SHEPHERD v. FINNAN

Filing 25

ENTRY Discussing Petition for Writ of Habeas Corpus and Denying Certificate of Appealability. Signed by Judge Richard L. Young on 5/13/2013.(PG)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MICHAEL J. SHEPHERD,
Petitioner,
vs.
ALAN FINNAN,
Respondent.

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No. 1:11-cv-759-RLY-DML

Entry Discussing Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
For the reasons explained in this Entry, the petition of Michael Shepherd 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.
I. Background
Shepherd was convicted in an Indiana state court of dealing in cocaine and possession of
cocaine. He was also found to be an habitual offender under Indiana law and sentenced
accordingly. These convictions arose out of his role in a controlled buy of cocaine. Shepherd’s
convictions were affirmed on appeal in Shepherd v. State, No. 70A01-0504-CR-166 (Ind.Ct.App.
2006) (Shepherd I). Shepherd’s petition for transfer was denied on March 16, 2006.
The trial court granted in part Shepherd’s petition for post-conviction relief, finding that
trial counsel provided ineffective assistance by failing to assert that Shepherd was within 1,000
feet of a park at the suggestion of a law enforcement officer. The post-conviction court reduced
Shepherd’s class A felony conviction to a class B felony conviction, his class B felony
conviction to a class D felony conviction and remanded for resentencing. Shepherd was then

resentenced to a term of eighteen years for his class B felony dealing in cocaine conviction,
which was enhanced by 25 years because he is a habitual offender and a concurrent term of two
years for his class D felony possession of cocaine conviction.
Shepherd separately appealed the denial of post-conviction relief and resentencing. On
appeal of partial denial of post-conviction relief, the Indiana Court of Appeals determined that
there was an actual conflict of interest that adversely effected counsel’s performance as to
Shepherd’s possession of cocaine conviction. In doing so, the Indiana Court of Appeals reversed
the post-conviction court as to this issue on the possession of cocaine conviction and remanded
with instructions to vacate the possession of cocaine conviction. The Indiana Court of Appeals
affirmed the partial denial of post-conviction relief in all other respects. Shepherd v. State, 924
N.E.2d 1274 (Ind.Ct.App. Apr. 14, 2010) (Shepherd II). Shepherd’s petition for transfer was
denied by the Indiana Supreme Court on June 24, 2010. On appeal of resentencing, the Indiana
Court of Appeals affirmed the trial court’s resentencing order. Shepherd v. State, No. 70A010911-CR-529 (Ind.Ct.App. 2010). (Shepherd III). Shepherd did not seek transfer.
In Shepherd II, the Indiana Court of Appeals set forth the facts regarding Shepherd’s
conviction as follows:
On August 11, 2004, Rush County Sheriff's Department Detective Joseph
Jarman was contacted by Mary Jane Smiley, who indicated a willingness to make
a controlled buy of cocaine from Shepherd. Smiley subsequently arranged the
deal by telling Shepherd that she “had hooked up with somebody” and “needed an
eight ball.” After Shepherd agreed to obtain the drugs, Smiley met with Detective
Jarman who provided purchase money, which Smiley gave to Shepherd before he
drove to Indianapolis. Smiley told Shepherd that she would be waiting at the
Rushville Holiday Inn Express, and would call him later with the room number.
After Shepherd left for Indianapolis, Smiley met Detective Jarman at the
Holiday Inn, as he had arranged. Detective Jarman provided money for the rental
of two adjacent rooms, 120 and 122. Although Detective Jarman knew that the
crime would be more serious if committed within 1,000 feet of a public park, he
testified that he did not choose the location for its proximity to a local park,

approximately 850 feet from the hotel rooms. Once the rooms were acquired,
Smiley called Shepherd and told him to meet her in room 122.
When Shepherd arrived at the hotel room, he gave Smiley a small plastic
bag of cocaine. She handed it to Detective Jarman, who then asked Shepherd if he
could obtain more cocaine. Shepherd responded affirmatively. He was arrested,
and a search of the car he had driven to Indianapolis revealed a cigarette package
containing cocaine. Later tests indicated that Shepherd had provided Smiley with
1.53 grams of cocaine, and that .68 grams of cocaine were in the cigarette carton.
Shepherd II, 924 N.E.2d at 1277-78 (citations and footnote omitted).
Shepherd now seeks a writ of habeas corpus. Shepherd claims that: (i) trial counsel was
ineffective as to a conflict of interest issue; (ii) trial counsel and appellate counsel were
ineffective for failing to properly raise a challenge to Shepherd’s eligibility as habitual offender;
(iii) he was improperly sentenced and (iv) there was a Batson violation when the State
challenged the only African-American juror, who became the first person dismissed from the
jury.
II. Applicable Law
In the exercise of its habeas jurisdiction, a federal court may grant relief only if the
petitioner shows that he is in custody "in violation of the Constitution or laws of the United
States." 28 U.S.C. § 2254(a). When a habeas petition is filed after enactment of the Antiterrorism
and Effective Death Penalty Act (AEDPA) on April 24, 1996, that Act’s restrictions on federal
review of state court rulings apply to the case. See Williams v. Taylor, 529 U.S. 362 (2000);
Henderson v. Walls, 296 F.3d 541, 545 (7th Cir. 2002).
AEDPA provides that if a constitutional claim was adjudicated on the merits by
the state courts, a federal court may only grant habeas relief based on that claim if
the state court's decision was "contrary to" or an "unreasonable application of"
federal law as determined by the Supreme Court of the United States, 28 U.S.C. §
2254(d)(1), or if the state court's determination of the facts was unreasonable in
light of the evidence presented. See id. at § 2254(d)(2).
Williams v. Davis, 301 F.3d 625, 631 (7th Cir. 2002).

With regard to the law governing § 2254(d)(1), "contrary to" established Supreme Court
precedent means “substantially different from the relevant precedent." Boss v. Pierce, 263 F.3d
734, 739 (7th Cir. 2001), cert. denied, 122 S.Ct. 1961 (2002). “For example, a state court
decision applying a rule that contradicts the governing law . . . would qualify . . . [or] a decision
that involves a set of facts materially indistinguishable from a Supreme Court case that arrives at
a different result." Id. (citing Williams v. Taylor, 529 U.S. at 405-06).
A state court decision is an unreasonable application of federal law under § 2254(d)(2) "if
the state court identifies the correct governing legal principle from [the Supreme Court's]
decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v.
Taylor, 529 U.S. at 413. The reasonableness of the state court's application of federal law is to
be evaluated by an objective standard. See id. at 409-10. The Supreme Court has cautioned:
[i]n § 2254(d)(1), Congress specifically used the word "unreasonable," and not a
term like "erroneous" or "incorrect." Under § 2254(d)(1)'s "unreasonable
application" clause, then, a federal habeas court may not issue the writ simply
because that court concludes in its independent judgment that the relevant statecourt decision applied clearly established federal law erroneously or incorrectly.
Rather, that application must also be unreasonable.
Id. at 411. Furthermore, the Supreme Court recently explained,
If [the §2254(d)] standard is difficult to meet, that is because it was meant to be.
As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on
federal court relitigation of claims already rejected in state proceedings. It
preserves authority to issue the writ in cases where there is no possibility
fairminded jurists could disagree that the state court's decision conflicts with this
Court's precedents. It goes no farther.
Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (internal citation and parenthetical citation
omitted). Factual issues determined by a state court are presumed to be correct, and the petitioner
bears the burden of rebutting this presumption by clear and convincing evidence. Werts v.
Vaughn, 228 F.3d 178, 196 (3d Cir. 2000) (citing 28 U.S.C. § 2254(e)(1)), cert. denied, 532 U.S.
980 (2001). This is a “rigorous burden of proof.” Sanchez v. Gilmore, 189 F.3d 619, 623 (7th

Cir. 1999), cert. denied, 529 U.S. 1089 (2000).
III. Discussion
A. Ineffective Assistance of Counsel
Shepherd contends that he was denied the effective assistance of counsel at trial. The
Sixth Amendment right to counsel exists "in order to protect the fundamental right to a fair trial."
Strickland v. Washington, 466 U.S. 668, 684 (1984). The purpose of the right is to ensure a fair
trial, and the benchmark for judging any claim of ineffectiveness is "whether counsel's conduct
so undermined the proper functioning of the adversarial process that the trial cannot be relied on
as having produced a just result." Id. at 686.
To support an ineffective assistance of counsel claim under Strickland, Shepherd must
show (1) that counsel's performance fell below an objective standard of reasonableness and (2)
the deficient performance prejudiced the defense. Strickland, 466 U.S. at 695. A failure to
establish either prong would result in a denial of Shepherd’s claim. See Rastafari v. Anderson,
278 F.3d 673, 688 (7th Cir. 2001). The first prong is satisfied by a showing that counsel's
performance fell below the "objective standard of reasonableness" guaranteed under the Sixth
Amendment. Barker v. United States, 7 F.3d 629, 633 (7th Cir. 1993) (quoting Strickland, 466
U.S. at 688). In evaluating whether counsel's performance was deficient, "the court must defer to
counsel's tactical decisions," avoid "the distorting effects of hindsight" and give counsel the
benefit of a strong presumption of reasonableness. Strickland, 466 U.S. at 689; Holman v.
Gilmore, 126 F.3d 876, 881-82 (7th Cir. 1997). The prejudice prong of Strickland requires
Shepherd to "show that 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." Strickland, 466 U.S. at 694. Shepherd’s specific contention regarding the

