Farrell v. Indiana State Prison
OPINION AND ORDER re 1 PETITION for Writ of Habeas Corpus filed by Petitioner Charles Farrell, III. The habeas corpus relief requested is DENIED because the Petition is untimely. Petitioner DENIED a certificate of appealability. Signed by Judge William C Lee on 4/11/17. (cer)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
CHARLES FARRELL III,
CAUSE NO. 3:15-CV-251 WL
OPINION AND ORDER
Charles Farrell, III, by counsel, filed a petition for writ of habeas corpus attempting to
challenge his conviction and 63 year sentence for felony murder in Elkhart Circuit Court on
August 12, 2010. The respondent argues that the habeas corpus petition must be dismissed
because the claims are procedurally defaulted and without merit. Farrell filed a reply and this
matter is ripe for consideration.
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 Farrell’s’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 this case as follows:
On July 25, 2009, Farrell asked Daron Tuggle if Farrell could “get some
work,” which Tuggle understood to mean Farrell wanted to purchase cocaine.
Farrell indicated he wanted a “kilo or two.” Tuggle contacted Alphonso James,
whom Tuggle had assisted with large quantity cocaine deals in the past, and
arranged a deal between Farrell and James.
Farrell arrived at the designated site with Bruce White and an unidentified
third person. James was present with Tuggle and Noble Dennie. All six men
entered a lower level apartment, where James handed Farrell two packages that
were three inches wide and eleven inches long and wrapped in duct tape. Tuggle
testified such packaging was indicative of a “bird or brick” of cocaine. Farrell
asked for something to open the “brick” and Tuggle went to the kitchen to look
for a knife.
While Tuggle was out of the room, White pulled out a gun, pointed it at
James, and told James to “give it up.” While James and White struggled with the
gun, Farrell pulled out a gun and pointed it at Tuggle. When he saw the gun,
Tuggle ducked down to the floor, saw White shoot James, and covered his head
until the gunfire stopped. After the other men left, Tuggle called 911 to get help
for James. When police arrived, James was dead.
Farrell, Tuggle, and White were charged with felony murder. Tuggle
agreed to plead guilty to conspiracy to deliver cocaine and to testify against
Farrell. In exchange, the State dropped the murder charge against Tuggle. A jury
found Farrell guilty of felony murder.
Farrell v. State, No. 20A03-1008-CR-457, slip op. at *2-3 (Ind. Ct. App. July 19, 2011);
attached as ECF 7-6.
For his role in setting up the drug deal that resulted in James’ death, Farrell was
convicted of felony murder as an accomplice; the underlying felony was delivery of cocaine. Id.
On direct appeal, Farrell argued: (1) there was insufficient evidence to support the conviction;
(2) the trial court had improper communications with the jury; and (3) the trial court abused its
discretion by denying his motion for mistrial. ECF 7-3 at p. 5. The Indiana Court of Appeals
affirmed his conviction. ECF 7-6 at p. 9. Farrell then petitioned the Indiana Supreme Court,
arguing that the Indiana Court of Appeals’ opinion conflicts with another appellate opinion
interpreting the felony-murder statute. ECF 7-7 at pp. 6-7. The Indiana Supreme Court denied
transfer. ECF 2 at p.2.
Farrell filed a petition for post-conviction relief and, after a hearing, the trial court denied
the petition on February 10, 2014. ECF 7-1 at 5. On appeal from the denial of post-conviction
relief, Farrell raised two claims. First, he argued that he was convicted of a different crime than
the one he was charged with because the State cited to a different subsection of the dealing
statute on direct appeal. ECF 7-10 at pp. 10-13. Farrell labeled this a due process violation.
Second, Farrell argued that his appellate counsel was ineffective for not raising this due process
violation on direct appeal. Id. at pp. 13-15. The Indiana Court of Appeals affirmed the postconviction court’s decision. ECF 7-12. After the court of appeals denied his request for a
rehearing, Farrell sought transfer in the Indiana Supreme Court. ECF 7-14. He raised two issues:
(1) whether the Indiana Court of Appeals decided an important question of law; and (2) whether
he was denied due process because he did not have notice of the crime for which he was charged.
Id. at 2. The Indiana Supreme Court denied transfer.
Farrell has filed his petition for writ of habeas corpus here raising two claims: (1)
ineffective assistance of appellate counsel; and (2) a due process violation because he was
convicted of a crime for which he was never charged.
A. Farrell’s ineffective assistance of counsel claim is procedurally defaulted.
First, Farrell contends that his appellate counsel was ineffective. The respondent argues
that this claim is procedurally defaulted. 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).
The respondent points out that Farrell never raised his ineffective assistance of appellate
counsel to the Indiana Supreme Court. ECF 7 at p. 11. Farrell does not dispute, or even address
that failure in his traverse. Because he never raised the ineffective assistance claim to the Indiana
Supreme Court, he failed to fully and fairly present the claim to Indiana’s highest court.
Consequently, this claim is procedurally defaulted. Chambers, 264 F.3d at 737-38.
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). In his traverse, Farrell does not assert any basis for this court to excuse
his procedural default.
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). Here, Farrell does not attempt demonstrate any such fundamental
miscarriage of justice would occur. In fact, Farrell does not mention his ineffective assistance
claim at all in his traverse, which indicates to the court that he concedes the claim is procedurally
defaulted with no existing cause and prejudice, or that any fundamental miscarriage of justice
will occur if the claim is not considered.
