Crockett v. Superintendent
OPINION AND ORDER: The court DENIES habeas corpus relief; DENIES a certificate of appealability pursuant to Section 2254 Habeas Corpus Rule 11; DENIES leave to appeal in forma pauperis pursuant to 28 U.S.C. § 1915(a)(3); and DIRECTS the clerk to enter judgment in favor of the Respondent and againstthe Petitioner. Signed by Judge Robert L Miller, Jr on 7/31/2017. (tc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
WILLIAM B. CROCKETT III,
Cause No. 3:15-cv-384-RLM
OPINION AND ORDER
William B. Crockett, III, filed a habeas corpus petition challenging his
murder conviction and 65 year sentence in the St. Joseph Superior Court on
January 25, 2005, under cause number 71D01-310-MR-27. ECF 2 at 1. Mr.
Crockett raises one ground arguing that his direct appeal counsel “was
ineffective in that he raised ineffective assistance of trial counsel on direct appeal
and thereby failed to preserve for postconviction relief ineffective assistance
claims based on evidence outside of the record on appeal.” To succeed on an
ineffective assistance of counsel claim on post-conviction review in the state
courts, Mr. Crockett had to show that counsel’s performance was deficient and
that the deficient performance prejudiced him. Strickland v. Washington, 466
U.S. 668 (1984). This claim was adjudicated on the merits and the Indiana Court
of Appeals decided that he had not met either prong of the Strickland test.
“Federal habeas review . . . exists as a guard against extreme malfunctions
in the state criminal justice systems, not a substitute for ordinary error
correction through appeal.” Woods v. Donald, 575 U.S. __, __; 135 S.Ct. 1372,
1376 (2015) (quotation marks and citation omitted).
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
(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.
28 U.S.C. § 2254(d).
[This] standard is intentionally difficult to meet. We have explained
that clearly established Federal law for purposes of §2254(d)(1)
includes only the holdings, as opposed to the dicta, of this Court’s
decisions. And an unreasonable application of those holdings must
be objectively unreasonable, not merely wrong; even clear error will
not suffice. To satisfy this high bar, a habeas petitioner is required
to show that the state court’s ruling on the claim being presented in
federal court was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.
Woods v. Donald, 575 U.S. __, __; 135 S.Ct. 1372, 1376 (2015) (quotation marks
and citations omitted).
Mr. Crockett argues that neither the post-conviction trial court nor the
Indiana Court of Appeals “officially reached the ‘performance’ prong [of the
Strickland test], although the postconviction trial court essentially found that
Petitioner’s trial counsel was ineffective and the Indiana Court of Appeals
essentially found that Petitioner’s appellate counsel was ineffective.” ECF 2-2 at
5. Mr. Crockett is incorrect. Both courts addressed the performance prong and
neither found that appellate counsel was deficient. In its amended findings of
fact and conclusions of law, the post-conviction trial court found:
Based on the testimony of appellate counsel, this court
concludes that appellate counsel’s performance was not deficient
when he decided to raise a claim of ineffective assistance of trial
counsel on direct appeal. Appellate counsel made a tactical decision
based on his reading of the trial record and believed he had sufficient
grounds on the face of that record to support the claim. The fact that
the claim was not ultimately successful or that the decision to raise
it in the direct appeal can be questioned did not render appellate
counsel’s performance deficient.
Appellant’s [Post-Conviction] Appendix at 155; ECF 2-3 at 29. The Indiana Court
of Appeals didn’t disturb that finding when it addressed appellate counsel’s
During the post-conviction hearing, Crockett’s appellate counsel
acknowledged that ineffective assistance of counsel claims should
rarely be raised on direct appeal, but explained that he decided to
present such issues on direct appeal because he “thought [they]
were supported by facts that were in the record” and were “legitimate
appellate issues.” Transcript of Post–Conviction Hearing at 85.
Crockett’s appellate counsel further stated that, case law
notwithstanding, in his “opinion,” he did not believe that raising a
claim of ineffective assistance of counsel on direct appeal would
necessarily preclude the petitioner from raising the issue again on
completely different grounds through a petition for postconviction
relief. Id. at 87.
Crockett’s appellate counsel clearly misunderstood the state
of the law insofar as it was his “opinion” that presenting claims of
ineffective assistance of counsel on direct appeal would not foreclose
Crockett from presenting additional claims of ineffective assistance
of counsel during post-conviction proceedings. Id. Since our
Supreme Court’s decision in Woods v. State, [701 N.E.2d 1208
(Ind.1998)], it has been clear that such is in fact the effect of
presenting a claim of ineffective assistance on direct appeal – any
additional claims of ineffective assistance of counsel are foreclosed
from collateral review. While appellate counsel’s decision to present
such issue on direct appeal was, in part, a tactical decision, it
cannot be said that his misunderstanding or “opinion” of the law
could serve as the basis for sound appellate strategy. That said, the
post-conviction court properly concluded that Crockett’s claim of
ineffective assistance of appellate counsel nonetheless failed
because Crockett did not establish prejudice resulting from
appellate counsel’s decision to raise an ineffective assistance of trial
counsel claim on direct appeal.
Crockett v. State, 13 N.E.3d 556, *5 (Ind. Ct. App. 2014) (table); ECF 13-10 at 89. The court of appeals correctly noted that Mr. Crockett’s appellate counsel
understood that ineffective assistance of trial counsel claims should rarely be
misunderstanding of the preclusive effect of that decision was not itself a basis
for sound appellate strategy, it nevertheless found that his decision to raise an
ineffective assistance of trial counsel claim on direct appeal was in part a tactical
decision. The court’s explanation was an implicit2 determination that counsel’s
performance wasn’t deficient. That determination was not unreasonable 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.” United States v. Lathrop, 634 F.3d 931, 937 (7th Cir. 2011).
During the post-conviction hearing, direct appeal counsel explained that “in most instances it’s
almost impossible to effectively raise ineffective assistance of counsel on direct appeal, because you are
only dealing with the direct record, the trial record, and to demonstrate ineffective assistance of trial
counsel ordinarily requires a going outside the record. Which is peculiarly within the ambit of post
conviction relief rather than direct appeal”). PCR Transcript at 80-81.
Mr. Crockett argues that the court of appeals didn’t rule on the performance prong, but if that
were true, then the post-conviction relief trial court’s ruling remains undisturbed because it is “sensible to
look past the silence to the decision of the next state court in the chain.” Prihoda v. McCaughtry, 910 F.2d
1379, 1383 (7th Cir. 1990); cf. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (“Where there has been one
reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or
rejecting the same claim rest upon the same ground.”).
Mr. Crockett argues that:
Appellate counsel’s decision in this case to raise ineffective
assistance on direct appeal fell below objective standards of
reasonableness based on prevailing professional norms. At least
since the Indiana Supreme Court’s decision in Woods v. State, 701
N.E.2d 1208 (Ind. 1998), it has been “crystal clear” that ineffective
assistance of trial counsel should not be raised on direct appeal in
Indiana, since “some grounds supporting an assertion of inadequate
representation will not be reasonably knowable, much less fully
factually developed, until after direct appeal,” and “ineffective
assistance of trial counsel is not available in postconviction if the
direct appeal raises any claim of deprivation of Sixth Amendment
right to counsel.” Id. at 1220; Timberlake v. State, 753 N.E.2d 591,
604-05 (Ind. 2001).
ECF 2-2 at 1.
Mr. Crockett has overstated the holding of Woods v. State, 701 N.E.2d
1208 (Ind. 1998). Woods didn’t hold that ineffective assistance of trial counsel
claims cannot – or even should not – be brought on direct appeal. Woods said
that “a postconviction hearing is normally the preferred forum to adjudicate an
ineffectiveness claim. We nonetheless agree that potential for administrative
inconvenience does not always outweigh the costs of putting off until tomorrow
what can be done today . . ..” Id. at 1219. The Woods court concluded “that the
most satisfactory resolution of a variety of competing considerations is that
ineffective assistance may be raised on direct appeal, but if it is not, it is available
in postconviction proceedings irrespective of the nature of the issues claimed to
support the competence or prejudice prongs.” Id. at 1216. “The defendant must
decide the forum for adjudication of the issue – direct appeal or collateral review.
Id. at 1220.
Woods makes clear that it is normal to wait until post-conviction to raise
an ineffective assistance of trial counsel claim. That it is the best practice and
should be the most common custom. In deciding whether an attorney provided
deficient performance, however, “[t]he question is whether an attorney’s
representation amounted to incompetence under prevailing professional norms,
not whether it deviated from best practices or most common custom.” Harrington
v. Richter, 562 U.S. 86, 105 (2011) (quotation marks and citation omitted). A
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. “[T]he 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. “[C]ounsel 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).
Mr. Crockett’s appellate counsel mistakenly believed that an ineffective
assistance of trial counsel claim could be brought both on direct appeal and
again in post-conviction. Had appellate counsel acted on that belief alone, his
professional norms. But that wasn’t why he raised the claim on direct appeal
and it’s not why the Indiana courts found that his performance wasn’t deficient.
