JANE MAGNUS-STINSON, District Judge.
Presently pending before the Court is Petitioner Jeffrey Washington's Petition for a Writ of Habeas Corpus. [Dkt. 1.] Washington raises three issues, but the Court concludes that he has procedurally defaulted on two of them by not presenting them to the state court on postconviction review. The Court rejects Washington's claim for ineffective assistance of trial counsel on the merits. For these reasons, explained in further detail herein, Washington's petition for a writ of habeas corpus must be denied and the action dismissed with prejudice. In addition, the Court finds that a certificate of appealability should not issue.
The following underlying facts were set forth by the Indiana Supreme Court on Washington's direct appeal and are presumed to be correct because they have not been rebutted by clear and convincing evidence, 28 U.S.C. § 2254(e)(1):
Washington v. State, 808 N.E.2d 617, 620-21 (Ind. 2004); see also Washington v. State, 953 N.E.2d 1280 (Ind. Ct. App. 2011) (post-conviction appellate court adopting background set forth by Indiana Supreme Court) (unpublished).
On May 11, 2005, Washington filed a pro se petition for post-conviction relief that was amended by appointed counsel on August 5, 2010. [Dkt. 10-2 at 2.] Washington raised four types of issues on post-conviction review:
[Dkt. 10-9 at 19-20.] The post-conviction court held an evidentiary hearing on October 14, 2010, and denied Washington's petition on December 31, 2010. [Id. at 10-31.]
Washington appealed the denial of his petition for post-conviction relief to the Indiana Court of Appeals. He only raised issues surrounding the alleged ineffectiveness of his trial counsel, particularly at the penalty phase of his LWOP trial, where he contended that
[Dkt. 10-9 at 7-8.] In relevant part, Washington argued that his trial counsel "entirely neglected to conduct any mitigation investigation" and that "[a]dequate investigation would have alerted counsel to Washington's multiple, severe, mental illnesses." [Id. at 11-12.]
In addressing Washington's appeal, the Indiana Court of Appeals set forth additional facts relevant to his ineffective assistance of trial counsel claim, which are presumed to be correct because they have not been rebutted by clear and convincing evidence, 28 U.S.C. § 2254(e)(1):
Washington, 953 N.E.2d 1280 at *3-*9.
On September 19, 2011, the Indiana Court of Appeals affirmed the decision of the postconviction court. Id. at *14-*17. The Court of Appeals concluded that Washington had not proven that counsel's performance was deficient and, even assuming that it was, he was not able to show prejudice for counsel's alleged omissions. Id. Washington filed a petition to transfer with the Indiana Supreme Court, but it denied his petition on December 19, 2011. [Dkt. 10-4 at 5.]
Washington filed a Petition for Writ of Habeas Corpus on March 7, 2012, [dkt. 1], which is now fully briefed.
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). "Under the current regime governing federal habeas corpus for state prison inmates, the inmate must show, so far as bears on this case, 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. 2001) (citing 28 U.S.C. § 2254(d)(1)); Williams v. Taylor, 529 U.S. 362 (2000); Morgan v. Krenke, 232 F.3d 562 (7th Cir. 2000). "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)).
In addition to the substantive standard noted above, "[o]ut of respect for finality, comity, and the orderly administration of justice, a federal court will not entertain a procedurally defaulted constitutional claim in a petition for habeas corpus absent a showing of cause and prejudice to excuse the default." Dretke v. Haley, 541 U.S. 386, 388 (2004). Before a federal court can entertain a petition for habeas corpus, a state prisoner must exhaust his state remedies by presenting his claims fully and fairly to the state courts. Howard v. O'Sullivan, 185 F.3d 721, 725 (7th Cir. 1999) (citing 28 U.S.C. 2254(b)(1)(A), (c); O'Sullivan v. Boerckel, 526 U.S. 838 (1999); Patrasso v. Nelson, 121 F.3d 297, 301 (7th Cir. 1997)). "A state prisoner . . . may obtain federal habeas review of his claim only if he has exhausted his state remedies and avoided procedurally defaulting his claim." Thomas v. McCaughtry, 201 F.3d 995, 999 (7th Cir. 2000). Procedural default "occurs when a claim could have been but was not presented to the state court and cannot, at the time that the federal court reviews the habeas petition, be presented to the state court." Resnover v. Pearson, 965 F.2d 1453, 1458 (7th Cir. 1992), cert. denied. When procedural default has occurred, it can be overcome if a habeas petitioner "can demonstrate either (a) cause for the default and prejudice (i.e., the errors worked to the petitioner's `actual and substantial disadvantage,'); or (b) that failure to consider his claim would result in a fundamental miscarriage of justice (i.e., a claim of actual innocence)." Conner v. McBride, 375 F.3d at 649 (internal citations omitted). "Cause" for a procedural default exists if the petitioner can demonstrate that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). Prejudice is demonstrated by showing that the errors worked to the petitioner's "actual and substantial disadvantage." United States v. Frady, 456 U.S. 152, 170 (1982).
Washington contends that his Sixth Amendment right to counsel was violated by ineffective assistance of his trial counsel. Specifically, he claims that his trial counsel was ineffective because he allegedly did not prepare for the penalty phase by seeking mitigating evidence, such as mental health testimony or testimony regarding Washington's troubled childhood. [Dkts. 1 at 4; 17 at 3.]
The Antiterrorism and Effective Death Penalty Act of 1996 ("
To demonstrate that the right to counsel was violated by ineffective assistance, Washington must meet the familiar two-part standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). He must show (1) that his counsel's performance was deficient, meaning that it fell below an "objective standard of reasonableness" informed by "prevailing professional norms," and (2) that his counsel's deficient performance prejudiced him, meaning that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 687-88. In evaluating an attorney's performance, "courts must defer to any strategic decision the lawyer made that falls within the `wide range of reasonable professional assistance,' even if that strategy was ultimately unsuccessful." Shaw v. Wilson, ___ F.3d ___, 2013 WL 3814671, at *5 (7th Cir. 2013) (quoting Strickland, 466 U.S. at 689).
On habeas review, however, a federal court's task is not a de novo review of an ineffective assistance of counsel claim under Strickland. McElvaney v. Pollard, ___ F.3d ___, 2013 WL 4423669, at *4 (7th Cir. 2013). Instead, given the confines of AEDPA, the inquiry is limited to whether the Indiana Court of Appeals' determination that Washington was not denied effective assistance of counsel "was contrary to, or involved an unreasonable application of" Strickland. Id. "This means that `the question is not whether [Washington's] counsel's actions were reasonable. The question is whether there is any reasonable argument that [Washington's] counsel satisfied Strickland's deferential standard.'" Id. (quoting Harrington v. Richter, 131 S.Ct. 770, 788 (2011)).
In affirming the decision of the trial court denying Washington's petition for postconviction relief, the Indiana Court of Appeals agreed with the post-conviction court that Washington failed to sustain a showing of ineffective assistance:
Washington, 953 N.E.2d 1280 at *14-*17.
Washington's appeal fails under the "doubly" deferential standard of review this Court must apply when reviewing a post-conviction decision applying the standards for ineffective assistance of counsel. Harrington, 131 S.Ct. at 788 ("Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so.") (citations and quotations omitted). Unless Washington persuades the Court that the decision from the Indiana Court of Appeals is "contrary to, or involved an unreasonable application of Strickland," he cannot obtain habeas relief. See McElvaney, 2013 WL 4423669 at *4.
The Court concludes that there is no reasonable argument that the Indiana Court of Appeals' decision denying post-conviction relief was contrary to or involved an unreasonable application of Strickland. It is undisputed that Washington's trial counsel was aware of Washington's troubled childhood and prior criminal history. [Dkt. 10-9 at 30.] He sought psychiatric evaluations of Washington before trial and reviewed those again before the penalty phase. [Dkt. 10-11 at 10-11.] Those evaluations revealed Washington's history of antisocial behavior and aggression toward women but did not support a significant and present mental disability. [Id. at 11.] Thus, it was not unreasonable for the Indiana Court of Appeals to conclude that Washington's counsel was not deficient for not introducing the reports because they "likely would have been unavailing and even disadvantageous." [Id.] And as Respondent points out, had Washington's counsel put forth such evidence or called a psychologist such as Dr. Holsworth, who testified at the post-conviction hearing, the State could have presented the tactically excluded evaluations, including one doctor's observation that Washington's history included a "tendency in the past toward violent behavior toward women." [Dkt. 10-11 at 6.] Considering that Washington was accused of murdering his ex-girlfriend by lying in wait before stabbing her at least thirteen times, such evidence could have been devastating. See Miller v. Anderson, 255 F.3d 455, 458 (7th Cir. 2001) ("The clearest respect in which the lawyer's representation fell below the minimum level was the decision to put the psychologist on the stand . . . . The lawyer did this knowing that Miller had been previously convicted of kidnapping, rape, and sodomy and at the time of the crime for which he was being tried had been free on parole from a life sentence for kidnapping. The state brought these facts out on cross-examination of the psychologist and they not only destroyed the psychologist's credibility but almost certainly and perhaps decisively bolstered the jury's confidence in Miller's guilt.").
Likewise, the Indiana Court of Appeals' conclusion that Washington's counsel was not deficient for not presenting evidence of his troubled childhood is not unreasonable. [Dkt. 10-11 at 11.] It is undisputed that counsel's concern throughout trial was that the jury would be exposed to Washington's formidable criminal history. [Id.] Included among Washington's numerous prior convictions were convictions for crimes against women, such as stalking and sexual abuse. [Id. at 6.] It was not unreasonable for the Indiana Court of Appeals to conclude that evidence of Washington's troubled youth was likely to open the door to his prior convictions because his aunt and pastor had also characterized him positively. [Id. (citing Allen, 749 N.E.2d at 1173) (holding on post-conviction appeal that trial counsel was not deficient under Strickland for not introducing evidence of family history because it was intertwined with positive references that could open the door to criminal history).] Instead, Washington's counsel presented evidence from Washington's cousin and grandmother but limited them to Washington's demeanor the day of the crime and his attempts to address his anger through counseling. [Dkts. 10-9 at 21 ¶ 3; 10-11 at 6; 17 at 5.] Given counsel's goal of avoiding opening the door to evidence of Washington's previous convictions, which he achieved, [dkt. 10-9 at 29], the Court concludes that it was not unreasonable for the Indiana Court of Appeals to conclude that counsel was not deficient for failing to introduce evidence of Washington's troubled childhood.
While Washington's counsel presented limited mitigating evidence, he did present some evidence. Counsel was aware of Washington's troubled childhood and prior criminal convictions, [dkt. 10-9 at 30], but tactically chose to present evidence that would not open the door to his mental evaluations or extensive criminal history, which exhibited a history of violence towards women. Thus, Washington's claim boils down to a contention that his counsel did not present enough mitigating evidence. "[S]uch arguments come down to a matter of degrees, which are ill-suited to judicial second-guessing." Woods v. McBride, 430 F.3d 813, 826 (7th Cir. 2005) (citing Conner v. McBride, 375 F.3d 643, 666 (7th Cir. 2004)). For these reasons, the Court concludes that the Indiana Court of Appeals was not unreasonable for concluding that Washington failed to establish that his counsel was deficient under Strickland.
In the interest of completeness, the Court also finds that even assuming for the sake of the argument that Washington's counsel's performance was deficient, the Indiana Court of Appeals was not unreasonable for concluding that Washington cannot satisfy the prejudice prong of Strickland. Nothing Washington offers convinces the Court that there is a reasonable probability that the additional details would have tipped the scales in his favor at sentencing, thus it was not unreasonable for the Indiana Court of Appeals to conclude that Washington was not prejudiced by counsel's failure to offer the cited evidence. Indeed, this possibility is even less likely in light of the nature of the crime for which Washington stood trial and the aggravating circumstances presented to the jury. Woods, 430 F.3d at 826. For these reasons, Washington's ineffective assistance of trial counsel claim fails.
Washington raises two additional issues in his petition for habeas relief. First, he argues that the trial court erred by denying a motion to suppress a confession he made to the police. [Dkts. 1 at 4-5; 17 at 9-10.] Second, he argues that the trial court erred in refusing a jury instruction about voluntary manslaughter. [Dkts. 1 at 5; 17 at 10-11.] Washington did not raise either of these issues to any of the Indiana state court tribunals in which he sought post-conviction relief. [Dkts. 10-9 at 19-20 (trial court opinion stating issues in amended post-conviction petition); 10-9 at 7-8, 11-12 (issues raised in appellant's brief to Indiana Court of Appeals on postconviction review); 10-12 at 5 (issues raised in petition to transfer to Indiana Supreme Court on post-conviction review).]
Before a federal court may evaluate the merits of a habeas corpus petition, the petitioner must have exhausted his remedies before the state court. See Harrington, 131 S.Ct. at 787 (citing 28 U.S.C. § 2254(b)). This means that the petitioner "must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan, 526 U.S. at 845. "A habeas petitioner who has exhausted his state court remedies without properly asserting his federal claim at each level of state court review has procedurally defaulted that claim." Malone v. Walls, 538 F.3d 744, 753 (7th Cir. 2008) (citation omitted).
A district court is permitted to raise procedural default sua sponte as long as it is not overriding the respondent's implicit or explicit decision to forego that defense. Henderson v. Thieret, 859 F.2d 492, 498 (7th Cir. 1988). For example, where the respondent has responded to one habeas claim on its merits while asserting that another is procedurally barred, it has implicitly waived any contention that the first claim is also procedurally defaulted. Perruquet v. Briley, 390 F.3d 505, 516 (7th Cir. 2004) (citing Henderson, 859 F.2d at 497-98). The respondent's silence on the subject of procedural default, however, "is normally not enough, standing alone, to demonstrate the intent to relinquish the defense that is the essence of true waiver." Perruquet, 390 F.3d at 517.
The Respondent did not raise procedural default as a defense in response to any issue raised in Washington's habeas petition. [See dkt. 10.] Thus, it has not relinquished that defense on the two claims on which the Court ultimately concludes that Washington has procedurally defaulted. Perruquet, 390 F.3d at 517. For the following reasons, the Court concludes that it is appropriate in this case to raise procedural default sua sponte instead of addressing Washington's remaining claims on the merits.
First, it is clear that Washington has procedurally defaulted on the remaining claims on which he seeks habeas relief. In all three state tribunals, Washington sought post-conviction relief on the basis of ineffective assistance of trial counsel, which the Court has addressed and rejected on its merits in the previous section. [Dkts. 10-9 at 7-8, 11-12, 19-20; 10-12 at 5.] At no time did Washington raise anything that could be construed as challenging the trial court's decision to deny his motion to suppress or its failure to give a jury instruction on manslaughter. While Washington unsuccessfully presented those issues to the Indiana Supreme Court on direct appeal, Washington, 808 N.E.2d at 620, he did not pursue them when seeking post-conviction relief from the state courts. Thus, he cannot raise them for the first time while seeking habeas relief in federal court. Malone v. Walls, 538 at 753.
Second, because the Indiana post-conviction courts were never given the opportunity to pass on the merits of Washington's new claims on collateral review, comity and federalism principles weigh strongly against permitting him to assert those claims now in federal court. See Perruquet, 390 F.3d at 518 (holding that principles of comity and federalism weigh strongly against permitting petitioner to assert a claim in federal court on which he did not exhaust state court review); see also Kurzawa v. Jordan, 146 F.3d 435, 441 (7th Cir. 1998) ("Requiring that remedies be exhausted in state courts is merely comity's juridical tool, embodying the federal sovereign's respect for the state courts' capability to adjudicate federal rights.").
Third, if this Court reaches the merits of the claims Washington advances for the first time in federal court, it would have to review those claims de novo because there is no state-court decision on collateral review to evaluate. Id. "This would be inconsistent with the high level of deference to state-court decisions that Congress mandated when it passed [AEDPA]." Id. (citing McFowler v. Jaimet, 349 F.3d 436, 455 (7th Cir. 2003)). As the Seventh Circuit noted in a similar situation, that would "result in a windfall" for Washington, "who would win plenary review of a claim that he never presented to the [state] courts, whereas habeas petitioners who properly present their claims to state courts first are entitled only to the extremely narrow review mandated by section 2254(d)." Perruquet, 390 F.3d at 518.
For these reasons, the Court concludes that Washington has procedurally defaulted on the issues he raises regarding the trial court's failure to suppress his confession or tender a jury instruction regarding voluntary manslaughter. Accordingly, the Court will not address those issues on the merits.
The Court has carefully reviewed the state record in light of Washington's claims and has given such consideration to those claims as the limited scope of its review in a habeas corpus proceeding permits. "Section 2254(d) reflects the view that habeas corpus is a `guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal." Harrington v. Richter, 131 S.Ct. 770, 786, 178 L. Ed. 2d 624 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in judgment)). The deference due to state court decisions "preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [Supreme Court] precedents." Harrington, 131 S. Ct. at 786; see also Cavazos v. Smith, 132 S.Ct. 2, 7-8 (2011) (per curiam) (citing Supreme Court jurisprudence "highlighting the necessity of deference to state courts in § 2254(d) habeas cases"). Washington's habeas petition does not present such a situation and that petition is therefore
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 Washington 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[s]." Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court, therefore, denies a certificate of appealability.
