HEFFERN v. STATE OF INDIANA
Filing
35
Order Denying Petition for Writ of Habeas Corpus And Denying a Certificate of Appealability - Petitioner Michael P. Heffern is serving a 75-year sentence for his 2010 Jay County, Indiana convictions for murder and robbery. He brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This Court has carefully reviewed the state record in light of Mr. Heffern'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. Heffern'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 Order.) Signed by Judge William T. Lawrence on 10/3/2018. (DMW)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
MICHAEL P. HEFFERN,
Petitioner,
v.
STATE OF INDIANA,
DICK BROWN,
Respondents.
)
)
)
)
)
)
)
)
)
)
No. 2:17-cv-00410-WTL-DLP
Order Denying Petition for Writ of Habeas Corpus
And Denying a Certificate of Appealability
Petitioner Michael P. Heffern is serving a 75-year sentence for his 2010 Jay County,
Indiana convictions for murder and robbery. He brings this petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. For the reasons that follow, Mr. Heffern’s petition for a writ of
habeas corpus is denied and the action is dismissed with prejudice. In addition, the Court finds
that a certificate of appealability should not issue.
I.
Factual and Procedural Background
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). On direct appeal, the Indiana Court of
Appeals summarized the relevant facts:
In September 2008, Heffern was staying at the home of Joseph Randall, who lived
at 117 South Munson Avenue in Portland. On the evening of September 7, Heffern,
Addison Pijnapples, her husband Tom Smith, and Rod Berry were at the home of
Tina Whiting, a neighbor of Randall. The group snorted crushed Valium and then
drove to Ohio, where Berry purchased one or two thirty-packs of beer. After having
dinner with his girlfriend, Randall went to Whiting’s home to watch a football game
on television. Randall’s young daughter, Heffern, Pijnapples, her husband Tom
Smith, and Rod Berry were also there. At some point, while Randall was watching
television, Heffern and Whiting were talking in the kitchen. Whiting told Heffern
“about a guy that she was having problems with,” and Heffern “asked her if she
wanted him to beat him up for her, get him to leave him [sic] alone or leave her
alone.” Transcript at 30. Whiting told Heffern that if he beat up the guy “he might
have some pills [Heffern] could take from him.” Id. Randall then left the apartment
with his child.
Heffern told Pijnapples, Smith, and Berry that Shawn Buckner had raped Whiting.
Heffern also talked to them about “going to get Shawn so he could beat his ass.”
Id. at 268. The group continued to ingest Valium pills, drank beer, and discussed a
plan to beat up Buckner and take prescription pills from him. Specifically, Whiting
and Pijnapples were to offer to have a joint sexual encounter with Buckner in order
to lure him to Whiting’s apartment. The three men were to wait in hiding in the
apartment and, when Buckner arrived, Heffern wanted to “initiate the action”
against Buckner because he wanted to “beat up Shawn.” Id. at 275.
Whiting and Pijnapples left to find Buckner. About the same time, Berry moved his
car from in front of Whiting’s home so that Buckner would not know that anyone
else was there. Whiting and Pijnapples found Buckner at his uncle’s home, helping
his uncle clean copper for resale. Buckner said he was busy and asked them to come
back in twenty minutes. When the women returned thirty minutes later, Buckner
washed his hands and told his uncle that the women had asked if Buckner wanted
to “have a threesome.” Transcript at 42. Buckner borrowed twenty dollars from his
uncle and left with Whiting and Pijnapples.
Whiting, Pijnapples, and Buckner arrived at Whiting’s home, where Heffern,
Smith, and Berry were hiding in a back room. When Whiting gave a previously
agreed upon code word, the men came out of hiding, and Heffern began punching
Buckner. Buckner tried to escape, but Berry grabbed him and began hitting Buckner
as well. At one point Smith pushed Buckner to the kitchen floor. Heffern, Berry,
and Smith kicked and punched Buckner’s head and body numerous times while he
was on the floor. During the assault, Buckner moaned. The men then removed
Buckner’s clothing and took twenty dollars they had found in his sock. Smith gave
the money to Pijnapples and told her to buy more beer. Smith threatened to cut off
Buckner’s penis, but Heffern would not allow it.
The men wrapped Buckner in blankets and carried him to Berry’s Jeep. The men
then left the apartment in the Jeep, with Berry driving, Heffern and Smith as
passengers, and Buckner moaning loudly in the back. Smith called Buckner a child
molester. In the rear view mirror, Berry saw Heffern reach back and punch Buckner
rapidly at least ten times. Buckner stopped moaning. At some point Berry stopped
the Jeep on a secluded road near a cornfield. After Heffern and Smith opened the
Jeep’s back hatch and removed Buckner, Berry drove down the road to find a place
to turn the vehicle around. When he returned to the site where the others had exited
the vehicle, Berry saw no one beside the road. He stopped the Jeep and waited, but
when no one appeared, he exited the vehicle.
2
Berry walked into the cornfield, looking for Heffern and Smith. Eventually he saw
two silhouettes, Heffern and Smith. Buckner was lying on the ground nearby. Smith
handed Berry a knife, told Berry he had stabbed Buckner, and instructed Berry to
do the same. Buckner was not making any noise, and Berry believed him to be dead.
Berry stabbed Buckner in the lower side twice. Berry left the knife on Buckner’s
chest and walked back to the Jeep. Smith and Heffern followed a minute later. As
Berry drove, he began to worry that leaving the knife at the scene could implicate
him, but Smith said he had the knife and showed Berry that it was sticking out of
his pocket.
When the men arrived at Whiting’s home, Whiting and Pijnapples were not yet
there. Although it appeared that the home had been cleaned some since the struggle,
the men worked to clean the scene of any evidence of Buckner’s beating and
gathered anything with blood on it. When Whiting and Pijnapples arrived, all five
took off any item of clothing that could have come into contact with Buckner. They
placed the clothing and items from the house tainted by the struggle into a trash
bag. When Smith and Berry later left, Heffern was burning something, not food, on
the grill.
Taking the trash bag with them, Berry and Smith drove to a gas station where Smith
bought gas for Berry’s Jeep. Berry and Smith threw the knife over a bridge. They
then drove to the country and burned the trash bag and its contents in a cornfield.
From Whiting’s home, Heffern went to see Sierra Ferrara, the mother of his
children. When she saw scrapes on his knuckles, he said that he had been in a fight
on the way to her house. Some days later, Heffern called Ferrara and told her that,
if police questioned her, she should say that Heffern had spent the night with her
on September 7.
Two or three days after the murder, Berry, Smith, and Pijnapples used Berry’s Jeep
to move Buckner’s body from the cornfield. They buried the body behind a barn
belonging to a friend. Berry had told the friend that they were burying a dog. A
missing persons report was filed regarding Buckner, and police officers found the
burial site on or around September 10.
On September 11, the State charged Heffern with murder, a felony, and robbery
resulting in bodily injury, as a Class B felony. The robbery charge alleged in part
that Heffern had knowingly taken property, money, from Buckner “by using force,
to-wit: by punching, kicking, and choking; said act resulting in bodily injury to
Shawn M. Buckner, to-wit: lacerations and bruising ….” Appellant’s App. at 14.
On October 14, 2009, the State moved to amend the robbery count to charge
robbery resulting in serious bodily injury, a Class A felony. Heffern filed a motion
to strike the amendment. Following a hearing, the trial court denied that motion.
On December 10, 2009, the State filed a second amendment to the robbery charge
(“Second Amendment”). The Second Amendment alleged that Heffern had
3
knowingly taken property from Buckner “by using force, while armed with a deadly
weapon, to-wit: a knife ….” Id. at 113. And on January 21, 2010, the State amended
the information by adding count 3, which alleged that Heffern had committed
felony murder. Heffern filed a motion to strike the amendment adding count 3.
After a hearing, the trial court denied that motion.
On June 4, 2010, Heffern filed a motion objecting to the admission of portions of
the transcript of police interrogations and videotapes of those interrogations. The
jury trial commenced on June 14, at which time the trial court overruled Heffern’s
objection but agreed to give a “limiting instruction and admonishment[.]”
Transcript at 5. The trial proceeded through June 17. Following deliberations, the
jury returned a verdict finding Heffern guilty on all three counts. The court entered
judgment on the verdict as to murder and robbery and sentenced Heffern to an
aggregate term of seventy-five years.
Heffern v. State, 2011 WL 1565999, at *1-3 (Ind. Ct. App. Apr. 26, 2011) (footnotes omitted),
trans. denied.; Dkt. No. 14-5 at 2-7 (Slip Opinion).
