WILLIAM T. LAWRENCE, Senior District Judge.
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
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:
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.
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 it denied transfer on October 20, 2016.
On September 25, 2017, Mr. Heffern filed this petition for a writ of habeas corpus.
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).
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)).
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; (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 Court will address each claim in turn.
In his reply brief, Mr. Heffern raises a new claim of ineffective assistance of counsel. Dkt. No. 38 at 16-17. Additionally, as part of his challenge to the sufficiency of the evidence, Mr. Heffern also newly argues that his convictions for armed robbery and murder under the theory of accomplice liability was improper and a violation of his due process rights because he was not properly informed under the charging information that he would be prosecuted in this manner. See id. at 9-15.
Because these arguments were raised on the first time in his reply brief, these claims are waived. See Rule 2 of the Rules Governing Section 2254 Cases ("The petition must: (1) specify all the grounds for relief available to the petitioner;"); Griffin v. Bell, 694 F.3d 817, 822 (7th Cir. 2012) ("arguments raised for the first time in a reply brief are deemed waived"); Hernandez v. Cook Cnty. Sheriff's Office, 634 F.3d 906, 913 (7th Cir. 2011) (same); United States v. Foster, 652 F.3d 776 n. 5 (7th Cir.2001) ("The reply brief is not the appropriate vehicle for presenting new arguments or legal theories to the court."). Accordingly, no habeas relief is available on the newly raised grounds of ineffective assistance of counsel and challenging the theory of accomplice liability.
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 violation of Ind. Code § 35-34-1-5(b)(2). The respondent argues that ground one is procedurally defaulted, partly not cognizable, and meritless. Dkt. No. 14 at 8-10. On this issue, the Indiana Court of Appeals held on direct appeal:
Heffern, 2011 WL 1565999, at *3-4 (footnote omitted).
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.
"[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.
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. Dkt. No. 14-6 at 5-6. Rather, Mr. Heffern's arguments focused on Indiana state law precedent and Ind. Code § 35-34-1-5 (relating to indictments in a criminal matter). Given the facts of the case and Mr. Heffern's argument, which relies solely on whether the amendments to his charging information were in violation of Ind. Code § 35-34-1-5, Mr. Heffern did not present "the substance" of his claim to the state court, which is why the state court only addressed the claim under Indiana law.
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 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. Nor does Mr. Heffern address his procedural default in his reply. See Dkt. No. 38 at 5-6.
Thus, Mr. Heffern's federal claims, to the extent there are any, are procedurally defaulted.
A writ of habeas corpus may only issue if the petitioner is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Therefore, "[e]rrors of state law in and of themselves are not cognizable on habeas review." Samuel, 525 F.3d at 574 (citation and quotation marks omitted).
As noted above, the state court was presented with and thus only addressed Mr. Heffern's claim Indiana law was violated. It concluded that Mr. Heffern waived his challenge, under Indiana law, to the amendment of the charging information by failing to object at trial and was required to show fundamental error to obtain relief. He was unable to make such a showing. Because Mr. Heffern's argument here is based solely on an alleged violation of Indiana law — Ind. Code 35-34-1-5(b)(2), he is not entitled to habeas corpus relief on this ground.
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. The respondent argues that ground two is not cognizable and procedurally defaulted. Dkt. No. 14 at 10-11.
On this issue, the Indiana Court of Appeals on direct appeal held:
Heffern, 2011 WL 1565999, at *4-7 (footnote omitted).
Again, a writ of habeas corpus may only issue if the petitioner is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). 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).
As noted above, the state court was presented with Mr. Heffern's claim that Indiana evidentiary law was violated. The Indiana Court of Appeals reviewed the trial court's findings as to the admissibility of evidence under the abuse of discretion standard and concluded that Mr. Heffern waived any claim of error by failing to give a proposed limiting instruction and the trial court did not violate Indiana Rule of Evidence 105. The Indiana Court of Appeals also noted that the trial court had admonished the jury regarding the statements in question, and Mr. Heffern failed to show he was prejudiced by the trial court's admonishment without also giving a similar jury instruction. Because Mr. Heffern's argument here is based solely on an alleged violation of Indiana Evidentiary Rules, he is not entitled to habeas corpus relief on this ground.
"Because a state trial court's evidentiary rulings . . . turn on state law, these are matters that are usually beyond the scope of federal habeas review." Perruquet, 390 F.3d at 511. "However, a state defendant does have a Fourteenth Amendment due process right to a fundamentally fair trial." Id. Erroneous evidentiary rulings can only deny an individual the right to a fundamentally fair trial if they "produce[] a significant likelihood that an innocent person has been convicted." Anderson v. Sterns, 243 F.3d 1049, 1053 (7th Cir. 2001) (citation and quotation marks omitted). But every evidentiary challenge is not a due process claim. The petitioner has to "draw[] enough of a connection between his right to due process and the trial court's . . . evidentiary . . . errors to render his claim cognizable on habeas review." Perruquet, 390 F.3d at 512.
To the extent Mr. Heffern is raising a due process claim, because Mr. Heffern focuses solely on violation of Indiana Rule of Evidence 105, Mr. Heffern has failed to show that the trial court's ruling "produced a significant likelihood that an innocent person has been convicted," Anderson, 243 F.3d at 1053, and has therefore failed to draw enough of a connection between his right to due process and the trial court's alleged evidentiary error to render his claim cognizable on federal habeas review. Accordingly, Mr. Heffern is not entitled to habeas corpus relief on this ground.
Ground three asserts that there was insufficient evidence to convict Mr. Heffern of both murder and armed robbery. The respondent argues that ground three is meritless. Dkt. No. 14 at 11-14. In his reply, Mr. Heffern elaborates on why he believes there was insufficient evidence to convict him. Dkt. No. 38 at 9-15.
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 decision was `objectively unreasonable.''" Id. (quoting Cavazos, 565 U.S. at 2) (internal quotation omitted).
On the issue of challenging the sufficiency of evidence, the Indiana Court of Appeals on appeal recited the following standard, consistent with the Jackson standard:
Heffern, 2011 WL 1565999, at *7. It then applied that standard to both of the challenged convictions. Id. at *8-9.
Mr. Heffern argues that there was insufficient evidence to convict him of robbery with a deadly weapon because the evidence showed that he was unaware that anyone in his group had a weapon when he beat up Buckner, the victim, and robbed him of $20. Dkt. No. 7 at 8. The respondent argues that the Indiana Court of Appeals reasonably found sufficient evidence to support Mr. Heffern's robbery conviction because Mr. Heffern had told the police that he had stopped one of his co-assailants from cutting off Buckner's penis. Dkt. No. 14 at 14. In reply, Mr. Heffern argues that the statement was merely a comment, and that another co-assailant had testified that there was no weapon in the house. Dkt. No. 38 at 11. Mr. Heffern further explains that his statement to the police that "Smith had the knife and it was in his pocket" was taken out of context. Mr. Heffern explains his statement referred to his belief that Smith must have retrieved a knife after the robbery have been completed but before the murder. Id.
On this issue, the Indiana Court of Appeals on direct appeal held:
Heffern, 2011 WL 1565999, at *8.
Consistent with the federal Jackson standard, the Indiana Court of Appeals reviewed the evidence and cited to two pieces of specific evidence in support of his conviction of robbery with a deadly weapon
Although Mr. Heffern argues that his statements could be construed differently and he was not aware that any of his co-assailants possessed a knife, the Jackson standard only requires an inquiry as to whether a rational trier of fact could have found each essential element of the crime beyond a reasonable doubt. "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." Coleman, 566 U.S. at 651. Under the facts of the case, while Mr. Heffern presents a potential alternative interpretation of the facts, he fails to show that no rational trier of fact could have agreed with the jury or that the Indiana Court of Appeals' holding on this issue was "objectively unreasonable." Accordingly, Mr. Heffern is not entitled to habeas relief on this ground.
Mr. Heffern argues that there was insufficient evidence to convict him of murder because the evidence showed that he wanted to assault Buckner, not murder him. Dkt. No. 7 at 8. The respondent argues that the Indiana Court of Appeals reasonably found sufficient evidence to support Mr. Heffern's murder conviction because Mr. Heffern had planned the assault, took Buckner to a cornfield, and was standing with his co-assailants as they repeatedly stabbed Buckner. Dkt. No. 14 at 12-13. In reply, Mr. Heffern argues that his co-assailant, Berry, testified that Mr. Heffern never possessed a weapon and never stabbed Buckner. Dkt. No. 38 at 10. Mr. Heffern argues that the evidence shows that he was standing a couple feet away when Smith and Berry stabbed Buckner. Mr. Heffern also cites to the pathologist's statements that Buckner would have survived all 20 stab wounds and the injuries sustained from the beating, all 20 stab wounds likely came from one assailant, and that Buckner died from a cut to his neck. Id. at 11-12. Mr. Heffern asserts that he cannot be guilty of aiding in a crime if he did not know that the crime was going to happen. He argues that mere presence at a crime does not make you guilty — actions before, during and after do. Id. at 13. In his defense, he argues that he stopped Smith from hitting Buckner in the head with a statue and stopped Smith from cutting off Buckner's penis. Id. at 13-14.
On this issue, the Indiana Court of Appeals on direct appeal held:
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 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.
Heffern, 2011 WL 1565999, at *8-9.
Consistent with the federal Jackson standard, the Indiana Court of Appeals reviewed the evidence and cited to several pieces of evidence in support of Mr. Heffern's conviction for murder
Although Mr. Heffern raises several arguments in his defense, none is exculpatory or makes it so that "no rational trier of fact could have agreed with the jury." Although his co-assailant, Berry, may have testified that he never saw Mr. Heffern with a weapon or stab Buckner, Berry also testified that Mr. Heffern and Smith were left alone with Buckner's body in the cornfield for several minutes on two separate occasions. Berry therefore could not testify as to what transpired during that period. Additionally, Berry only testified as to two of the stab wounds, leaving an open question as to who stabbed Buckner the other additional twenty times. The Indiana Court of Appeals held that a rational trier of fact could conclude Mr. Heffern was responsible directly or through accomplice liability by aiding, inducing or causing Smith or Berry to stab Buckner. Because Mr. Heffern fails to show that no rational trier of fact could have agreed with the jury or that the Indiana Court of Appeals' holding on this issue was "objectively unreasonable," Mr. Heffern is not entitled to habeas relief on this ground.
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. The respondent argues that ground four is partly not cognizable and partly procedurally defaulted and meritless. Dkt. No. 14 at 15-17.
On this issue, the Indiana Court of Appeals on direct appeal held:
Heffern, 2011 WL 1565999, at *10-11 (footnote omitted).
Mr. Heffern alleges in his amended petition that his convictions violate Double Jeopardy under the U.S. Constitution. See Dkt. No. 7 at 10. However, in Mr. Heffern's direct appeal, 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 failed to argue or analyze how his sentence would violate double jeopardy under the U.S. Constitution in state court. See Dkt. No. 14-3 (Mr. Heffern's direct appeal brief); Dkt. No. 14-6 (Mr. Heffern's direct appeal petition to transfer). 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. Nor does Mr. Heffern address his procedural default in his reply. See Dkt. No. 38.
Mr. Heffern's claim that he was subject to double jeopardy under the Indiana Constitution when he was convicted of both robbery and murder is based solely on state law grounds. Additionally, the decision by the state court here focused solely on state law precedent and whether there was a violation of the Indiana Constitution. Accordingly, Mr. Heffern is not entitled to habeas corpus relief on this ground. See Samuel, 525 F.3d at 574 ("Errors of state law in and of themselves are not cognizable on habeas review.").
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
Judgment consistent with this Entry shall now issue.
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
