Hummel v. Superintendent

Filing 45

OPINION AND ORDER: The Court DENIES the habeas corpus petition; DENIES a certificate of appealability pursuant to Section 2254 Habeas Corpus Rule 11; DENIES leave to appeal in forma pauperis; and DIRECTS the clerk to enter judgment in favor of the Respondent and against the Petitioner. Signed by Judge Robert L Miller, Jr on 4/11/2018. (Copy mailed to pro se party)(lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
NATHAN HUMMEL,
Petitioner,
v.

CAUSE NO.: 3:17-CV-114-RLM-MGG

WARDEN,
Respondent.
OPINION AND ORDER
Nathan Hummel, a prisoner without a lawyer, filed a habeas corpus
petition to challenge his convictions for dealing in a narcotic drug, robbery, and
disarming an officer under cause number 75C01-1112-FA-15. Following a guilty
plea, on May 22, 2012, the Starke Circuit Court sentenced Mr. Hummel to
twenty-five years of incarceration.

FACTUAL BACKGROUND
In deciding this habeas petition, the court must presume the facts set forth
by the state courts are correct unless they are rebutted with clear and convincing
evidence. 28 U.S.C. § 2254(e)(1). The Court of Appeals of Indiana summarized
the facts:
In December 2011, the State charged Hummel with six felony counts
related to his participation in an armed robbery of a CVS pharmacy.
In particular, the State alleged that Hummel: jumped over the
counter in the pharmacy and, armed with a knife, took controlled
substances from the presence of the pharmacist and stole cartons
of cigarettes; possessed with intent to deliver morphine, methadone,
oxycodone, oxycontin, Ritalin, Fentora, Nucynta, and Avinza; and
attempted to take a police officer’s gun. During a guilty plea hearing

in April 2012, Hummel pleaded guilty to dealing in a narcotic drug,
as a Class B felony; two counts of robbery, as Class B felonies; and
disarming an officer, as a Class C felony. In exchange for Hummel’s
plea, the State reduced the dealing count from a Class A felony to a
Class B felony and dismissed two of the felony counts. And the terms
of the plea agreement provided for an aggregate sentence of twentyfive years executed. The trial court entered judgment of conviction
and sentence according to the terms of the plea agreement.
ECF 26-7 at 2–3.
Mr. Hummel says he was denied effective assistance of counsel when trial
counsel failed to object to the charge of dealing.1 He also says he was denied due
process when the prosecutors in his case abused their discretion by charging
him with dealing,2 and that he was denied effective assistance of counsel at the
post-conviction relief stage when his appointed counsel failed to investigate his
case and ultimately withdrew. The respondent argues Mr. Hummel’s petition is
untimely and his claims are procedurally defaulted.

TIMELINESS
Habeas corpus petitions are subject to a strict one-year statute of
limitations. 28 U.S.C. §2244(d)(1). This limitation is tolled for any time “during
which a properly filed application for State post-conviction or other collateral
review” is pending. Id. §2244(d)(2). Assuming, as the respondent says, Mr.
Hummel’s conviction became final on the date of his plea, May 22, 2012, his

1 Mr. Hummel alleges ineffective assistance of trial counsel in Grounds 1 and 5 of his petition.
ECF 10 at 5, 7. Because both grounds center on trial counsel’s failure to object to the charge of dealing, the
court construes them as one claim.

Similarly, Mr. Hummel alleges the same prosecutorial misconduct claim in Grounds 2 and 4,
and the court also construes these grounds as one claim.
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petition is well within this limit. Mr. Hummel had properly filed petitions for
collateral relief pending in State courts from December 17, 2012–March 3, 2015;
April 27, 2015–July 20, 2015; and August 18, 2015–January 19, 2017, all of
which were listed in his petition. ECF 10 at 2–3. He filed this case on January
25, 2017. ECF 1 at 6. The number of days between Mr. Hummel’s conviction on
May 22, 2012, and his petitioning this court on January 25, 2017, not counting
pending proceedings as defined above, was 300.3 This petition is timely.

PROCEDURAL DEFAULT
The respondent argues Mr. Hummel’s claims are barred from review in
federal court due to procedural default. There are two distinct ways in which a
state prisoner can procedurally default a federal claim. Snow v. Pfister, 880 F.3d
857, 864 (7th Cir. 2018). The first occurs when “the state court declines to
address a petitioner’s federal claims because the petitioner did not meet state
procedural requirements.” Id. In those cases, “the state court judgment rests on
an independent and adequate state ground and principles of comity and
federalism dictate against upending the state-court conviction.” Thomas v.
Williams, 822 F.3d 378, 384 (7th Cir. 2016) (citing Coleman v. Thompson, 501
U.S. 722, 729–730 (1991)).

3 The respondent argues that Mr. Hummel’s time expired in August 2015, see ECF 26 at 12, but
that calculation doesn’t account for Mr. Hummel’s post-conviction relief petition filed April 27, 2015, and
withdrawn July 20, 2015. That petition, No. 75C01-1504-PC-000001, was properly filed in Starke Circuit
Court. Its docket is publicly available at https://public.courts.in.gov.

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The second type of procedural default “stems from the requirement that a
state prisoner must exhaust his remedies in state court before seeking relief in
federal court,” which requires the petitioner include his claims in “one complete
round of the State’s established appellate review process.” Snow v. Pfister, 880
F.3d at 864 (quoting O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). This
means “the petitioner must raise the issue at each and every level in the state
court system.” Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). A petitioner
“who has exhausted his state court remedies without properly asserting his
federal claim at each level of state review has procedurally defaulted that claim.”
Id. at 1026.
Mr. Hummel presented a claim of ineffective assistance of trial counsel to
the Court of Appeals of Indiana, ECF 26-4 at 17-24, but that court held that Mr.
Hummel didn’t present a cogent argument in support of this claim, in violation
of Ind. App. Rule 46(A)(8)(a). ECF 26-7 at 5. Thus, it found he had waived the
claim for review. Because Mr. Hummel didn’t meet a state procedural
requirement, the disposition of the claim of ineffective assistance of counsel
rested on an adequate and independent state ground and this court can’t review
it.
Mr. Hummel’s claims of abuse of prosecutorial discretion and ineffective
assistance of post-conviction counsel are barred due to lack of exhaustion in the
state court system. Mr. Hummel didn’t pursue these claims at every level of the
state court system. He didn’t raise these claims until his petition for transfer to

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the Indiana Supreme Court. See ECF 26-9. The state courts weren’t given an
“opportunity to act” on these claims. See Thomas v. Williams, 822 F.3d at 384.
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” that prevented a petitioner from pursuing his
constitutional claim in state court. Murray v. Carrier, 477 U.S. 478, 492 (1986).
Mr. Hummel argues his procedural default was caused by lack of an
effective attorney in his post-conviction proceedings and that “an effective
counsel at every step of the proceedings against him would have possibly elicited
a different outcome.” ECF 40 at 8. He claims his appointed post-conviction
review counsel “did not investigate any substantive subject matter” and “when
there was merit, promptly withdrew,” causing him to file his petition without a
lawyer. ECF 10 at 6.
As a general rule, “[n]egligence on the part of a prisoner’s postconviction
attorney does not qualify as cause.” Maples v. Thomas, 565 U.S. 266, 280 (2012).
The Supreme Court has recognized an exception in which ineffective assistance
of collateral review counsel may be recognized as cause for a procedural default
of a claim of ineffective assistance of trial counsel. Trevino v. Thaler, 569 U.S.
413 (2013); Martinez v. Ryan, 566 U.S. 1 (2012). The court of appeals has applied
this exception to prisoners in Indiana. Brown v. Brown, 847 F.3d 502, 513 (7th

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Cir. 2017), petition for cert. filed, No. 17-887 (Dec. 18, 2017). For purposes of
the Martinez exception, “inadequate assistance of counsel” encompasses no
counsel. Martinez v. Ryan, 566 U.S. at 14. Mr. Hummel raises one ineffective
assistance of trial counsel claim: that trial counsel failed to object to the charge
of dealing. “[A] prisoner must also demonstrate that the underlying ineffectiveassistance-of-trial-counsel claim is a substantial one, which is to say that the
prisoner must demonstrate that the claim has some merit.” Martinez, 566 U.S.
1, 14 (2012). The court will assume without deciding that this claim has some
merit and will consider the claim.4

STANDARD OF REVIEW
“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)
(quotations 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).
Federal courts have the discretion to consider claims for habeas relief under certain
circumstances even if such claims are procedurally barred. 28 U.S.C. § 2254(b)(2).
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[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, 135 S. Ct. at 1376 (quotation marks and citations omitted).
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).

ANALYSIS
Mr. Hummel argues that the state court made an unreasonable
determination by finding that trial counsel was not ineffective for failing to object
to the charge of dealing. He argues that trial counsel should have objected to the
charge for lack of a factual basis to demonstrate the element of intent.
To prevail on an ineffective assistance of counsel claim, a petitioner must
show that counsel’s performance was deficient and that the deficient
performance prejudiced him. Strickland v. Washington, 466 U.S. 668 (1984).

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There is “a strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action might be
considered sound trial strategy.” Id. at 689. 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.” Id. at 694. To establish
ineffective assistance of counsel in the context of a guilty plea, a petitioner must
show that his representation “fell below an objective standard of reasonableness”
and “there is a reasonable probability that, but for counsel’s errors, he would
not have pleaded guilty and would have insisted on going to trial.” Morales v.
Boatwright, 580 F.3d 653, 659 (7th Cir. 2009).
Mr. Hummel was originally charged with six criminal offenses, including
dealing in a narcotic drug, Class A felony. PCR App. 45-46. As a result of a plea
agreement, he plead guilty to dealing in a narcotic drug, Class B felony, in
addition to two counts of robbery and one count of disarming an officer, Class C
felony. ECF 26-7 at 2–3; ECF 37-1 at 27-30. At the post-conviction relief stage,
Mr. Hummel argued that trial counsel was ineffective for advising him to plead
guilty because he didn’t investigate the case. PCR App. 34-42. At an evidentiary
hearing, trial counsel testified that he spent “numerous hours” investigating the
case and “absolutely” believed Mr. Hummel would have received a harsher
sentence had he gone to trial rather than pleaded to the lesser dealing charge.
PCR Transcript, dated October 28, 2015, at 24–25, 38. He testified that the
prosecution had DNA evidence and video evidence of Mr. Hummel taking 104

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bottles of pills from the pharmacy. Id. at 39, 53-54. He testified that under
Indiana law, a dealing charge may be proven by circumstantial evidence. Id. at
20. A detective also testified, stating that the pharmacy reported a large amount
of stolen narcotics and that he had recovered some of them, including oxycontin
and methadone pills. Id. at 76-79, 88-89. The post-conviction court rejected Mr.
Hummel’s claim, finding that Mr. Hummel “freely and voluntarily, after advise
[sic] of counsel who was not ineffective, pled guilty under the terms of the Plea
Agreement.” ECF 26-7 at 3; PCR Transcript, dated January 17, 2016, at 54-55.
After reviewing the record, the court can’t conclude that the state court’s
determination that trial counsel wasn’t ineffective was objectively unreasonable.
Mr. Hummel doesn’t contest his possession of 104 bottles of pills or that some
of the bottles contained narcotics. Under Indiana law, “[p]ossession of a large
amount of narcotics is circumstantial evidence of intent to deliver.” Montego v.
State, 517 N.E.2d 74, 76 (Ind. 1987). “The probative value of quantity in proving
intent increases as the quantity itself becomes greater.” Id. Because the
prosecution had evidence from which intent to deliver narcotics could be
inferred, trial counsel reasonably advised Mr. Hummel to plead to a lesser
offense. Mr. Hummel’s claim that his trial attorney was ineffective is not a basis
for habeas relief.

CERTIFICATE OF APPEALABILITY
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

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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. Hummel to proceed further. For the same
reasons, he may not appeal in forma pauperis because an appeal could not be
taken in good faith.
For these reasons, the court:
(1) DENIES the habeas corpus petition;
(2) DENIES a certificate of appealability pursuant to Section 2254 Habeas
Corpus Rule 11;
(3) DENIES leave to appeal in forma pauperis; and
(4) DIRECTS the clerk to enter judgment in favor of the Respondent and
against the Petitioner.
SO ORDERED on April 11, 2018
s/ Robert L. Miller, Jr.
JUDGE
UNITED STATES DISTRICT COURT

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