HALL v. HANK

Filing 17

ENTRY - The Petition of Leroy H. Hall for a writ of habeas corpus (Dkt. 1 ) must be DENIED and the action dismissed with prejudice. In addition, the Court finds that a certificate of appealability should not issue. Signed by Judge Tanya Walton Pratt on 8/9/2013. Copy Mailed. (JD) Modified document type on 8/9/2013 (JD).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
LEROY H. HALL,
Petitioner,
v.
CRAIG HANK, Superintendent,
Respondent.

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Case No. 1:13-cv-357-TWP-MJD

ENTRY DISCUSSING PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
For the reasons explained in this Entry, the Petition of Leroy H. Hall (“Mr. Hall”) for a
writ of habeas corpus (Dkt. 1) must be denied and the action dismissed with prejudice. In
addition, the Court finds that a certificate of appealability should not issue.
I. BACKGROUND
Mr. Hall is serving an aggregate sentence of fifty-two years imposed by an Indiana state
court following his convictions for rape, criminal confinement, battery, attempted rape,
intimidation, and criminal mischief. His convictions were affirmed on appeal in Hall v. State,
No. 49A02-0611-CR-983 (Ind.Ct.App., Nov. 27, 2007), although the case was remanded for
correction of certain of Mr. Hall’s sentences.

The denial of Mr. Hall’s petition for post-

conviction relief was remanded in Hall v. State, No. 49A02-1101-PC-65 (Ind.Ct.App., Aug. 8,
2011), and the renewed denial of post-conviction relief was affirmed on appeal in Hall v. State,
No. 49A02-1202-PC-68 (Ind.Ct.App., Aug. 30, 2012) (hereafter “the PCR appeal”).
In the PCR appeal, Mr. Hall argued that he had been completely deprived of counsel at
trial and had been denied the effective assistance of counsel at trial. The first of these arguments

relies on United States v. Cronic, 466 U.S. 648 (1984), while the second of these arguments
relies on the test established in Strickland v. Washington, 466 U.S. 668 (1984).
II. DISCUSSION
Mr. Hall seeks relief pursuant to 28 U.S.C. § 2254(a). “[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). That examination should entail 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.” Henderson v. Thieret, 859 F.2d 492, 496 (7th Cir. 1988), cert. denied, 109
S. Ct. 1648 (1989). “If the answer to either . . . inquir[y] is ‘no,’ the petition is barred either for
failure to exhaust state remedies or for procedural default.” Id.
The inquiry in this case centers on procedural default.
“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). “It is the rule in this country that assertions of
error in criminal proceedings must first be raised in state court in order to form the basis for
relief in habeas. Claims not so raised are considered defaulted.” Breard v. Greene, 523 U.S.
371, 375 (1998) (citing Wainwright v. Sykes, 433 U.S. 72 (1977)). Procedural default occurs
“when a habeas petitioner has failed to fairly present to the state courts the claim on which he
seeks relief in federal court and the opportunity to raise that claim in state court has passed.”
Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir. 2004). 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)

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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). 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).
Here, the Indiana Court of Appeals found that Mr. Hall had waived his Cronic claim
because it had not been included with his action for post-conviction relief. The Indiana Court of
Appeals found, in the alternative that the Cronic claim was meritless.
The Indiana Court of Appeals recognized the familiar two-prong test in Strickland. “To
prevail on an ineffective-assistance[-]of-counsel claim under Strickland, a petitioner must
demonstrate that his counsel's assistance was objectively unreasonable and resulted in a
substantial risk of prejudice.” Brown v. Finnan, 598 F.3d 416, 419 (7th Cir. 2010). The Indiana
Supreme Court reasonably analyzed the deficient performance prong of Strickland and found it
unnecessary to reach the question of prejudice. This was fully in accord with federal law as
determined by the Supreme Court of the United States. See, e.g., United States v. Slaughter, 900

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F.2d 1119, 1124 (7th Cir. 1990) (if the court finds either the performance or the prejudice
component of the ineffective assistance claim deficient, there is no need to consider the
sufficiency of the other component). Mr. Hall therefore cannot prevail based on either of his
arguments under the Sixth Amendment with respect to the decision of the Indiana Court of
Appeals in the PCR Appeal.
The respondent is correct, moreover, in arguing the Mr. Hall faces another obstacle here.
The PCR appeal was decided by the Indiana Court of Appeals, an intermediate appellate court.
Indiana law provides for the Indiana Supreme Court’s discretionary review of decisions by the
Indiana Court of Appeals. That review occurs when a petition to transfer is filed and granted. In
re Creation of S.-W. Lake Maxinkuckee Conservancy Dist., 875 N.E.2d 222, 227 (Ind.Ct.App.
2007). An appellant seeking to have the Supreme Court exercise discretionary jurisdiction over
a direct appeal pursuant to Appellate Rule 4(A)(2) must file a motion with the Indiana Supreme
Court pursuant to Appellate Rule 56. Id. A petition to transfer is required to contain a brief
statement identifying the issue, question, or precedent warranting transfer.

24 Ind. Prac.,

Appellate Procedure § 2.12 (3d ed. 2012) (citing Appellate Rule 56(g)(1)).
Mr. Hall’s petition to transfer is part of the expanded record and reveals that the sole
ground on which he sought transfer of the PCR appeal was that the Indiana Court of Appeals had
applied an incorrect standard of review in the PCR appeal. The proper standard of review is:
On appeal [from the denial of post-conviction relief], petitioner stands in the
position of one appealing from a negative judgment. In such cases, it is only
where the evidence is without conflict and leads to but one conclusion, and the
trial court has reached the opposite conclusion, that the decision will be disturbed
as being contrary to law.
Fleenor v. State, 622 N.E.2d 140, 142 (Ind. 1993), cert. denied, 513 U.S. 999, (1994). Mr. Hall
did not even recognize the foregoing in his petition to transfer, but made reference to the more

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general standard of appellate review. Regardless, what was entirely absent from the petition to
transfer is any reference to either Cronic or Strickland or to the holdings of those cases. Mr.
Hall’s failure to include his habeas claim in his petition to transfer constitutes his procedural
default. 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.”); Hough v. Anderson, 272 F.3d 878, 892-93
(7th Cir. 2001) (petitioner’s failure to present issue to Indiana Supreme Court constituted
procedural default).
III. 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, Mr. Hall has

encountered the hurdle produced by the doctrine of procedural default. He has not overcome
these defaults, either in relation to the Cronic decision in the PCR appeal or the content of his
petition to transfer to the Indiana Supreme Court.
Mr. Hall has not shown the presence of circumstances permitting him to overcome these
hurdles, and hence the Court is not permitted to reach the merits of his claims. His Petition for a
writ of habeas corpus (Dkt. 1) is therefore DISMISSED. Judgment consistent with this Entry
shall now issue. Mr. Hall’s Motion for Extension of Time (Dkt. 15) is GRANTED.

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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 Mr. Hall has failed
to show that reasonable jurists would find it “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.

SO ORDERED.

08/09/2013
Date: ___________________

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

DISTRIBUTION:
Leroy H. Hall, #854050
PENDLETON CORRECTIONAL FACILITY
Inmate Mail/Parcels
4490 West Reformatory Road
Pendleton, Indiana 46064
Henry A. Flores, Jr.
OFFICE OF THE INDIANA ATTORNEY GENERAL
[e-mail]

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