Herbert v. Miami Correctional Facility Superintendent

Filing 13

OPINION AND ORDER DENYING 1 Petition pursuant to 28 U.S.C. § 2254 and DENYING a certificate of appealability, ***Civil Case Terminated. Signed by Judge Jon E DeGuilio on 2/14/13. (mlc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION AT LAFAYETTE
TORIN HERBERT,

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Petitioner,
v.
SUPERINTENDENT,
Respondent.

Case No. 4:12-CV-031 JD

OPINION AND ORDER
Torin Herbert, a pro se prisoner, filed a petition pursuant to 28 U.S.C. § 2254 challenging
his 2007 drug conviction in Tippecanoe County. [ECF No 1.] For the reasons stated below, the
petition is denied.
I.

BACKGROUND
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 Herbert’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 Herbert’s conviction as follows:
[A]round 6:30 p.m. on January 18, 2007, Tippecanoe County Sheriff’s
Deputy Andrew Heath was patrolling in his marked police cruiser when he noticed
a car with windows tinted so darkly that he could not tell “who was in the vehicle or
how many”1 . . . Based on the darkness of the car’s window tint, Deputy Heath
initiated a traffic stop.

1

INDIANA CODE § 9–19–19–4(c) provides: “A person may not drive a motor vehicle that has a: (1)
windshield; (2) side wing; (3) side window that is part of a front door; or (4) rear back window; that is covered by or
treated with sunscreening material or is tinted to the extent or manufactured in a way that the occupants of the
vehicle cannot be easily identified or recognized through that window from outside the vehicle. However, it is a
defense if the sunscreening material applied to those windows has a total solar reflectance of visible light of not
more than twenty-five percent (25%) as measured on the nonfilm side and light transmittance of at least thirty
percent (30%) in the visible light range.”

Deputy Heath shone his spotlight on the car. As he approached the driver’s
side, he “still couldn’t tell who was in the vehicle.” Deputy Heath asked Herbert, the
driver, to roll down the rear window so that he “could tell if anybody was on the
inside of the vehicle at the rear seat just so [he] could see what that person was
doing.” Deputy Heath asked Herbert for his driver’s license and registration and
asked the two passengers for identification. Deputy Heath asked all three persons to
exit the car and requested the assistance of a narcotics detection canine. Officer
Albert Demello and his canine responded to Deputy Heath’s request.
Deputy Heath asked Herbert if he had any “dangerous weapons on him.”
Herbert said no. Deputy Heath then asked Herbert if he had “any illegal narcotics or
contraband in the vehicle[.]” Herbert initially said no, but once Deputy Heath
advised him that a narcotics detection canine “would be walked around his
vehicle[,]” Herbert admitted that “there was a little bit of weed under the driver’s
seat.” Officer Demello’s canine indicated the presence of contraband on the driver’s
side of the car. Officer Demello reached under the driver’s seat and found a bag
containing 108.27 grams of marijuana. Herbert was arrested and transported to the
county jail, where an officer strip-searched him and found a bag containing 17.7
grams of cocaine between his buttocks.
Herbert v. State, No. 79A04-0712-CR-748, slip op. at 2-3 (Ind. App. Ct. Jul. 25, 2008) (internal
citations omitted). Herbert was charged with dealing in cocaine, dealing in marijuana, and
maintaining a common nuisance. Id. at 3. He was convicted by a jury on all counts, and sentenced
to an aggregate prison term of 33 years. Id. at 4.
He appealed, raising two arguments: (1) the trial court erred in admitting evidence seized
from the traffic stop; and (2) the trial court erred in excluding his proposed witness, who would have
testified that his tinted windows did not violate Indiana law. [ECF No. 4-5.] The Indiana Court of
Appeals affirmed his conviction in all respects. Herbert, No. 79A04-0712-CR-748, slip op. at 4-10.
He sought transfer to the Indiana Supreme Court, raising one issue: whether the search and seizure
was unlawful because the officer improperly questioned him about narcotics during a routine traffic
stop. [ECF No. 4-8.] The Indiana Supreme Court denied transfer. [ECF No. 4-3 at 4.]
Thereafter, Herbert filed a post-conviction petition in state court asserting ineffective
assistance of counsel and other claims. [ECF No. 4-9 at 33-34.] Following a hearing at which
2

Herbert was represented by counsel, the petition was granted in part and his sentence reduced, but
was denied in all other respects.2 [Id. at 33-40.] Herbert appealed, raising one claim: that his trial
counsel was ineffective in failing to challenge the traffic stop on the ground that the canine search
unduly extended the length of the stop. [ECF No. 4-9 at 9-11.] The Indiana Court of Appeals
concluded that Herbert did not establish a violation of his right to counsel under Strickland v.
Washington, 466 U.S. 668 (1984), because counsel’s decision not to pursue this argument was a
reasonable exercise of trial strategy. Herbert v. State, No. 79A02-1010-PC-1080, slip op. at 4-8 (Ind.
Ct. App. Sept. 6, 2011). Herbert sought transfer to the Indiana Supreme Court, asserting the same
ineffective assistance claim. [ECF No. 4-12.] The Indiana Supreme Court denied transfer. [ECF No.
4-4 at 4.]
Herbert then filed this federal petition, asserting three claims: (1) his Fourth Amendment
rights were violated in connection with the traffic stop; (2) his due process rights were violated when
he was denied the opportunity to call a witness to testify that his tinted windows did not violate
Indiana law; and (3) his trial counsel was ineffective in failing to argue that the stop was unduly
prolonged by the officers questioning and subsequent canine search. [ECF No. 1.]
II.

ANALYSIS
Herbert’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

2

The trial court determined (and the state conceded) that the court had erred in running the threeyear sentence on the common nuisance conviction consecutive to the other sentences, and it adjusted
Herbert’s sentence accordingly. [ECF No. 4-9 at 38.]

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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.
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 court arrives at a conclusion opposite to that reached by the Supreme Court or
reaches an opposite result in a case involving facts materially indistinguishable from relevant
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 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. In
other words, “[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, —U.S.—, 131 S. Ct. 770, 786 (2011).
Before considering the merits of a claim, however, the Court must ensure that the state courts
have been given the first opportunity to address and correct violations of their prisoner’s federal

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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, either
on direct appeal or on post-conviction review. Baldwin v. Reese, 541 U.S. 27, 30-31 (2004);
Boerckel, 526 U.S. at 845. This includes seeking discretionary review in the state court of last resort.
Boerckel, 526 U.S. at 848. Under the procedural default doctrine, a federal court is precluded from
reaching the merits of a claim 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).
A habeas petitioner can overcome a procedural default by showing both cause for the default
and a resulting prejudice. Wainwright v. Sykes, 433 U.S. 72, 90 (1977). Cause sufficient to excuse
a procedural default is defined as “some objective factor external to the defense” which prevented
the petitioner from pursuing his constitutional claim in state court. Murray v. Carrier, 477 U.S. 478,
488 (1986). Routine matters such as a petitioner’s pro se status or lack of knowledge of the law do
not establish cause to excuse a procedural default. See Smith v. McKee, 598 F.3d 374, 385 (7th Cir.
2010) (petitioner’s pro se status did not excuse his procedural default); Harris v. McAdory, 334 F.3d
665, 669 (7th Cir. 2003) (petitioner’s pro se status and lack of education did not excuse his
procedural default). Prejudice is established by showing that “the violation of the petitioner’s federal
rights worked to his actual and substantial disadvantage, infecting his entire trial with error of
constitutional dimensions.” Thompkins v. Pfister, 698 F.3d 976, 987 (7th Cir. 2012) (internal citation
and quotation marks omitted)
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.
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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) (emphasis in original). 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 evidence—that
was not presented at trial,” 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.
With these principles in mind, the Court turns to the petition.
In claim one, Herbert argues that his Fourth Amendment rights were violated in connection
with the traffic stop. [ECF No. 1 at 5.] The state argues that this claim is not cognizable in light of
Stone v. Powell, 428 U.S. 465 (1976). [ECF No. 4 at 7.] The Court agrees. In Stone, the U.S.
Supreme Court held that “where the State has provided an opportunity for full and fair litigation of
a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the
ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.”
Id. at 494. The exclusionary rule, which requires the suppression of evidence obtained in violation
of the Fourth Amendment, is not a “personal constitutional right” of the accused; rather, “it is a
judicially created means of effectuating the rights secured by the Fourth Amendment.” Brock v.
United States, 573 F.3d 497, 499 (7th Cir. 2009). The rule was intended to deter violations of the
Fourth Amendment by “removing the incentive to disregard it,” but it has attendant costs, since it
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“deflects the truthfinding process and often frees the guilty.” Stone, 428 U.S. at 484, 490. Thus, the
rule “has been restricted to those areas where its remedial objectives are thought most efficaciously
served.” Id. at 486-87. In habeas proceedings the “contribution of the exclusionary rule, if any, to
the effectuation of the Fourth Amendment is minimal, and the substantial societal costs of
application of the rule persist with special force.” Id. at 495.
Therefore, federal habeas courts are barred from reviewing Fourth Amendment claims that
were fully and fairly litigated in state court. Id. at 494-95; see also Hayes v. Battaglia, 403 F.3d 935,
939 (7th Cir. 2005) (“[F]ederal courts hearing collateral attacks under § 2254 may not enforce the
exclusionary rule unless the state judiciary denied the defendant a full an fair opportunity to contest
the search or seizure.”). A habeas petitioner had a full and fair opportunity to litigate a Fourth
Amendment claim if: (1) he apprised the state court of his Fourth Amendment claim along with the
factual basis for that claim; and (2) the state court thoroughly analyzed the facts and looked to the
appropriate body of decisional law to resolve the claim. Miranda v. Leibach, 394 F.3d 984, 997 (7th
Cir. 2005); Hampton v. Wyant, 296 F.3d 560, 563 (7th Cir. 2002).
A review of the state proceedings demonstrates that Herbert had a full and fair opportunity
to contest the search and seizure, and he does not argue otherwise. Herbert challenged the traffic
stop both before and during trial, and on appellate review. See Herbert, No. No. 79A04-0712-CR748, slip op. at 3-4. He was represented by counsel throughout these proceedings, had an opportunity
for an evidentiary hearing in the trial court, and filed an appellate brief fully outlining his claim. [See
ECF No. 4-5; ECF No. 6, Post-Conviction Record (“PCR”) Ex. 1 at 1-22, 29, 133-34.] The Indiana
Court of Appeals issued an opinion thoroughly analyzing the facts pertaining to the traffic stop and
looking to applicable law to resolve Herbert’s claim. See Herbert, No. 79A04-0712-CR-748, slip
op. at 4-10.
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In his traverse, Herbert does not argue that he was denied an opportunity to litigate a Fourth
Amendment claim in state court, nor does he directly address Stone; instead he focuses on the merits
of his claim. [ECF No. 12 at 8-13.] Although Herbert clearly disagrees with the result reached by
the Indiana courts, the opportunity for full and fair litigation of a Fourth Amendment claim
“guarantees the right to present one’s case, but it does not guarantee a correct result.” Cabrera v.
Hinsley, 324 F.3d 527, 532 (7th Cir. 2003). Unless there has been a “subversion of the hearing
process,” a federal habeas court “will not examine whether the judge got the decision right.” Id. at
531. Herbert has not argued or demonstrated that there was a subversion of the hearing process in
state court, and instead he asks this Court “to disagree with the state courts’ decision, a path that
Stone closes.” Hayes v. Battaglia, 403 F.3d 935, 939 (7th Cir. 2005). Accordingly, this claim must
be denied.
In claim two, Herbert asserts that the trial court violated his rights by denying his proposed
witness, who would have testified that his tinted windows did not violate state law. [ECF No. 1 at
7.] The state argues that the claim is procedurally defaulted. [ECF No. 4 at 4-7.] The Court agrees.
Although Herbert asserted this claim before the Indiana Court of Appeals, he did not include the
claim in his petition to transfer filed with the Indiana Supreme Court. [ECF No. 4-12.] His failure
to present this claim to the Indiana Supreme Court constitutes a procedural default. Boerckel, 526
