NELSON v. PUTNAMVILLE CORRECTIONAL FACILITY

Filing 25

ENTRY Discussing Petition for Writ of Habeas Corpus and Denying Certificate of Appealability - Petitioner's petition 1 is denied and the action dismissed with prejudice. Judgment consistent with this Entry shall now issue. In addition, the court finds that a certificate of appealability should not issue. Copy to petitioner via US Mail. Signed by Judge Jane Magnus-Stinson on 3/2/2012.(RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
JAMES A. NELSON,

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Petitioner,
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v.
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SUPERINTENDENT, Wabash Valley )
Correctional Facility,
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Respondent.
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No. 2:11-cv-0157-JMS-MJD

Entry Discussing Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
For the reasons explained in this Entry, the petition of James Nelson for a
writ of habeas corpus must be denied and the action dismissed with prejudice. In
addition, the court finds that a certificate of appealability should not issue.
I. The Petition for Writ of Habeas Corpus
Background
Nelson was convicted in 2008 in Gibson County, Indiana of various drug
offenses. His convictions were affirmed on direct appeal in Nelson v. State, No.
26A05-0809-CR-515 (Ind.Ct.App. 2009) (unpublished)(Nelson I). Nelson’s petition
for transfer was denied on June 25, 2009. The state court’s denial of Nelson’s
petition for post-conviction relief was affirmed in Nelson v. State, No. 26A01-1011PC-568 (Ind.Ct.App. 2011) (Nelson II). Nelson’s petition for transfer was denied on
May 5, 2011.
Contending that his conviction is tainted by constitutional error, Nelson now
seeks a writ of habeas corpus. Nelson’s habeas claims are the following: 1) the postconviction court erroneously required Nelson to submit his case by affidavit; 2) the
post-conviction court erred in denying his motion to order the State to produce the
trial record and admit it as an exhibit; 3) ineffective assistance of trial counsel; 4)

ineffective assistance of appellate counsel; 5) prosecutorial misconduct; 6) false
statements by officers; 7) no advanced notice of enhancements; 8) erroneous
evidentiary rulings; 9) Nelson was entrapped; 10) the trial court erred in admitting
the results of a Draeger test; and 11) Nelson’s sentence was inappropriate.
Applicable Law
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). Nelson filed his 28 U.S.C. § 2254 petition after
the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA).
His petition, therefore, is subject to the AEDPA. See Lindh v. Murphy, 521 U.S. 320,
336 (1997). When a habeas petitioner's claim was adjudicated on the merits in State
court proceedings, section 2254(d) provides that a federal court may grant a writ of
habeas corpus only if that adjudication was: (1) “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States”; or (2) “resulted in a decision that was based
on an unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d).
In addition to the foregoing substantive standards, "[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 when a claim could
have been but was not presented to the state court and cannot, at the time that the
federal court reviews the habeas petition, be presented to the state court." Resnover
v. Pearson, 965 F.2d 1453, 1458 (7th Cir. 1992), cert. denied, 508 U.S. 962 (1993).
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 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).
Discussion
Post-Conviction Infirmities. Nelson’s first two habeas claims center on
asserted inifirmities in the post-conviction process in the Indiana state courts.
These claims are not cognizable under § 2254(a). Montgomery v. Meloy, 90 F.3d
1200, 1206 (7th Cir.) ("[u]nless state collateral review violates some independent

