RHOTON v. BROWN

Filing 22

Entry Discussing Petition for Writ of Habeas - Corpus and Denying Certificate of Appealability Glendal Rhoton seeks habeas corpus relief. Having considered pleadings and the expanded record, the Court finds that the habeas petition must be denied a nd this 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.) Signed by Judge William T. Lawrence on 7/19/2016.(BRR)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

GLENDAL RHOTON,

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)
)
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Petitioner,
vs.
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RICHARD BROWN, Superintendent,
Respondent.

No. 2:15-cv-0102-WTL-DKL

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)
)

Entry Discussing Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
Glendal Rhoton seeks habeas corpus relief. Having considered pleadings and the expanded
record, the Court finds that the habeas petition must be denied and this action dismissed with
prejudice. In addition, the court finds that a certificate of appealability should not issue.
I. Nature of the Case
Glendal Rhoton seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254(a).
II. Parties
Rhoton is confined at the Wabash Valley Correctional Facility, an Indiana prison. The
respondent is Rhoton’s custodian, sued in his official capacity as a representative of the State of
Indiana.

III. Procedural Background
Rhoton was convicted in 2010 for murder and burglary. He admitted being a habitual
offender. An aggregate sentence of 81 years was imposed. His convictions were affirmed in
Rhoton v. State, 938 N.E.2d 1240 (Ind.Ct.App. 2010)(Rhoton I), and the denial of his petition for
post-conviction relief was affirmed in Rhoton v. State, No. 49A05-1311-PC-563 (Ind.Ct.App. Oct.
8, 2014)(Rhoton II).
The filing of this action followed. The record has been appropriately expanded and the
matter is fully at issue.
IV. Statement of Facts
District court review of a habeas petition presumes all factual findings of the state court to
be correct, absent clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1);
Daniels v. Knight, 476 F.3d 426, 434 (7th Cir. 2007). No showing of such a nature has been
attempted here. The court therefore adopts the factual account of the Indiana Court of Appeals in
Rhoton I:
Late in the evening of September 2, 2008, Kimberly Philpot drove Rhoton, her exhusband, to the Road Dog Saloon in Indianapolis. Rhoton told her to leave, so she
drove to a nearby strip mall to wait. The saloon was closed, but Rhoton walked to
the back of the building with a pickax and flathead screwdriver. When Philpot
returned about ten minutes later, Rhoton threw the pickax in the back of the truck
and screwdriver in the cab and said, “‘I smashed the dicksucker’s brains in.’”
Transcript at 382.
At Rhoton’s request, Philpot left again and then returned fifteen minutes
later. She saw Rhoton in a shed behind the saloon, left again, and returned a few
minutes later to find Rhoton waiting for her by the street. He instructed her to pull
around back. There Rhoton and Philpot loaded two barrels full of frozen meat and
other food into the back of the truck. As they left the saloon, Rhoton told Philpot
that he needed to get rid of the pickax. Philpot drove back to the strip mall, where
Rhoton placed the pickax next to a green recycling bin.