U.S. at 848.
Herbert appears to argue that the Court’s refusal to review this claim on the merits will result
in a fundamental miscarriage of justice. [ECF No. 12.] This is a difficult standard to meet, and it
requires Herbert to prove that he is factually innocent of the offenses of which he was convicted, not
just that his conviction is legally deficient in some way. Bousley, 523 U.S. at 623. He must support
his claim of factual innocence with “new reliable evidence,” and must show that “in light of new
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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. Herbert does not satisfy this demanding standard. He
has not come forward with new evidence—or for that matter any evidence—to establish that he is
factually innocent of the drug offenses of which he was convicted. Rather, his argument focuses on
whether he committed a traffic offense involving tinted windows, but as the Indiana Court of
Appeals noted, he was never charged with committing that offense. Herbert, No. 79A04-0712-CR748, slip op. at 10. Accordingly, his argument is unavailing. He has not provided any other grounds
for excusing his procedural default and, therefore, this claim cannot be reached on the merits.
In his final claim, Herbert argues that he received ineffective assistance from his trial
counsel. [ECF No. 1 at 8.] Under the Sixth Amendment, a criminal defendant is entitled to “effective
assistance of counsel——that is, representation that does not fall below an objective standard of
reasonableness in light of prevailing professional norms.” Bobby v. Van Hook, 558 U.S. 4, 16
(2009). To prevail on such a claim, the petitioner must show that counsel’s performance was
deficient and that the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668
(1984). On the deficiency prong, the central question is “whether an attorney’s representation
amounted to incompetence under prevailing professional norms, not whether it deviated from best
practices[.]” Richter, 131 S. Ct. at 788. The 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; the
petitioner “must overcome the presumption that, under the circumstances, the challenged action
might be considered sound trial strategy.” Davis v. Lambert, 388 F.3d 1052, 1059 (7th Cir. 2004);
see also Yu Tian Li v. United States, 648 F.3d 524, 527-28 (7th Cir. 2011) (“To reflect the wide
range of competent legal strategies and to avoid the pitfalls of review in hindsight, our review of an
attorney’s performance is highly deferential and reflects a strong presumption that counsel’s conduct
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falls within the wide range of reasonable professional assistance.”). Furthermore, the Court must
“evaluate [counsel’s] performance as a whole rather than focus on a single failing or oversight, ”
Ebert v. Gaetz, 610 F.3d 404, 412 (7th Cir. 2010), and must respect its “limited role in determining
whether there was manifest deficiency in light of information then available to counsel.” Premo v.
Moore, —U.S.—, 131 S. Ct. 733, 741 (2011).
On the prejudice prong, the petitioner must show there is a reasonable probability that “but
for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. A reasonable probability is a probability “sufficient to undermine
confidence in the outcome.” Id. at 693. In assessing prejudice under Strickland, “the question is not
whether a court can be certain counsel’s performance had no effect on the outcome or whether it is
possible a reasonable doubt might have been established if counsel had acted differently.” Richter,
131 S. Ct. at 791. “The likelihood of a different result must be substantial, not just conceivable.” Id.
at 792. Where it is expedient to do so, the Court may resolve an ineffective assistance claim solely
on the prejudice prong, because if the petitioner cannot establish prejudice, there is no need to
“grade” counsel’s performance. Strickland, 466 U.S. at 697. Where the underlying argument the
petitioner wanted counsel to raise lacks merit, the claim cannot succeed, because “[f]ailure to raise
a losing argument, whether at trial or on appeal, does not constitute ineffective assistance of
counsel.” Stone v. Farley, 86 F.3d 712, 717 (7th Cir. 1996).
Here, Herbert claims that his trial counsel was deficient in failing to challenge the traffic stop
on the ground that it was unduly prolonged by the officer’s questions about narcotics and the
subsequent canine search. [ECF No. 1 at 5.] In rejecting this claim on post-conviction review, the
Indiana Court of Appeals properly identified Strickland as the governing standard. See Herbert, No.
79A02-1010-PC-1080, slip op. at 5. The court determined that Herbert failed to establish that his
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counsel was deficient on this ground. Id. at 5-7. Based on the record, this was not an unreasonable
application of Strickland.
The record shows that Herbert’s counsel was fully aware of the facts and legal issues
surrounding the traffic stop. He challenged the stop in a pre-trial motion to dismiss and motion to
suppress; however, he chose to argue that the officer had no basis to pull Herbert over in the first
place because his windows did not violate Indiana law. [See ECF No. 6, Appellant’s Appx. at 61-65;
PCR Ex. 1 at 1-22.] A hearing was held on the motion prior to trial, and the transcript reflects that
counsel was prepared and well-versed in the relevant facts. [PCR Ex. 1 at 1-22.] Ultimately the
motion was denied, but counsel made two standing objections to the admission of evidence in order
to preserve the issue for appeal. [PCR Ex. 1 at 29, 133-34.] A review of the remainder of the trial
transcript reflects that counsel was well-prepared throughout the proceedings, and that he actively
participated in jury selection, raised many objections during the state’s presentation of witnesses and
evidence, thoroughly questioned the police officers involved, filed a motion for a directed verdict,
presented mitigating evidence at sentencing, and otherwise argued vigorously on Herbert’s behalf.3
[PCR Ex. 1 at 25-340.]
For unknown reasons, Herbert did not call his trial counsel as a witness at his post-conviction
hearing (nor is there anything in the record to indicate he was unavailable), so there is no evidence
in the record regarding the reasons behind his decisions. [See PCR Hearing Tr. at 1-61.] Herbert did
present testimony from Bruce Graham, an appellate public defender in Tippecanoe County, who
testified that he would have raised the issue of the stop being unduly prolonged by the canine search.
[Id. at 4-49.] In essence, Graham felt it would have been best for counsel to challenge the stop based

