MITCHELL v. BUTTS

Filing 12

ENTRY Discussing Petition for Writ of Habeas Corpus - For the reasons explained in this Entry, the petition of Larry D. Mitchell for a writ of habeas corpus must be denied. In addition, the court finds that a certificate of appealability shou ld not issue. Mitchell's petition for a writ of habeas corpus is denied. Judgment consistent with this Entry shall now issue. The court therefore denies a certificate of appealability. (copy to Petitioner via US Mail). Signed by Judge Jane Magnus-Stinson on 4/9/2012.(JKS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA

LARRY D. MITCHELL,
Petitioner,
vs.
KEITH BUTTS, Superintendent,
Respondent.

)
)
)
)
)
)
)
)
)

1:11-cv-1445-JMS-MJD

Entry Discussing Petition for Writ of Habeas Corpus
For the reasons explained in this Entry, the petition of Larry D. Mitchell for a
writ of habeas corpus must be denied. In addition, the court finds that a certificate
of appealability should not issue.
Petition for Writ of Habeas Corpus
Background
Mitchell was convicted in an Indiana state court of myriad felony offenses,
including three counts of felony murder. His convictions were affirmed on appeal in
Mitchell v. State, 821 N.E.2d 390 (Ind.Ct.App. 2004)(Mitchell I). The Indiana
Supreme Court granted Mitchell’s petition to transfer and affirmed. 844 N.E.2d 88
(Ind. 2006). The trial court’s denial of Mitchell’s petition for post-conviction relief
was affirmed on appeal in Mitchell v. State, 49A02-1003-Cr-340 (Ind.Ct.App. April
6, 2011), Mitchell’s petition for transfer with respect to the denial of his petition for
post-conviction relief was denied on August 18, 2011. The sole claim presented in
his petition to transfer was his argument that the post-conviction court had erred in
denying his request at a certain point to dismiss that action without prejudice.
Specifically, his petition to transfer from the post-conviction decision presented the
question “[w]hether the Indiana Court of Appeals erred in concluding that any error
in the post-conviction courts early entry of judgment was harmless although
Mitchell filed a motion to withdraw petition for post-conviction relief without

prejudice and a motion for relief from judgment prior to courts judgment on Tucker
v. State grounds, such conclusion being in conflict with other decisions of the Court
of Appeals.”
Mitchell now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254(a).
His claims are ineffective assistance of trial counsel, ineffective assistance of
appellate counsel, due process violations due to the alleged introduction of
inadmissible evidence at trial, and prosecutorial misconduct.
Discussion
"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
either (1) when a petitioner failed to exhaust state remedies and the court to which
he would have been permitted to present his claims would now find such claims
procedurally barred, Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1990), or (2) "if
the decision of [the state] court rests on a state law ground that is independent of
the federal question and adequate to support the judgment." Id. at 729. 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 643, 648 (7th Cir. 2004) (internal
citations omitted); see also Dellinger v. Bowen, 301 F.3d 758, 764 (7th Cir. 2002),
cert. denied, 537 U.S. 1214 (2003).
Mitchell procedurally defaulted as to his habeas claims. His procedural
default consists in not having included any of his habeas claims in his petition to
transfer to the Indiana Supreme Court. O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999) ("'[S]tate prisoners must give the state courts one full opportunity to resolve
any constitutional issues by invoking one complete round of the State's established
appellate review process,' including review by the state's court of last resort, even if
review in that court is discretionary."). Mitchell’s default precludes consideration of
the merits of these claims unless he shows the presence of circumstances
overcoming the consequences of that default. He has not done so, and the
consequence of this is that the court is not permitted to reach the merits of his
habeas claims.
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). In this
case, Mitchell has encountered the hurdle produced by the doctrine of procedural

default. He has not shown the existence of circumstances permitting him to
overcome this hurdle, and hence is not entitled to the relief he seeks. Mitchell’s
petition for a writ of habeas corpus 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
Mitchell has failed to show that reasonable jurists would find it Adebatable 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.

04/09/2012
Date: __________________

_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana