RAMSEY v. SUPERINTENDENT

Filing 42

Entry Discussing Petition for Writ of Habeas Corpus and Denying Certificate of Appealability - The petition of Danny Ramsey for a writ of habeas corpus must be 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. (See Entry.) Copy to petitioner via US Mail. Signed by Judge Jane Magnus-Stinson on 4/30/2014.(RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
DANNY RAMSEY,
Petitioner,
v.
SUPERINTENDENT,
Wabash Valley Correctional Facility,
Respondent.

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No:

2:12-cv-250-JMS-WGH

Entry Discussing Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
For the reasons explained in this Entry, the petition of Danny Ramsey 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.
The Petition for Writ of Habeas Corpus
I. Applicable Law
A federal court may issue a writ of habeas corpus on behalf of a state prisoner only if it
finds the applicant “is in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). The provisions of the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), codified 28 U.S.C. § 2241(c)(3), et seq., govern this case because
Ramsey filed his petition after the AEDPA’s effective date. See Lindh v. Murphy, 521 U.S. 320,
336 (1997).
Recognizing that state courts are no less experienced than federal courts in
dealing with claims of ineffective assistance of counsel, Burt v. Titlow, 571 U.S. –
–––, 134 S. Ct. 10, 15–16, 187 L.Ed.2d 348, 2013 WL 5904117 at *4 (U.S. Nov.
5, 2013), federal law erects a high deferential standard . . . for claims that a state
court erred. Federal habeas relief is available only if the state court’s decision
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“was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States,” or “was
based on a unreasonable determination of the facts in light of the evidence
presented in the State court proceedings.” 28 U.S.C. § 2254(d)(1) and (2); see
also Metrish v. Lancaster, 133 S. Ct. 1781, 1786 (2013).
Bailey v. Lemke, 735 F.3d 945, 949 (7th Cir. 2013). As to claims which the state courts have
decided on the merits, the AEDPA bars relitigation of the claims except in the foregoing three
circumstances. The decision made by a state court is deemed to be contrary to clearly established
federal law “‘if the state court applies a rule different from the governing law set forth in
[Supreme Court] cases, or if it decides a case differently than [the Supreme Court has] done on a
set of materially indistinguishable facts.’” Emerson v. Shaw, 575 F.3d 680, 684 (7th Cir.
2009)(quoting Bell v. Cone, 535 U.S. 685, 694 (2002)). The decision by a state court may also be
deemed to involve an unreasonable application of clearly established federal law “‘if the state
court correctly identifies the governing legal principle from [Supreme Court] decisions but
unreasonably applies it to the facts of the particular case.’” Emerson, 575 F.3d at 684 (quoting
Bell, 535 U.S. at 694). “A decision ‘involves an unreasonable determination of the facts if it rests
upon factfinding that ignores the clear and convincing weight of the evidence.’” Bailey, 735 F.3d
949-50.
“Under § 2254(d)(2), a decision involves an unreasonable determination of the facts if it
rests upon fact-finding that ignores the clear and convincing weight of the evidence.” Goudy v.
Basinger, 604 F.3d 394, 399–400 (7th Cir. 2010) (citing Ward v. Sternes, 334 F.3d 696 (7th Cir.
2003)).
A state court’s factual determinations are presumed correct on federal habeas
review. See 28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this
presumption only with clear and convincing evidence. See Warren v. Smith, 161
F.3d 358, 360–61 (6th Cir. 1998). A petitioner’s challenge to a state court
decision based on a factual determination under § 2254(d)(2) will not succeed
unless the state court committed an “unreasonable error,” and § 2254(e) (1)
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provides the mechanism for proving unreasonableness. See Ward v. Sternes, 334
F.3d 696, 703–04 (7th Cir. 2003).
Lee v. Zatecky, 1:12-CV-451-JMS-DML, 2013 WL 3936216 *3 (S.D. Ind. July 30, 2013).
As explained by the Supreme Court, the AEDPA “places a new constraint on the power
of a federal habeas court to grant a state prisoner’s application for a writ of habeas corpus with
respect to claims adjudicated on the merits in state court.” Williams v. Taylor, 529 U.S. 362, 412
(2000); see also Miller–El v. Cockrell, 537 U.S. 322, 337 (2003) (“Statutes such as AEDPA have
placed more, rather than fewer, restrictions on the power of federal courts to grant writs of
habeas corpus to state prisoners.”). “The petitioner carries the burden of proof.” Cullen v.
Pinholster, 131 S. Ct. 1388, 1398 (2011). “Under § 2254(d), a habeas court must determine what
arguments or theories supported or, as here, could have supported, the state court’s decision; and
then it must ask whether it is possible fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior decision of this Court. Harrington v. Richter,
131 S. Ct. 770, 786 (2011).
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.
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McBride, 375 F.3d 643, 648 (7th Cir. 2004) (internal citations omitted).
II. Background
Ramsey was convicted in an Indiana state court of dealing in methamphetamine,
possession of a narcotic drug while in a possession of a firearm, maintaining a common nuisance
and possession of marijuana. Ramsey’s convictions were affirmed on direct appeal in Ramsey v.
State, 854 N.E.2d 491 (Ind.Ct.App. Sept. 1, 2006)(“Ramsey I”). The Indiana Supreme Court
denied Ramsey’s petition for transfer on November 2, 2006. At post-conviction, the trial court
dismissed the habitual offender enhancement, but otherwise denied Ramsey’s petition for postconviction relief. The trial court’s partial denial of post-conviction relief was affirmed on appeal
in Ramsey v. State, 14A01-1102-PC-84 (Ind.Ct.App. Feb. 24, 2012)(“Ramsey II”). The Indiana
Supreme Court denied Ramsey’s petition for transfer on May 24, 2012.
The following underlying facts were set forth by the Indiana Court of Appeals in Ramsey
I and are presumed to be correct because they have not been rebutted by clear and convincing
evidence, 28 U.S.C. § 2254(e)(1):
Between January and May 2002, Penny Drake knew Ramsey through her thenboyfriend. Drake had been to Ramsey's apartment in Washington and had seen a
large amount of methamphetamine openly displayed there. Drake contacted the
Daviess County Sheriff’s Department and informed the Department that Ramsey
was dealing methamphetamine and other illegal drugs. Detective Ron Morgan
instructed Drake to continue her normal activities and to arrange a purchase from
Ramsey.
On May 1, 2002, Drake arranged a buy with Ramsey. Before purchasing the
methamphetamine, Detective Morgan searched Drake and her residence to ensure
that no illegal drugs were present. Detective Morgan found no drugs or other
people inside Drake's residence, and he maintained visual surveillance of the
house in order to ensure that no one other than Drake and Ramsey were inside.
Detective Morgan also placed a transmitter inside the house to hear the
conversation between Ramsey and Drake, but he did not record the conversation.
After Drake met with Ramsey in her house, she gave Detective Morgan 3.01
grams of methamphetamine that she had just purchased from Ramsey. Drake and