He raised it as a tactical decision because he believed he had a valid claim based
on the facts in the record. Though he lost on appeal, nothing in the appellate
opinion indicates the court believed it was a baseless issue that was improper to
have raised. See Crockett v. State, 841 N.E.2d 669 (Table). The state courts
applied a reasonable analysis that satisfies Strickland’s deferential standard.
Though it’s possible the outcome might have differed in the state courts, it wasn’t
objectively unreasonable for the state courts to have found that Mr. Crockett
hadn’t demonstrated that his appellate counsel provided deficient performance.
Mr. Crockett also argues that “[t]he state court’s finding that Crockett was
not prejudiced by the deficient performances of his trial and direct appeal
counsel was unreasonable.” ECF 16 at 2. He argues:
Had appellate counsel not raised ineffective assistance of trial
counsel on direct appeal, it would have been available in
postconviction proceedings. If ineffective assistance of trial counsel
had been available in postconviction proceedings, Petitioner would
have been granted postconviction relief based on ineffective
assistance of trial counsel [and] should have been granted
postconviction relief based on ineffective assistance of appellate
ECF 2-2 at 4.
Evidence established on postconviction relief showed that
Petitioner’s trial counsel was ineffective for four reasons, aside from
the reasons raised on direct appeal: first, counsel failed to object to
evidence that Petitioner asked for a “deal”; second, counsel in
attempting to respond to this evidence opened the door to the
admission of evidence that Petitioner had been arrested for sexual
offenses involving two women; third, counsel failed to elicit
admissions from the State’s witnesses that Petitioner had repeatedly
and firmly asserted his innocence; and fourth, counsel failed to
object to any and all testimony by Corbett and Kaps concerning any
and all of the Petitioner’s statements during their interview with him
on October 23, 2003, on the grounds that they were made (a) prior
to Miranda warnings being given, (b) as a result of being falsely told
by Corbett and Kaps that a prosecutor was watching the interview
from the next room, and/or (c) after Petitioner had invoked his right
to counsel and in response to further police-initiated custodial
interrogation in violation of Miranda.
ECF 2-2 at 2.
The Indiana court of appeals found, “that Crockett failed to show prejudice
from appellate counsel’s decision to raise ineffective assistance of trial counsel
on direct appeal. More specifically, Crockett failed to show that had his claim of
ineffective assistance of trial counsel been preserved for post-conviction review,
he would have been entitled to relief.” Crockett v. State, 13 N.E.3d 556, *8 (Ind.
Ct. App. 2014) (table).
The test for prejudice is whether there was a reasonable probability that
“but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). A
reasonable probability is one “sufficient to undermine confidence in the
outcome.” Id. at 693. In assessing prejudice under Strickland “[t]he likelihood of
a different result must be substantial, not just conceivable.” Harrington v.
Richter, 562 U.S. 86, 112 (2011). “On habeas review, [the] inquiry is now whether
the state court unreasonably applied Strickland . . ..” McNary v. Lemke, 708 F.3d
905, 914 (7th Cir. 2013). “Given this high standard, even ‘egregious’ failures of
counsel do not always warrant relief.” Id. As previously explained, appellate
counsel didn’t provide deficient performance. Nevertheless, here is how the court
of appeals explained its decision that these four events were harmless.
Officer Corbett’s testimony during trial that Crockett
requested a “deal” in exchange for information concerning
Langenderfer’s murder likely had minimal, if any, impact on the
jury’s verdict. Crockett maintains that the inference to be drawn
from the fact that he requested a deal was that he was in fact guilty
of or somehow implicated in Langenderfer’s murder. This inference,
however, was dispelled by testimony that Crockett had another
motive for requesting a deal. Although Crockett’s trial counsel
arguably opened the door to evidence that Crockett was involved in
other criminal matters, the trial court closed that door when it
sustained trial counsel’s objection regarding the nature of the other
criminal matter and instructed the jury to disregard any testimony
related thereto. Further, we note that there was also testimony that
Crockett only learned of Langenderfer’s murder two days after it
occurred and that Crockett was out of town at the time of
Langenderfer’s murder. Considered together, any testimonial
reference to the fact that Crockett wanted to make a deal in
exchange for information about Langenderfer's murder was not, as
characterized by Crockett, “tantamount” to a confession. Reply Brief
With regard to his protestations of his innocence during the
videotaped interview with police, as noted above, Crockett’s defense
was that he had an alibi at the time of the murder. Evidence was
introduced that Crockett was out of town at the time of the murder
and that he only learned of the murder two days after it occurred.
The jury was made aware that Crockett denied any involvement in
Finally, Crockett claims that his videotaped statement was in
violation of Miranda, made in connection with plea negotiations,
and/or illegally obtained after he had invoked his right to counsel
and therefore any reference thereto violated his rights. Crockett does
not support any of these claims with citations to authority. In any
event, as noted above, the trial testimony that referenced portions
of his statement to police was not the evidence that sealed his fate.
To be sure, there was evidence from eye witnesses, consistent in
relevant aspects, that Crockett was the mastermind behind
Langenderfer’s murder. Wright’s testimony revealed that Crockett
had become frustrated with Langenderfer and had decided that it
was time for Langenderfer “to disappear” and that he directed
Antrone Crockett and Michael Wright to “take[ ] care of”
Langenderfer by meeting him “out in the country.” Trial Transcript
at 441, 444, 446, respectively. Wright further testified that Crockett
gave them instructions on where to obtain a gun in Crockett’s
apartment and that they were to dispose of the gun after the murder
was carried out. Crockett made arrangements to be out of town
when the murder was carried out. The following morning, Crockett
contacted Antrone and Wright to make sure they had followed
through with the plan. This evidence clearly implicates Crockett in
Crockett v. State, 13 N.E.3d at *7; ECF 13-10 at 11-13 (footnote omitted,
brackets in original).
Criminal defendants are entitled to a fair trial but not a “perfect” one. Rose
v. Clark, 478 U.S. 570, 579 (1986). To warrant relief, a state court’s decision
must be more than incorrect or erroneous; it must be “objectively” unreasonable.
Wiggins v. Smith, 539 U.S. 510, 520 (2003). “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) (quotation marks omitted). Mr. Crockett hasn’t
met this burden.3
His arguments are essentially that there is a reasonable probability he
would have been acquitted of murder if the jury had heard that he protested his
innocence rather than asking for a deal when police interviewed him and/or the
jury was unaware that he had been arrested on unrelated sexual assault
Attached to Mr. Crockett’s amended petition is an affidavit prepared by his post-conviction and
habeas corpus lawyer on May 5, 2015, after the conclusion of the post-conviction proceedings and before
this case was filed. This affidavit details conversations counsel had online with the post-conviction trial
judge about the prejudice standard established by Strickland. Mr. Crockett wants this court to accept this
as proof that the post-conviction trial judge applied the wrong standard of law. Whether the postconviction trial judge misunderstood the Strickland prejudice standard is irrelevant because the Indiana
Court of Appeals articulated and properly applied the correct legal standard. It did so de novo with no
deference to the conclusions of law made by the post-conviction trial court. See Crockett v. State, 13 N.E.3d
at *3; ECF 13-10 at 6. Moreover, the affidavit is not properly part of the record in this case. See Boyko v.
Parke, 259 F.3d 781, 790 (7th Cir. 2001) (“Because § 2254(e)(2) restricts a petitioner’s attempts to supplement
the factual record, [the petitioner] must satisfy that provision’s requirements before he may place new
factual information before the federal court.”). The affidavit wasn’t considered as a part of the decision to
deny habeas corpus relief.
charges. Alternatively, he aregues there is a reasonable probability he would
have been acquitted if the jury had not heard anything about his October 23,
2003, police interview. The crux of these arguments is that the evidence against
Mr. Crockett was otherwise so weak that without testimony that he wanted a
deal or had been separately charged with a sexual assault, there is a reasonable
probability that he would have been acquitted of murder. The state court
determination that the police testimony about his interview and his unrelated
sexual assault charges were harmless wasn’t objectively unreasonable. The state
court determination that the admission of that police testimony didn’t
undermine confidence in the outcome wasn’t objectively unreasonable. The state
court determination that there was not a reasonable probability that the result
would have been different wasn’t unreasonable. Reasonable jurists could
disagree as to whether (or to what extent) this police testimony impacted the
decision making process of the jury. But fairminded disagreement isn’t a basis
for habeas corpus relief; indeed, fairminded disagreement precludes habeas
corpus relief. Id. The habeas corpus petition must be denied.
Under Section 2254 Habeas Corpus Rule 11, the court must grant or deny
a certificate of appealability. To obtain a certificate of appealability under 28
U.S.C. § 2253(c), 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).
For the reasons explained in this opinion for denying habeas corpus relief, there
is no basis for encouraging Mr. Crockett to proceed further, so a certificate of
appealability must be denied. For the same reasons, he cannot appeal in forma
pauperis because an appeal could not be taken in good faith.
For the these reasons the court DENIES habeas corpus relief; DENIES a
certificate of appealability pursuant to Section 2254 Habeas Corpus Rule 11;
DENIES leave to appeal in forma pauperis pursuant to 28 U.S.C. § 1915(a)(3);
and DIRECTS the clerk to enter judgment in favor of the Respondent and against
ENTERED: July 31, 2017.
/s/ Robert L. Miller, Jr.
United States District Court
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