ALLEN v. BROWN et al

Filing 50

Entry Discussing Petition for Writ of Habeas Corpus and Denying Certificate of Appealability - Petitioner Mario Allen was convicted in 2004 of robbery and attempted robbery. Presently pending before the Court is Mr. Allen's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Mr. Allen's petition is denied and the action is dismissed with prejudice. In addition, the Court finds that a certificate of appealability should not issue. (See Entry) Signed by Judge Larry J. McKinney on 11/17/2015. Copy sent to Petitioner via US Mail. (GSO)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

MARIO ALLEN,
Petitioner,
v.
RICHARD BROWN, Superintendent,
Respondent.

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No: 2:13-cv-0386-LJM-WGH

Entry Discussing Petition for Writ of Habeas Corpus
and Denying Certificate of Appealability
Petitioner Mario Allen was convicted in 2004 of robbery and attempted robbery.
Presently pending before the Court is Mr. Allen’s petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. For the reasons that follow, Mr. Allen’s petition is denied
and the action is dismissed with prejudice. In addition, the Court finds that a certificate of
appealability should not issue.
I.
Background
The Indiana Court of Appeals summarized the relevant procedural background of
Mr. Allen’s convictions and state court proceedings:
Allen was convicted of Class B felony attempted robbery and Class B felony
robbery on May 27, 2004. He was also determined to be an habitual
offender. On June 24, 2004, the trial court sentenced Allen to an aggregate
term of forty-five years.
Following sentencing, a public defender was appointed to represent Allen
on appeal, and this counsel timely filed a notice of appeal on July 20, 2004.

On December 6, 2004, . . . Allen’s counsel moved to withdraw his
appearance, citing a conflict of interest. . . . This court subsequently granted
[the] motion[]. In our February 2, 2005 order granting Allen’s counsel’s
motion to withdraw, we noted that this court has no funds to pay for the
services of appointed counsel, and we directed Allen to apply to the trial
court for the appointment of subsequent pauper counsel to proceed with his
appeal. No substitute counsel was ever appointed.
Allen subsequently filed various motions in this court seeking relief based
on the lack of appellate counsel, which we denied. On May 9, 2005, we
ordered the LaPorte Superior Court No. 1 to appoint successive appellate
pauper counsel for Allen, and granted a ninety-day extension to file the
appellant’s brief. The then-judge of the LaPorte Superior Court No. 1 still
failed to appoint counsel for Allen. Allen then filed various other pro se filings
with this court, including a “complaint” and a “motion for automatic reversal,”
all of which were denied. On September 20, 2005, we dismissed Allen’s
appeal for failure to file an opening brief.
On August 27, 2008, Allen filed a petition for permission to pursue a belated
appeal pursuant to Indiana Post Conviction Rule 2(3).1 The motions panel
of this court denied this petition on September 15, 2008, with one judge
dissenting. On December 1, 2010, Allen filed a petition for post-conviction
relief under Post Conviction Rule 1, alleging that he had been wholly denied
the assistance of counsel in his attempt to pursue a direct appeal. The postconviction court held a hearing on Allen’s petition on March 18, 2011.
At the hearing, Allen argued that he was denied the assistance of counsel
during his direct appeal and that the appropriate remedy was either his
immediate release or to grant him a new trial. The State conceded that Allen
had been denied the right to counsel during his direct appeal but noted that
this did not necessarily affect the validity of Allen’s convictions or sentence.
Therefore, the State argued that the appropriate remedy was to permit Allen
to pursue his direct appeal with the assistance of counsel. On June 17,
2011, the post-conviction court entered findings of fact and conclusions of
law determining that Allen had indeed been denied the assistance of
appellate counsel. The post-conviction court agreed with the State that Allen
was not entitled to immediate release or a new trial. But the post-conviction
court concluded that it was without the authority to reinstate Allen’s direct
appeal itself.
Allen v. State, 959 N.E.2d 343, 344-45 (Ind. Ct. App. 2011) (“Allen I”). The Indiana Court
of Appeals agreed with the post-conviction court that Mr. Allen was entitled to a direct
appeal rather than a new trial or release. Id. at 346. Therefore, it affirmed the post-

conviction court’s decision, reinstated Mr. Allen’s direct appeal, and remanded with
instructions that the trial court appoint Mr. Allen appellate counsel. Id. at 346-47.
Mr. Allen raised three claims in his reinstated direct appeal. [Filing No. 36-11 at
2.] The Indiana Court of Appeals rejected those claims and affirmed his convictions on
September 18, 2013 (“Allen II”). [Filing No. 36-11.] Mr. Allen did not seek review by the
Indiana Supreme Court.
Mr. Allen filed the instant petition for a writ of habeas corpus on October 31, 2013.
The Court dismissed this case on January 2, 2014, because Mr. Allen was at that time a
restricted filer in the Seventh Circuit and thus this case should not have been filed. Mr.
Allen appealed the dismissal to the Seventh Circuit. Because the Indiana courts had
reinstated Mr. Allen’s direct appeal after Mr. Allen’s filing bar was enacted, the Seventh
Circuit lifted the filing bar since his conviction was then final. [Filing No. 24 at 3.] This
case was remanded for further consideration, and the Court ordered the respondent to
respond to Mr. Allen’s habeas petition. His petition is now fully brief and ready for
consideration.
II.
Discussion
Mr. Allen raises a single claim in his habeas petition. Although at times difficult to
discern, he seems to argue that since the post-conviction court granted him relief on his
ineffective assistance of appellate counsel claim, he is entitled to release from prison.
[See Filing No. 2 at 3; Filing No. 2-1 at 1.] The respondent argues that Mr. Allen is
essentially trying to challenge the Indiana Court of Appeals’s decision in Allen I that he is
only entitled to a new direct appeal and not release or a new trial—as he has done in
multiple other habeas petitions filed in federal court—and that challenges to alleged errors

in state post-conviction proceedings are not cognizable in federal habeas proceedings.
[Filing No. 36 at 8-10.] Mr. Allen does not directly reply to the respondent’s argument.
He does, however, make clear that he is indeed challenging the Indiana Court of
Appeals’s decision in Allen I that he is only entitled to a new direct appeal, and he asks
the Court to immediately release him because the Indiana Court of Appeals’s decision
was erroneous. [Filing No. 38 at 4-7.]
“The remedial power of a federal habeas court is limited to violations of the
petitioner’s federal rights, so only if a state court’s errors have deprived the petitioner of
a right under federal law can the federal court intervene.” Perruquet v. Briley, 390 F.3d
505, 511 (7th Cir. 2004). Mr. Allen’s claim does not support a challenge cognizable in a
federal habeas corpus proceeding because it challenges the remedy provided in a state
post-conviction proceeding, rather than his conviction or reinstated direct appeal.
Whether, and if so the way in which, the Indiana state courts elect to remedy defects
using Indiana post-conviction procedures does not support a cognizable claim for habeas
corpus relief. 1 See Montgomery v. Meloy, 90 F.3d 1200, 1206 (7th Cir. 1996) (“Unless
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.”); see also Resendez v. Smith, 692 F.3d 623, 628 (7th Cir. 2012)
(“[T]hat the State may have failed to comply with its post-conviction procedures would not
raise a cognizable federal habeas claim.”).
III.
Conclusion
1

The Court notes that the Seventh Circuit has provided the same remedy—a new direct
appeal—when remedying a meritorious ineffective assistance of appellate counsel claim.
See, e.g., Shaw v. Wilson, 721 F.3d 908, 919-20 (7th Cir. 2013).

“To say that a petitioner’s claim is not cognizable on habeas review is . . . another
way of saying that his claim ‘presents no federal issue at all.’” Perruquet, 390 F.3d at 511
(quoting Bates v. McCaughtry, 934 F.2d 99, 101 (7th Cir. 1991)). Accordingly, Mr. Allen’s
petition for a writ of habeas corpus is denied. Judgment consistent with this Entry shall
now issue.
IV.
Certificate of Appealability
Rule 11(a) of the Rules Governing § 2254 Cases requires the district courts to
“issue or deny a certificate of appealability when it enters a final order adverse to the
applicant,” and “[i]f the court issues a certificate, the court must state the specific issue or
issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” Pursuant to §
2253(c)(2), a certificate of appealability may issue “only if the applicant has made a
substantial showing of the denial of a constitutional right.” Such a showing includes
demonstrating “that reasonable jurists could debate whether . . . the petition should have
been resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(citation and quotation marks omitted).
The Court finds that Mr. Allen 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.”
Id. The court therefore denies a certificate of appealability.
IT IS SO ORDERED.
11/17/2015
Date: __________________

Distribution attached.

________________________________
LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana

Distribution:
Mario Anthony Allen
No. 143473
Pendleton- Correctional Industrial Facility
Inmate Mail/ Parcels
5124 W. Reformatory Road
Pendleton, IN 46064
Electronically Registered Counsel