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Detective Morgan followed similar procedures in making several more buys from
Ramsey throughout May 2002. These later conversations were recorded.
During late 2003 and early 2004, Molly Haag often visited Ramsey's residence,
and she saw illegal drugs there every time that she visited. On February 18, 2004,
Haag drove Ramsey to obtain a handgun that she later observed in a room of
Ramsey's home.
The Indiana State Police began a separate investigation of Ramsey after obtaining
information from a confidential informant about Ramsey's drug dealing activities.
On February 18, 2004, the Indiana State Police executed a search warrant at
Ramsey's residence. The police found Ramsey in the home as well as plant
material, rolling paper, and cocaine. Ramsey had $1,760.21 on his person. In an
upstairs bedroom, the police recovered a baggie corner, which is commonly used
for packaging illegal drugs for sale, marijuana cigarettes, foil, and a light bulb.
The police also found a handgun, two digital scales, 59.29 grams of
methamphetamine under the sink floorboard, 8.12 grams of marijuana, and 82
grams of methamphetamine inside a jacket that Ramsey admitted was his.
On February 20, 2004, the State charged Ramsey with dealing in
methamphetamine, possession of a narcotic drug while in possession of a firearm,
maintaining a common nuisance, possession of marijuana, and being a habitual
offender; all of the charges were based on the evidence obtained from the 2004
arrest. On April 26, 2004, the State charged Ramsey with eight counts of dealing
methamphetamine based on evidence obtained from Drake in 2002. On May 17,
2005, Ramsey moved for and was granted the consolidation of the two cases for
trial, and the State dismissed a possession of paraphernalia count.
Ramsey I, 853 N.E.2d at 495-96.
III. Discussion
Ramsey raises six claims in his petition for writ of habeas corpus: 1) the prosecutor
committed misconduct where a State’s witness referred to Ramsey being a suspect in a federal
drug conspiracy investigation during testimony; 2) the trial court erroneously admitted evidence
discovered during the execution of search warrants because the State failed to establish probable
cause; 3) the trial court erred by ordering evidence at a post-conviction hearing to be presented
by affidavit rather than by live testimony; 4) trial counsel rendered ineffective assistance by
failing to request a change of judge; 5) trial counsel was ineffective for failing to request a

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hearing to challenge the veracity of the confidential informant; and 6) the Indiana Court of
Appeals erroneously denied his request to file a second or successive petition for post-conviction
relief.
A. Procedural Default-Claims One, Two and Five
Ramsey’s claims one, two and five were not fairly presented in his petitions to transfer
to the Indiana Supreme Court. 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).
The Seventh Circuit has identified 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).
In Ramsey’s petition for transfer following direct appeal, he states “the issue before this
Court is whether the law regarding sentencing for purposes of finding a criminal defendant an
habitual offender was incorrectly applied and whether the defendant suffered prejudice and a
denial of his right to a fair trial due to the State’s failure to provide the defendant with all
relevant discovery.” In Ramsey’s petition for transfer following the affirmance of the partial

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denial of his petition for post-conviction relief, he states “the issue before this Court is whether
an evidentiary hearing should have been held on petitioner’s petition for post-conviction relief.
And whether there should have been a change of judge. And whether Petitioner’s sentence was
inappropriate in light of the nature of the offense, and the character of the offender.” Thus, the
factual basis of these claims and the pertinent federal constitutional challenge argued here were
not placed squarely before the Indiana Supreme Court in either of Ramsey’s petitions for
transfer. See Custis v. Superintendent, Indiana State Prison, 2009 WL 2589841, *4 (N.D.Ind.
2009) (footnote omitted) (petitioner procedurally defaulted federal habeas claim where petition
to transfer did not provide the Indiana Supreme Court notice of the federal habeas claim because
he did not identify any federal law arguments and in doing so, “failed to submit both the
operative facts and the controlling legal principles of the federal claim through one full round of
state appellate review”).
B. Non-Cognizable Claims-Claims Two, Three and Six
Ramsey’s challenges to the admissibility of evidence, errors at post-conviction and to the
Indiana Courts denial of his request to pursue a second or successive claim are also noncognizable.
“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)). First, “[A]
federal habeas court has nothing whatsoever to do with reviewing a state court ruling on the
admissibility of evidence under state law. State evidentiary law simply has no effect on [a
court’s] review of the constitutionality of a trial, unless it is asserted that the state law itself
violates the Constitution.” Pemberton v. Collins, 991 F.2d 1218, 1223 (5th Cir. 1993). Ramsey’s

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claim concerning the assertedly improper admission of evidence is thus not cognizable under §
2254(a).
Second, Ramsey’s challenges the trial court’s decision to order post-conviction evidence
to be presented via affidavit. However, errors at post-conviction do not present a cognizable
basis for relief 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). The claim of error in the post-conviction proceeding is not cognizable here and
thus does not warrant the habeas relief Ramsey seeks.
In addition, Ramsey’s challenge to the Indiana Court of Appeals’ decision not to
authorize his second or successive petition is of no consequence here because such a challenge–a
challenge based on state law–is not within the scope of § 2254(a). See Del Vecchio v. Illinois
Dep’t. of Corr., 31 F.3d 1363, 1370 (7th Cir. 1994) (habeas corpus jurisdiction is limited to
evaluating alleged violations of federal statutory or constitutional law); Bloyer v. Peters, 5 F.3d
1093, 1098 (7th Cir. 1993) (citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)).
C. Ineffective Assistance of Counsel-Claim Four
Ramsey’s remaining claim is that trial counsel rendered ineffective assistance by failing
to request a change of judge. A defendant has a right under the Sixth Amendment to effective

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assistance of counsel at trial. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish
ineffective assistance of counsel under Strickland, the petitioner must show that counsel’s
performance was deficient and that the deficient performance prejudiced him. Id. For a petitioner
to establish that “counsel’s assistance was so defective as to require reversal” of a conviction or a
sentence, he must make two showings: (1) deficient performance that (2) prejudiced his defense.
Id., at 687. The standard for judging a claim of ineffective assistance of counsel is the same for
both trial and appellate lawyers.
With respect to the first prong, “[t]he proper measure of attorney performance remains
simply reasonableness under prevailing professional norms.” Wiggins v. Smith, 539 U.S. 510,
521 (2003) (quoting Strickland, 466 U.S. at 688). In determining whether counsel’s performance
was constitutionally deficient, the court’s review of counsel’s performance is highly deferential,
and the petitioner must overcome the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy. Davis v. Lambert, 388 F.3d 1052, 1059 (7th Cir.
2004). With respect to the prejudice requirement, the petitioner must show that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694.
The foregoing outlines the straightforward features of Strickland=s two-prong test. In the
context of a case such as Ramsey presents, however, the AEDPA raises the bar. “The standards
created by Strickland and § 2254(d) are both ‘highly deferential,’ and when the two apply in
tandem, review is ‘doubly’ so.” Harrington v. Richter, 131 S. Ct. 770, 788 (2011) (internal and
end citations omitted).

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When the AEDPA standard is applied to a Strickland claim, the following calculus
emerges:
The 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).
The Indiana Court of Appeals reviewed Ramsey’s ineffectiveness claim in the postconviction appeal and noted the Strickland standard. Ramsey II, at p. 7. The Indiana Court of
Appeals then explained:
In Beverly v. State, 543 N.E.2d1111, 1115 (Ind. 1989), our Indiana
Supreme Court held “the fact that appellant’s trial judge signed his probable cause
affidavit and arrest warrant does not constitute a showing of actual prejudice or
bias [.]” Based on that case law, the trial court should not have granted a motion
for a change of judge based on that argument. Ramsey has not indicated any other
reason the judge may have been prejudiced or biased. Therefore, Ramsey has not
demonstrated counsel was ineffective for declining to request a change of judge.
Ramsey II, at p. 8. This accords with the federal standard. See Liteky v. United States, 510 U.S.
540, 554 (1994); Sprinpangler v. Sears, Roebuck & Co., 759 F. Supp. 1327, 1329 (S.D.Ind.
1991) (“When a motion for recusal fails to set forth an extrajudicial source for the alleged bias
and no such source is apparent, the motion should be denied.” (Citing Jaffree v. Wallace, 837
F.2d 1461, 1465 (11th Cir. 1988)).
Thus, the Indiana Court of Appeals’ Strickland analysis encompassed each prong of the
proper standard. It did not do so in an unreasonable fashion and this analysis is wholly in accord
with the principle that “[i]t is not deficient performance to fail to raise an argument with no real
chance of success.” Hough v. Anderson, 272 F.3d 878, 898 n.8 (7th Cir. 2001). Because “only a
clear error in applying Strickland’s standard would support a writ of habeas corpus,” Holman v.

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Gilmore, 126 F.3d 876, 882 (7th Cir. 1997) (citations omitted), and because no such clear
errorBand no error at all--occurred in Ramsey II, Ramsey is not entitled to federal habeas relief
based on this specification of ineffective assistance of counsel.
As the foregoing shows, the Indiana Court of Appeals in Ramsey II “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). Because this court cannot
find that the Indiana Court of Appeals “unreasonably applie[d] [the Strickland standard] to the
facts of the case,” Ramsey’s ineffective assistance of trial counsel claim does not support the
award of habeas corpus relief. Murrell v. Frank, 332 F.3d 1102, at 1111 (citing Bell v. Cone, 535
U.S. 685, 694 (2002)).
IV. Conclusion
Ramsey’s conviction withstood challenge in the Indiana courts, and thus a presumption
of constitutional regularity attaches to it. See Farmer v. Litscher, 303 F.3d 840, 845 (7th Cir.
2002) (citing Parke v. Raley, 506 U.S. 20, 29-30 (1992)); Milone v. Camp, 22 F.3d 693, 698-99
(7th Cir. 1994) (“Federal courts can grant habeas relief only when there is a violation of federal
statutory or constitutional law”). This court has carefully reviewed the state record in light of
Ramsey’s claims and has given such consideration to those claims as the limited scope of its
review in a habeas corpus proceeding permits. “A defendant whose position depends on anything
other than a straightforward application of established rules cannot obtain a writ of habeas
corpus.” Liegakos v. Cooke, 106 F.3d 1381, 1388 (7th Cir. 1997). No such established rules
entitle Ramsey to relief in this case. Ramsey’s petition for a writ of habeas corpus is therefore
denied. Judgment consistent with this Entry shall now issue.

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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 Ramsey 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@ and 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.
04/30/2014
Date: __________________

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

Distribution:
Danny Ramsey
No. 156491
Wabash Valley Correctional Facility
6908 S. Old US Hwy 41
P.O. Box 1111
CARLISLE, IN 47838
Electronically Registered Counsel

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