AMALFITANO v. BROWN

Filing 14

Entry Denying Petition for Writ of Habeas Corpus and Denying Certificate of Appealability - Louis Amalfitano is a state prisoner who seeks a writ of habeas corpus with respect to his conviction of various offenses in Madison County. Having consid ered Amalfitano's petition, the other pleadings, and the expanded record, and being duly advised, the court finds that the petition for writ of habeas corpus should be denied. Judgment consistent with this Entry shall now issue. In addition, the court finds that a certificate of appealability should not be issued. (See Entry.) Copy to petitioner via US Mail. Signed by Judge William T. Lawrence on 10/16/2015.(RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

LOUIS AMALFITANO,
Petitioner,
vs.
RICHARD BROWN,
Respondent.

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No. 2:15-cv-00048-WTL-WGH

Entry Denying Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
Louis Amalfitano is a state prisoner who seeks a writ of habeas corpus with respect to his
conviction of various offenses in Madison County.
Having considered Amalfitano’s petition, the other pleadings, and the expanded record,
and being duly advised, the court finds that the petition for 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.

Amalfitano seeks a writ of habeas corpus pursuant to 2254. “[I]n all habeas

corpus proceedings under 28 U.S.C. § 2254, the successful petitioner must demonstrate that he
‘is in custody in violation of the Constitution or laws or treaties of the United States.’” Brown v.
Watters, 599 F.3d 602, 611 (7th Cir. 2010) (quoting 28 U.S.C. § 2254(a)).
2.

Because Amalfitano’s petition was filed after April 23, 1996, it is governed by

provisions of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Along with other
changes, this legislation

amended 28 U.S.C. § 2254(d) to narrow the power of federal courts to grant
habeas corpus relief to state prisoners. Under that Act, the critical question on the
merits of most habeas corpus petitions shifted from whether the petitioner was in
custody in violation of the Constitution, laws, or treaties of the United States to a
much narrower question: whether the decision of the state court keeping the
petitioner in custody was “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the
United States; or resulted in a decision that was based on an unreasonable
determination of the facts . . . .” 28 U.S.C. § 2254(d).
Avila v. Richardson, 751 F.3d 534, 535 (7th Cir. 2014). As the Supreme Court has recently
explained,
AEDPA's standard is intentionally difficult to meet. We have explained that
clearly established Federal law for purposes of § 2254(d)(1) includes only the
holdings, as opposed to the dicta, of this Court's decisions. And an unreasonable
application of those holdings must be objectively unreasonable, not merely
wrong; even clear error will not suffice. To satisfy this high bar, a habeas
petitioner is required to show that the state court's ruling on the claim being
presented in federal court was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.
Woods v. Donald, 135 S. Ct. 1372, 1376 (2015)(internal quotation marks and citations omitted).
3.

Amalfitano was convicted after trial by jury of: Criminal Confinement; Battery

Resulting in Serious Bodily Injury; Exploitation of an Endangered Adult; Financial Exploitation
of an Endangered Adult; two counts of Theft; Obtaining a Controlled Substance by Fraud; and
Possession of a Controlled Substance. He received an aggregate 46 year sentence. His
convictions were affirmed in Amalfitano v. State, 967 N.E.2d 578 (Ind.Ct.App. 2012). A
subsequent action for post-conviction relief was withdrawn.
4.

This action was then filed and has been at issue since July 13, 2015. Amalfitano’s

claims are that (i) the admission of a letter written by Stephanie Cole violated his Sixth
Amendment right of confrontation, and (ii) the trial court abused its discretion in imposing
sentence.

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5.

A federal habeas court “presume[s] that the state courts' account of the facts is

accurate, unless the petitioner rebuts this presumption ‘by clear and convincing evidence.’ 28
U.S.C. § 2254(e)(1).” Caffey v. Butler, 2015 WL 5559399, *1 (7th Cir. Sept. 22, 2015).
Amalfitano does not challenge the sufficiency of the evidence. It will, therefore, suffice to
summarize the evidence favorable to the jury’s verdicts.
a.
On May 27, 2010, Officer Freddy Tevis of the Anderson Police Department went
to Amalfitano's residence to perform a welfare check on sixty-five year old A.T. Officer
Tevis found A.T. locked in a small utility room. Police called for paramedics to assist
A.T., who emerged from the room very disoriented and confused. She weighed only 85
pounds and was too weak to walk unassisted to the ambulance. Her right eye was swollen
shut, she had bruises on her forehead, arms, and legs, and she had cuts and open sores on
her arms and legs. She was hospitalized for treatment.
b.
A.T. had gone to live with Amalfitano and his family, including Amalfitano’s
fiancée Stephanie Cole, in the fall of 2009. Amalfitano and his family had kept A.T.
locked in the utility room so they could force her to turn over her Social Security checks
and prescription medication. The room had boarded windows and bare walls, and it was
furnished only with a urine-soaked mattress and a water heater that made the room
extremely hot. A.T. was given little food and was not allowed to leave to use the
bathroom. Officer Tevis testified a bag containing urine and feces was hanging from the
inside doorknob of the room. The conditions were horrific. A.T. was a vulnerable elderly
individual who became increasingly vulnerable through the systematic abuse inflicted by
Amalfitano and his family. Amalfitano and his brother would hit A.T. in the head and
douse her with either scalding hot or cold water on a daily basis. Once a month,
Amalfitano escorted A.T. to cash her Social Security check, which they then spent on
himself and other family members. The abuse Amalfitano inflicted on A.T. for this
extended period of time was incomprehensible.
6.

Amalfitano’s first claim concerns the admission of a short handwritten note from

Stephanie Cole. The facts upon which this first claim is based were described by the Indiana
Court of Appeals:
On June 28, 2011, a jury trial commenced, during which the State
intended to call Cole, who was imprisoned pending trial in the Madison County
Jail, as a witness. During the pendency of the trial, and after the trial court had
sworn the jury and ordered the separation of witnesses, Cole called Amalfitano,
who had been released on bail, by phone from the jail. The two discussed plans
for Cole to refuse to testify.

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The State notified the trial court of Amalfitano’s violation of the order for
separation of witnesses, and in response the trial court revoked Amalfitano’s bail.
Cole was called to testify. After she refused to do so, the State extended use
immunity to her and began its direct examination. Cole testified that she had
written a letter to Amalfitano that police had obtained after a search of the house.
In the letter, she referred to Amalfitano’s abuse of A.T. The incriminating letter
was admitted into evidence without objection, after which Cole refused to
continue her testimony. Amalfitano briefly cross-examined Cole, who continued
to refuse to offer testimony.
The trial court found her to be in criminal contempt of the court.
Amalfitano then moved the court to strike from evidence both Cole’s testimony
and the letter she had written to Amalfitano, arguing that to do otherwise would
deprive him of his right to confront witnesses under the Sixth Amendment to the
United State Constitution. The trial court denied Amalfitano’s request.
Amalfitano, 967 N.E.2d at *3.
7.

The Sixth Amendment affords an accused the right “to be confronted with the

witnesses against him.” In Crawford v. Washington, 541 U.S. 36, 51 (2004), the Supreme Court
explained that “witnesses,” under the Confrontation Clause, are those “who bear testimony,” and
defined “testimony” as “a solemn declaration or affirmation made for the purpose of establishing
or proving some fact.” “The Sixth Amendment . . . prohibits the introduction of testimonial
statements by a nontestifying witness, unless the witness is ‘unavailable to testify, and the
defendant had had a prior opportunity for cross-examination.’” Ohio v. Clark, 135 S. Ct. 2173,
2179 (2015)(quoting Crawford, 541 U.S. at 54)). “The proper inquiry . . . [in determining
whether a statement is testimonial] is whether the declarant intends to bear testimony against the
accused. That intent, in turn, may be determined by querying whether a reasonable person in the
declarant's position would anticipate his statement being used against the accused in
investigating and prosecuting the crime.” United States v. Cromer, 389 F.3d 662, 675 (6th Cir.
2004).
8.

Although Amalfitano argues that the Indiana Court of Appeals unreasonably

determined that Cole’s incriminating note was not “testimonial,” this plainly is not the case. The
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Indiana Court of Appeals acknowledged the Crawford standard and the “primary purpose”
inquiry. Amalfitano, 967 N.E.2d at *4. After highlighting the content of Cole’s letter, the Indiana
Court of Appeals explained that its admission did not violate the Confrontation Clause “because
the letter does not come within the framework of testimonial statements subject to exclusion. The
letter clearly lacks formality, and, more crucially, its primary purpose was not to provide
investigatory material to police.” Id. There is nothing remotely “testimonial” about the creation
or the content of Cole’s letter to Amalfitano. The primary purpose of the letter was for Cole to
express her frustration at decisions Amalfitano was making in the continued mistreatment of
A.T.—to the detriment of Cole and Amalfitano’s relationship. The fact that the letter was
incriminating does not, standing alone, make it “testimonial.” The Indiana Court of Appeals’
decision on this claim was both a reasonable and a correct application of clearly established
federal law. Because the decision of the Indiana Court of Appeals on this point was reasonable,
“it cannot be disturbed.” Hardy v. Cross, 132 S. Ct. 490, 495 (2011) (per curiam).
9.

Amalfitano’s second claim is that the trial court committed error in finding

aggravating factors at sentencing. He parrots the language of 28 U.S.C. § 2254(d)(2), but fails
entirely to show error in the trial court’s finding of pertinent facts concerning his offense conduct
and his criminal history. More to the point, however, is that Amalfitano presented this claim to
the Indiana state courts solely as a matter of state law. His contention otherwise is not supported
by the appellate decision, by his appellant’s brief or by his petition to transfer. In consequence,
he has failed to “fairly present” his claim to the Indiana Supreme Court. Baldwin v. Reese, 541
U.S. 27, 29 (2004). “It is not enough that all the facts necessary to support the federal claim were
before the state courts, or that a somewhat similar state-law claim was made.” Anderson v.
Harless, 459 U.S. 4, 6 (1982) (per curiam). A petitioner must include reference to a specific

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federal constitutional guarantee, as well as a statement of the facts that entitle the petitioner to
relief. Gray v. Netherland, 518 U.S. 152, 162-63 (1996). A claim is not fairly presented “if a
judge must go outside the four corners of the document in order to understand the contention's
nature and basis.” Lockheart v. Hulick, 443 F.3d 927, 929 (7th Cir. 2006) (citing Baldwin, 541
U.S. 27).
10.

The failure to fairly present a federal basis for the improper sentence claim is a

procedural default. 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). Amalfitano has not
attempted to satisfy either of these burdens, and hence review of the merits of this habeas claim
is barred.
11.

Even if properly preserved, moreover, Amalfitano could not obtain relief based on

this claim. The issue of sentencing within the parameters of state law is ordinarily outside the
realm of federal habeas review, Koo v. McBride, 124 F.3d 869, 875 (7th Cir. 1997), and this case
is no exception.
12.

Amalfitano’s conviction and sentence 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").1 As the foregoing discussion

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Obviously, this is not a presumption related to the AEDPA, but is "the ‘presumption of regularity’ that
attaches to final judgments, even when the question is waiver of constitutional rights." Parke v. Raley,

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demonstrates, he received all that the Constitution requires. This court has carefully reviewed the
state record in light of Amalfitano’s claims and has given such consideration to those claims as
the limited scope of its review in a habeas corpus proceeding permits. The claim which was
properly preserved in the Indiana state courts does not warrant relief in light of the deferential
standard required by the AEDPA. Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (“A state
court’s determination that a claim lacks merit precludes federal habeas relief so long as
‘fairminded jurists could disagree’ on the correctness of the state court’s decision.”)(quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Amalfitano’s habeas petition is therefore
denied.
13.

Judgment consistent with this Entry shall now issue.

14.

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 Amalfitano 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The court therefore denies a
certificate of appealability.
IT IS SO ORDERED.
Date: 10/16/15

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

506 U.S. at 29 (citing Johnson v. Zerbst, 304 U.S. 458, 464, 468 (1938)).

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Distribution:
Electronically Registered Counsel
LOUIS AMALFITANO
219838
WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels
6908 S. Old US Hwy 41
CARLISLE, IN 47838

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