CARR v. SUPERINTENDENT

Filing 10

ORDER denying Petitioner's 7 Motion for Reconsideration treated as amotion for relief from judgment. The previous dismissal of the action without prejudice is modified to a dismissal with prejudice. The Court therefore declines to issue a certificate of appealability. (S.O.). Copy to Petitioner via U.S. Mail. Signed by Judge William T. Lawrence on 4/18/2016. (MAC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

FLOYD CARR,
Petitioner,
v.
SUPERINTENDENT, Correctional
Industrial Facility,
Respondent.

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No: 1:15-cv-01461-WTL-MJD

Entry (1) Denying Motion for Relief from Judgment,
(2) Modifying Dismissal and (3) Denying Certificate of Appealability
For the reasons explained in this Entry, the petitioner’s motion for relief from judgment must be
denied. In addition, the previous dismissal of the action without prejudice must be modified to a dismissal
with prejudice. This modification requires consideration as to whether a certificate of appealability should
be issued, and on this subject no such certificate should be issued.
I.
A.
This action for habeas corpus relief brought by a state inmate was dismissed without prejudice
based on the petitioner’s failure to prosecute by failing to supplement his petition as directed in the Entry
of September 22, 2015. He was to supplement his habeas petition by identifying the legal rule or principle
on which he relies in seeking habeas corpus relief and in which to explain how that legal rule or principle
applies to the circumstances he had narrated in his habeas petition.

B.
Carr seeks reconsideration of the dismissal. Based on the timing of his request, his motion for
reconsideration must be treated as a motion for relief from judgment pursuant to Rule 60(b) of the Federal
Rules of Civil Procedure. Kiswani v. Phoenix Sec. Agency, Inc., 584 F.3d 741, 743 (7th Cir. 2009). In order
for a Rule 60(b) movant to obtain the relief requested, he must show that he had both grounds for relief,
Fed. R. Civ. P. 60(b)(1)-(5), and a meritorious claim or defense. Breuer Electric Mfg. Co. v. Toronado
Systems of America, Inc., 687 F.2d 182, 185 (7th Cir. 1982). The motion to reconsider appears to satisfy
the first of these requirements.
C.
As to the second requirement, however, a different conclusion is compelled because Carr has not
in fact identified a viable claim for federal habeas relief.
Carr was sentenced in the Lake Superior Court on July 21, 2000. On July 7, 2014, Carr filed a
motion for sentence modification. That motion was denied on July 10, 2014 because Carr had not
demonstrated in his motion that the prosecuting attorney had approved of the request. Carr alleges that this
decision was an abuse of discretion because the trial court did not apply provisions of a statute which he
says had gone into effect on July 1, 2014 and which eliminated the requirement that the prosecuting attorney
consent to a requested sentence modification. The premise off this claim is that provisions of the statute
which became effective on July 1, 2014 apply to all motions for sentence modification filed on or after that
date, regardless of when sentence had been imposed.
Carr’s habeas claim is that the trial court was obligated to act on his motion for sentence
modification applying only the provisions of the statute which became effective on July 1, 2014. The
premise of this claim is that provisions of the statute which became effective on July 1, 2014 apply to all
motions for sentence modification filed on or after that date, regardless of when sentence had been imposed.
The Indiana state courts have rejected this argument. A comprehensive explanation was offered in
recent weeks:

A trial court generally has no authority over a defendant after sentencing. State v. Harper,
8 N.E.3d 694, 696 (Ind. 2014). A notable exception is Indiana Code Section 35–38–1–17,
which gives trial courts authority under certain circumstances to modify a sentence after it
is imposed. Id. From 1991 until June 30, 2014, the relevant section of the sentence
modification statute read:
(b) If more than three hundred sixty-five (365) days have elapsed since the
convicted person began serving the sentence and after a hearing at which the
convicted person is present, the court may reduce or suspend the sentence, subject
to the approval of the prosecuting attorney . . .
Ind.Code § 35–38–l–17(b) (2009) (emphasis added). Effective July 1, 2014, the criminal
code was subject to a comprehensive revision pursuant to P.L. 158–2013 and P.L. 168–
2014. The pertinent section of the sentence modification statute was amended to read:
(c) If more than three hundred sixty-five (365) days have elapsed since the
convicted person began serving the sentence, the court may reduce or suspend the
sentence and impose a sentence that the court was authorized to impose at the time
of sentencing. The court must incorporate its reasons in the record.
Ind.Code § 35–38–l–17(c) (2014). The legislature also included a specific savings clause
as part of the 2014 revision of the criminal code, stating that:
(a) A SECTION of P.L. 158–2013 or P.L. 168–2014 does not affect:
(1) penalties incurred;
(2) crimes committed; or
(3) proceedings begun;
before the effective date of that SECTION of P.L. 158–2013 or P.L. 168–2014.
Those penalties, crimes, and proceedings continue and shall be imposed or
enforced under prior law as if that SECTION of P.L. 158–2013 or P.L. 168–2014
had not been enacted.
(b) The general assembly does not intend the doctrine of amelioration (see [Vicory]
v. State [272 Ind. 683], 400 N.E.2d 1380 (Ind. 1980)) to apply to any SECTION
of P.L. 158–2013 or P.L. 168–2014.
I.C. § 1–1–5.5–21.
This court has held that “the 2014 amendment to Indiana Code section 35–38–1–
17 was neither remedial nor procedural” and “the savings clause evinces the intent of the
legislature to apply the new criminal code only prospectively.” Johnson v. State, 36 N.E.2d
1130, 1137 (Ind.Ct.App. 2015), trans. denied. Here, as the State points out, “every
provision of the savings clause bars Nolan's petition: his crimes were committed, his
penalties incurred, and these proceedings were begun before July 1, 2014.” Appellee's Br.
at 9. Because the prosecutor objected to Nolan's petition for modification of his sentence,
the trial court had no authority to modify his sentence under the applicable version of
Indiana Code Section 35–38–l–17(b), and the court did not abuse its discretion when it
denied Nolan's petition. See Carr v. State, 33 N.E.2d 358, 359 (Ind.Ct.App. 2015) (holding
pre–2014 version of sentence modification statute applied where defendant petitioned for