representation of his trial attorney is that his counsel represented a state’s witness in a different
criminal matter that had been reduced to an oral plea agreement while also representing
Shepherd at trial. Shepherd also claims that trial counsel failed to challenge his habitual offender
status.
The Indiana Court of Appeals recognized the Strickland standard as controlling and did
not apply a contrary standard. Shepherd II, at 1280. In addition, Shepherd has not rebutted by
clear and convincing evidence any of the factual findings reached by the Indiana Court of
Appeals in connection with the resolution of Shepherd’s claim of ineffective assistance of
counsel at trial. This eliminates the possibility of relief under the “contrary to” prong of §
2254(d)(1) or under § 2254(d)(2). This leaves for consideration whether Shepherd has shown
that the Indiana Court of Appeals’ resolution of his ineffective assistance of counsel at trial was
an unreasonable application of clearly established Supreme Court precedent, which is the other
prong of § 2254(d)(1).
When faced with the task of determining whether a particular application of
Supreme Court precedent is unreasonable, we have often taken a more pragmatic
approach to answering the question, scrutinizing the practical operation and effect
of the principles at issue in the particular facts of the case. See, e.g., Miller v.
Anderson, 255 F.3d 455, 456-59 (7th Cir. 2001); Redmond v. Kingston, 240 F.3d
590, 591-92 (7th Cir. 2001); Washington v. Smith, 219 F.3d 620, 627-35 (7th Cir.
2000). We ask whether the decision is "at least minimally consistent with the facts
and circumstances of the case" or "if it is one of several equally plausible
outcomes," Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir. 1997); Hall v.
Washington, 106 F.3d 742, 749 (7th Cir. 1997), granting a writ of habeas corpus
if the determination is "at such tension with governing U.S. Supreme Court
precedents, or so inadequately supported by the record, or so arbitrary" as to be
unreasonable. Hall, 106 F.3d at 749.
Boss v. Pierce, 263 F .3d 734, 741-42 (7th Cir. 2001).
Notwithstanding the deficient performance prong of Strickland, to prevail on these claims
Shepherd must also show prejudice. This means that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different.

The federal constitutional right to effective assistance of counsel necessarily includes
representation that is free from conflicts of interest. Wood v. Georgia, 450 U.S. 261, 271 (1981).
To establish a violation of the Sixth Amendment due to a conflict, a defendant who failed to raise
the objection at trial must demonstrate that trial counsel had an actual conflict of interest and that
the conflict adversely affected counsel's performance. Cuyler v. Sullivan, 446 U.S. 335, 348
(1980).
The Supreme Court modified the standard for ineffective assistance of counsel based on a
conflict of interest. See Mickens v. Taylor, 122 S. Ct. 1237 (2002). In order to prevail under the
modified standard, Shepherd must establish that an actual conflict of interest adversely affected
his attorney's performance. Id. at 1245. An actual conflict exists when an attorney actively
represents incompatible interests; it is more than a "mere theoretical division of loyalties." Id. at
1243; see also United States v. Pergler, 233 F.3d 1005, 1009 (7th Cir. 2000) (an actual conflict
of interest exists when a defense attorney is required to make a choice advancing his own
interests to the detriment of his client's interests).
The Indiana Court of Appeals reviewed Shepherd’s claim that counsel rendered
ineffective assistance because there was a conflict of interest with counsel’s representation of
Bobbie Smiley. Smiley lived with Shepherd and his girlfriend and is the daughter of the State’s
main witness, Mary Jane. The Indiana Court of Appeals recognized that a conflict of interest
existed. Nonetheless, it affirmed the post-conviction court’s denial of the conflict of interest
claim, and in doing so explained:
trial counsel's assistance was not adversely affected because a law enforcement
officer personally witnessed Shepherd sell cocaine to Mary Jane, and therefore
Bobbie's testimony regarding the conversation between Shepherd and Mary Jane
at the house is irrelevant. Accordingly, we affirm the post-conviction court's
conclusion that Shepherd's Sixth Amendment rights were not violated with
respect to Shepherd's conviction for dealing in cocaine.

Shepherd II, 924 N.E.2d at 1288.
The Indiana Court of Appeals surveyed Shepherd’s specifications of trial counsel’s
representation, and in doing so recognized and reasonably applied the two-prong test of
Strickland v. Washington, 466 U.S. 668, 684 (1984). In the circumstances of this case, this
conclusion of the Indiana Court of Appeals was sound, and the supporting analysis is entirely in
accord with the Supreme Court’s decisions. For this reason, therefore, Shepherd is not entitled to
federal habeas relief based on his claim that he was denied his Sixth Amendment right to
conflict-free representation.
Shepherd also claims that trial and appellate counsel were ineffective for failing to
properly raise challenges to Shepherd’s eligibility as a habitual offender. 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). The two-part Strickland
analysis must, therefore, be applied to Shepherd’s appellate counsel as well. The Indiana Court
of Appeals in affirming the post-conviction court explained:
Even though he was sentenced for a class A misdemeanor under the Texas Code,
the Texas Code does not permit his felony conviction to be reduced to a
misdemeanor conviction. Shepherd cannot escape the fact that he was convicted
of a Texas state jail felony, which is equivalent to an Indiana class D felony. Put
another way, under the plain language of the Texas Code, Shepherd could have
been sentenced to a term of up to two years, which satisfies the requirement in
Indiana Code Section 35–50–2–1(b) that the person “might have been imprisoned
for more than one year.” Therefore, his Texas “state jail felony” conviction is not
equivalent to a class D felony reduced to a class A misdemeanor under Indiana
Code Section 35–50–2–7(b). We conclude that Shepherd's Texas dealing in
cocaine conviction may be counted toward “the total number of unrelated
convictions” in Indiana Code Section 35–50–2–8(b)(3)(C). We previously
determined that Shepherd's underlying dealing conviction may be counted in the
total number of unrelated convictions, and consequently, the total number of
Shepherd's unrelated dealing convictions exceeds one. It follows that Indiana
Code Section 35–50–2–8(b) does not preclude the State from seeking to have
Shepherd sentenced as a habitual offender, and from that we conclude that neither
trial nor appellate counsel rendered ineffective assistance in failing to pursue a
strategy based upon a subparagraph (b)(3)(C) challenge to his habitual offender

