RODRIGUEZ v. BROWN

Filing 54

ENTRY Denying Petition for Writ of Habeas Corpus and Denying Certificate of Appealability - The Petition for a writ of habeas corpus is therefore denied without a decision being made as to the merits of his claims. Judgment consistent with this Entry shall now issue. The Court therefore denies a certificate of appealability (SEE ENTRY). Copy sent to Petitioner via US Mail. Signed by Judge William T. Lawrence on 7/13/2017.(DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
JOSE RODRIGUEZ,
Petitioner,
vs.
RICHARD BROWN,
Respondent.

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Case No. 2:15-cv-00075-WTL-MJD

Entry Denying Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
“[W]hen examining a habeas corpus petition, the first duty of a district court . . . is to
examine the procedural status of the cause of action.” United States ex rel. Simmons v. Gramley,
915 F.2d 1128, 1132 (7th Cir. 1990). That examination should entail two inquiries: “whether the
petitioner exhausted all available state remedies and whether the petitioner raised all his claims
during the course of the state proceedings.” Henderson v. Thieret, 859 F.2d 492, 496 (7th Cir.
1988), cert. denied, 109 S. Ct. 1648 (1989). In this case, brought by Indiana prisoner Jose
Rodriguez, the dispositive issue is one of procedural default. Because that default is unexcused,
Rodriguez’s petition for writ of habeas corpus must be denied. In addition, the Court finds that a
certificate of appealability should not issue.
I. Background
Rodriguez was convicted of attempted murder and of carrying a handgun without a license.
He was sentenced for these offenses, together with a criminal gang enhancement. In his direct
appeal, Rodriguez raised three issues: (1) whether the trial court erred by admitting evidence of
Rodriguez’s gang membership in the guilt phase of trial; (2) whether the evidence is sufficient to

sustain Rodriguez’s attempted murder conviction and his gang affiliation sentencing enhancement;
and (3) whether his 50-year sentence is inappropriate in light of the nature of his offense and his
character. His convictions and sentence were affirmed. Rodriguez v. State, 953 N.E.2d 681
(Ind.Ct.App.), decision clarified on reh'g, 958 N.E.2d 819 (Ind.Ct.App. 2011). Rodriguez sought
rehearing and argued that fundamental error occurred when the jury was not instructed on the
specific intent requirement for the criminal gang sentencing enhancement. The Court of Appeals
denied rehearing, finding that Rodriguez had waived the instruction issue by failing to raise it in
his original brief. Rodriguez sought transfer and for the first time raised a constitutional challenge
to IND. CODE § 35-50-2-15, arguing that the criminal gang sentencing statute was unconstitutional
as applied to him. He also argued that fundamental error resulted when the jury was not instructed
on specific intent for the sentencing enhancement. The petition was denied by the Indiana Supreme
Court on February 29, 2012.
The trial court then denied Rodriguez’s motion for post-conviction relief and this
disposition was affirmed on appeal. Rodriguez v. State, No. 49A05-1406-PC-289, 2014 WL
7278256 (Ind.Ct.App. Dec. 23, 2014). Rodriguez filed a petition to transfer to the Indiana Supreme
Court raising only the claim that trial counsel was ineffective for failing to tender a limiting
instruction on the criminal gang affiliation sentencing enhancement.
The present action followed, in which Rodriguez seeks relief pursuant to 28 U.S.C. §
2254(a). His habeas claims are that: 1) his right to the due process was violated when the State
filed charges in adult court after dismissing charges filed in the juvenile court and without a waiver
hearing; 2) his trial counsel was ineffective for failing to object to the adult court’s jurisdiction;
and 3) the evidence was insufficient to support his attempted murder conviction and criminal gang
sentencing enhancement.

II. Discussion
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No.
104-132, 110 Stat. 1214, a state petitioner seeking a writ of habeas corpus in federal court must
first exhaust the remedies available to him in state court, 28 U.S.C. § 2254(b)(1)(A), “thereby
giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal
rights.” Cheeks v. Gaetz, 571 F.3d 680, 685 (7th Cir. 2009) (internal quotation marks and citation
omitted). A habeas petitioner must fully and fairly present his federal claims through one complete
round of the state appellate review process before filing a federal habeas petition. O'Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999). “[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); see also Hogan v. McBride, 74 F.3d 144, 146 (7th Cir.
1996) (“Forfeiture under § 2254 is a question of a state's internal law: failure to present a claim at
the time, and in the way, required by the state is an independent state ground of decision, barring
review in federal court.”). If a petitioner has failed to properly assert his federal claims at each
level of state review, his claims are procedurally defaulted. See McDowell v. Lemke, 737 F.3d 476,
482 (7th Cir. 2013). A claim is also procedurally defaulted when a petitioner fails to raise his
federal claims in compliance with relevant state procedural rules, making the state court’s refusal
to adjudicate the claim an independent and adequate state ground for denying federal review. Cone
v. Bell, 556 U.S. 449, 465 (2009). Either way, procedural default precludes federal-court review
of a petitioner’s habeas claims. See Mulero v. Thompson, 668 F.3d 529, 536 (7th Cir. 2012).
Procedural default, although otherwise a bar to federal habeas review, may be excused in
certain circumstances. “A federal court may excuse a procedural default if the habeas petitioner
establishes that (1) there was good cause for the default and consequent prejudice, or (2) a

fundamental miscarriage of justice would result if the defaulted claim is not heard.” Johnson v.
Foster, 786 F.3d 501, 504 (7th Cir. 2015) (internal citations omitted). “Under this cause-andprejudice test, a cause is defined as ‘an objective factor, external to the defense, that impeded the
defendant's efforts to raise the claim in an earlier proceeding.’ Prejudice means ‘an error which so
infected the entire trial that the resulting conviction violates due process.’” Smith v. McKee, 598
F.3d 374, 382 (7th Cir. 2010) (internal citation omitted). The second exception, known as the
fundamental miscarriage of justice exception, requires a petitioner to show that he is actually
innocent. He must show that “in light of new evidence, ‘it is more likely than not that no reasonable
juror would have found petitioner guilty beyond a reasonable doubt.’” House v. Bell, 547 U.S. 518,
537 (2006) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).
Rodriguez’s first two habeas claims were not presented to the Indiana courts either in his
direct appeal or in his action for post-conviction relief. He has committed procedural default as to
these claims.
As to Rodriguez’s third claim—his challenge to the sufficiency of the evidence supporting
both his attempted murder and criminal gang affiliation sentencing enhancement—he also
committed procedural default by failing to present it to the Indiana Supreme Court. Specifically,
it was included in his direct appeal to the Indiana Court of Appeals but was not included in his
petition to transfer to the Indiana Supreme Court.
Rodriguez has not shown circumstances permitting him to overcome any of these
procedural defaults.
III. 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, 504 U.S. 1, 14 (1992)

(O'Connor, J., dissenting) (internal citations omitted). In the present case, Rodriguez has
encountered the hurdle produced by the doctrine of procedural default. He has not shown the
existence of circumstances permitting him to overcome this hurdle and hence is not entitled to the
relief he seeks. His petition for a writ of habeas corpus is therefore denied without a decision being
made as to the merits of his claims.
Judgment consistent with this Entry shall now issue.
IV. 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 Rodriguez has failed to show
that reasonable jurists would find it “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: 7/13/2017
_______________________________
Distribution:

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

JOSE RODRIGUEZ
197741
WABASH VALLEY - CF
WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels
6908 S. Old US Hwy 41
P.O. Box 1111
CARLISLE, IN 47838
Henry A. Flores, Jr.
INDIANA ATTORNEY GENERAL
[e-mail]
Kelly A. Loy
OFFICE OF THE INDIANA ATTORNEY GENERAL
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