart had to move out.
Chad directed the women to call him right after they told Hart the news. Dennis
also told the women that if they needed help evicting Hart, they should call him.
Around 2:00 p.m., Chad still had not heard from his fiancee or mother. Because
Chad was concerned that he could not reach them by phone, he had Dennis and
another bike shop employee go to the house. They knocked on the door, but no
one answered. They spotted Elizabeth’s red truck in the driveway but not Hart’s
white truck. Dennis called Chad to report their findings.
Around 4:00 p.m., Chad received a concerned call from Elizabeth’s mother
because Elizabeth did not show up at a family event. Chad then contacted a
childhood friend, Daniel Sprouse, and asked him to go to the house. At the time,
Daniel and his wife were in Noblesville at a swim meet. When Daniel arrived at
the house, he observed Elizabeth’s red truck in the driveway and Linda’s car in
the garage. Hart’s white truck was not there. Chad instructed Daniel to ring the
doorbell, pound on his mother’s bedroom window, and beat on the garage door.
Chad and Daniel stayed on the phone the entire time. When there was no
response, a frantic Chad instructed Daniel to break in. Daniel broke a window on
a door that led to the garage and entered the house. Upon entering the living
room, Daniel started screaming to Chad over the phone that Elizabeth and Linda
were dead. Both had been shot in the head and were sitting upright with the
television still on. A dropped coffee cup was at Linda’s feet. Elizabeth was shot
three times, and Linda was shot once. Daniel rushed out of the house and told his
wife to call 911. While Daniel and his wife were standing in the middle of the
street waiting for emergency responders, they noticed a white Chevy truck that
they believed to be Hart’s parked on the wrong side of the street about 200 feet
away. Daniel and his wife called 911 again. Fearing for their safety, Daniel and
his wife took shelter in their car. The white truck backed up and disappeared.
Emergency responders arrived at 5:08 p.m. and confirmed that Elizabeth and
Linda were dead. Their identifications and cell phones were missing, but there
were no other signs of a robbery, as nothing was missing and the house was in a
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neat and orderly condition. Police recovered a baggie of white powder from the
kitchen, but it was later determined not to be cocaine.
In the meantime, Hart called his boss, Victor Fleming, and left two voicemails
saying that he would not be at work on Monday. According to Victor, the first
voicemail stated:
Victor, it’s me, Elwin Hart. I’m calling you to thank you for the opportunity to
work with Laker Medical. You are great people and I enjoy to work [sic] with
you. I hope everything will be better, but I won’t be able to come back to work on
Monday because something is not—something went wrong.
Tr. P. 307, 314. According to Victor, the second voicemail stated:
Thank you for the opportunity. Thank you for you guys. You guys are good
people and I appreciate the opportunity to work with your company, but I won’t
be able to go back to work on Monday since I did something very wrong and I’m
about to turn myself in to the police.
Id. at 311, 314.FN1
FN1. Victor said that both voicemails had been recorded by a
detective; however, by the time of trial, that detective had died and
neither the voicemails nor a transcript of the voicemails could be
found.
Hart then went to Lynhurst Baptist Church, where he had been attending services
for several years. He called 911 from the church at 5:17 p.m. and told the
dispatcher that he was calling to report a double homicide that had occurred at his
residence and he would meet the police at the front door of the church. While
inside the church, Hart encountered longtime church member Shirley Clements
who was there for her granddaughter’s wedding. The wedding was over, and the
wedding party and family had finished taking pictures and were getting ready to