B. The due process claim is without merit
Next, Farrell argues that his due process rights were violated because he was convicted of
an offense for which he was never charged. The respondent argues that Farrell’s due process
claim is defaulted because Farrell did not fairly present his due process claim to the state courts
and also that the Indiana Court of Appeals relied on independent and adequate state grounds.
Essentially, the respondent relies on the fact that even though Farrell “used the phrase, ‘due
process,’ the Indiana Court of Appeals found that ‘Farrell’s argument raises no due process
claim.” ECF 7 at p. 7. The parties dispute whether this claim is procedurally defaulted. And,
their respective arguments do not shed enough light on the matter. Nevertheless, that does not
stop this court from ruling on the merits of Farrell’s due process claim. 28 U.S.C. § 2254(b)(1).
Getting to the merits, Farrell’s habeas claim 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
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. 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. 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, 562 U.S. 86 (2011). Instead, to obtain relief, a petitioner must show the state court’s
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.
Here, Farrell argues that his due process rights were violated because he did not have
reasonable notice of the crime charged. His argument is that he was charged with felony murder
in connection with delivery of cocaine, but the evidence was only sufficient to establish that he
possessed cocaine with the intent to distribute Farrell raised this claim on post-conviction
review. ECF 7-10; 7-14. The court of appeals determined that there was no due process violation
because Farrell was not convicted of a crime for which he was not charged. ECF 7-12 at pp. 4-6.
Farrell claims that the state court’s ruling was contrary to the decision in Cole v.
Arkansas, 333 U.S. 196, 201 (1948). In Cole, the petitioner was convicted in Arkansas state
court for violating a statute of which he had not been charged. Id. at 197. The Arkansas court
determined that because the evidence presented at trial was sufficient to convict the petitioner of
violating §1 of the Arkansas Act even though he was charged only with § 2. The Supreme Court
reversed that conviction and held that “[n]o principle of due process is more clearly established
than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by
that charge, if desired, are among the constitutional rights of every accused in a criminal
proceeding in all courts, state or federal.” Id. at 201.
The Court of Appeals’ ruling was not contrary to the Supreme Court’s holding in Cole.
Farrell was charged with felony murder by killing James while attempting to deliver cocaine.
This is the same offense for which he was convicted. Thus, unlike the petitioner in Cole who was
convicted of an offense for which he was not charged, Farrell was convicted of the offense for
which he was charged. Because Farrell was convicted of the same crime he was charged with,
Farrell was provided with notice of the specific charge and his due process rights were not
Farrell also argues that there was insufficient evidence to convict him of delivering
cocaine because the evidence only showed that he was attempting to purchase cocaine. As the
Indiana Court of Appeals explained:
To prove attempted dealing in cocaine, the State must present evidence
Farrell, acting with the culpability to commit the crime, engaged in conduct
constituting a substantial step toward the commission of the crime. A substantial
step toward the commission of the crime is “dependent on the facts of each case,
but the requirement is a minimal one, often defined as any overt act in furtherance
of the crime.
The evidence most favorable to Farrell’s conviction indicates he requested
a large quantity of drugs from Tuggle, then met Tuggle and James to obtain it. If a
quantity of cocaine “is such that it could not be personally consumed or used,
then an inference of a predisposition to sell can reasonably be drawn.” Thus,
based on the quantity of drugs Farrell tried to buy, a reasonable fact-finder could
conclude Farrell completed a substantial step toward his delivery of the cocaine to
someone else in the future.
ECF 7-6 at 9 (citations omitted).
There is nothing to show that the State court made an unreasonable determination of the
facts. “A federal habeas corpus court faced with a record of historical facts that supports
conflicting inferences must presume – even if it does not affirmatively appear in the record – that
the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that
resolution.” Jackson v. Virginia, 443 U.S. 307, 326 (1979). Jackson requires that the evidence be
viewed in the light most favorable to the prosecution. It was not unreasonable for the Court of
Appeals of Indiana to have affirmed Farrell’s conviction because there was sufficient evidence to
find that he engaged in attempted delivery of cocaine.
CERTIFICATE OF APPEALABILITY
Finally, pursuant to Rule 11 of the Rules Governing Section 2254 Cases, the court must
consider whether to grant a certificate of appealability. When the court dismisses a petition on
procedural grounds, the determination of whether a certificate of appealability should issue has
two components. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). First, the petitioner must
show that reasonable jurists would find it debatable whether the court was correct in its
procedural ruling. Id. at 484. If the petitioner meets that requirement, then he must show that
reasonable jurists would find it debatable whether the petition states a valid claim for the denial
of a constitutional right. Id. As previously explained, one claim is procedurally defaulted and the
other claim is without merit. Farrell has not presented a colorable argument for how the
procedural default of his ineffective assistance claim could be equitably excused. Moreover, it is
not debatable that his due process claim in his petition fails to state a valid claim for the denial of
a constitutional right. Because there is no basis for finding that jurists of reason would debate the
correctness of these rulings or find a reason to encourage him to proceed further, a certificate of
appealability must be denied.
For these reasons, the court DENIES habeas corpus relief because the petition is
untimely and DENIES a certificate of appealability.
ENTERED: April 11, 2017
s/William C. Lee
William C. Lee, Judge
United States District Court
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