MYERS v. STINE

Filing 34

ENTRY: For the reasons explained in this Entry, the petition of Damon A. Myers ("Myers") for a writ of habeas corpus must be denied and the action dismissed with prejudice. In addition, the court finds that a certificate of appealability should not issue. Judgment consistent with this Entry shall now issue ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Signed by Judge William T. Lawrence on 6/20/2011.(DWH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA

DAMON A. MYERS,
Petitioner,
vs.
STACY DOAN-SELMIER,
Respondent.

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1:10-cv-01066-WTL-DML

Entry Discussing Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
For the reasons explained in this Entry, the petition of Damon A. Myers (“Myers”) for
a writ of habeas corpus must be denied and the action dismissed with prejudice. In
addition, the court finds that a certificate of appealability should not issue.
Petition for Writ of Habeas Corpus
Background
Myers was convicted in an Indiana state court of child molesting on August 29, 2006.
His conviction was affirmed on appeal in Myers v. State, No. 49A05-0610-CR-616 and
49A04-0612-CR-690 (Ind.Ct.App. July 23, 2007)(Myers I). Myers’ petitions to transfer did
not comply with the Indiana Rules of Court and Myers did not cure such defects. The trial
court’s denial of Myers’ petition for post-conviction relief was affirmed in Myers v. State,
49A02-10010PC-154 (Ind.Ct.App. Nov. 10, 2010). Once again, Myers’ petition to transfer
was untimely and defective, and consequently, returned to Myers.
Contending that the conviction is constitutionally infirm because of myriad
specifications of ineffective assistance of counsel, Myers seeks a writ of habeas corpus.
The respondent has answered, claiming that Myers has committed procedural default by
failing to properly present his claims to the Indiana Supreme Court.
Discussion
"[W]hen examining a habeas corpus petition, the first duty of a district court . . . is
to examine the procedural status of the cause of action." United States ex rel. Simmons v.
Gramley, 915 F.2d 1128, 1132 (7th Cir. 1990).
Before considering a petition for habeas corpus on its merits, a district court
must make two inquiries-whether the petitioner exhausted all available state
remedies and whether the petitioner raised all his claims during the course

of the state proceedings. If the answer to either of these inquiries is ‘no,’ the
petition is barred either for failure to exhaust state remedies or for a
procedural default.
Verdin v. O'Leary, 972 F.2d 1467, 1472 (7th Cir. 1992). In this case, the procedural inquiry
is conclusive as to the proper outcome.
“[T]he burden is on the petitioner to raise his federal claim in the state court at a time
when state procedural law permits its consideration on the merits. . . .” Bell v. Cone, 543
U.S. 447, 451 n.3 (2005). Procedural default "occurs when a claim could have been but
was not presented to the state court and cannot, at the time that the federal court reviews
the habeas petition, be presented to the state court." Resnover v. Pearson, 965 F.2d 1453,
1458 (7th Cir. 1992), cert. denied, 508 U.S. 962 (1993).
Here, Myers’ habeas claims were presented to the Indiana state courts, if at all, in
Myers II. Following that decision, Myers’ petition for transfer was rejected by the Indiana
Supreme Court. Specifically, on February 28, 2011, the Deputy Clerk notified Myers that
his petition for transfer had been received, but that it was not filed because it was untimely
and not in compliance with Indiana’s appellate rules. Myers cannot ignore the fact that he
committed procedural default by not filing a petition which was timely and which was
otherwise filed in compliance with the Indiana appellate rules.
“An application for a writ of habeas corpus on behalf of a person in custody pursuant
to a judgment of a State court shall not be granted unless it appears that . . . the applicant
has exhausted the remedies available in the courts of the State” 28 U.S.C. §
2254(b)(1)(A); see, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 843-44 (1999). The statute
just cited requires a petitioner “[to] give the state courts one full opportunity to resolve
constitutional issues by invoking one complete round of the State's established appellate
review process.” O'Sullivan, 526 U.S. at 842. This includes filing an application for
discretionary appellate review with the State's highest court if that right is available by
statute. Id. at 845. His failure to do so constitutes his procedural default.
A procedural default can be avoided if a petitioner can show cause and prejudice
or a fundamental miscarriage of justice. Holmes v. Hardy, 608 F.3d 963, 967 (7th Cir.
2010). Myers makes no effort to show cause for and prejudice from his procedural default.
The other way to avoid procedural default is to show actual innocence, that is, to
show that “in light of new evidence, ‘it is more likely than not that no reasonable juror would
have found petitioner guilty beyond a reasonable doubt.’” House v. Bell, 547 U.S. 518, 537
(2006) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). This standard is “fundamentally
different”, and lower, than that for a substantive innocence claim because the procedural
claim of innocence is accompanied with an assertion of constitutional error at trial. Schlup,
513 U.S. at 315–16.
Myers invokes this second path whereby procedural default can be overcome. In his
reply to the respondent’s return, Myers states that, “[f]ailure to consider all [habeas] claims
will result in a fundamental miscarriage of justice,” that “counsel refused in both cases to
depose certain State witnesses and investigate their statements prior to trial’” and “[t]he

refusal of counsel to conduct a thorough investigation of all State evidence and witnesses
abridged Myers’s right to be heard and present evidence that would prove his innocence.”
This is insufficient because in order to establish a claim of actual innocence “he must
convince the court that no reasonable juror would have found him guilty but for the error(s)
allegedly committed by the state court.” Perruquet v. Briley, 390 F.3d 505, 515 (7th Cir.
2004) (citing Schlup). Myers offers no evidence of his actual innocence here, he does not
analyze the evidence in light of the errors he asserts, and the court discerns no basis on
which such an argument could be asserted.
Conclusion
“[H]abeas corpus has its own peculiar set of hurdles a petitioner must clear before
his claim is properly presented to the district court.” Keeney v. Tamayo-Reyes, 504 U.S.
1, 14 (1992) (O'Connor, J., dissenting) (internal citations omitted). One of these is the
doctrine of procedural default. That is the barrier Myers faces here and he has failed to
overcome that barrier. His habeas petition must therefore be denied. Myers’ request for
an evidentiary hearing has also been considered. Such a proceeding is only necessary
when a more extensive factual record must be compiled to decide an issue. See Newell v.
Hanks, 283 F.3d 827, 838 (7th Cir. 2002). That is not the case here. Accordingly, Myers’
request for an evidentiary hearing is also denied.
Judgment consistent with this Entry shall now issue.
II. Certificate of Appealability
Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules
Governing § 2254 proceedings, and 28 U.S.C. § 2253(c), the court finds that Myers has
failed to show that reasonable jurists would find “debatable whether [this court] was correct
in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The court therefore
denies a certificate of appealability.
IT IS SO ORDERED.

06/20/2011
Date: ________________
_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana