SUDING v. BROWN

Filing 33

Entry Discussing Petition for Writ of Habeas Corpus and Denying Certificate of Appealability - For the reasons explained in this Entry, the petition of Nicholas Suding a writ of habeas corpus must be denied and the action will be 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 William T. Lawrence on 12/28/2016.(RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
NICHOLAS SUDING,
)
)
Petitioner,
)
)
No. 2:15-cv-00218-WTL-DKL
vs.
)
)
SUPERINTENDENT Correctional Industrial
)
Complex,
)
Respondent.
)

Entry Discussing Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
For the reasons explained in this Entry, the petition of Nicholas Suding a writ of habeas
corpus must be denied and the action will be dismissed with prejudice. In addition, the court finds
that a certificate of appealability should not issue.
I. The Petition for Writ of Habeas Corpus
A. Background
In the present case, Nicholas Suding seeks a writ of habeas corpus with respect to his
conviction in an Indiana state court. His custodian, on behalf of the State of Indiana, argues that
review of Suding’s claims is barred by procedural default. Suding opposes this argument.
Suding was convicted in 2010 of three counts of Class A felony conspiracy to commit
murder. His conviction was affirmed in Suding v. State, 945 N.E.2d 731 (Ind.Ct.App. 2011)
(Suding I). The trial court’s denial of Suding’s petition for post-conviction relief was affirmed in
Suding v. State, 2014 WL 5094346 (Ind.Ct.App. Oct. 10, 2014)(Suding II). The Indiana Supreme
Court denied Suding’s petition for transfer in Suding II on April 2, 2015. The facts pertinent to
Suding’s offenses were summarized in Suding’s direct appeal:

In February 2009, Suding’s wife, Renee, became concerned about Suding’s
anger toward Tamara Scott, his ex-wife and mother of his daughter, S.S. Suding
purchased devices to open locks and Renee heard him talking about entering Scott’s
house to stab her. At a June 2009 hearing, the trial court entered an order protecting
Scott and S.S. from Suding. After the hearing Renee heard Suding talk about killing
Scott, her lawyer, and the judge who presided over the protective order hearing.
In July 2009, Suding took Renee to various locations in Illinois and
Kentucky that could serve as hideouts after the murders. Around that same time,
Suding sold his rifle and bought two handguns. He told Renee he bought the
weapons at a flea market because weapons purchased there could not be traced to
him. After purchasing the handguns, Suding made two-liter bottles into silencers.
In late July 2009, Suding instructed Renee to follow the judge and Scott’s attorney
to determine what cars they drove, where they lived, and where they parked.
On July 28, Renee reported Suding’s activities to the Hendricks County
Sheriff’s Department. Detective Roger Call gave Renee a recording device and she
recorded a conversation during which Suding discussed how he would blow up the
judge’s house with propane, what would happen after he killed Scott, and the order
and manner in which he would kill his victims. Suding was arrested and the State
ultimately charged him with six counts of Class A felony conspiracy to commit
murder. A jury found Suding guilty of three counts. The court sentenced him to
forty years imprisonment, with five years suspended for each count, to be served
concurrently.
Suding I, 945 N.E.2d at 734–35.
Suding raised three issues in his direct appeal: 1) the charging information was improperly
amended; 2) evidence of prior bad acts were improperly admitted; and 3) the trial court improperly
denied his motion for a direct verdict. In Suding II, the post-conviction appeal, Suding argued that:
1) the post-conviction court committed various procedural errors; 2) the State failed to turn over
exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963); 3) his trial counsel
was ineffective for failing to raise an alibi defense, failing to assert his marital privilege for
communications with his wife, failing to seek suppression of evidence obtained as a result of a
search warrant, and failing to more thoroughly challenge his wife’s credibility; 4) his trial counsel
had a conflict of interest; 5) and his appellate counsel was ineffective for failing to raise the Brady
claim on direct appeal.

After these claims were rejected, Suding sought transfer to the Indiana Supreme Court,
arguing that: 1) there were various procedural errors in the post-conviction proceedings; and 2)
his was entitled to assert the marital privilege. The Indiana Supreme Court denied transfer on
April 2, 2015.
The filing of the present action followed on July 20, 2015. Suding’s habeas claims are
those presented in Suding II. The claim regarding the marital spouse privilege, however, is
wrapped in the cloak of ineffective assistance of counsel. The record has been expanded to
include the records on appeal in both Suding I and Suding II
B. Habeas Framework
“[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)). The
scope of the Great Writ is limited because a viable habeas claim pursuant to § 2254(a) necessarily
precludes a claim which is not based on alleged noncompliance with federal law. See Wilson v.
Corcoran, 562 U.S. 1, 4 (2010) (“But it is only noncompliance with federal law that renders a
State’s criminal judgment susceptible to collateral attack in the federal courts.”).
“Federal habeas corpus happens to be one of the most complex areas of American law.”
Holmes v. Buss, 506 F.3d 576, 579 (7th Cir. 2007). It is therefore no surprise that “when 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).
“It is the rule in this country that assertions of error in criminal proceedings must first be
raised in state court in order to form the basis for relief in habeas. Claims not so raised are

considered defaulted.” Breard v. Greene, 523 U.S. 371, 375 (1998) (citing Wainwright v. Sykes,
433 U.S. 72 (1977)); see also Woodford v. Ngo, 548 U.S. 81, 92 (2006)(“In habeas, the sanction
for failing to exhaust properly (preclusion of review in federal court) is given the separate name of
procedural default . . . .”) (internal quotation marks omitted)). “[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). “Fair presentment
contemplates that both the operative facts and the controlling legal principles must be submitted
to the state court.” Malone v. Walls, 538 F.3d 744, 753 (7th Cir. 2008).
A habeas petitioner may overcome procedural default by demonstrating cause for the
default and actual prejudice or by showing that the Court's failure to consider the claim would
result in a fundamental miscarriage of justice. See House v. Bell, 547 U.S. 518, 536 (2006);
Coleman v. Thompson, 501 U.S. 722, 750 (1991). The Supreme Court defines cause sufficient to
excuse procedural default as “some objective factor external to the defense” which prevents a
petitioner from pursuing his constitutional claim in state court. See Murray v. Carrier, 477 U.S.
478, 492 (1986); Weddington v. Zatecky, 721 F.3d 456, 465 (7th Cir. 2013). Prejudice means actual
prejudice infecting the “entire trial with error of constitutional dimensions.” Murray, 477 U.S. at
494 (citation omitted). A fundamental miscarriage of justice occurs when a habeas petitioner
establishes that “a constitutional violation has probably resulted in the conviction of one who is
actually innocent.” Id. at 496.
If procedural hurdles are not a factor with respect to specific claims or are overcome, the
Antiterrorism Effective Death Penalty Act (“AEDPA”) provides that federal habeas relief may not
be granted with respect to a claim adjudicated on the merits in state court unless the adjudication
of the claim:

(1) resulted in a decision that was 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). This standard is both mandatory and difficult to meet. White v. Woodall, 134
S. Ct. 1697, 1702 (2014). Also, “under AEDPA, federal courts do not independently analyze the
petitioner’s claims; federal courts are limited to reviewing the relevant state court ruling on the
claims.” Rever v. Acevedo, 590 F.3d 533, 536 (7th Cir. 2010). As one court has explained, “[i]t is
this Court’s obligation to focus “on the state court decision that previously addressed the claims
rather than the petitioner’s freestanding claims themselves.” McLee v. Angelone, 967 F.Supp. 152,
156 (E.D.Va. 1997).
“Clearly established federal law” consists of the governing legal principles, rather than the
dicta, set forth in the decisions of the United States Supreme Court at the time the state court issued
its decision. Id.; Carey v. Musladin, 549 U.S. 70, 74 (2006) (citing Williams v. Taylor, 529 U.S.
362, 412 (2000)). A decision is “contrary to” clearly established federal law if the state court either:
(1) applied a rule that contradicts the governing law set forth by Supreme Court case law; or (2)
reached a different result from the Supreme Court when faced with materially indistinguishable
facts. Mitchell v. Esparza, 540 U.S. 12, 16 (2003). A state court decision involves an “unreasonable
application” of the Supreme Court's precedents if the state court correctly identifies the governing
legal principle, but applies it to the facts of the petitioner's case in an objectively unreasonable
manner, Brown v. Payton, 544 U.S. 133, 134 (2005), or “if the state court either unreasonably
extends a legal principle from our precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context where it should apply.” Williams,
529 U.S. at 407. The petitioner must show that the state court's ruling was “so lacking in

justification that there was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” White, 134 S. Ct. at 1702 (quoting Harrington v. Richter,
562 U.S. 86, 102 (2011)). A state court decision is only unreasonable when it “l[ies] well outside
the boundaries of permissible differences of opinion.” Hardaway v. Young, 302 F.3d 757, 762 (7th
Cir. 2002) (citation omitted). If a state court’s decision “was reasonable, it cannot be disturbed.”
Hardy v. Cross, 132 S. Ct. 490, 495 (2011) (per curiam).
Finally, a habeas court presumes the factual findings of the state court to be correct, unless
the petitioner can rebut this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1);
Etherly v. Davis, 619 F.3d 654, 660 (7th Cir. 2010). On this topic, therefore, deference is also paid
to the factual determinations of state courts. Coleman v. Hardy, 690 F.3d 811, 815 (7th Cir. 2012).
Under § 2254(d)(2), factual findings of the state courts are presumed to be correct subject only to
a review of the record which demonstrates that the factual finding(s) “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.” See Rice v. Collins, 546 U.S. 333, 338 (2006); Miller–El v. Cockrell, 537
U.S. 322, 340 (2003) (“a decision adjudicated on the merits in a state court and based on a factual
determination will not be overturned on factual grounds unless objectively unreasonable in light
of the evidence presented in the state-court proceeding”) (dictum). Moreover, habeas review is
“limited to the record that was before the state court.” Cullen v. Pinholster, 563 U.S. 170, 181
(2011).
The factual summary quoted above from Suding I and other factual findings by the Indiana
state courts are presumed correct. Suding has not rebutted that presumption. In addition, there is
no claim in this case that decisions of the Indiana state courts were contrary to clearly established
Federal law, as determined by the Supreme Court of the United States. In consequence, and

excepting for the claim which is not cognizable and the claims which are forfeited by Suding’s
unexcused procedural default, the burden is on Suding to show that the state court which convicted
him unreasonably applied a federal doctrine declared by the United States Supreme Court.”
Redmond v. Kingston, 240 F.3d 590 ((7th Cir. Cir. 2001) (citing 28 U.S.C. Section 2254(d)(1);
Williams v. Taylor, 529 U.S. 362 (2000); Morgan v. Krenke, 232 F.3d 562 ((7th Cir. Cir. 2000)).
C. Discussion
Non-cognizable Claim. Suding seeks federal habeas corpus relief based on the contention
that the trial court committed various errors in the post-conviction relief proceeding. This claim,
however, is not cognizable here. “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)). Habeas relief
cannot be predicated on alleged irregularities or errors in a state post-conviction relief proceeding.
Quince v. Crosby, 360 F.3d 1259, 1262 (11th Cir. 2004)(“[W]hile habeas relief is available to
address defects in a criminal defendant’s conviction and sentence, an alleged defect in a collateral
proceeding does not state a basis for habeas relief.”); see also 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).

Defaulted Claims. Two claims were presented to the Indiana Supreme Court in Suding’s
petition to transfer filed from Suding II. Claims asserted here but not included in the petition to
transfer to the Indiana Supreme Court were not raised “in one complete round of the State's
established appellate review process,” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999), and are
waived. Hough v. Anderson, 272 F.3d 878, 892-93 (7th Cir. 2001) (petitioner's failure to present
issue to Indiana Supreme Court constituted procedural default).
From these circumstances, it is apparent that Suding has committed procedural default with
respect to the habeas claims not included in his petition to transfer. His responsive argument that
certain broad language in his petition to transfer was sufficient to preserve habeas claims respect
to habeas claims 1(3), 1(4), 1(5), and 1(6) for review in this proceeding is unpersuasive because
Indiana does not permit litigants to present argument by incorporation in petitions to transfer. See
Lockridge v. State, 809 N.E.2d 843, 844 (Ind. 2004) (“In a Petition to Transfer, mere reference to
argument and/or authorities presented in brief to [the Court of Appeals], without an explanation of
the reasons why transfer should be granted, does not satisfy [Indiana Appellate] Rule
57(G)(requirements of a transfer petition).”). He has not shown cause for and prejudice from this
default, and the strong evidence of his guilt negates his effort to overcome his procedural default
by showing that the failure of this Court to reach the merits of his defaulted claims would result in
a fundamental miscarriage of justice. The fundamental miscarriage of justice exception applies in
“situations where the constitutional violation has probably resulted in a conviction of one who is
actually innocent.” Dellinger v. Bowen, 301 F.3d 758, 767 (7th Cir. 2002) (citing Schlup v. Delo,
513 U.S. 298, 327 (1995)). To show actual innocence, a petitioner must present “new, reliable
evidence of his innocence” so convincing that “‘in light of the new evidence, no juror, acting
reasonably, would have voted to find him guilty beyond a reasonable doubt.’” Woods v. Schwartz,

589 F.3d 368, 377 (7th Cir. 2009) (quoting Schlup, 513 U.S. at 329); see Gomez v. Jaimet, 350
F.3d 673, 679 (7th Cir. 2003) (“To support a colorable claim of actual innocence, the petitioner
must come forward with new reliable evidence—whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.”)
(internal quotation marks omitted).
Apart from his default, and even if Suding could establish circumstances justifying the
Court reaching the merits of these claims, the Indiana Court of Appeals’ resolution of these claims
was entirely reasonable under Strickland v. Washington, 466 U.S. 668, 684 (1984), and Brady v.
Maryland, 373 U.S. 83, 87 (1963).
Spousal Privilege Claim. Suding seeks a writ of habeas corpus based on his claim that his
attorney at trial should have prevented his wife Renee from testifying. This claim was rejected on
the merits in Suding II and was included in Suding’s petition to transfer.
The Indiana Court of Appeals recognized the controlling Supreme Court authority of
Strickland. Suding II, at *8. “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.’” Hinton v. Alabama, 134 S. Ct. 1081, 1087-88 (2014)(parallel citations
omitted)(quoting Padilla v. Kentucky, 559 U.S. 356, 366 (2010) (quoting Strickland, supra, at 688,
694)). The Indiana Court of Appeals then assessed the specifics of this claim:
As Suding observes, Indiana law provides for the assertion of a marital privilege.
Husbands and wives “shall not be required to testify . . . as to communications made
to each other.” Ind.Code § 34–46–3–1(4). The privilege protects against compelled
testimony, but does not bar the spouse from testifying if the spouse chooses to do
so. Glover v. State, 836 N.E.2d 414, 422 (Ind. 2005). Renee waived the marital
privilege and testified against Suding. Despite Suding's wishes to the contrary,
Suding's trial attorney could not prevent Renee's testimony by pointing out that she
was Suding's wife on the date of communication.

Suding II, at *11.
The adverse spousal testimonial privilege may be available in criminal cases when a
spouse’s testimony would be adverse to the non-testifying party spouse. The justification for the
privilege is that it protects marital harmony, which is a good not only for the husband, wife, and
children, but for society as well. Hawkins v. United States, 358 U.S. 74, 77 (1958). It used to be
that the privilege could be invoked by either spouse, so that the non-testifying spouse could block
the voluntary testimony of the other. Id. at 78–79. In Wyatt v. United States, 362 U.S. 525 (1960),
the Supreme Court announced an exception to the privilege for cases in which one spouse has
committed a crime against the other. Now, the victim spouse cannot be prevented from testifying,
and can even be compelled. Id. at 527–30. The Supreme Court further limited the privilege in
Trammel v. United States, 445 U.S. 40 (1980), so that now only the testifying spouse can invoke
the privilege. Id. at 53.
Put in the terminology of Strickland, therefore, Suding’s attorney did not perform
deficiently in failing to prevent Renee's testimony because Indiana law “protects against compelled
testimony, but does not bar the spouse from testifying if the spouse chooses to do so.” Suding, at
*11. An effort, or a stronger effort, for Renee’s testimony to be excluded based on Suding’s
assertion of his marital privilege would have failed. Suding’s ineffective assistance of counsel
based on this specification therefore also fails because "[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).
“Under AEDPA, if the state-court decision was reasonable, it cannot be disturbed.” Hardy
v. Cross, 132 S. Ct. 490, 495 (2011) (per curiam). Because the Indiana Court of Appeals’ treatment
of Suding’s specification of ineffective assistance of counsel at trial relating to the non-assertion

of Suding’s spousal testimonial privilege was reasonable, Suding is not entitled to habeas relief as
to this claim.
D. Conclusion
After a defendant has been convicted and exhausted his appeal rights, a court may presume
that “he stands fairly and finally convicted.” United States v. Frady, 456 U.S. 152, 164 (1982).
This Court has carefully reviewed the state record in light of Suding’s claims and has given such
consideration to those claims as the limited scope of its review in a habeas corpus proceeding
permits. One claim is not cognizable here. Several are unreviewable here because of unexcused
procedural default. The other claim is completely lacking in merit. These claims do not warrant
relief in light of the deferential standard required by the AEDPA. Harrington v. Richter, 562 U.S.
86, 101 (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)); Stern v. Meisner, 812
F.3d 606, 610 (7th Cir. 2016)(“In other words, [the habeas petitioner] must show a complete
absence of reasonableness in the [state] appellate court's decision.”)(citing Harrington, 562 U.S.
at 98).
Suding’s petition for a writ of habeas is therefore denied. Judgment consistent with this
Entry shall now issue.
II. Certificate of Appealability
Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, the Court finds that
Suding 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
declines to issue a certificate of appealability.
IT IS SO ORDERED.
Date: 12/28/16

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

Distribution:
Henry A. Flores, Jr.
INDIANA ATTORNEY GENERAL
[e-mail]
NICHOLAS SUDING
206734
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