go to the reception. Hart asked Shirley if he could see the pastor. Shirley said that
the pastor had just left. Hart responded that he wanted to see the pastor “but that
he couldn’t wait any longer” because “the police were on their way out there to
arrest him.” Id. at 203. When Shirley asked him “[w]hat in the world ... the police
[were] going to arrest [him] for,” Hart responded that he had “shot Linda and her
future daughter-in-law” around noon.” Id. Hart added that “he wasn’t going to let
them frame him the way they were trying to do.” Id. When Hart explained that he
had come to church to pray with the pastor, Shirley said she would pray with him
instead. Shirley then summoned her nearby husband, and the three of them prayed
on the spot. After the prayer, Hart and Shirley hugged, and Hart said that he was
going to wait for the police outside. Because Shirley had to get to the wedding
reception, she had a church elder, Bruce Litton, wait with Hart. While they were
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waiting, Hart told Bruce that Linda had found some white powder in the kitchen
and claimed it was his. Linda then had the white powder tested at a motorcycle
shop to see if it was in fact cocaine. Hart was adamant during his conversation
with Bruce that he did not use cocaine. Hart explained that he and Linda got into
an argument over whether the substance was in fact cocaine, at which point Linda
told him to move out. At this point, police pulled up and ordered Hart to show his
hands. When the police asked where the weapon was, Hart responded that it was
in his truck. A search of Hart’s truck revealed a pistol, two magazines, and a box
containing marijuana. The forensic testing from the pistol was “inconclusive,”
meaning that the pistol could not be identified or eliminated as the murder
weapon. Id. at 269. Nevertheless, the testing on the bullets recovered from the
victims showed that all four bullets were fired from the same gun.
Days later, the State charged Hart with two counts of murder, Class A
misdemeanor carrying a handgun without a license, and Class A misdemeanor
possession of marijuana. A three-day jury trial was held in May 2011. The jury
found him guilty as charged, and the trial court sentenced him to an aggregate
term of 110 years.
Hart v. State, No. 49A02–1107–CR–583, slip op. at 2–6 (Ind.Ct.App. Mar. 13,
2012).
On direct appeal, Hart challenged the sufficiency of the evidence to support his
conviction. [On March 13, 2012,] [h]is conviction was affirmed. Id. at 2.
[Petitioner failed to timely seek transfer to the Indiana Supreme Court. Ex. C].
On April 12, 2012, Hart filed a petition for post-conviction relief, challenging
Shirley Clement’s testimony, Victor Fleming’s testimony, and Daniel Sprouse’s
“braking [sic] into the primises [sic].” (App.3.) On March 19, 2014, the postconviction court held an evidentiary hearing at which Hart presented argument
but no evidence or exhibits.
On June 3, 2014, the post-conviction court issued its findings of fact, conclusions
of law, and order denying Hart post-conviction relief.
Ex. J at 2-6.
On appeal from the denial of post-conviction relief, Hart raised a number of claims
challenging the admissibility of evidence at his trial. (See ECF No. 6-7.) The Indiana Court of
Appeals ruled that the admissibility of evidence claims were known and available on direct
appeal and therefore, forfeited on post-conviction review. (Return to Order to Show Cause, ECF
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No. 6-10.) The court of appeals went on and held that to the extent Hart was attempting to raise a
sufficiency of the evidence challenge, such a claim was barred by res judicata. (Id.) Hart sought
transfer with the Indiana Supreme Court, raising those same claims. (ECF No. 6-11.) The
Indiana Supreme Court denied transfer. (ECF No. 6-3.)
Hart then filed a habeas corpus petition here, challenging the admissibility of his firearm,
Victor Fleming’s testimony, the entry into the residence, and Shirley Clements’ testimony. (Pet.,
ECF No. 1.)

ANALYSIS
Hart’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 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.
Before considering the merits of a habeas petition, a federal court must ensure that the
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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.

Hart’s Claims are Procedurally Defaulted.
The Respondent argues that the claims raised in Hart’s Petition—the admissibility of his

firearm, the admissibility of Victor Fleming’s testimony, the entry into the residence, and the
admissibility of Shirley Clements’ testimony—are procedurally defaulted. The Indiana Court of
Appeals held that Hart’s challenges to the admissibility of this evidence at his trial were
procedurally defaulted:

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Post-conviction procedures do not afford petitioners with a “super-appeal”; rather,
the post-conviction rules contemplate a narrow remedy for subsequent collateral
challenges to convictions. Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006). The
purpose of a petition for post-conviction relief is to provide petitioners the
opportunity to raise issues not known or available at the time of the original trial
or direct appeal. Stephenson v. State, 864 N.E.2d 1022, 1028 (Ind. 2007). If an
issue was known and available but not raised on direct appeal, the issue is
procedurally foreclosed. Id. If an issue was raised and decided on direct appeal, it
is res judicata. Id. Moreover, collateral challenges to convictions must be based
upon grounds enumerated in the post-conviction rule. Shanabarger v. State, 846
N.E.2d 702, 707 (Ind. Ct. App. 2006), trans. denied; see also Post–Conviction
Rule 1(1).
To the extent that Hart attempted to challenge the admission of certain trial
testimony, this was available to him on direct appeal. The issue is now
procedurally foreclosed. To the extent that Hart attempted to challenge his
convictions by claiming insufficiency of the evidence, this issue was raised on
direct appeal and is res judicata.
(ECF No. 6-10 at 7–8.)
As the court of appeals noted that, because each of Hart’s claims were known and
available on direct appeal, they could not be raised for the first time on post-conviction review.
The Indiana Court of Appeals’ holding that Hart’s claims were procedurally defaulted serves as
an adequate and independent state ground that blocks federal review here. Coleman, 501 U.S. at
735; Szabo v. Walls, 313 F.3d 392 (7th Cir. 2002). Because each of Hart’s four claims were
raised, considered, and found to be procedurally defaulted in his state post-conviction
proceedings, they are procedurally defaulted here, too.
To the extent Hart is raising a challenge to the sufficiency of the evidence, he failed to
raise that claim to the Indiana Supreme Court on direct appeal. (ECF No. 6-2.) After the Indiana
Court of Appeals denied his direct appeal, Hart failed to timely seek transfer. (Id.) Therefore, his
petition was not filed. Because he did not raise these claims in one complete round of state
review, they are procedurally defaulted. O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) (a
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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).
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). Although he
filed a traverse further complaining about the admission of various evidence at his trial, Hart
does not attempt to show 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). 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). Furthermore, actual innocence means “factual innocence, not mere
legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). To support a claim of
actual innocence the petitioner must come forward with “new reliable evidence—whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical

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evidence—that was not presented at trial,” id., and must show that “in light of new evidence, it is
more likely than not that no reasonable juror would find him guilty beyond a reasonable doubt,”
House, 547 U.S. at 537. This is a difficult standard to meet, and such claims are “rarely
successful.” Schlup, 513 U.S. at 324. Hart does not attempt to establish that any such
fundamental miscarriage of justice would occur. As a result, Hart cannot excuse his default and
habeas review is precluded on this claim.

B.

Hart’s Claims are Not Cognizable in This Proceeding.
Even if Hart’s claims were not procedurally defaulted, they are not cognizable in these

proceedings. As the Respondent points out, federal habeas corpus does not ordinarily lie to
review questions about the admissibility of evidence. McGuire, 502 U.S. at 72; Haas v.
Abrahamson, 910 F.2d 384, 389 (7th Cir. 1990). “[S]tate court evidentiary rulings rarely will
serve as grounds for granting a writ of habeas corpus.” Lilly v. Gilmore, 988 F.2d 783, 789 (7th
Cir. 1993) (citations omitted). “Unless it is shown that ‘a specific constitutional right has been
violated, a federal court can issue a writ of habeas corpus only when a state evidentiary ruling
violates the defendant’s right to a fundamentally fair trial’ under the Due Process Clause.” Id.
(quoting Haas, 910 F.2d at 389). Here, Hart does not identify or cite to any specific
constitutional right that he believes has been violated due to the admission of the complained of
evidence.

C.

Hart is Not Entitled to a Certificate of Appealability.
As a final matter, pursuant to Rule 11 of the Rules Governing Section 2254 Cases, the

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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, Hart’s claims are procedurally defaulted, and he
has not provided any meritorious basis for excusing his default. Even if they were not defaulted,
they would not be cognizable in this proceeding. The court finds no basis to conclude that jurists
of reason could debate the outcome of the Petition or find a reason to encourage Hart to proceed
further. Accordingly, the Court declines to issue Hart a certificate of appealability.

CONCLUSION
For these reasons, the Court DENIES the Petition, DENIES the Petitioner a certificate of
appealability, and DISMISSES the case.
SO ORDERED on January 11, 2017.
s/ Theresa L. Springmann
THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
FORT WAYNE DIVISION

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