eligibility.
Shepherd II, 924 N.E.2d at 1286.
Because counsel cannot be said to be ineffective for failing to raise a meritless claim, trial
counsel and appellate counsel were not ineffective for either omitting or failing to include certain
arguments in Shepherd’s habitual offender challenge. The Indiana Court of Appeals’ analysis
was fully in accord with controlling federal law, i.e., Strickland, and was not an unreasonable
application of the standard for evaluating a Sixth Amendment claim of ineffective assistance of
counsel.
B. Sentencing Claim and Batson Challenge
Shepherd claims he was improperly sentenced and that during voir dire the State struck
the only African-American juror in violation of Batson v. Kentucky, 476 U.S. 79 (1986). The
respondent argues that Shepherd has procedurally defaulted these claims. In his reply, Shepherd
argues that he raised the sentencing challenge during post-conviction as an independent claim
and as an ineffectiveness claim. He also argues that he raised the sentencing claim in a petition to
transfer.
ABefore a federal court can entertain a petition for habeas corpus, a state prisoner must
exhaust h[is] state remedies, presenting h[is] claims fully and fairly to the state courts.@ Howard
v. O=Sullivan, 185 F.3d 721, 726 (7th Cir. 1999) (citing 28 U.S.C. ' 2254(b)(1)(A), (c);
O'Sullivan v. Boerckel,119 S. Ct. 1728, 1732 (1999); Patrasso v. Nelson, 121 F.3d 297, 301 (7th
Cir. 1997)). "A state prisoner . . . may obtain federal habeas review of his claim only if he has
exhausted his state remedies and avoided procedurally defaulting his claim." Thomas v.
McCaughtry, 201 F.3d 995, 999 (7th Cir. 2000). 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).
When procedural default has occurred, it can be overcome if a habeas petitioner “can
demonstrate either (a) cause for the default and prejudice (i.e., the errors worked to the
petitioner's ‘actual and substantial disadvantage,’); or (b) that failure to consider his claim would
result in a fundamental miscarriage of justice (i.e., a claim of actual innocence).” Conner v.
McBride, 375 F.3d at 649 (internal citations omitted). “Cause” for a procedural default exists if
the petitioner can demonstrate that “some objective factor external to the defense impeded
counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478,
488 (1986). Prejudice is demonstrated by showing that the errors worked to the petitioner’s
“actual and substantial disadvantage.” United States v. Frady, 456 U.S. 152, 170 (1982).
Shepherd claims that he was improperly sentenced. The respondent argues that Shepherd
procedurally defaulted this claim, but Shepherd asserts that he raised this claim in his postconviction action. Shepherd also claims that there was a Batson violation when the State
challenged the only African-American juror, who became the first person dismissed from the
jury, but respondent asserts that Shepherd procedurally defaulted as to this claim as well.
Shepherd argues that his sentencing claim was raised independently and under the
umbrella of ineffective assistance of counsel at trial and on appeal and in doing so, he fairly
presented his federal claim to the Indiana state courts. He also argues that he included his
sentencing claim in a petition to transfer. However, Shepherd’s sentencing challenges were only
presented as ineffective assistance of counsel claims at post-conviction. In addition, Shepherd
did not seek transfer following his appeal from the trial court’s order resentencing him following
post-conviction. As explained by the Seventh Circuit:
“[A] prisoner who fails to present his claims in a petition for discretionary review
to a state court of last resort” has not “properly presented his claims to the state
courts.” O'Sullivan v. Boerckel, 526 U.S. 838, 848, 119 S.Ct. 1728, 144 L.Ed.2d 1

(1999). This failure results in a procedural default that precludes federal review.
Id.; see also Wilson, 243 F.3d at 327.
Hough v. Anderson, 272 F.3d 878, 892 (7th Cir. 2001). That is the case here, and for this reason,
Shepherd has procedurally defaulted as to his sentencing claim.
As to the Batson claim, Shepherd makes the bare assertion that this claim has been fairly
presented and that “[u]nder the totality of the circumstances it should be concluded that
Shepherd’s claim of a Batson violation in his habeas petition has been fairly presented to
Indiana’s courts via his attempt to get permission from the Indiana Court of Appeals to grant him
permission to precede [sic] with the issue back in Rush Superior Court 3 by way of a P-CR
petition” and that without relief in this court, he will suffer a fundamental miscarriage of justice.
Shepherd’s fundamental miscarriage of justice argument is insufficient. In Schlup v.
Delo, 513 U.S. 298, 327 (1995), the Supreme Court explained that to establish a "fundamental
miscarriage of justice" a petitioner must demonstrate that "a constitutional violation has probably
resulted in the conviction of one who is actually innocent." Id. (quoting Murray v. Carrier, 477
U.S. at 496). And, 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). Shepherd
offers no evidence of his actual innocence here, and the court discerns no basis on which such an
argument could be asserted.
IV. Conclusion
This court has carefully reviewed the state record in light of Shepherd’s claims and has
given such consideration to those claims as the limited scope of its review in a habeas corpus
proceeding permits. The deference due to state court decisions “preserves authority to issue the
writ in cases where there is no possibility fairminded jurists could disagree that the state court's

decision conflicts with [Supreme Court] precedents.” Harrington v. Richter, 131 S. Ct. 770, 786
(2011). Shepherd’s habeas petition does not present such a situation. Additionally, Shepherd’s
request for an evidentiary hearing is denied because 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. His request for counsel in his reply brief
is likewise dismissed.
Shepherd’s petition for a writ of habeas corpus [1] is therefore denied. Judgment
consistent with this Entry shall now issue.
V. 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 Shepherd 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” and “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.
05/13/2013
Date: __________________
Distribution:
Electronically Registered Counsel
MICHAEL J. SHEPHERD
153795
PENDLETON CORRECTIONAL FACILITY
Inmate Mail/Parcels
4490 West Reformatory Road
PENDLETON, IN 46064

_________________________________
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
Southern District of Indiana