Shortly before eleven o’clock on the evening of September 2, 2008, Officer
Frank Vanek of the Indianapolis Metropolitan Police Department (“IMPD”) was
dispatched to investigate an alarm at the Road Dog Saloon on the southeast side of
Indianapolis. When Officer Vanek arrived, he found that the doors to the saloon
were secure. However, in the rear of the building, he found Martin Wilburn
wrapped in a blanket and lying face down on a row of chairs that had been pushed
together. Wilburn had suffered several severe injuries to his head and was bleeding
profusely. The officers called for medics, who arrived within ten minutes and
transported Wilburn to the hospital. Officers on the scene discovered that the shed
in the back of the saloon was not secure and that frozen food was missing from the
shed’s freezer.
Wilburn died a short time later as a result of his injuries. He had suffered
three large lacerations around and below his left ear. Each laceration was
approximately one and one-half inches long, and the one below the left earlobe
penetrated “approximately one inch into the tissues of the lower portion of the
skull.” Transcript at 335. In one of the skull fractures Wilburn had sustained, “a
piece of bone was literally pushed in causing a punched out effect[,]” and his brain
was lacerated. Id.
At the same time that evening, IMPD Officer Craig Wildauer was assisting
another officer with an arrest for possession of marijuana on the east side of
Indianapolis. When the arrestee’s cell phone rang, Officer Wildauer answered and
pretended to be the arrestee. In a very brief conversation, the caller, a male, asked
to meet. Subsequently a female called the arrestee’s cell phone, and then a male got
on the phone. Officer Wildauer agreed to meet the caller at the intersection of East
Washington Street and Sherman. Shortly after Officer Wildauer drove to that
intersection, he saw a pickup truck pull in to a parking lot on the southwest corner
without using a turn signal, and the truck’s driver was not wearing a seatbelt.
Officer Wildauer initiated a traffic stop of the truck.
In the traffic stop, the officer learned that Kimberly Philpot was the driver,
and Rhoton was her passenger. Philpot and Rhoton appeared nervous. Officer
Wildauer noticed that the bed of the truck contained large barrels filled with frozen
meat and frozen breaded mushrooms. Officer Brady Ball arrived as backup. Officer
Wildauer had Rhoton wait on the truck’s open tailgate while he took Philpot to the
front of the truck. Once at the front of the truck, Philpot told the officer that she
thought someone at the Road Dog Saloon needed help. When the officers inquired
through IMPD about a problem at the Road Dog Saloon, they learned of the breakin and Wilburn’s injuries. Philpot then told Officer Ball that Rhoton had left a
pickax by the recycling bin behind a strip mall. Later testing disclosed the presence
of Wilburn’s blood and DNA on the pickax.

Rhoton I, 938 N.E.2d at 1242.
The Indiana Court of Appeals held that the evidence was sufficient, because it “show[ed]
that Rhoton was present at the saloon around the time of the murder, had in his possession a
pickax, and boasted to Philpot that he had ‘smashed [someone’s] brains in . . . [and l]ater testing
of a red stain on the pickax revealed Wilburn’s DNA . . .” Id. at 1247.
V. Rhoton’s Claims
In Rhoton I, Rhoton presented challenges to the jury instructions, to the sufficiency of the
evidence and to his sentence. Rhoton sought transfer challenging the sufficiency of the evidence.
In Rhoton II, the following claims were presented: 1) the post-conviction court denied Rhoton due
process by failing to hold a fair post-conviction hearing; 2) Rhoton was denied the effective
assistance of counsel at trial; and 3) Rhoton was denied the effective assistance of counsel in
Rhoton I.
Rhoton seeks habeas corpus relief based on the same claims as presented in Rhoton II.
VI. 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). Rhoton filed his habeas 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, § 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).
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 is 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.’” Id. (quoting Bell, 535 U.S. at 694). “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 federal habeas court conducting an analysis under § 2254(d) “must determine what
arguments or theories supported, or, [in the case of an unexplained denial on the merits], 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 [the Supreme Court].” Harrington v. Richter, 131 S. Ct. 770, 786 (2011).
VII. Discussion
A. Post-conviction Relief
Rhoton’s first habeas claim is that he was denied a fair hearing at the post-conviction relief
stage. This argument was persuasively rejected in Rhoton II, at pp. 5-7. More fundamentally, this
does not present a cognizable claim for relief. “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)).
The foregoing conclusion rests on the established law that errors at post-conviction do not
present a viable 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 post-conviction
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 does not warrant the habeas relief
Rhoton seeks.
B. Assistance of Counsel at Trial
Rhoton presents myriad specifications of attorney ineffectiveness at his trial. Strickland v.
Washington, 466 U.S. 668, 684 (1984), provides the clearly established Federal law, as determined
by the Supreme Court of the United States that governs a claim of ineffective assistance of counsel.
Strickland recognized that the Sixth Amendment’s guarantee that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel
for his defence” entails that defendants are entitled to be represented by an attorney
who meets at least a minimal standard of competence. Id., at 685–687. “Under
Strickland, we first determine whether counsel’s representation ‘fell below an
objective standard of reasonableness.’ Then we ask whether ‘there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.’” Padilla v. Kentucky, 559 U.S. 356, 366 (2010)
(quoting Strickland, supra, at 688, 694).

Hinton v. Alabama, 134 S. Ct. 1081, 1087-88 (2014)(parallel citations omitted). The Supreme
Court framed the determinative question as “whether counsel's conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having produced a just
result.” Strickland, 466 U.S. at 686. This Court must give “double deference” to the state court's
ruling on ineffective assistance of counsel claims because habeas review under AEDPA requires
a habeas court to give the state court and the defense attorney the benefit of the doubt. Woods v.
Donald, 135 S. Ct. 1372, 1376 (2015).
The Indiana Court of Appeals recognized the above Strickland standard. Rhoton II, at p. 8.
Each of Rhoton’s myriad specifications of ineffective assistance of counsel at trial was reviewed,
and as to each the Indiana Court of Appeals reasonably applied the Strickland standard. “Under
AEDPA, if the state-court decision was reasonable, it cannot be disturbed.” Hardy v. Cross, 132
S. Ct. 490, 495 (2011). In examining a habeas petition such as Rhoton presents here, the court is
required to deny the writ so long as the [state courts] “t[ook] the [constitutional standard]
seriously and produce[d] an answer within the range of defensible positions.” Murrell v. Frank,
332 F.3d 1102, 1111–12 (7th Cir. 2003) (quoting Mendiola v. Schomig, 224 F.3d 589, 591 (7th
Cir. 2000) (emphasis added in Murrell). Because the Indiana Court of Appeals did so, Rhoton’s
claim of ineffective assistance of counsel at trial does not support the relief he seeks.
C. Assistance of Counsel in Rhoton I
Claims of ineffective assistance of appellate counsel are measured against the same
standard as those dealing with ineffective assistance of trial counsel established in Strickland.
Howard v. Gramley, 225 F.3d 784, 789–90 (7th Cir. 2000). A petitioner who contends that
appellate counsel rendered ineffective assistance of counsel must show that the failure to raise an
issue on direct appeal was objectively unreasonable and that the decision prejudiced petitioner in

the sense that there is a reasonable probability that his case would have been remanded for a new
trial or that the decision of the state trial court would have been otherwise modified on appeal. Id.
at 790.
Rhoton does not claim ineffective assistance of counsel in Rhoton I because of a claim
which was omitted, but claims ineffective assistance of counsel based on his attorneys combining
an argument of incredible dubiosity with the argument of insufficient evidence. The former was a
challenge to the testimony of Kimberly Philpot and the latter was likewise centered on the
credibility of that same testimony. The Indiana Court of Appeals explained that “if appellate
counsel were to separate the incredible dubiosity and sufficiency arguments, as Rhoton suggests,
we do not believe that would have changed this court’s decision in Rhoton’s direct appeal.” Rhoton
II, at p. 15. The claim of ineffective assistance of counsel in Rhoton I was therefore rejected. This
was a correct, and hence reasonable, application of Strickland.
VIII. Conclusion
This court has carefully reviewed the state record in light of Rhoton’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 Rhoton to relief in this case. Rhoton’s
petition for a writ of habeas corpus is therefore denied.
Judgment consistent with this Entry shall now issue.
IX. Certificate of Appealability
Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, the Court finds that
Rhoton 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.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). The Court therefore declines to issue a certificate of appealability.
IT IS SO ORDERED.

Date: 7/19/16

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

Distribution:
GLENDAL RHOTON
110746
Wabash Valley Correctional Facility
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