PANNELL v. NEAL

Filing 87

ENTRY Denying Petition for Writ of Habeas Corpus and Denying Certificate of Appealability. Judgment consistent with this Entry shall now issue. SEE ORDER. Signed by Judge Jane Magnus-Stinson on 3/19/2015. Copy sent to Plaintiff via U.S. Mail. (BGT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

DAVID PANNELL,
Petitioner,
v.
RON NEAL, Superintendent,
Respondent.

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Case No. 1:12-cv-01301-JMS-DML

Entry Discussing Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
Having considered the amended petition for writ of habeas corpus, the expanded record
and the parties’ arguments, and being duly advised, the Court finds that the amended petition must
be denied. In addition, the Court finds that a certificate of appealability should not be issued. These
conclusions are compelled by the following facts and circumstances:
1.

David Pannell is a prisoner of the State of Indiana based on his conviction for the

February 17, 1996, stabbing death of his wife Leisha. See Pannell v. State, 686 N.E.2d 824, 825
(Ind. 1997). His current custodian is substituted as the respondent.
2.

It is noted in Jones v. Butler, 2015 WL 430436, at *1 (7th Cir. February 3, 2015),

that “[i]n § 2254 proceedings, federal courts are foreclosed from fact-finding. We therefore defer
to the findings of the [state] court, which [when] not been challenged . . . are presumed to be
correct unless rebutted by clear and convincing evidence.” (citing 28 U.S.C. § 2254(e)(1) and
Harris v. Thompson, 698 F.3d 609, 613 (7th Cir. 2012)). The pertinent facts are summarized by
the Indiana Supreme Court as follows:

David Pannell and his wife Leisha were separated. On February 17, 1996, he visited
the home where she lived with their five children. David and Leisha spent most of
the afternoon and evening in her bedroom while the children played outside and in
other areas of the house.
That evening, after Leisha returned from a short trip to the store with some of the
children to buy candy, she and David began to argue in the living room while the
children watched television in her bedroom. Two of the children, then ages ten and
nine, testified that they heard their father demand five dollars from Leisha, who
refused, claiming she needed the money to feed the children. Shortly thereafter,
they heard a door “slam open” and their mother scream. They ran to the front of the
house and saw their father holding their mother down on the ground in front of the
home and stabbing her with a large kitchen knife. One of the children ran outside
and tried to stop him. Pannell pushed her away and continued stabbing Leisha. The
children then dialed 911 and watched as Pannell stuck the knife in the ground, got
into his car, and drove away.
Police found Pannell approximately one hour later after his car was involved in a
single-vehicle crash some three to four miles from Leisha’s home. Leisha died from
stab wounds to the heart and lungs.
Pannell testified at trial that he did not kill his wife. He claimed that Leisha came
after him with a knife after he had walked out the door, so he disarmed her, dropped
the knife on the ground beside the house, and drove away.
Pannell, 686 N.E.2d at 826. Pannell’s appeal from the denial of post-conviction relief is currently
pending, but the claims and decision in the post-conviction are unrelated to the claims properly
presented in this action.
3.

Pannell claimed in his direct appeal that (1) the trial court improperly excluded

evidence of the victim’s drug use and (2) trial that trial counsel was ineffective for failing to admit
an ambulance run report and present evidence that Pannell was under the influence of drugs at the
time of the offense. These claims are renewed in this habeas action. The court is also required to
address the respondent’s argument that Pannell’s habeas petition was not timely filed.
4.

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L.

No. 104–132, 110 Stat. 1214, became effective on April 24, 1996, and governs the habeas petition
in this case because Pannell filed his petition after the AEDPA’s effective date.

5.

“We live in a world of deadlines.” Spears v. City of Indianapolis, 74 F.3d 153, 157

(7th Cir. 1996). One statute enacted by Congress as part of AEDPA, amended 28 U.S.C. ' 2244
to include a one-year statute of limitations for state prisoners seeking federal habeas relief. The
statute of limitations applicable to federal habeas corpus actions "was Congress' primary vehicle
for streamlining the habeas review process and lending finality to state convictions." Walker v.
Artuz, 208 F.3d 357, 361 (2nd Cir. 2000). The AEDPA prescribes a one-year period of limitations
for the filing of habeas petitions by state prisoners, which begins to run from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in
violation of the Constitution or laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the
Supreme Court, if the right has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have
been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1). The AEDPA's limitations period is subject to statutory and equitable
tolling. See Wood v. Milyard, 132 S. Ct. 1826, 1831 (2012)(statutory tolling); Holland v. Florida,
560 U.S. 631 (2010)(equitable tolling).
6.

Pannell does not allege, and the court cannot discern, any facts triggering the

application of § 2244(d)(1)(B), (C), or (D). As such, the one-year period of limitations began to
run when Pannell’s conviction became final under § 2244(d)(1)(A).
a.
A conviction is “final” when the time for seeking direct review from the judgment
affirming the conviction has expired. Griffith v. Kentucky, 479 U.S. 314, 321 & n.6 (1987).
Applying this rule, Pannell’s conviction became final on direct review on January 21, 1998.
This was the last day on which Pannell could have sought certiorari review of the decision
of the Indiana Supreme Court. The statute of limitations pertaining to Pannell’s conviction
therefore commenced on January 22, 1999, and, absent statutory or equitable tolling,

expired one year later on January 23, 1999. Case law is clear that the limitations period is
not tolled or restarted by post-conviction proceedings filed after the one-year period of
limitation has expired. De Jesus v. Acevedo, 567 F.3d 941, 944 (7th Cir. 2009) (“A state
court’s order denying a request for collateral review (whether on the merits or for any
procedural reason) does not require the exclusion, under § 2244(d)(2), of time that passed
before the state collateral proceeding began.”).
b.
Because Pannell’s action for post-conviction relief in the trial court was filed years
later, on August 29, 2005, the statute of limitations did expire in January 1999. Thus,
applying the limitations provisions of section 2244(d)(1)(A), this federal action is not
timely under the statute. Pannell offers no reason why the action should not be dismissed
on this basis and the Court finds that its dismissal as untimely is warranted.
7.

Notwithstanding the procedural deficiency of the amended habeas petition, the

Court will briefly examine the merits of Pannell’s habeas claims. The court therefore proceeds to
the merits, at least insofar as AEDPA permits. What that means in this case is that in order to
prevail Pannell must show that the state court in his direct appeal unreasonably applied a federal
doctrine declared by the United States Supreme Court.” Redmond v. Kingston, 240 F.3d 590 (7th
Cir. 2001) (citing 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362 (2000); Morgan v.
Krenke, 232 F.3d 562 (7th Cir. 2000)).
8.

“A state-court decision involves an unreasonable application of this Court’s clearly

established precedents if the state court applies this Court’s precedents to the facts in an objectively
unreasonable manner.” Brown v. Payton, 544 U.S. 131, 141 (2005) (internal citations omitted).
9.

Pannell seeks habeas corpus relief based on the trial court’s ruling excluding

evidence of his wife’s drug use. In rejecting this claim, the Indiana Supreme Court explained:
The defense sought to introduce an affidavit and testimony by the victim’s daughter
that she had seen drug paraphernalia in her mother’s bedroom on the day of the
murder, and that her mother had a history of using and abusing drugs….Pannell
claims the evidence is relevant because it sheds light on the events which occurred
in the moments before Leisha’s death. We disagree. Whether or not Leisha used
drugs is not a fact of consequence in this case. Pannell did not raise any defense
which placed Leisha’s drug use at issue, and even if true, it would not make
Pannell’s killing of her more or less probable.
....

Pannell claims the evidence is relevant because it sheds light on the events which
occurred in the moments before Leisha’s death. We disagree. Whether or not Leisha
used drugs is not a fact of consequence in this case. Pannell did not raise any
defense which placed Leisha’s drug use at issue, and even if true, it would not make
Pannell’s killing of her more or less probable. Evidence of the victim’s alleged drug
use was thus irrelevant, and the trial court appropriately excluded it.
Pannell, 686 N.E.2d at 826.
10.

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). “To say that a petitioner's claim is not cognizable on habeas review is thus another way of
saying that his claim ‘presents no federal issue at all.’” Perruquet v. Briley, 390 F.3d 505, 511 (7th
Cir. 2004)(quoting Bates v. McCaughtry, 934 F.2d 99, 101 (7th Cir. 1991)). If treated simply as a
challenge to the trial court’s evidentiary ruling, Pannell’s first claim is simply not cognizable under
§ 2254(a). As the Supreme Court has clearly stated, “federal habeas corpus relief does not lie for
errors of state law.” Swarthout v. Cooke, 131 S. Ct. 859, 861 (2011).
11.