constitutional right, such as the Equal Protection Clause, . . . errors in state
collateral review cannot form the basis for federal habeas corpus relief"), cert.
denied, 519 U.S. 907 (1996); Williams v. State, 640 F.2d 140, 143-44 (8th Cir.)
("Infirmities in the state's post-conviction remedy procedure cannot serve as a basis
for setting aside a valid original conviction. . . . Errors or defects in the state postconviction proceeding do not, ipso facto, render a prisoner's detention unlawful or
raise constitutional questions cognizable in habeas corpus proceedings."), cert.
denied, 451 U.S. 990 (1981).
Ineffective Assistance of Trial Counsel and Appellate Counsel. Nelson’s next
claims are that both his trial and appellate counsel rendered ineffective assistance.
The respondent argues that Nelson did not fairly present these claims to the
Indiana Court of Appeals.
“[T]he burden is on the petitioner to raise his federal claim in the state court
at a time when state procedural law permits its consideration on the merits. . . .”
Bell v. Cone, 543 U.S. 447, 451 n.3 (2005). The Seventh Circuit looks to four factors
to determine whether a claim has been fairly presented to state courts in federal
constitutional terms. The factors are: "(1) whether the petitioner relied on federal
cases that engage in constitutional analysis; (2) whether the petitioner relied on
state cases which apply a constitutional analysis to similar facts; (3) whether the
petitioner framed the claim in terms so particular as to call to mind a specific
constitutional right; and (4) whether the petitioner alleged a pattern of facts that is
well within the mainstream of constitutional litigation." Sweeney v. Carter, 361 F.3d
327, 332 (7th Cir. 2004). The “bottom line,” however, is “whether the state court was
sufficiently alerted to the federal constitutional nature of the issue to permit it to
resolve that issue on a federal basis." Ellsworth v. Levenhagen, 248 F.3d 634, 639
(7th Cir. 2001)(omitting internal quotations and citations); see also Wilson v. Briley,
243 F.3d 325, 327 (7th Cir. 2001) (to satisfy the fair presentment requirement, the
petitioner must present both the operative facts and the legal principles that control
each claim to the state judiciary; otherwise, he has forfeited federal review of his
claim).
In this case, Nelson did not fully present the circumstances associated with
his ineffectiveness claims to the Indiana appellate courts. Nelson raised these
claims at post-conviction, but the Indiana Court of Appeals noted that:
Nelson failed to file affidavits from his trial or appellate attorneys.
Consequently, we may infer that counsel would not have corroborated
his allegations of ineffective assistance.
Even more compelling, Nelson failed to submit the trial record,
including the transcript. Our Supreme Court has observed that ‘[i]t is
practically impossible to gauge the performance of trial counsel
without the trial record . . . .’ Claims of ineffective assistance of counsel

are highly fact-sensitive determinations, and we simply cannot
evaluate Nelson’s claims without the trial record. Under these
circumstances, Nelson has failed to meet his burden of proving his
claims of ineffective assistance. Consequently, the post-conviction court
did not err by finding that Nelson did not receive the ineffective
assistance of trial and appellate counsel.
Nelson II, at pp. 6-7 (citations omitted). Thus, the factual basis of Nelson’s habeas
claim was not placed squarely before the Indiana state courts. The consequence of
failing to fully and fairly present habeas ineffective assistance of counsel claims to
the state courts is procedural default. Anderson v. Benik, 471 F.3d 811, 814 (7th Cir.
2006). Nelson has not demonstrated circumstances to overcome his procedural
default as to these claims.
Remaining Claims – Free-standing Claims. Nelson includes in his petition for
writ of habeas corpus numerous free-standing claims which he raised in his petition
for post-conviction relief. Those claims include prosecutorial misconduct, admission
of false statements by officers into evidence, no advanced notice of enhancements,
evidentiary rulings, and a claim that Nelson was entrapped. The Indiana Court of
Appeals noted that “all of these claims were known and available for inclusion in
his direct appeal, and he is not entitled to raise them at this juncture.” Nelson II, at
7. This is a finding of procedural default in the state courts, and is treated similarly
in this habeas action. Lane v. Richards, 957 F.2d 363, 366 (7th Cir.) (issues were not
presented on direct appeal and relief would be barred by procedural default), cert.
denied, 113 S. Ct. 127 (1992).
As to Nelson’s last two free-standing claims, Nelson claims that the trial
court erred in admitting the results of a Draeger test and that his sentence was
inappropriate. However, the Indiana Court of Appeals addressed these issues on
direct appeal. The Indiana Court of Appeals concluded that Nelson failed to
establish fundamental error in admitting the Draeger test results and that he failed
to demonstrate that his sentence is inappropriate. Nelson I, at pp. 7-9. These claims
do not implicate federal law and accordingly, are not cognizable here. See Koo v.
McBride, 124 F.3d 869, 875 (7th Cir. 1997).
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,
112 S. Ct. 1715, 1722 (1992) (O'Connor, J., dissenting) (internal citations omitted).
Among these are the doctrines that claims must implicate federal law, fair
presentment and procedural default. These are the barriers Nelson faces here, and
he has failed to overcome these barriers. His habeas petition [1] must therefore be
denied. Judgment consistent with this Entry shall now issue.

II. 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 Nelson 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”
and “debatable whether [this court] was correct in its procedural ruling[s].”
Slack v. McDaniel, 529 U.S. 473, 484 (2000). The court therefore denies a
certificate of appealability.
IT IS SO ORDERED.

03/02/2012
Date: _________________
_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana