JAMES R. SWEENEY, II, District Judge.
Petitioner Raymond Marling was convicted in an Indiana state court of various drug and firearm offenses. Mr. Marling now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his convictions for possession of cocaine with intent to deliver, possession of cocaine and a firearm, and possession of a Schedule IV controlled substance. He argues that his trial and appellate counsel were ineffective for not arguing that key evidence should have been suppressed because the North Vernon Police failed to follow their own written procedures in executing an inventory search. Mr. Marling's petition is
The Indiana Court of Appeals summarized the relevant facts and procedural history as follows:
Marling v. State, 2014 WL 4854995, at *1-2 (Ind. Ct. App. Sept. 30, 2014) ("Marling I") (citations omitted).
Before trial, defense counsel moved to suppress all evidence found in the lockbox. Tr. App'x Vol. I at 51. Relying on State v. Lucas, 859 N.E.2d 1244 (Ind. Ct. App. 2007), counsel argued that the police were not permitted to open locked boxes during an inventory search.
Marling II, 2018 WL 2375769, at *2. Despite apparent damage to the lockbox from the search, counsel did not argue that the police had violated their inventory search procedures. The trial court denied Mr. Marling's motion to suppress, relying on General Order 49. Tr. App'x Vol. I at 70 ("North Vernon had a duly promulgated Impoundment Procedure in effect . . . which authorized the search and opening of closed and locked containers within vehicles.").
After a jury trial, Mr. Marling was convicted of two counts of possession of a legend drug and one count each of possession of cocaine with intent to deliver, possession of cocaine and a firearm, possession of a schedule IV controlled substance, unlawful possession of a syringe, and possession of a handgun by a felon. Id. at *2. The trial court sentenced him to a total of 38 years in prison, including a 20-year enhancement for habitual offender status. Id. at *2-3.
Mr. Marling appealed, arguing (among other things) that the trial court erred in denying his motion to suppress. Dkt. 14-5 at 11-13. The appellate court affirmed, Marling I, 2014 WL 4854995, at *7, and the Indiana Supreme Court denied leave to transfer, dkt. 14-3 at 7.
Mr. Marling next filed a state post-conviction petition, arguing (among other things) that trial and appellate counsel were ineffective for not arguing that the lockbox evidence should have been suppressed because Sergeant Kipper failed to follow General Order 49. Dkt. 15-2 at 31-33. The trial court denied the petition, and the Indiana Court of Appeals affirmed. Marling v. State, 2018 WL 2375769, at *3-6 (Ind. Ct. App. May 25, 2018) ("Marling II"). The Indiana Supreme Court denied Mr. Marling's petition to transfer. Dkt. 14-4 at 10.
Mr. Marling then filed a petition for a writ of habeas corpus in this Court. His operative petition in this action is the amended petition filed February 26, 2019. Dkt. 12.
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). Where a state court has adjudicated the merits of a petitioner's claim, a federal court cannot grant habeas relief unless the state court's adjudication
28 U.S.C. § 2254(d). "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." Harrington v. Richter, 562 U.S. 86, 101 (2011). "If this standard is difficult to meet, that is because it was meant to be." Id. at 102.
"The decision federal courts look to is the last reasoned state-court decision to decide the merits of the case." Dassey v. Dittmann, 877 F.3d 297, 302 (7th Cir. 2017) (en banc). If the last reasoned state court decision did not adjudicate the merits of a claim, or if the adjudication was unreasonable under § 2254(d), federal habeas review of that claim is de novo. Thomas v. Clements, 789 F.3d 760, 766-68 (7th Cir. 2015).
Police may not open locked containers during a warrantless inventory search unless they are following reasonable standardized procedures. Florida v. Wells, 495 U.S. 1, 4 (1990). Whether an officer followed reasonable standardized procedures during an inventory search is a question of fact. United States v. Cartwright, 630 F.3d 610, 613 (7th Cir. 2010).
Mr. Marling argues that trial and appellate counsel were ineffective for not arguing that the lockbox evidence should have been suppressed because Sergeant Kipper failed to follow General Order 49. Specifically, he argues that opening the lockbox with a screwdriver created "unreasonable potential damage to property." Dkt. 12 at 23.
The Indiana Court of Appeals did not find that trial or appellate counsel made a strategic decision to not argue that Sergeant Kipper failed to follow General Order 49. Instead, the court relied exclusively on a factual finding that Sergeant Kipper followed General Order 49:
Id. at *5 (citations omitted); see also id. at *5 n.1 ("Given that the State presented its inventory procedure and the portion of the record cited by Marling does not reveal damage to the box and he does not point elsewhere in the record for any damage to the box, we cannot say that the police failed to perform the search in conformity with their procedures.").
The state court's factual finding that the lockbox was not damaged
While Mr. Marling did not cite Exhibit 26 in his post-conviction appellant's brief, the State cited it multiple times in their appellee's brief. See dkt. 14-10 at 12, 20, 21. The respondent does not argue that the Indiana Court of Appeals could ignore the exhibit merely because the State (and not Mr. Marling) brought it to the court's attention.
The state appellate court's decision thus relied on an unreasonable factual determination, which means this Court must review Mr. Marling's claim de novo. Thomas, 789 F.3d at 766-68. To prevail, Mr. Marling must show "both that his attorney's performance fell below an objective standard of reasonableness and that there was a reasonable probability that the outcome of the relevant proceedings . . . would have been different but for his counsel's failings." Monroe v. Davis, 712 F.3d 1106, 1116 (7th Cir. 2013) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
The first question is whether counsel's performance was deficient. It was. Counsel, relying on Lucas, moved to suppress the lockbox evidence merely because Sergeant Kipper opened the locked container during the search. But when the State argued that, unlike the inventory search policy in Lucas, General Order 49 directed officers to open locked containers in an inventory search, counsel failed to raise the obvious rejoinder that the police had failed to comply with General Order 49. This failure was an unreasonable "lapse in professional judgment," not a strategic decision that is entitled to deference. Monroe, 712 F.3d at 1118.
Trial counsel's performance was also prejudicial. There is a reasonable probability that the trial court would have granted Mr. Marling's motion to suppress as to the lockbox evidence if counsel had argued that Sergeant Kipper violated General Order 49. The respondent argues that counsel's performance was not prejudicial because prying open the latch on a lockbox was "hardly an extreme measure or one that would foreseeably cause `unreasonable potential damage' to the property." Dkt. 14 at 12. The Court takes no position on this argument except to find a reasonable probability that the state trial court could have disagreed with it. Indeed, the trial court on post-conviction review appeared to find that prying open the lockbox was an extreme measure. Dkt. 15-2 at 128 ("These facts justified extreme measures necessitating opening a lockbox with a screwdriver.").
Three of Mr. Marling's convictions—those for possession of cocaine with intent to deliver, possession of cocaine and a firearm, and possession of a Schedule IV controlled substance—relied on evidence found in the lockbox. If the trial court had granted Mr. Marling's motion to suppress that evidence—and there is a reasonable probability it would have—the outcome of his trial on these counts very likely would have been different. Thus, there is a reasonable probability that Mr. Marling's trial outcome would have been different, so Strickland's prejudice prong is satisfied.
Because trial counsel's performance was deficient and prejudicial, Mr. Marling's petition for a writ of habeas corpus is
Mr. Marling asks this Court to order a new trial. But if the state trial court again denies Mr. Marling's suppression motion, a new trial would be unnecessary. Accordingly,
Final judgment shall now enter.