3

The trial court characterized Herbert’s counsel as “a very experienced trial lawyer” who “doesn’t miss
anything.” [PCR Ex. 1 at 123.]

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on the canine search, not on the window tint issue that he raised. [Id. at 22-28.] Be that as it may,
the question is not whether another attorney would have made the argument or even whether “best
practices” dictated doing so, but only whether counsel’s performance fell below an objective
standard of reasonableness. Richter, 131 S. Ct. at 788. Counsel was not required to assert every
conceivable argument, and instead was afforded wide discretion to select among those arguments
which in his professional judgment had the best likelihood of success. Smith v. Robbins, 528 U.S.
259, 288 (2000) (observing that counsel “need not (and should not) raise every nonfrivolous claim,
but rather may select from among them in order to maximize the likelihood of success. . . ”); Yu Tian
Li, 648 F.3d at 528 (describing significant deference afforded to attorney’s strategic decisions).
Based on the record, Herbert has failed to overcome the presumption that counsel’s actions were a
reasonable exercise of trial strategy. See Davis, 388 F.3d at 1059.
Herbert has also not made the requisite showing of prejudice, given that his underlying
argument had little likelihood of success. See Ebert, 610 F.3d at 411 (habeas petitioner claiming that
counsel was deficient in failing to raise Fourth Amendment claim must show that “his Fourth
Amendment claim is meritorious and that there is a reasonable probability that the verdict would
have been different absent the excludable evidence in order to demonstrate actual prejudice.”).
The Fourth Amendment permits an officer effecting a traffic stop to ask the defendant
questions unrelated to the initial purpose of the stop and to conduct a canine sweep, so long as the
stop does not become unduly prolonged. Illinois v. Caballes, 543 U.S. 405 (2005); United States v.
Martin, 422 F.3d 597, 601 (7th Cir. 2005); United States v. Carpenter, 406 F.3d 915, 916 (7th Cir.
2005). Here, the record reflects that the officer asked Herbert a few questions and then called the
canine unit, which arrived approximately five minutes after he had been pulled over. [See PCR Ex.
1 at 127, 187, 200.] Shortly after the arrival of the canine unit, and before the sweep even occurred,
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Herbert admitted to the officer that he had marijuana in his vehicle. [Id. at 135.] Under these
circumstances, it is unlikely the drug evidence would have been suppressed even if counsel had
challenged the stop on this ground. See Martin, 422 F.3d at 602 (delay of 20 minutes not
unreasonable under the Fourth Amendment); Carpenter, 406 F.3d at 916 (no Fourth Amendment
violation where canine unit arrived within five minutes of traffic stop).
Indeed, at the post-conviction hearing, Graham testified that he did not know whether the
stop had been unduly prolonged, or whether a challenge on this ground would have been successful,
because he was not familiar with the exact time line of events. [PCR Tr. at 30-33.] He also
acknowledged that once Herbert admitted to the officer that there were drugs in the car, police had
probable cause to conduct a search. [Id. at 35-37.] Based on the record, Herbert has not established
that the state court unreasonably adjudicated his ineffective assistance claim, and accordingly, his
claim is denied.4
Pursuant to RULE 11 of the RULES GOVERNING SECTION 2254 CASES, the 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.

4

At the end of his traverse, Herbert asks in general terms that he be afforded an evidentiary hearing,
without specifying which claim his request pertains to or what facts he seeks to develop. [ECF No. 12 at 13.] The
Court’s authority to hold an evidentiary hearing in a Section 2254 proceeding is significantly limited, and applies
only in situations where the petitioner has been unfairly precluded from developing his claim in state court. See 28
U.S.C. § 2254(e)(2); Cullen v. Pinholster, 131 S. Ct. 1388, 1400-02 (2011); Tolliver v. Pollard, 688 F.3d 853, 85960 (7th Cir. 2012). There is no indication that occurred here. Furthermore, a habeas petitioner is entitled to a hearing
to develop his claims only when his factual allegations “if true, would entitle [him] to federal habeas relief.” Schiro
v. Landrigan, 550 U.S. 465, 474 (2007). Where, as here, “the record refutes the applicant’s factual allegations or
otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.” Id.

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McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks and citation omitted). For the reasons
fully explained above, Herbert’s first claim is barred by Stone, his second claim is procedurally
defaulted, and he has not established that the state courts unreasonably adjudicated his third claim.
The Court finds no basis to conclude that jurists of reason could debate the outcome of the petition
or find a reason to encourage Herbert to proceed further. Accordingly, the Court declines to issue
Herbert a certificate of appealability.
III.

CONCLUSION
For the reasons set forth above, the petition [ECF No. 1] is DENIED and the petitioner is

DENIED a certificate of appealability.
SO ORDERED.
ENTERED: February 14, 2013
/s/ JON E. DEGUILIO
Judge
United States District Court

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