WILLIAMS v. ZATECKY

Filing 20

ENTRY Discussing Petition for Writ of Habeas Corpus and Denying Certificate of Appealability (S.E.). Copy mailed. Signed by Judge Sarah Evans Barker on 3/4/2014.(MAC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

FREDERIC WILLIAMS,
Petitioner,
v.
DUSHAN ZATECKY,
Respondent.1

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Case No. 1:13-cv-943-SEB-DKL

Entry Discussing Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
Having considered the pleadings and the expanded record, and being duly advised, the
court finds that the petition of Frederic Williams for a writ of habeas corpus should be denied. In
addition, the court finds that a certificate of appealability should not be issued. These conclusions
rest on the following facts and circumstances:
1.

Williams was charged with (1) dealing in a narcotic drug, (2) possession of a

narcotic drug, and (3) possession of a narcotic drug and firearm. His wife Patricia was charged as
a co-defendant. Before trial, Patricia attempted to quash her subpoena based on her assertion of
the marital privilege, but the trial court denied her motion. She then pled guilty to the lesser
included offense of class B felony dealing in a narcotic.
2.

Williams was found guilty of all three charges after his trial by jury, though the

court did not enter a judgment of conviction for possession of a narcotic drug due to double
jeopardy concerns. This left him convicted of dealing in a narcotic drug and possession of a
1

The petitioner’s current custodian is substituted as respondent.

narcotic drug and firearm. The physical evidence supporting Williams’ conviction was seized
from the bedroom of his residence during the execution of a search warrant on August 3, 2007.
3.

Williams’ direct appeal was decided in Williams v. State, No. 49A02-0909-CR-

875 (Ind.Ct.App. May 5, 2010)(Williams I). The decision affirming the trial court’s denial of his
post-conviction relief was decided in Williams v. State, No. 49A05-1110-PC-621 (Ind.Ct.App.
Oct. 21, 2012)(Williams II).
4.

In Williams I, Williams raised four issues: (1) whether the trial court correctly

determined that Williams’ counsel misstated the law regarding the elements of dealing in a
narcotic drug in closing argument; (2) whether the trial court improperly admitted evidence
seized from the search of his residence pursuant to a warrant; (3) whether the trial court abused
its discretion in permitting Williams’ wife to testify; and (4) whether his convictions violated the
prohibition against double jeopardy under the federal and Indiana Constitutions. The Indiana
Court of Appeals found that his convictions violated double jeopardy and therefore vacated his
conviction and sentence for possession of a narcotic drug and firearm. The Court, however,
affirmed the trial court in all other respects. Williams sought transfer to the Indiana Supreme
Court, arguing that the Indiana Court of Appeals erred when it (1) determined he waived the
issue on appeal whether the trial court improperly admitted evidence of the items seized from his
residence and (2) found the trial court properly precluded his counsel from making an argument
in closing argument that constituted a misstatement of law. The Indiana Supreme Court denied
transfer on July 15, 2010.
5.

Williams filed an action for post-conviction relief. After that petition was denied,

Williams argued on appeal that (1) the trial court erred in admitting evidence seized from his
residence and (2) the trial court committed fundamental error by not granting his wife spousal

privilege not to testify. These arguments were rejected in Williams II. A petition to transfer, in
which Williams presented the question of the Indiana Court of Appeals’ failure to address the
merits of his spousal privilege argument because of res judicata, was denied by the Indiana
Supreme Court on January 3, 2013.
6.

Williams’ habeas petition presents the following claims: (1) the prosecutor

violated his equal protection rights by eliciting testimony from his wife and obtaining “blank
subpoenas”; (2) the trial court violated his equal protection rights by allowing his wife to testify
at trial; (3) the Court of Appeals denied him due process by finding the trial court did not error in
allowing his wife to testify; (4) his trial counsel was ineffective for not subjecting the State’s
case to meaningful adversarial testing; (5) his appellate counsel was ineffective for not
adequately presenting issues for review; and (6) his post-conviction counsel was ineffective.
7.

"[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, 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.
8.

In recognition of federal-state comity, a petitioner seeking federal habeas relief

must establish that he "fully and fairly [presented] his federal claims to the state courts . . . ."
Chambers v. McCaughtry, 264 F.3d 732, 737 (7th Cir. 2001). Fair presentment "requires the
petitioner to give the state courts a meaningful opportunity to pass upon the substance of the

claims later presented in federal court." Id.; see also Dellinger v. Bowen, 301 F.3d 758, 764 (7th
Cir. 2002). 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) 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). “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).
9.

The inquiry in this case centers on procedural default because, with one

exception, Williams has committed procedural default with respect to his habeas claims:
a.
Williams’ first, second, and third habeas claims were not fully and properly
presented to the Indiana courts. This is because these claims were not fairly presented in
Williams I and because they were not included in his petition for transfer to the Indiana
Supreme Court.

b.
Williams’ claims of ineffective assistance of counsel pertaining to trial counsel
and counsel in Williams I were never presented to the Indiana state courts. See Lane v.
Richards, 957 F.2d 363, 366 (7th Cir.), cert. denied, 113 S. Ct. 127 (1992).
10.

Williams seeks to overcome the consequences of his procedural default

principally by highlighting his contention that the explanation lies in the ineffectiveness of his
attorney in Williams I. Although it is true that ineffective assistance of counsel rising to the level
of a constitutional violation can constitute "cause" sufficient to excuse a procedural default,
Murray v. Carrier, 477 U.S. 478, 488 (1986); Steward v. Gilmore, 80 F.3d 1205, 1212 (7th Cir.
1996), it does not do so in this case because as just noted it has not been independently and fully
presented to the Indiana state courts. Lemons v. O'Sullivan, 54 F.3d 357, 360 (7th Cir. 1995);
Lostutter v. Peters, 50 F.3d 392, 396 (7th Cir. 1995).
11.

The exception to the claims which are procedurally defaulted is Williams’ claim

that he was denied the effective assistance of counsel in the post-conviction relief proceeding.
This is an exception because there is no constitutional right to counsel–nor, perforce, to the
effective representation of such counsel--in the action for post-conviction relief. See Coleman v.
Thompson, 501 U.S. 722, 755–57 (1991) (there is no right to counsel in state collateral
proceedings); Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“We have never held that
prisoners have a constitutional right to counsel when mounting collateral attacks upon their
convictions. . . and we decline to so hold today. Our cases establish that the right to appointed
counsel extends to the first appeal of right, and no further.”).
12.

“[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). Williams has encountered this
hurdle as to all of his habeas claims. He has not overcome the hurdle, and for this reason his

petition for writ of habeas corpus must be denied without the merits of his cognizable claims
being reached. His petition for writ of habeas corpus is denied. Judgment consistent with this
Entry shall now issue.
13.

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 Williams 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.

03/04/2014
Date: _____________
_______________________________

Distribution:
Frederic Williams
No. 856078
PENDLETON CORRECTIONAL FACILITY
Inmate Mail/Parcels
4490 West Reformatory Road
PENDLETON, IN 46064
Electronically Registered Counsel

SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana