McKnight v. Superintendent

Filing 23

OPINION AND ORDER DENYING 21 MOTION for Evidentiary Hearing by Petitioner Marlon D McKnight. Habeas Corpus relief is DENIED. Petitioner is DENIED a certificate of appealability pursuant to Section 2254 Habeas Corpus Rule 11. Petitioner is DENIED le ave to appeal in forma pauperis pursuant to 28 U.S.C. § 1915(a)(3). Clerk DIRECTED to enter judgment in favor of Respondent Superintendent and against Petitioner Marlon D McKnight. Signed by Judge Joseph S Van Bokkelen on 3/27/17. (Copy mailed to pro se party). (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
MARLON D. McKNIGHT,
Petitioner,
v.
SUPERINTENDENT
Respondent.

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Case No. 3:15-CV-475-JVB

OPINION AND ORDER
Marlon D. McKnight, a pro se prisoner, filed a habeas corpus petition challenging his
convictions and 40 year sentence by the Elkhart Superior Court on April 29, 2010, under cause
number 20D03-0802-FA-6. “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, 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 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.
28 U.S.C. § 2254(d).
[This] standard is intentionally difficult to meet. [The Supreme Court has]
explained that clearly established Federal law for purposes of §2254(d)(1) includes
only the holdings, as opposed to the dicta, of th[at] 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
fairminded disagreement.

possibility

for

Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (quotation marks and citations omitted). 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).

GROUND ONE
In Ground One, McKnight argues that he was denied his Sixth Amendment right to a
speedy trial. The Respondent argues this claim is procedurally defaulted because McKnight’s
arguments in the State court did not mention the Sixth Amendment until he petitioned for transfer
to the Indiana Supreme Court and by then it was too late to add a new claim. To avoid procedural
default, a habeas petitioner must fully and fairly present his federal claims to the state courts. Boyko
v. Parke, 259 F.3d 781, 788 (7th Cir. 2001). “Fair presentment requires the petitioner to give the
state courts a meaningful opportunity to pass upon the substance of the claims later presented in
federal court.” Id. (quoting Rodriguez v. Scillia , 193 F.3d 913, 916 (7th Cir. 1999)). In the interests
of federal-state comity, both the operative facts and controlling law must be put before the state
courts. Ellsworth v. Levenhagen, 248 F.3d 634, 639 (7th Cir. 2001) (citing Wilson v. Briley, 243
F.3d 325, 327 (7th Cir. 2001); Boyko, 259 F.3d at 788).

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It is true that in State court McKnight focused on violations of Indiana Criminal Rule 4(B).1
However, “the task of the habeas court . . . is assessing, in concrete, practical terms, whether the
state court was sufficiently alerted to the federal constitutional nature of the issue to permit it to
resolve that issue on a federal basis.” Ellsworth v. Levenhagen, 248 F.3d 634, 639 (7th Cir. 2001)
(quotation marks and internal citations omitted). Fair presentment “does not require a
hypertechnical congruence between the claims made in the federal and state courts; it merely
requires that the factual and legal substance remain the same.” Anderson v. Brevik, 471 F.3d 811,
814–15 (citing Boyko, 259 F.3d at 788).
There are four factors to consider in determining whether a federal claim was fairly
presented to the state courts: “(1) whether the petitioner relied on federal cases that engage in a
constitutional analysis; (2) whether the petitioner relied on state cases which apply a constitutional
analysis to similar facts; (3) whether the petitioner framed the claim in terms so particular as to
call to mind a specific constitutional right; and (4) whether the petitioner alleged a pattern of facts
that is well within the mainstream of constitutional litigation.” Id. at 815.
Indiana Criminal Rule 4(B) is about the right to a speedy trial. McKnight’s State court
argument was that he was denied a speedy trial in violation of Rule 4(B). This argument calls to
mind the Sixth Amendment right to a speedy trial and that argument is well within the mainstream
of constitutional litigation. Moreover, “the time limits for bringing a defendant to trial set forth in
the rule [4(B)] are . . . more rigorous than the constitutional requirements.” O’Neill v. State, 597
N.E.2d 379, 382 (Ind. Ct. App. 1992). Thus, by finding that Rule 4(B) was not violated, the State

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The Respondent is correct that this court cannot directly review whether Rule 4(B) was violated because “federal
habeas corpus relief does not lie for errors of state law.” Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (citing Estelle v.
McGuire, 502 U.S. 62, 67 (1991) quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). However, that is not what
McKnight is arguing here.

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courts inherently found that the Sixth Amendment was not violated. “When a federal claim has
been presented to a state court and the state court has denied relief, it may be presumed that the
state court adjudicated the claim on the merits in the absence of any indication or state-law
procedural principles to the contrary.” Harrington v. Richter, 562 U.S. 86, 99 (2011). This is true
whether the State court summarily rejects every claim or is merely silent as to a federal claim.
Johnson v. Williams, 133 S. Ct. 1088, 1091 (2013). Therefore, habeas corpus relief is only
available on this Sixth Amendment claim if the State court’s denial was an unreasonable
application of clearly established United States Supreme Court law. 28 U.S.C. § 2254(d)(1).
“The Supreme Court in Barker v. Wingo, 407 U.S. 514, 530 (1972), set forth the now wellestablished standard governing Sixth Amendment speedy trial challenges. That four-part test
considers: whether delay before trial was uncommonly long, whether the government or the
criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted
his right to a speedy trial, and whether he suffered prejudice as the delay’s result.” Ashburn v.
Korte, 761 F.3d 741, 751--752 (7th Cir. 2014) (parallel citations and quotation marks omitted).
A three count information was filed against McKnight on February 4, 2008. (DE 8-1 at 1.)
A total of 763 days elapsed before the trial resulting in his conviction began on March 8, 2010.
(Id. at 7.)
The trial court set the initial pre-trial conference for February 8, 2008, and
on that day, the trial court appointed a public defender to represent McKnight. On
March 6, 2008, McKnight dismissed the public defender, his private attorney
entered an appearance, and the trial court set the pre-trial conference for May 1,
2008, with the delay being charged to McKnight for purposes of Indiana Criminal
Rule 4(C). On May 1, 2008, the trial court reset the pre-trial conference for May
22, 2008, at McKnight’s request. On May 21, 2008, McKnight requested another
continuance, and the trial court rescheduled the matter for June 5, 2008. On June 5,
July 17, and July 30, 2008, McKnight requested additional continuances and agreed
that the delays would be charged to him in accordance with Crim. R. 4(C).
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On August 21, 2008, the trial court held a pre-trial conference where
McKnight’s attorney was present but McKnight failed to appear.
(DE 8-12 at 2.)
McKnight does not dispute that the days before that hearing were properly attributed to
him. However he argues that it was unreasonable for him to have been charged with the delay
following the August 21, 2008, hearing because he was in jail when he refused to attend. McKnight
argues “there is no reason why the correctional staff could not have forcefully transported [me] to
the hearing on August 21, 2008.” (DE 8-13 at 5.) He also argues that “the state could have set a
trial date in his absence.” (Id. at 6.) Though the trial court could have done those things, the
question for this court is whether it was an unreasonable application of clearly established United
States Supreme Court law for the Court of Appeals of Indiana to have found that McKnight’s
refusal to attend that hearing made him responsible for delaying his trial on that occasion.
McKnight does not dispute that he refused to attend and that his absence disrupted the hearing.
Nevertheless, the trial court did not ignore the need to move his case to trial. It ordered that
McKnight be brought to the next hearing by “any reasonable means necessary . . ..” (Trial
Transcript at 26.) As such, McKnight has not demonstrated that the State courts’ decision to find
him responsible for this delay was unreasonable.
The next hearing was set for September 25, 2008. “When the cause came up on September
25, both parties agreed on April 20, 2009, as to the jury trial date. But McKnight’s matter did not
proceed on April 20 due to court congestion. On April 30, 2009, the parties convened and agreed
to a new trial date for November 30, 2009. However, on July 9, 2009, McKnight’s counsel filed a
motion for discharge claiming that the trial setting of November 30 violated Crim. R. 4(C). The
trial court subsequently denied that motion.” (DE 8-12 at 3 (emphasis added)). McKnight argues
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that it was unreasonable for the Court of Appeals of Indiana to have referred to that filing as a
motion for discharge because it was captioned “Defendant’s Objection to Trial Setting” and “the
CCS entry on July 9, 2009 states that an objection was filed, not a motion to discharge.” (DE 8-13
at 7.)
Mis-identifying the name of that filing was an unreasonable determination of the facts.
However, that error is not relevant to whether McKnight is entitled to habeas corpus relief for a
violation of his Sixth Amendment right to a speedy trial. The question here is whether he or the
State is more to blame for the court congestion which caused his trial to be delayed. Until April
20, 2009, the State cannot be blamed for any delay. However, court congestion caused the April
20 trial date to be vacated. So starting on that date – and continuing until either McKnight caused
delay or was brought to trial – the State can be blamed for delaying his trial. It is during this time
when the mis-identified filing occurred. As such, it is not relevant that the Court of Appeals of
Indiana referred to it by the wrong title because by whatever name, the State is responsible for the
delay in this time period.
“On September 10, 2009, McKnight dismissed his attorney, deciding to proceed pro se. On
October 15, 2009, McKnight filed a Motion for Early Trial pursuant to Indiana Criminal Rule
4(B)(1). Based on the date McKnight filed his early trial motion, the State had until December 24,
2009 to bring McKnight to trial. The trial court granted McKnight’s motion and reset the trial date
for October 26, 2009.” (8-5 at 2.) Thus, as a result of court congestion, McKnight’s trial was
delayed 189 days from April 20, 2009, to October 26, 2009.
“The jury trial began as scheduled on October 26, 2009; however, the State filed a motion
for mistrial due to impermissible communication between McKnight and a juror who had been
selected. After conducting a hearing, the trial court granted the State’s motion.” (Id.) McKnight
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argues “[t]he delay resulting from the improperly granted motion for mistrial should not be
attributed to [him] for speedy trial purposes.” (DE 1 at 3.) The Court of Appeals of Indiana found
“the delay was ultimately chargeable to McKnight [because t]he determination of whether to grant
a mistrial is within the trial court’s discretion, and we will reverse only for an abuse of that
discretion.” (DE 8-5 at 5--6.) McKnight may be correct that a mistrial was not absolutely
necessary. He may be correct that other alternatives were possible. However, the question for this
court is whether it was an unreasonable application of clearly established United States Supreme
Court law for the Court of Appeals of Indiana to have found that it was not an abuse of discretion
for the trial court to have declared a mistrial after McKnight had improper contact with a juror.
There being no clearly established United States Supreme Court law saying that it was improper
to declare a mistrial under these circumstances, it is impossible to say that the State court did not
properly apply that law. See Wright v. Van Patten, 552 U.S. 120, 126 (2008) (“Because our cases
give no clear answer to the question presented . . . it cannot be said that the state court unreasonably
applied clearly established Federal law.”) (quotation marks, brackets, and citation omitted).
Therefore, it was not unreasonable for the State courts to have attributed the delay caused by the
mistrial to McKnight.
On October 28, 2009, McKnight filed a second motion for early trial. At a
hearing held on November 5, 2009, the trial court set McKnight’s new trial date for
December 1, 2009. During the November 5 hearing, McKnight filed several
motions. The trial court set these motions for hearing on November 19, 2009, but
warned McKnight it would not be able to hold a hearing and rule on these motions
before the December 1, 2009 trial date. On November 18, 2009, McKnight filed
several additional motions.
At the November 19, 2009 hearing, the trial court again told McKnight there
was not sufficient time to hear and rule on his pending motions before the scheduled
trial date. McKnight wanted his motions to be heard but also wanted a continuance
of the hearing because he was not prepared at that time to argue all of his motions.
...
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McKnight decided he would rather continue the trial and have a hearing on his
motions at a later time, and ultimately agreed the ensuing delay in trial was
chargeable to him under Indiana Criminal Rule 4(B)(1).
(DE 8-5 at 2--3.) At the hearing on November 19, 2009, McKnight said, “I agree to take the Crim.
R. 4, chargeable to me, in order to hear the MOTIONS FOR SPECIAL PROSECUTOR AND
DISCOVERY DISCREPANCIES, MOTION TO REWEIGH.” (Trial Transcript at 164) (all caps
in the original).) Because McKnight agreed that he was responsible for delaying his trial, the Court
of Appeals of Indiana was not unreasonable to have attributed the delay to McKnight.
Nevertheless, McKnight argues that he could have gone to trial on December 1, 2009, if
the State had provided him with the discovery they were ordered to produce before his mistrial. If
that were the only motion he filed, this assertion might be debatable. However, because he filed
22 other motions2 that were later withdrawn or denied, it is clear discovery issues were not the
reason his trial was delayed. (See DE 8-1 at 7.) Moreover, the missing discovery was easily
produced when the motion was heard. (See State Court docket entry found at DE 8-1 at 7)
(“Defendant’s 11-18-09 MOTION TO COMPEL, the court ordered the State to provide Defendant
with names of witnesses – if they have a criminal history, to provide same to Defendant – and a
copy of the buy money. DPA Britton orally provides Defendant with witnesses’ information and
provides Defendant with a Xerox copy of the buy money.”).) Furthermore, the trial court offered

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Motion For Early Trial, Motion To Compel, Motion To Continue Trial For Exclusion Of Evidence, Motion To
Transport Inmates From Prison For Hearing Before 3/3/10, Motion For Immediate Hearing Before 3/3/10, Amended
Verified Motion For A Special Prosecutor, Motion To Reweigh Alleged Drugs, Objection To Lack Of Discovery,
Motion To Compel Production Of Samples Of Evidence For Independent Chemical Analysis, Motion For Chemical
Analysis Of Drugs And Reweigh, Request For Early Release Of Information Concerning Chemical Testing, Motion
To Produce State’s Witnesses, Motion To Dismiss Under Cr.4, Motion For Reduction Of Bail, Motion To Release On
Own Recognizance, Motion To Suppress Affidavit In Support Of Warrantless Arrest, Motion For Discovery, Motion
To Dismiss Selective And Vindictive Prosecutor, Motion To Dismiss For Outrageous Government Conduct, Motion
For Deferral Of Non Violent Drug Offense, Motion To Release On Own Recognizance, Request For The Process And
Procedures Concerning Chemical Analysis Of The Evidence, and Motion For Expert Assistance For Chemical Testing
And Weight. DE 8-1 at 7.

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to hear that motion to compel on November 19, 2009, but McKnight asked for a continuance.
(Trial Transcript at 162--163.) If he had taken that opportunity to argue this motion, it could have
been resolved immediately and he could have gone to trial on December 1, 2009. McKnight has
not demonstrated that it was unreasonable for the Court of Appeals of Indiana to have attributed
these delays to him.
Having reviewed the trial proceedings, the court now returns to the Barker v. Wingo fourpart test while recognizing that:
The speedy-trial right is amorphous, slippery, and necessarily relative. It is
consistent with delays and dependent upon circumstances. In Barker, the Court
refused to quantify the right into a specified number of days or months or to hinge
the right on a defendant’s explicit request for a speedy trial. Rejecting such
inflexible approaches, Barker established a balancing test, in which the conduct of
both the prosecution and the defendant are weighed.
Vermont v. Brillon, 556 U.S. 81, 89–90 (2009) (quotation marks, citations, and brackets omitted).
The first question is whether the delay was uncommonly long. Though 763 days is a long
time to wait for trial, given that McKnight fired his public defender, hired private counsel, fired
private counsel, refused to attend hearings, filed numerous pro se motions, and caused a mistrial,
the total number of days was not as excessive as the raw number otherwise appears.
The second question is whether the government or the criminal defendant is more to blame
for the delay. McKnight caused much of the delay and the government did not deliberately cause
any delays for the purpose of hampering his ability to defend. Only 189 were chargeable to the
government because congestion caused his trial to be moved.
The third question is whether the defendant asserted his right to a speedy trial. McKnight
did so numerous times, but the first time was not until 521 days after he was charged.

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The fourth question is whether the defendant suffered prejudice as a result of the delay.
McKnight argues that while “awaiting trial the anxiety caused hypertension and kidney issues [and
he] became $2600.00 behind in [child support] payments.” DE 20 at 10. Though a criminal
defendant “can validly claim anxiety and concern over the pending charges . . . that is not enough
to find a constitutional speedy trial violation [absent] actual prejudice [to his ability to defend
against the criminal charges or] a strong showing on the other Barker factors.” Ashburn v. Korte,
761 F.3d 741, 753 (7th Cir. 2014). McKnight argues that Detective James Anderson (the State’s
main witness) had to refresh his memory before answering a question during the trial, but witnesses
frequently need to refresh their memories and this is not evidence of actual prejudice to his ability
to defend against these criminal charges.
In deciding whether to grant habeas corpus relief as to Ground One, the ultimate question
for this court is whether it was unreasonable for the Court of Appeals of Indiana to have rejected
McKnight’s claim that he was denied his Sixth Amendment Right to a Speedy Trial. “Barker’s
formulation necessarily compels courts to approach speedy trial cases on an ad hoc basis . . ..”
Vermont v. Brillon, 556 U.S. 81, 91 (2009) (quotation marks omitted). As explained, the Barker
factors do not weigh in McKnight’s favor and there is no basis for finding that the State Court’s
ruling was unreasonable. Therefore, Ground One does not present a basis for habeas corpus relief.

GROUND TWO
In Ground Two, McKnight argues that he was denied his Sixth Amendment right to counsel
on direct appeal. He argues his appellate counsel was ineffective for not including a claim that the
charges should have been dismissed pursuant to Indiana Criminal Rule 4(c).

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To prevail on this claim, [the habeas corpus petitioner] must show that appellate
counsel failed to raise an obvious issue that is stronger than the other claims raised
and that prejudice flowed from that failure. Prejudice exists if there is a reasonable
probability that the issue his appellate attorney failed to raise would have altered
the outcome of the appeal, had it been raised.
Johnson v. Thurmer, 624 F.3d 786, 793 (7th Cir. 2010) (citations and quotation marks omitted).
Because appellate counsel is not required to raise every non-frivolous issue
on appeal, appellate counsel’s performance is deficient under Strickland only if she
fails to argue an issue that is both obvious and clearly stronger than the issues
actually raised. Proving that an unraised claim is clearly stronger than a claim that
was raised is generally difficult because the comparative strength of two claims is
usually debatable.
Makiel v. Butler, 782 F.3d 882, 898 (7th Cir. 2015) (citations and quotation marks omitted).
Ground Two was adjudicated by McKnight during his post-conviction relief proceedings.
The Court of Appeals of Indiana held that McKnight “waived his right to be discharged under
Crim. R. 4(C).” (DE 8-12 at 7.) Whether Indiana Criminal Rule 4(C) required that McKnight be
discharged is a question of State law. However, “[i]t is not the province of a federal habeas court
to reexamine state-court determinations on state-law questions.” Wilson v. Corcoran, 562 U.S. 1,
5 (2010) (quotation marks, citations, and brackets omitted).
McKnight argues the State court reached the wrong legal conclusion because it
unreasonably determined the facts. However, as the Supreme Court in Corcoran explained, that
argument is not a valid basis for challenging a State court’s determination of State law. Id. at 5-6.
Consequently, this court must accept that McKnight waived whatever Rule 4(C) claim he might
have had. Because the Rule 4(C) claim was waived, it was clearly not stronger than the claims
which were raised during his appeal. Therefore McKnight has not demonstrated that the State court
unreasonably found that his appellate counsel was not ineffective. Ground Two is not a basis for
habeas corpus relief.
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MOTION FOR EVIDENTIARY HEARING
McKnight filed a motion asking for an evidentiary hearing because the Court of Appeals
of Indiana twice misstated facts from the record in its opinion affirming the denial of his postconviction appeal. First, he argues that his lawyer did not seek a continuance on August 21, 2008.
Second, he argues that his lawyer did not file a motion for discharge on July 9, 2009. No hearing
is necessary in this case because the State court record already shows that he is correct on both
points. Nevertheless, neither of these misstatements by the Court of Appeals of Indiana is relevant.
As explained previously, McKnight refused to attend the hearing on August 21, 2008, and it was
not improper to find that he delayed his own trial without regard to whether his lawyer asked for
a continuance. Also, as previously explained, the time encompassed by his lawyer’s filing on July
9, 2009, is already chargeable to the State for the purposes of the Sixth Amendment speedy trial
right because congestion delayed his trial. Therefore, there is no basis for an evidentiary hearing
and no need to determine whether McKnight meets the 28 U.S.C. § 2254(e)(2) requirements for
an evidentiary hearing. See Boyko v. Parke, 259 F.3d 781, 790 (7th Cir. 2001).

CERTIFICATE OF APPEALABILITY
Pursuant to 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
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explained in this opinion for denying habeas corpus relief, there is no basis for encouraging
McKnight to proceed further. Thus, a certificate of appealability must be denied. For the same
reasons, he may not appeal in forma pauperis because an appeal could not be taken in good faith.

CONCLUSION
For the foregoing reasons the court--

DENIES the motion for an evidentiary hearing (DE 21);



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 the
Petitioner.

SO ORDERED on March 27, 2017.

s/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN
UNITED STATES DISTRICT JUDGE

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