Mr. Heffern appealed, raising four issues: (1) that the amendment to the robbery charging
information violated Indiana law and his right to due process; (2) that the trial court should have
given a limiting instruction about the police officers’ statements during the recorded interview
under the Indiana Rules of Evidence; (3) that the evidence was insufficient to convict him of
murder and robbery; and (4) that his convictions for murder and robbery violated federal and state
double jeopardy. Dkt. No. 14-5 at 2. On April 26, 2011, the Indiana Court of Appeals affirmed
the conviction and sentence. Heffern, 2011 WL 1565999, at *11. The Indiana Court of Appeals
held that: (1) Mr. Heffern waived his argument about the charging information by failing to object
at trial and, in any case, he failed to show fundamental error; (2) Mr. Heffern waived his argument
about the jury instruction, but that, in any case, the Indiana Rules of Evidence did not require the
trial court to provide that limiting instruction to the jury; (3) there was sufficient evidence to
support his convictions; and (4) Mr. Heffern waived his federal double jeopardy argument and
there was no violation of Indiana double jeopardy. Id. at *4-11. On June 29, 2011, the Indiana
Supreme Court denied transfer.
4
On October 3, 2011, Mr. Heffern filed his petition for post-conviction relief. He filed an
amended petition on December 15, 2014. The trial court conducted a post-conviction evidentiary
hearing on June 23, 2015. On August 9, 2015, the post-conviction court denied his petition.
Mr. Heffern appealed, arguing that his appellate counsel was ineffective for not challenging
a sentencing aggravating circumstance. On July 22, 2016, the Indiana Court of Appeals affirmed
the denial of post-conviction relief. Heffern v. State, 2016 WL 3960031 (Ind. Ct. App. July 22,
2016). Mr. Heffern sought review from the Indiana Supreme Court, but that court denied transfer
on October 20, 2016.
On September 25, 2017, Mr. Heffern 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. Heffern’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, 571 U.S. 12, 19-20
(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).
5
Under AEDPA, the Court reviews the last state court decision to address the merits of a
prisoner’s claim. See Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). 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 state-court 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 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)). “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)).
III.
Discussion
Mr. Heffern raises four grounds in his amended petition: (1) the trial court violated his due
process rights by allowing the state to amend the charging information after the omnibus date;
(2) the trial court erred by not giving a limiting instruction regarding the officers’ statements;
6
(3) the evidence was insufficient to support his convictions; and (4) the entry of judgment and
conviction for both murder and armed robbery violated double jeopardy. Dkt. No. 7.
The respondent argues that: (1) ground one is procedurally defaulted, partly not cognizable,
and meritless; (2) ground two is not cognizable and procedurally defaulted; (3) ground three is
meritless; and (4) ground four is partly not cognizable and partly procedurally defaulted and
meritless. Dkt. No. 14.
Mr. Heffern did not a file a reply, and the time to do so has passed.
A.
Ground One: Amending the Charging Information
Ground one asserts that the trial court violated Mr. Heffern’s due process rights by allowing
the state to amend the charging information after the omnibus date. In his petition, Mr. Heffern
alleges that this ground is based on a violation of his due process rights pursuant to the Fifth and
Fourteenth Amendments of the U.S. Constitution and the Art. 1, § 12 of the Indiana Constitution.
On this issue, the Indiana Court of Appeals held:
Heffern contends that the trial court erred when it permitted the State to
amend the robbery charge pursuant to the Second Amendment. The State counters
that Heffern waived his challenge to the Second Amendment because he did not
object to the same at trial. We must agree with the State. The failure to object to the
amendment of a charging information at trial results in waiver of the issue on
appeal. See Fowler v. State, 878 N.E.2d 889, 892 (Ind. 2008) (holding that
defendant had preserved for appeal his challenge to amendment of charge by timely
objecting in the trial court). Heffern has waived his challenge to the Second
Amendment.
Heffern seeks to avoid waiver by invoking the fundamental error doctrine.
…The thrust of Heffern’s complaint is that he had only six months to prepare his
defense based on the amended charge. But Heffern has not shown or even discussed
why having six months to adjust his defense resulted in “an undeniable and
substantial potential for harm.” Cooper, 854 N.E.2d at 835. Thus, Heffern has not
demonstrated that the trial court fundamentally erred when it allowed the State to
prosecute him based on the charge in the Second Amendment.
Heffern, 2011 WL 1565999, at *3-4 (footnote omitted).
7
“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).
The decision by the state court here rests on state law grounds that are independent of any
federal question and are adequate to support the judgment. Habeas relief is not available on this
ground for this reason.
However, Mr. Heffern alleges in his amended petition that the state courts violated his due
process rights pursuant to the Fifth and Fourteenth Amendments of the U.S. Constitution. See Dkt.
No. 7 at 5. In state court, Mr. Heffern relied solely upon Indiana law regarding the amendment of
the charging information. See Dkt. No. 14-3 at 19-23 (brief to Indiana Court of Appeals); Dkt.
No. 14-6 at 4-6(petition to transfer). At no time did he assert a federal due process violation,
except a passing cite to the U.S. Constitution as part of a string cite:
The doctrine of fundamental error is only available in egregious circumstances.
Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003). Such error must be so
prejudicial to the rights of the defendant as to make a fair trial impossible and must
constitute a blatant violation of basic principles, the harm or potential for harm must
be substantial, and the resulting error must deny the defendant fundamental due
process. Benson v. State, 762 N.E.2d 748, 755 (Ind. 2002). Due process requires
that a criminal defendant be given notice of the crime or crimes with which he is
charged so that he can prepare his defense; absent sufficient notice that a particular
8
offense is charged, a defendant cannot be convicted of that crime. Lewis v. State,
413 N.E.2d 1069, 1071 (Ind. Ct. App. 1980); Ind. Const. Art. I, §13, U.S. Const.
Amends. 5, 14.
Dkt. No. 14-6 at 5-6 (footnote omitted and emphasis added); see also Dkt. No. 14-3 at 16. Rather,
Mr. Heffern’s arguments focused on Indiana state law precedent and IC § 35-34-1-5. Given the
facts of the case and Mr. Heffern’s argument, it is unlikely that the state courts would have been
alerted to a federal constitutional issue. “[F]ederal courts will not review a habeas petition unless
the prisoner has fairly presented his claims throughout at least one complete round of state-court
review.” Johnson v. Foster, 786 F.3d 501, 504 (7th Cir. 2015) (citations and quotation marks
omitted); see also Baldwin v. Reese, 541 U.S. 27, 29 (2004) (“the prisoner must ‘fairly present’
his claim in each appropriate state court …, thereby alerting that court to the federal nature of the
claim”) (internal citations omitted). “Fair presentment, however, does not require a hypertechnical
congruence between the claims made in the federal and state courts; it merely requires that the
factual and legal substance remain the same.” Anderson v. Benik, 471 F.3d 811, 814-15 (7th Cir.
2006); see also Picard v. Connor, 404 U.S. 270, 277-78 (1971) (“[W]e do not imply that
respondent could have raised the equal protection claim only by citing ‘book and verse on the
federal constitution.’ We simply hold that the substance of a federal habeas corpus claim must first
be presented to the state courts.”) (citations omitted). “If the facts presented do not evoke a familiar
constitutional constraint, there is no reason to believe the state courts had a fair opportunity to
consider the federal claim.” Anderson, 471 F.3d at 815. Thus, Mr. Heffern’s federal claims, to
the extent there are any, are procedurally defaulted.
Mr. Heffern could overcome procedural default if he either demonstrates cause for his
default and prejudice resulting therefrom, or that a miscarriage of justice will result. Perruquet v.
Briley, 390 F.3d 505, 514 (7th Cir. 2004) (internal citations omitted). Establishing cause ordinarily
9
requires demonstrating an external obstacle preventing the petitioner from fairly presenting the
federal claim in state court, and actual prejudice, not merely a possibility of prejudice, is required.
Id. at 514-15. The miscarriage-of-justice-exception applies when the petitioner can demonstrate
that he is actually innocent. Id. at 515. Mr. Heffern has procedurally defaulted, and has not alleged
that he meets the requirements for these exceptions.
Accordingly, Mr. Heffern is not entitled to habeas relief on this ground.
B.
Ground Two: Jury Instructions
Ground Two asserts that the trial court erred by not giving a limiting instruction about the
police officers’ statements during a recorded interview under the Indiana Rules of Evidence. On
this issue, the Indiana Court of Appeals held:
Heffern next contends that the trial court abused its discretion when it did
not give preliminary or final limiting instructions to the jury regarding certain
evidence admitted over his objection. Our standard of review of a trial court’s
findings as to the admissibility of evidence is an abuse of discretion. Roush v. State,
875 N.E.2d 801, 808 (Ind. Ct. App. 2008). An abuse of discretion occurs if a trial
court’s decision is clearly against the logic and effect of the facts and circumstances
before the court. Id.
Heffern argues that the trial court abused its discretion in admitting the
video recording and corresponding transcript of Heffern’s September 12
interrogation by police. Specifically, Heffern contends that those exhibits contain
statements by police officers “who commented on guilt or innocence of Mr.
Heffern, credibility of witnesses, and other matters prohibited by [Evidence Rule]
704(b).” Appellant’s Brief at 12. Heffern is correct about the admissibility of the
officer’s statements. See Washington v. State, 808 N.E.2d 617, 624–25 (Ind. 2004)
(“although a trial court has no affirmative duty to consider giving an admonishment
in the absence of a party’s request, it is error to admit statements by an interrogating
officer without any limiting instruction or admonishment.”). On appeal he argues
that the trial court should have given a preliminary or final limiting instruction in
addition to the admonition. We cannot agree.
In support of his argument, Heffern relies in part on Evidence Rule 105.
That rule provides: “When evidence which is admissible as to one party or for one
purpose but not admissible as to another party or for another purpose is admitted,
the court, upon request, shall restrict the evidence to its proper scope and admonish
the jury accordingly.” Evid. R. 105. Our supreme court discussed the meaning of
this rule:
10
The Indiana version of Rule 105 is apparently the only in the nation to use
the term “admonish” rather than “instruct.” Cf., e.g., Fed. R. Evid. 105.
Judge Miller has opined that the distinction is intended to enable a party to
request a limiting admonition at the time the evidence is offered, rather than
waiting until the jury instructions. 12 R. Miller, Indiana Practice § 105.104
at 109–10 (2d. ed.1995). Thus, a limiting admonition under Rule 105
(usually during trial) is to be distinguished from a limiting instruction
(usually after evidence has been presented). Id., see also Ind. Crim. Rule 8;
Ind. Trial Rule 51(C) (outlining requirements for preserving challenge to a
jury instruction).
Humphrey v. State, 680 N.E.2d 836, 839 n. 7 (Ind.1997). See also Martin v. State,
736 N.E.2d 1213, 1218 n. 8 (Ind.2000). “Rule 105 does not preclude trial courts
from giving a limiting admonition or instruction sua sponte as a matter of
discretion,[ ] but by its plain terms imposes no affirmative duty to do so.”
Humphrey, 680 N.E.2d at 839.
…
Heffern contends that the trial court committed reversible error when it
failed to give a limiting preliminary or final instruction regarding Exhibits 87 and
88. But where “the claimed error is failure to give an instruction, ‘a tendered
instruction is necessary to preserve error because, without the substance of an
instruction upon which to rule, the trial court has not been given a reasonable
opportunity to consider and implement the request.’” Fry v. State, 748 N.E.2d 369,
373 (Ind. 2001) (quoting Scisney v. State, 701 N.E.2d 847, 848 n. 3 (Ind. 1998)).
Because Heffern did not tender a proposed limiting instruction regarding the
statements by law enforcement in Exhibits 87 and 88, he has waived any claim of
error by failing to give an instruction on that subject. See id.
Further, again, Rule 105 imposes no affirmative duty on the court to instruct
the jury on that issue. Humphrey, 680 N.E.2d at 839. In any event, at the time the
exhibits were offered, the trial court admonished the jury that law enforcement
officers investigating a crime may make false statements in order to obtain
information; statements made by law enforcement officers or attributed to third
parties by law enforcement officers could not be considered; and only Heffern’s
statements in the exhibits could be considered as evidence. That admonishment
adequately addressed the basis of Heffern’s objection and instructed the jury
accordingly on what it could consider as evidence. Heffern has not shown that he
was prejudiced by the trial court’s admonishing the jury without also giving a
similar preliminary or final instruction.
…
11
Heffern has not shown that the trial court was required to have given a preliminary
or final limiting instruction regarding the statements made by police in Exhibits 87
and 88.
Heffern, 2011 WL 1565999, at *4-7 (footnote omitted).
The decision by the state court rests on a state law ground that is independent of any federal
question and is adequate to support the judgment. Because Mr. Heffern 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.
C.
Ground Three: Insufficient Evidence
Ground three asserts that there was insufficient evidence to convict Mr. Heffern of both
murder and armed robbery.
In Jackson v. Virginia, 443 U.S. 307, 319 (1979), the Supreme Court sets forth the clearly
established federal law governing a challenge to the sufficiency of the evidence. Under Jackson,
the relevant inquiry is whether “after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.” Id. The Supreme Court has explained that claims under Jackson “face a high
bar in federal habeas proceedings because they are subject to two layers of judicial deference.”
Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curium). First, on direct appeal, “[a] reviewing
court may set aside the jury’s verdict on the ground of insufficient evidence only if no rational trier
of fact could have agreed with the jury.” Id. (quoting Cavazos v. Smith, 565 U.S. 1, 2 (2011))
(internal quotations omitted). “And second, on habeas review, ‘a federal court may not overturn
a state court decision rejecting a sufficiency of the evidence challenge simply because the federal
court disagrees with the state court. The federal court instead may do so only if the state court
12
decision was ‘objectively unreasonable.’’” Id. (quoting Cavazos, 565 U.S. at 2) (internal quotation
omitted).
Without citing to Jackson, the Indiana Court of Appeals recited the Jackson standard.
Heffern, 2011 WL 1565999, at *7. The Indiana Court of Appeals held:
Robbery with a Deadly Weapon
Heffern contends that the evidence is insufficient to support his conviction for
robbery with a deadly weapon. Specifically, he argues that there is no evidence that
he or anyone else was armed with a knife until the time of the murder. We cannot
agree.
To prove robbery, as a Class B felony, the State was required to show beyond a
reasonable doubt that Heffern knowingly took property from Buckner by use of
force and while armed with a deadly weapon. See Ind. Code § 35–42–5–1(1). A
defendant may be convicted as a principal if he knowingly or intentionally aided,
induced, or caused another person to commit the offense. Ind. Code § 35–41–2–4.
In Heffern’s September 10 interview with police, Heffern stated that Smith took
twenty dollars that he found in Buckner’s sock while Heffern, Smith, and Berry
were beating Buckner in Whiting’s kitchen. Heffern also stated that, during that
beating, Smith had threatened to cut off Buckner’s penis, but Heffern had stopped
him. The jury could have reasonably inferred that Heffern and the others who
jointly attacked Buckner were armed with a knife at the time of the robbery. And
the jury could have found Heffern culpable as a principal for robbery based on
accomplice liability. See Ind. Code § 35–41–2–4. Thus, the evidence is sufficient
to support Heffern’s conviction for robbery while armed with a deadly weapon.
Murder
Heffern next contends that the evidence is insufficient to show that he committed
murder. To prove the offense of murder, the State was required to prove beyond a
reasonable doubt that Heffern knowingly killed Buckner. See Ind. Code § 35–42–
1–1(1). Again, under a theory of accomplice liability, Heffern could be convicted
as a principal if he knowingly or intentionally aided, induced, or caused another
person to commit the offense. See Ind. Code § 35–41–2–4. Specifically, he
acknowledges that under accomplice liability a defendant need not have
participated in each and every element of an offense.
The evidence shows that Heffern initiated and participated in the beating of
Buckner in Whiting’s apartment. When Buckner failed to escape Heffern’s initial
attack, Heffern, Smith, and Berry kicked and punched Buckner’s head and body
repeatedly as he lay on the floor in Whiting’s kitchen. The men then removed
13
Buckner’s clothes, wrapped him in a blanket, and carried him to Berry’s vehicle. In
transit, Buckner was moaning loudly. Heffner reached around and punched him
several times, and the moaning stopped. When they reached a cornfield, Heffern
and Smith unloaded Buckner and carried him into the cornfield while Berry turned
the car around. When Berry returned, he found Heffern and Smith standing near
Buckner’s body a few rows into the cornfield. Smith told Berry that Buckner had
already been stabbed, and then Smith gave Berry a knife and told him to stab
Buckner. Berry stabbed Buckner twice in his lower side and then returned to his
vehicle. Heffern and Smith soon followed. The men returned to Whiting’s
apartment and began cleaning up evidence related to Buckner.
Dr. Paul Mellen, a pathologist, testified that the cause of death was “blunt force
injuries to the head and sharp force injuries to the neck and abdomen[.]” Transcript
at 197. Buckner had twenty puncture wounds in his abdomen as well as a one-andone-half-inch “cutting mark” on the base of the left side of the penis. He also had
two cuts to his neck: on the right side a superficial four-inch cut and on the left side
a wound that “cut the greater vessels, actually cut the trachea or the windpipe area
and went down as far as the cervical spine or vertebral column.” Id. at 199. Dr.
Mellen testified that the wound on the left side of the neck was not survivable.
The evidence shows that Heffern punched and kicked Buckner repeatedly, and
helped transport him to a cornfield. Heffern was alone with Smith next to the body
when Berry turned his vehicle around. While Berry walked back to his vehicle after
stabbing Buckner in the cornfield, Heffern and Smith remained in the field for
several minutes. There is substantial evidence showing that Heffner assisted in
punching and beating Buckner about the head. Berry testified that he only stabbed
Buckner twice in the lower back, but the evidence shows multiple stab wounds,
including a fatal neck wound. A jury could reasonably have inferred either that
Heffern stabbed Buckner in the abdomen or neck or that he knowingly or
intentionally aided, induced, or caused Smith to stab Buckner in the abdomen or
neck. The evidence is sufficient to support Heffern’s conviction for murder.
Still, Heffern maintains:
There was no indication Michael Heffern knew anyone in the group
had a knife until Smith, Berry, and he were at the cornfield, long
after the initial confrontation occurred in Whiting’s apartment.
There was no indication Mr. Heffern had any reason to suspect a
deadly weapon would be used by one of the others in the group.
Therefore, the judgment of conviction for murder, as against him,
was not supported by sufficient evidence.
Appellant’s Brief at 25. Heffern does not explain how his alleged lack of knowledge
that anyone was armed with a knife supports the reversal of his conviction for
murder as an accomplice. Moreover, as discussed above, the jury could have
reasonably inferred that Heffern, as the one who had planned the assault, knew that
14
someone had a knife. First, he did not allow Smith to carry out on his threat to cut
off Buckner’s penis in Whiting’s kitchen. Second, he was standing by the body in
the cornfield when Smith gave Berry a knife and told him to stab Buckner. Finally,
Berry testified that he only stabbed Buckner twice in the lower back, but Buckner
had sustained twenty stab wounds to his abdomen, a cut at the base of his penis,
and two cuts on his neck, one of them fatal. Again, the jury could have reasonably
inferred that Heffern either caused Buckner’s death or aided, induced or caused
another to kill Buckner.
Id. at *8-9.
This assessment is compatible with the federal Jackson standard – the Indiana Court of
Appeals reviewed the evidence and concluded that a rational trier of fact could have found that
Mr. Heffern committed murder and armed robbery beyond a reasonable doubt. And because of
this reasonable application of the controlling federal standard, “[u]nder AEDPA . . . it cannot be
disturbed.” Hardy v. Cross, 565 U.S. 65, 75 (2011). Accordingly, Mr. Heffern is not entitled to
habeas relief on this ground.
D.
Ground Four: Double Jeopardy
Ground four relates to whether Mr. Heffern’s convictions for murder and armed robbery
constitute double jeopardy under the Indiana Constitution and the U.S. Constitution. On this issue,
the Indiana Court of Appeals held:
Last, Heffern contends that the entry of judgment of conviction for both robbery
and murder violates his right to be free from double jeopardy. The Indiana
Constitution provides that “[n]o person shall be put in jeopardy twice for the same
offense.” Ind. Const. art. 1, § 14. Double jeopardy analysis involves the dual
inquiries of the statutory elements test and the actual evidence test. Davis v. State,
770 N.E.2d 319, 323 (Ind. 2002) (citing Richardson v. State, 717 N.E.2d 32
(Ind.1999)). The standard for evaluating an alleged double jeopardy violation is
well-settled:
In Richardson v. State (1999) Ind., 717 N.E.2d 32, our Supreme Court
established a two-part test for analyzing double jeopardy claims under the
Indiana Constitution and concluded:
“two or more offenses are the ‘same offense’ in violation of Article
I, Section 14 of the Indiana Constitution, if, with respect to either
15
the statutory elements of the challenged crimes or the actual
evidence used to convict, the essential elements of one challenged
offense also establish the essential elements of another challenged
offense.” Richardson, supra at 49.
Thus, even if there was no double jeopardy violation in the present case
based upon the essential statutory elements of the crimes of forgery and
theft, a violation may still have occurred if the actual evidence presented at
trial demonstrates that each offense was not established by separate and
distinct facts. The defendant must demonstrate a reasonable possibility that
the evidentiary facts used by the fact-finder to establish the essential
elements of one offense may also have been used to establish the essential
elements of a second challenged offense.
Williams v. State, 892 N.E.2d 666, 668–69 (Ind. Ct. App. 2008) (some
citations and quotations omitted), trans. denied.
Again, to prove the offense of robbery with a deadly weapon, a Class B felony, the
State was required to show beyond a reasonable doubt that Heffern knowingly took
property from Buckner by use of force and while armed with a deadly weapon. See
Ind. Code § 35–42–5–1(1). And it is sufficient if the State showed that Heffern
knowingly or intentionally aided, induced, or caused another to rob Buckner.
Heffern argues that the overriding cause of death was established by evidence of
the stab wound to Buckner’s neck. Appellant’s Brief at 26–27. The knife that was
used to inflict that wound was also used to elevate the robbery charge from a Class
C felony to a Class B felony. He states that there was evidence of only one knife
being used in the offenses. Thus, he concludes that the elevation of the robbery
charge violates his right to be free from double jeopardy.
In support Heffern cites Walker v. State, 758 N.E.2d 563 (Ind. Ct. App. 2001),
trans. denied. There, the State used Walker’s act of shooting his victim with a
handgun to establish both voluntary manslaughter and robbery with a deadly
weapon. We held that the evidence used to establish voluntary manslaughter was
“clearly intertwined” with the evidence used to establish robbery with a deadly
weapon. Id. at 567. As such, we concluded that the elevation of the robbery charge
from a Class B felony to robbery with a deadly weapon, as a Class B felony,
violated double jeopardy. Id.
Here, as discussed above, the evidence shows that Heffern, Smith, or Berry was
armed with a knife when they were beating Buckner in Whiting’s kitchen and Smith
took twenty dollars from Buckner’s sock. Thus, the robbery was supported by
evidence that the perpetrators were armed with a knife. But the murder was later
accomplished by the use of a knife, namely, stabbing Buckner in the neck, severing
his vessels and windpipe, at an entirely different location from where the beating
had occurred. The evidence of being armed with a weapon is not the same as
evidence of use of that same weapon. Thus, Walker is inapposite. Heffern has not
16
shown that the elevation of the robbery charge to a Class B felony based on being
armed with a deadly weapon violated his right to be free from double jeopardy.
Heffern, 2011 WL 1565999, at *10-11 (footnote omitted).
The decision by the state court here rests on state law grounds that are independent of any
federal question and are adequate to support the judgment. Habeas relief is not available on this
ground for this reason.
However, Mr. Heffern alleges in his amended petition that his convictions violate Double
Jeopardy under the U.S. Constitution. See Dkt. No. 7 at 10. In a footnote, however, the Indiana
Court of Appeals noted: “Heffern raises double jeopardy under both the Indiana Constitution and
United States Constitution. But the cases he cites explaining the analysis pertain only to the state
constitution, and he makes no independent argument under the federal Constitution. As such, we
limit our review to double jeopardy under the Indiana Constitution.” Id. at *10, n.5. Thus, Mr.
Heffern did not argue or analyze how his sentence would violate double jeopardy under the U.S.
Constitution in state court. Given the facts of the case and Mr. Heffern’s argument, it is unlikely
that the state courts would have been alerted to a federal constitutional issue. Indeed, the Indiana
Court of Appeals noted that Mr. Heffern failed to raise a federal constitutional issue. Thus, Mr.
Heffern’s federal claims, to the extent there are any, are procedurally defaulted. Johnson, 786 F.3d
at 504. Additionally, Mr. Heffern has failed to allege that he meets the requirements to overcome
procedural default. Perruquet, 390 F.3d at 514. Thus, for the reasons above, Mr. Heffern is not
entitled to habeas relief on this ground.
IV.
Conclusion
This Court has carefully reviewed the state record in light of Mr. Heffern’s claims and has
given such consideration to those claims as the limited scope of its review in a habeas corpus
17
proceeding permits. Having applied the appropriate standard of review, and having considered the
pleadings and the record, Mr. Heffern’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 reasonable jurists would not
find this Court’s “assessment of the constitutional claims debatable or wrong,” or find “it debatable
whether the petition states a valid claim of the denial of a constitutional right” and “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:
10/3/18
Distribution:
MICHAEL P. HEFFERN
209312
INDIANA STATE PRISON
INDIANA STATE PRISON
Electronic Service Participant – Court Only
Jesse R. Drum
INDIANA ATTORNEY GENERAL
jesse.drum@atg.in.gov
18
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?