STOREY v. FINNAN

Filing 16

Entry Discussing Petition for Writ of Habeas Corpus and Denying Certificate of Appealability: Storey's petition for a writ of habeas corpus 1 is thereforedenied. Accordingly, Storey's request for a hearing is denied. The court therefore denies a certificate of appealability ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Signed by Judge William T. Lawrence on 7/6/2011.(DWH) Modified on 7/7/2011 (DWH).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA

ROBERT D. STOREY,
Petitioner,
v.
ALAN FINNAN,
Respondent.

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No. 1:10-cv-1744-WTL-MJD

Entry Discussing Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
For the reasons explained in this Entry, the petition of Robert D. Storey ("Storey”)
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.
The Petition for a Writ of Habeas Corpus
I. Nature of the Case
Storey seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254(a).
II. Parties
Storey is confined at a state prison in Indiana. The respondent is Storey’s custodian,
sued in his official capacity as a representative of the State of Indiana.
III. Procedural Background
Storey was convicted in 2006 in Elkhart County for possession and manufacture of
methamphetamine. His conviction was affirmed on direct appeal in Storey v. State, No. 875
N.E.2d 243 (Ind.Ct.App. 2007) (Storey I).Storey’s petition for transfer was denied by the
Indiana Supreme Court on January 3, 2008. The trial court’s denial of Storey’s petition for
post-conviction relief was affirmed on appeal in Storey v. State, 2010 WL 2361764
(Ind.Ct.App. 2010)(Storey II). Storey’s petition for transfer was denied by the Indiana
Supreme Court on October 20, 2010. The filing of this action followed. The record has been
appropriately expanded.

IV. Statement of Facts
The evidence relating to Storey’s offenses as set forth on direct appeal is as follows:
On July 21, 2003, area residents noticed an unfamiliar maroon vehicle and
two men by a cornfield near Glen Graber's (“Graber”) Elkhart, Indiana, farm.
After being notified, Graber's son, Kenneth, went to the field to investigate.
Soon thereafter, Graber and a neighbor joined up with Kenneth, and the men
observed two sets of footprints leading into the cornfield and in close
proximity to a nearby tank, later found to contain anhydrous ammonia, which
is commonly used in the production of methamphetamine. Simultaneously,
the men observed a maroon car in the area, which they followed into
Millersburg before deciding to return to the cornfield. While en route back to
the cornfield, they called the Elkhart County Sheriff's Department and
Eugene Moser (“Moser”), another neighbor. Moser met Graber and the other
men at the edge of the field while they waited for the officers to arrive. While
waiting for the officers, Storey emerged from the cornfield wearing heavy
clothing on a warm day and sweating profusely. Startled at the sight of the
men, Storey explained that he was looking for his dog and then began
walking toward an adjacent railroad. When Kenneth followed, Storey ran and
hid in some tall grass. Deputy Sheriff Jason Reaves arrived on the scene and
quickly apprehended Storey. The police and others eventually found several
items in the field used to manufacture methamphetamine, including
containers, Draino cans, ether, batteries that were cut apart, liter bottles, and
jars containing an orange-pink substance. Additionally, the authorities found
finished methamphetamine weighing a total of 34.789 grams and unfinished
methamphetamine that, if finished, would have yielded approximately twentyeight grams.
Storey I, 875 N.E.2d at 246-47.
V. Applicable Law
A federal court may grant habeas relief only if the petitioner demonstrates that he
is in custody "in violation of the Constitution or laws . . . of the United States." 28 U.S.C. §
2254(a) (1996). Storey filed his 28 U.S.C. § 2254 petition after the effective date of the
Antiterrorism and Effective Death Penalty Act (AEDPA). His petition, therefore, is subject
to the AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). When a habeas petitioner's
claim was adjudicated on the merits in State court proceedings, section 2254(d) provides
that a federal court may grant a writ of habeas corpus only if that adjudication was: (1)
“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). The following principles
guideline the AEDPA analysis.

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A state court’s decision is deemed contrary to clearly established federal law
if it reaches a legal conclusion in direct conflict with a prior decision of the Supreme
Court or if it reaches a different conclusion than the Supreme Court based on
materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 404-08 (2000).
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"A state court decision is contrary to clearly established law if it applies a
legal standard inconsistent with governing Supreme Court precedent or contradicts
the Supreme Court's treatment of a materially identical set of facts. A state court
unreasonably applies Supreme Court precedent if the state court identifies the
correct legal rule but applies it in a way that is objectively unreasonable." Bynum v.
Lemmon, 560 F.3d 678, 683 (7th Cir. 2009)(internal citations omitted).
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“Clearly established federal law” means “the governing principle or principles
set forth by the Supreme Court at the time the state court renders its decision.”
Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).
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Under the "unreasonable application" prong of the AEDPA standard, a
habeas petitioner must demonstrate that although the state court identified the
correct legal rule, it unreasonably applied the controlling law to the facts of the case.
Williams, 529 U.S. at 407; see also Badelle v. Correll, 452 F.3d 648, 653 (7th Cir.
2006). “[A] state-court factual determination is not unreasonable merely because the
federal habeas court would have reached a different conclusion in the first instance.”
Wood v. Allen, 130 S. Ct. 841, 845 (2010).
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“Under AEDPA, federal courts do not independently analyze the petitioner’s
claims; federal courts are limited to reviewing the relevant state court ruling on the
claims.” Rever v. Acevedo, 590 F.3d 533, 536 (7th Cir. 2010).
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“The habeas applicant has the burden of proof to show that the application
of federal law was unreasonable.” Harding v. Sternes, 380 F.3d 1034, 1043 (7th Cir.
2004)(citing Woodford v. Visciotti, 537 U.S. 19, 25 (2002)). With respect to §
2254(d)(2), state-court determinations of factual issues are “presumed correct”
unless the petitioner can rebut the presumption “by clear and convincing evidence.”
28 U.S.C. § 2254(e)(1); Sprosty v. Buchler, 79 F.3d 635, 643 (7th Cir. 1996).
VI. Analysis
Storey seeks habeas corpus relief based on his claim that appellate counsel was
ineffective for failing to challenge the admission of co-defendant Joseph Caron’s (“Caron”)
testimony at trial by transcript rather than live testimony. Storey’s contention is that this
method of introducing Caron’s testimony violated Storey’s Sixth Amendment right to
confront Caron.
A defendant has a right under the Sixth Amendment to effective assistance of
counsel at trial. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish ineffective
assistance of counsel under Strickland, the petitioner must show that counsel's
performance was deficient and that the deficient performance prejudiced him. Id. For a

petitioner to establish that "counsel's assistance was so defective as to require reversal"
of a conviction or a sentence, he must make two showings: (1) deficient performance that
(2) prejudiced his defense. Id., at 687.
With respect to the first prong, “[t]he proper measure of attorney performance
remains simply reasonableness under prevailing professional norms.” Wiggins v. Smith,
539 U.S. 510, 521 (2003) (quoting Strickland, 466 U.S. at 688). In determining whether
counsel's performance was constitutionally deficient, the Court's review of counsel's
performance is “highly deferential,” and 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). With respect to the
prejudice requirement, the petitioner must show that "there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in the
outcome." Strickland, 466 U.S. at 694.
The standard for judging a claim of ineffective assistance of counsel is the same for
both trial and appellate lawyers. Matire v. Wainwright, 811 F.2d 1430, 1435 (11th Cir.
1987). An appellate counsel's performance is deficient if he or she fails to argue an issue
that is both obvious and clearly stronger than the issues raised. Lee v. Davis, 328 F.3d 896,
900-01 (7th Cir. 2003). To establish the Strickland prejudice prong, a defendant must show
that there is a reasonable probability that appellate counsel's failure to raise an issue would
have resulted in the reversal of his conviction or an order for a new trial. Id., at 901 (for a
claim to support relief, it must be reasonable probability that issue not raised would have
altered outcome of appeal). Where a defendant claims that counsel failed to raise the
correct issues on appeal, the question is whether appellate counsel failed to raise a
significant and obvious issue without a legitimate strategic purpose. Franklin v. Gilmore,
188 F.3d 877, 884 (7th Cir. 1999). Thus, the court has examined the "trial court record to
determine whether appellate counsel failed to present significant and obvious issues on
appeal. Significant issues which could have been raised should then be compared to those
which were raised. Generally, only when ignored issues are clearly stronger than those
presented, will the presumption of effective assistance of counsel be overcome." Mason
v. Hanks, 97 F.3d 887, 893 (7th Cir. 1996).
When the AEDPA standard is applied to a Strickland claim, the following calculus
emerges:
The question is not whether a federal court believes the state court's
determination under the Strickland standard was incorrect but whether that
determination was unreasonable-a substantially higher threshold. And,
because the Strickland standard is a general standard, a state court has
even more latitude to reasonably determine that a defendant has not satisfied
that standard.
Knowles v. Mirzayance, 129 S. Ct. 1411, 1420 (2009)(internal citations and quotations
omitted).

As to Storey’s ineffective assistance of appellate counsel claim which was raised in
the post-conviction action, the Indiana Court of Appeals explained:
Here, Caron's testimony is in no way comparable to Storey's [unconstitutional
as violating his Fifth Amendment right to counsel] confession, which
undoubtedly contributed to his conviction in his first trial. In other words,
Caron's testimony and Storey's confession are not the same caliber of
evidence. Although Caron's testimony placed him with Storey in the cornfield
on the day in question near the ingredients which were later found, Caron
was very careful in his testimony not to link Storey to the methamphetamine
or the ingredients. Appellate counsel testified at the post-conviction hearing
that there were several reasons why he did not raise this issue on appeal,
one of which was that he “thought it would be extremely difficult to mount an
argument where Mr. Storey showed that this was anything other than
harmless error[.]” P–C Tr. p. 45. Without Caron's testimony, the evidence
shows that a farmer observed an unfamiliar car in the area, two men, and
then two sets of footprints leading to a tank containing anhydrous ammonia.
Storey later emerged from a cornfield wearing heavy clothing on a warm day
and sweating profusely. Startled at the sight of some men, Storey explained
that he was looking for his dog and then began walking toward an adjacent
railroad. When one of the men followed, Storey ran and hid in some tall grass
until he was apprehended by a deputy sheriff. In the cornfield the deputies
found methamphetamine, unfinished methamphetamine, and several
ingredients used to manufacture methamphetamine.
The decision of what issues to raise is one of the most important strategic
decisions to be made by appellate counsel. Here, appellate counsel
considered the confrontation issue but ultimately decided not to raise it for a
host of reasons. Not only was appellate counsel concerned about
overcoming the harmless error hurdle, but he also thought that if Caron had
testified, he “was capable of derailing the entire trial at that point” and
therefore the trial court devised a good procedure to minimize the risk. Id.,at
46. We thus decline to find ineffective assistance of appellate counsel for
failing to raise the confrontation issue under the United States Constitution.
Storey II, at pp. 8-9.
Storey has not demonstrated that his appellate counsel's failure to challenge the
admission of Caron’s testimony so prejudiced his chances on appeal that, absent counsel's
asserted deficient performance, there is a reasonable probability that his appeal would
have been successful. Mayo v. Henderson, 13 F.3d 528, 534 (2d Cir. 1994). "When
counsel focuses on some issues to the exclusion of others, there is a strong presumption
that he did so for tactical reasons rather than through sheer neglect." Yarborough v. Gentry,
540 U.S. 1, 8 (2003). As the foregoing shows, the Indiana Court of Appeals in Storey II
"took the constitutional standard seriously and produced an answer within the range of
defensible positions." Mendiola v. Schomig, 224 F.3d 589, 591 (7th Cir. 2000). Because
this court cannot find that the Indiana Court of Appeals "unreasonably applie[d] [the

Strickland standard] to the facts of the case," Storey’s claim of ineffective assistance of
appellate counsel does not support the award of habeas corpus relief. Murrell, 332 F.3d at
1111 (citing Bell v. Cone, 535 U.S. 685, 694 (2002)).
VII. Conclusion
This court has carefully reviewed the state record in light of Storey’s claims and has
given such consideration to those claims as the limited scope of its review in a habeas
corpus proceeding permits. "A defendant whose position depends on anything other than
a straightforward application of established rules cannot obtain a writ of habeas corpus."
Liegakos v. Cooke, 106 F.3d 1381, 1388 (7th Cir. 1997). No such established rules entitle
Storey to relief in this case. Storey’s petition for a writ of habeas corpus [1] is therefore
denied.
Storey’s request for a hearing has also been considered. However, 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, Storey’s request for a hearing is denied.
Judgment consistent with this Entry shall now issue.
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 Storey has
failed to show that reasonable jurists would find “it debatable whether the petition states a
valid claim of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). The court therefore denies a certificate of appealability.
IT IS SO ORDERED.

Date:

07/06/2011

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana