DAUGHERTY v. SUPERINTENDENT

Filing 32

ENTRY DENYING PETITION FOR WRIT OF HABEAS CORPUS - This Court has carefully reviewed the state record in light of Mr. Daugherty's claims and has given such consideration to those claims as the limited scope of its review in a habeas corpus proceeding permits. Having applied the appropriate standard of review, and having considered the pleadings and the record, Mr. Daugherty's petition for writ of habeas corpus must be denied. Judgment consistent with this Entry shall now issue. The Court therefore denies a certificate of appealability (SEE ENTRY FOR ADDITIONAL INFORMATION). Signed by Judge William T. Lawrence on 2/8/2018. (DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
JENNINGS DAUGHERTY,

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)
Petitioner,
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v.
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SUPERINTENDENT Wabash Valley Correctional )
Facility,
)
)
Respondent.
)

No. 2:16-cv-00309-WTL-MPB

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Jennings Daugherty is serving a 30-year sentence for his 2010 Wayne County,
Indiana convictions for intimidation, operating a vehicle while intoxicated, and two counts of
possession of a firearm by a serious violent felon. He brings this petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. For the reasons that follow, Mr. Daugherty’s petition for a
writ of habeas corpus is denied and the action dismissed with prejudice. In addition, the Court
finds that a certificate of appealability should not issue.
I. Factual and Procedural Background
On April 19, 2010, after a bench trial, a state trial court found Mr. Daugherty guilty of
carrying a handgun without a license, intimidation, operating a vehicle while intoxicated, and two
counts of possession of a firearm by a serious violent felon (“SVF”). On July 20, 2010, the State
requested permission to amend its habitual offender allegation by replacing two of Mr.
Daugherty’s alleged felony convictions with different felony convictions because the State
subsequently learned that the two alleged felony convictions had previously been reversed by the
Indiana Supreme Court. The trial court granted the State’s request. Mr. Daugherty subsequently
admitted to being a habitual offender. At sentencing, the State moved to set aside the Class C

felony of carrying a handgun without a license conviction out of concerns of double jeopardy. On
September 13, 2010, the trial court imposed a three-year sentence for the intimidation conviction
that was to run concurrently to a one-and-one-half-year sentence for the operating a vehicle while
intoxicated conviction, but consecutively to the two consecutive fifteen-year sentences for each of
the SVF convictions. The trial court enhanced Mr. Daugherty’s sentence by an additional twenty
years as a result of his status as a habitual offender, for an aggregate fifty-three-year sentence.
Mr. Daugherty filed an appeal raising four grounds: (1) multiple SVF convictions violated
double jeopardy; (2) his sentence was inappropriate; 3) the trial court erred by allowing the State
to amend the habitual offender counts; and 4) the trial court erred by denying his motion to
suppress. On May 9, 2011, the Indiana Court of Appeals affirmed Mr. Daugherty’s conviction
and sentence. Mr. Daugherty sought further review by the Indiana Supreme Court on the double
jeopardy grounds. The Indiana Supreme Court denied transfer on October 26, 2011.
On October 29, 2012, Mr. Daugherty filed a pro se petition for state post-conviction relief.
Mr. Daugherty was appointed counsel, who filed an amended petition for state post-conviction
relief. Prior to the hearing, the parties agreed to vacate Mr. Daugherty’s habitual offender finding
and resulting enhanced sentence. The trial court reduced Mr. Daugherty’s aggregate sentence to
33 years. Following the hearing, the trial court denied Mr. Daugherty’s petition on September 3,
2015.
Mr. Daugherty filed an appeal on the grounds that his appellate counsel was ineffective for
failing to raise two issues: (1) whether his consecutive sentences for his two SVF convictions
constituted an impermissible double enhancement; and (2) whether his aggregate sentence
exceeded the statutory limitation for consecutive sentences arising out of a single episode of
criminal conduct. The Indiana Court of Appeals denied the first claim finding that consecutive

sentences for multiple counts of SVF were not impermissible double enhancements, but granted
his second claim finding that his crimes were all from a single episode of criminal conduct, and
therefore his sentence could not exceed the advisory sentence for a felony which is one class of
felony higher than the most serious of the felonies for which he was convicted – thirty years.
Because his counsel failed to raise the second ground on direct appeal, the court concluded his
counsel was ineffective as to the second ground. However, the court concluded his counsel was
not ineffective as to the first ground as he could not have been granted relief even if his counsel
had raised an impermissible double enhancement argument. The Indiana Court of Appeals
remanded the case to the trial court to order a sentence that did not exceed thirty years. Mr.
Daugherty sought review from the Indiana Supreme Court, but that court denied transfer on June
23, 2016. Mr. Daugherty was resentenced to thirty years by the trial court on September 20, 2016.
On August 2, 2016, Mr. Daugherty filed this petition for a writ of habeas corpus.
II. 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).
Mr. Daugherty’s petition is governed by the provisions of the Anti-Terrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 336 (1997).
The Supreme Court has described AEDPA as “a formidable barrier to federal habeas relief
for prisoners whose claims have been adjudicated in state court” and has emphasized that courts
must not “lightly conclude that a State’s criminal justice system has experienced the ‘extreme
malfunction’ for which federal habeas relief is the remedy.” Burt v. Titlow, 134 S. Ct. 10, 16 (2013)
(quoting Harrington v. Richter, 562 U.S. 86 (2011)); see also Renico v. Lett, 559 U.S. 766, 773
(2010) (“AEDPA . . . imposes a highly deferential standard for evaluating state-court rulings, and

demands that state court decisions be given the benefit of the doubt.”) (internal quotation marks,
citations, and footnote omitted).
Where a claim has been adjudicated on the merits in state court, habeas relief is available
under the deferential AEDPA standard only if the state court’s determination 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) “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); see Cullen
v. Pinholster, 563 U.S. 170, 181 (2011).

Thus, “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). “A statecourt decision involves an unreasonable application of this Court’s clearly established precedents
if the state court applies this Court’s precedents to the facts in an objectively unreasonable
manner.” Brown v. Payton, 544 U.S. 131, 141 (2005) (internal citations omitted). “Under
§ 2254(d)(2), a decision involves an unreasonable determination of the facts if it rests upon factfinding 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)). “The habeas
applicant has the burden of proof to show that the application of federal law was unreasonable.”
Harding v. Sternes, 380 F.3d 1034, 1043 (7th Cir. 2004) (citing Woodford v. Visciotti, 537 U.S.
19, 25 (2002)).
Furthermore, “[a] federal habeas court will not review a claim rejected by a state court if
the decision of [the state] court rests on a state law ground that is independent of the federal
question and adequate to support the judgment.” Walker v. Martin, 562 U.S. 307, 315 (2011)
(citation and internal quotation marks omitted). This doctrine is premised on the rule that federal

courts have “no power to review a state law determination that is sufficient to support the
judgment.” Coleman v. Thompson, 501 U.S. 722, 729 (1991). The state-law ground precluding
review by a federal habeas court “may be a substantive rule dispositive of the case, or a procedural
barrier to adjudication of the claim on the merits.” Walker, 562 U.S. at 315. Therefore, “[e]rrors
of state law in and of themselves are not cognizable on habeas review.” Samuel v. Frank, 525 F.3d
566, 574 (7th Cir. 2008) (citation and quotation marks omitted).
III. Discussion
Mr. Daugherty asserts that (1) his appellate counsel was ineffective by failing to argue that
his consecutive sentences for his SVF convictions constituted an impermissible double
enhancement; and (2) the Indiana Court of Appeals was unreasonable when it correctly identified
the merits of Mr. Daugherty’s issue but improperly applied the governing legal rule for
progressive-penalty convictions. Dkt. No. 13. Respondent argues that Mr. Daugherty’s claims
are not cognizable as his challenges are based on Indiana state law.
His first ground of ineffective counsel was previously raised in his petition for postconviction review. On April 5, 2016, the Indiana Court of Appeals held as follows:
Because Daugherty’s single underlying felony conviction served as an element in
each SVF count, not as an enhancement, and because each SVF count was a
separate and distinct offense, we conclude that the imposition of two sentences for
two counts of unlawful possession of a firearm by an SVF to run consecutively was
not an improper double enhancement under Indiana law and the circumstances of
this case. Further, there was no reasonable probability that the result of the
proceeding would have been any different even if appellate counsel would have
made the claim. As such, we cannot conclude that Daugherty’s appellate counsel
was ineffective for failing to raise the double enhancement claim.
Daugherty v. State, 52 N.E.3d 885, 892 (Ind. Ct. App. 2016)

Strickland v. Washington, 466 U.S. 668, 684 (1984), supplies 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 Strickland standard. Daugherty, 52 N.E.3d
at 890. It wrote that:
there was no reasonable probability that the result of the proceeding would have
been any different even if appellate counsel would have made the claim. As such,
we cannot conclude that Daugherty’s appellate counsel was ineffective for failing
to raise the double enhancement claim.
Daugherty, 52 N.E.3d at 892.
This assessment—resting on the prejudice prong of a claim of ineffective assistance of
counsel—is compatible with the federal Strickland standard. And because of this reasonable
application of the controlling federal standard, “[u]nder AEDPA . . . it cannot be disturbed.” Hardy

v. Cross, 132 S. Ct. 490, 495 (2011). Accordingly, Mr. Daugherty is not entitled to habeas relief
on this ground.
As to his second ground, the Indiana Court of Appeals’ ruling on double enhancement
which was based solely on Indiana state criminal laws does not support a cognizable claim under
28 U.S.C. § 2254(a). See Samuel, 424 F.3d at 574. Because Mr. Daugherty fails to identify any
unreasonable application of clearly established federal law and his argument is based solely on an
alleged violation of Indiana law, he is not entitled to habeas corpus relief on this ground.
IV. Conclusion
This Court has carefully reviewed the state record in light of Mr. Daugherty’s claims and
has given such consideration to those claims as the limited scope of its review in a habeas corpus
proceeding permits.
Having applied the appropriate standard of review, and having considered the pleadings
and the record, Mr. Daugherty’s petition for writ of habeas corpus must be denied.
Judgment consistent with this Entry shall now issue.
V. 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 the petitioner 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
denies a certificate of appealability.

IT IS SO ORDERED.
Date:

2/8/18

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

Distribution:
JENNINGS DAUGHERTY
961303
WABASH VALLEY - CF
WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels
Electronic Service Participant – Court Only
Kelly A. Loy
OFFICE OF THE INDIANA ATTORNEY GENERAL
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