Pannell’s first habeas claim can also be understood as a due process challenge to

the exclusion of evidence. See Bigby v. Dretke, 402 F.3d 551, 563 (5th Cir. 2005) (holding federal
habeas review of a state court's evidentiary ruling focuses exclusively on whether the ruling
violated federal constitutional protections). Due process is implicated only for rulings “of such a
magnitude” or “so egregious” that they “render the trial fundamentally unfair” and relief will be
warranted only when the challenged evidence “played a crucial, critical, and highly significant role
in the trial.” Id. The Supreme Court has “defined the category of infractions that violate
‘fundamental fairness' very narrowly.” Dowling v. United States, 493 U.S. 342, 352 (1990).
Even under a Sixth Amendment analysis, the trial court and the state appellate court
placed reasonable limits on the admissibility of this evidence. The Sixth
Amendment to the United States “entitled by the Constitution to a meaningful
opportunity to present a complete defense.” Wade v. Mantello, 333 F.3d 51, 57 (2d
Cir. 2003); see also Clark v. Arizona, 548 U.S. 735, 769 (2006) (holding that the

right to present a complete defense is “a matter of simple due process”); Taylor v.
Illinois, 484 U.S. 400, 408 (1988) (holding that criminal defendants have the right
to “put before a jury evidence that might influence the determination of guilt”
(internal citations and quotation marks omitted)). At the same time, this right is
subject to “reasonable restrictions.” Wade, 333 F.3d at 58. State and federal rules
of evidence may restrict evidence “to assure both fairness and reliability in the
ascertainment of guilt and innocence.” Id. (quoting Chambers v. Mississippi, 410
U.S. 284, 302 (1973)).
United States v. Al Kassar, 660 F.3d 108, 122-23 (2nd Cir. 2011). Applying this standard,
Pannell’s claim that the exclusion of evidence of his wife’s drug use “render[ed] the trial
fundamentally unfair” does not implicate a due process because the excluded evidence would not
have played a crucial, critical, and highly significant role in the trial.
12.

To review: “On a petition for writ of habeas corpus, a federal court will not review

evidentiary questions unless there is a resultant denial of fundamental fairness or the denial of a
specific constitutional right.” Stomner v. Kolb, 903 F.2d 1123, 1128 (7th Cir. 1990) (internal
citation and quotation marks omitted). “A habeas petitioner bears a heavy burden in showing a due
process violation based on an evidentiary decision.” Boyde v. Brown, 404 F.3d 1159, 1172 (9th
Cir. 2005). Pannell’s first claim falls short in this regard. That is, Pannell has not shown that the
exclusion of the offered evidence was improper under Indiana state law or that its assertedly
erroneous exclusion played a crucial, critical, and highly significant role in the trial. At the very
least, it is apparent that the Indiana Supreme Court assessed the probative value of the evidence
and concluded that, because of its irrelevance, its exclusion did not warrant retrial. Horton v.
Litscher, 427 F.3d 498, 508 (7th Cir. 2005); see also Rice v. McCann, 339 F.3d 546, 550 (7th Cir.
2003) (holding that, because reasonable courts could differ on the exclusion of the evidence, the
state court's approach could not be considered improper). In light of the broad latitude given such
decisions under § 2254(d)(1), the Indiana Supreme Court’s conclusion that the exclusion did not
violate Pannell’s right to present a defense is not an unreasonable application of clearly established

federal law. Thus, it cannot be said that the rejection of the claim in this instance was an
unreasonable application of clearly established federal law.
13.

Pannell’s second habeas claim is that he was denied the effective assistance of

counsel at trial for failing to admit an ambulance run report and for failing to present evidence of
his drug use at the time of the crime.
14.

Strickland v. Washington, 466 U.S. 668 (1984), provides the clearly established

Federal law, as determined by the Supreme Court of the United States that governs Pannell’s
ineffective assistance of counsel claim.
Strickland recognized that the Sixth Amendment’s guarantee that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel
for his defence” entails that defendants are entitled to be represented by an attorney
who meets at least a minimal standard of competence. Id., at 685–687. “Under
Strickland, we first determine whether counsel’s representation ‘fell below an
objective standard of reasonableness.’ Then we ask whether ‘there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.’” Padilla v. Kentucky, 559 U.S. 356, 366 (2010)
(quoting Strickland, supra, at 688, 694).
Hinton v. Alabama, 134 S. Ct. 1081, 1087-88 (2014)(parallel citations omitted). Because of the
deferential AEDPA standard, “[t]he 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).
15.

The Indiana Supreme Court recognized the two-prong Strickland standard in

Pannell. 686 N.E.2d at 826. The Indiana Supreme Court observed that “the time of Pannell’s
arrival bears no discernible relation to the issues at trial.” By inference, this was a finding that
there was no discernible reason for the lawyer to have sought admission of the ambulance report.

The Indiana Supreme Court then explicitly declared that Pannell’s contention otherwise did not
“suggest[ ] that Pannell’s lawyer performed below prevailing professional norms.” Id. at 826-27.
The premise that it does not fall below professional norms for a lawyer to refrain from seeking the
admission of irrelevant evidence is constitutionally unexceptional. See, e.g., Martinez v. Schriro,
2012 WL 5936566, at *10 (D.Ariz. Nov. 27, 2012) (holding that counsel was not ineffective in
failing to introduce “arguably irrelevant evidence”); Dunlavey v. Court of Common Pleas, 2004
WL 1563012, at *23 (E.D.Pa. July 13, 2004)(“Under Strickland' s deferential standards, courts
cannot hold an attorney to be ineffective for failing to introduce irrelevant or unhelpful evidence.”).
16.

“There is a strong presumption that counsel's performance falls within the wide

range of professional assistance.” Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (internal
quotation marks omitted). Once again, therefore, the Indiana Supreme Court “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). Its result was not "an unreasonable
application of clearly established Federal law." Mitchell v. Esparza, 540 U.S. 12, 17 (2003) (per
curiam). Accordingly, this decision is entitled to AEDPA deference under ' 2254(d)(1), id., and
Pannell is not entitled to habeas corpus relief based on his claim that he was denied the effective
assistance of counsel.
17.

Pannell argues in his reply that there were other claims of ineffective assistance of

counsel and prosecutor misconduct in his direct appeal as to which he has committed procedural
default. A federal court may not grant relief on a procedurally defaulted claim unless the petitioner
can establish cause for the default and actual prejudice as a result of the alleged violation of federal
law or demonstrate that the court's failure to consider the claim will result in a miscarriage of
justice. See Coleman v. Thompson, 501 U.S. 722, 750 (1991).

18.

He argues that this Court can reach the merits of such claims because it would

constitute a fundamental miscarriage of justice for the Court not to do so. The fundamental
miscarriage of justice exception applies in “situations where the constitutional violation has
probably resulted in a conviction of one who is actually innocent.” Dellinger v. Bowen, 301 F.3d
758, 767 (7th Cir. 2002) (citing Schlup v. Delo, 513 U.S. 298, 327 (1995)). To show actual
innocence, a petitioner must present “new, reliable evidence of his innocence” so convincing that
“‘in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty
beyond a reasonable doubt.’” Woods v. Schwartz, 589 F.3d 368, 377 (7th Cir. 2009) (quoting
Schlup, 513 U.S. at 329); see Gomez v. Jaimet, 350 F.3d 673, 679 (7th Cir. 2003) (“To support a
colorable 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.”) (internal quotation marks omitted).
Pannell fails entirely to meet this burden and any claim which could be construed as procedurally
defaulted will not be considered on its merits.
19.

“[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, 112 S. Ct. 1715,
1722 (1992) (O'Connor, J., dissenting) (internal citations omitted). Two of these are the statute of
limitations and the doctrine of procedural default. These are barriers Pannell faces here and has
failed to overcome. There is also no merit to Pannell’s arguments that the respondent has failed to
respond properly or timely to the amended petition for writ of habeas corpus.
20.

Apart from the procedural barriers, the claims Pannell presents do not warrant

habeas relief in light of the deferential standard required by the AEDPA. Harrington v. Richter,
131 S. Ct. 770, 786 (2011)(“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.”)(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The standard of § 2254(d)
is “difficult to meet . . . because it was meant to be.” Burt v. Titlow, 134 S. Ct. 10, 16 (2013)
(internal quotation marks omitted); see also Cavazos v. Smith, 132 S. Ct. 2, 7–8 (2011) (per curiam)
(citing Supreme Court jurisprudence “highlighting the necessity of deference to state courts in §
2254(d) habeas cases”). Pannell’s amended habeas petition fails to satisfy this difficult standard
and that petition is therefore denied.
21.

Judgment consistent with this Entry shall now issue.

22.

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 Pannell has failed to
show that reasonable jurists would find Ait debatable whether the petition states a valid claim of
the denial of a constitutional right@ or 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
appeal.
IT IS SO ORDERED.
March 19, 2015
Date: __________________

Distribution:
Electronically Registered Counsel
David Pannell
DOC #963265
Indiana State Prison
Inmate Mail/Parcels
One Park Row
Michigan City, IN 46360

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