modification after effective date of new version of statute but had committed crimes prior
to 2000), trans. denied.
Nolan v. State, No. 22A01-1503-CR-120, 2016 WL 1274125, at *1-2 (Ind.Ct.App. Mar. 31, 2016).
“A necessary predicate for the granting of federal habeas relief [to a petitioner] is a determination
by the federal court that [his or her] custody violates the Constitution, laws, or treaties of the United States.”
Rose vs. Hodges, 423 U.S. 19, 21 (1975). The scope of the Great Writ is limited because a viable habeas
claim pursuant to 28 U.S.C. § 2254(a) necessarily precludes a claim which is not based on alleged
noncompliance with federal law. See Wilson v. Corcoran, 131 S. Ct. 13, 16 (2010)(“[I]t is only
noncompliance with federal law that renders a State’s criminal judgment susceptible to collateral attack in
the federal courts. . . . And we have repeatedly held that federal habeas corpus relief does not lie for errors
of state law. It is not the province of a federal habeas court to reexamine state-court determinations on statelaw questions.”) (some internal citations and quotations omitted).
Carr is not entitled to federal habeas relief because the premise of his claim is not constitutionally
commanded. It is evident from the foregoing that the decision of the trial court in Carr’s case was in full
accord with Indiana law. It is also indisputable that the amendment of the statute Carr has identified
occurred after his conviction and that a state court's decision not to apply a change in state law retroactively
to his case did not violate his federal constitutional rights. Wainwright v. Stone, 414 U.S. 21, 23-24 (1973).
This is because the Supreme Court has made clear that “the Federal Constitution has no voice upon the
subject” of a State's decisions regarding the retroactivity of its laws. Great Northern Ry. Co. v. Sunburst
Oil & Refining Co., 287 U.S. 858, 364 (1932); see also Linkletter v. Walker, 381 U.S. 618, 629 (1965) (“we
believe the Constitution neither prohibits nor requires retrospective effect”).
Perhaps more fundamental here is the nature of Carr’s claim, that being a challenge to the trial
court’s application of state law. The Supreme Court has stated, “federal habeas corpus relief does not lie
for errors of state law.” Swarthout v. Cooke, 131 S. Ct. 859, 861 (2011) (citing Estelle v. McGuire, 502 U.S.
62, 67 (1991)). As a question of state law, the claim is not cognizable under § 2254(a). ATo 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)).
Based on the foregoing, it is apparent that the trial court’s denial of the petitioner’s motion for
sentence modification was not contrary to the Constitution, laws, or treaties of the United States.
D.
The amended habeas petition would not have survived the preliminary screening required by Rule
4 of the required by Rule 4 of the Rules Governing Section 2254 Proceedings in the United States District
Courts and would have been summarily dismissed. Carr’s motion for reconsideration [dkt 7], treated as a
motion for relief from judgment, is denied.
II.
The previous dismissal of the action without prejudice is modified to a dismissal with prejudice.
III.
Under the 2009 Amendments to Rule 11(a) of the Rules Governing Section 2254 Proceedings, the
“district court must issue or deny a certificate of appealability when it enters a final order adverse to the
applicant.” This requirement is likewise established in 28 U.S.C. § 2253(c)(2). See Gonzalez v. Thaler, 132
S. Ct. 641, 649 n.5 (2012).
The modification of the disposition in Part II of this Entry requires consideration as to whether a
certificate of appealability should be issued. Based on the discussion and conclusion in Part I of this Entry,
the Court finds that the petitioner 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.” Slack v. McDaniel, 529 U.S. 473,
484 (2000). The Court therefore declines to issue a certificate of appealability.
IT IS SO ORDERED.

Date: 4/18/16

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Distribution:
FLOYD CARR
105406
PENDLETON - CIF
CORRECTIONAL INDUSTRIAL FACILITY
Inmate Mail/Parcels
5124 West Reformatory Road
PENDLETON, IN 46064