WILLIAM T. LAWRENCE, Senior District Judge.
Joshua J. Fairley, an inmate incarcerated in the Indiana Department of Correction, seeks a writ of habeas corpus by challenging his conviction from the Vanderburgh Circuit Court in Evansville, Indiana, case number 82C01-1008-MR-936. Respondent filed a return and also filed the state court transcripts and exhibits. Mr. Fairley did not file a reply. For the reasons explained in this Order, the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is
On August 4, 2010, Mr. Fairley was charged with the murder of sixteen-year-old H.G. in Vanderburgh County, Indiana. Public defender Dennis Vowels was appointed to represent him.
Mr. Vowels negotiated a plea agreement with the State, and Mr. Fairley pled guilty to the murder charge. The trial court ordered a pre-sentence investigation. On March 17, 2011, Mr. Fairley was sentenced to fifty years incarceration. There was no direct appeal.
On February 23, 2012, Mr. Fairley filed a pro se petition for post-conviction relief in the trial court. The Indiana State Public Defender entered an appearance for Mr. Fairley and filed an amended petition on April 29, 2016. An evidentiary hearing was held April 29, 2016. Mr. Vowels, Detective Spencer, Detective Sides, and Dr. Fred Unverzagt testified. The deposition of Dave Frank, Mr. Fairley's former employer, and the tape recording of Mr. Fairley's August 2, 2010 statement to police were admitted as evidence. On February 21, 2017, the trial court denied Mr. Fairley's petition. Dkt. 2-1, pp. 1-26 (findings of fact and conclusions of law).
Still represented by the State Public Defender, Mr. Fairley appealed to the Indiana Court of Appeals. Mr. Fairley argued that (1) he had received ineffective assistance of trial counsel because (a) counsel failed to investigate Mr. Fairley's competency to plead guilty, and (b) trial counsel failed to file a motion to suppress the statement given to police; (2) his guilty plea was not knowingly and voluntarily made and there was an insufficient factual basis for the plea; and (3) he was denied due process of law when the trial court accepted his plea without first sua sponte investigating whether he was competent to stand trial.
On December 29, 2017, the Court of Appeals held that the trial court did not clearly err in concluding that Mr. Vowels provided effective assistance of counsel, the trial court did not clearly err in denying the claim that Mr. Fairley's plea was not knowingly and voluntarily entered, and the trial court did not clearly err in failing to sua sponte investigate Mr. Fairley's competence. Dkt. 9-7.
Mr. Fairley petitioned the Indiana Supreme Court to accept transfer of the case, presenting each of the claims presented to the Court of Appeals. On March 22, 2018, transfer was denied. On April 10, 2018, Mr. Fairley, proceeding pro se, filed his petition for a writ of habeas corpus. Dkt. 1.
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). The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") directs how the Court must consider petitions for habeas relief under § 2254. "In considering habeas corpus petitions challenging state court convictions, [the Court's] review is governed (and greatly limited) by AEDPA." Dassey v. Dittmann, 877 F.3d 297, 301 (7th Cir. 2017) (en banc) (citation and quotation marks omitted). "The standards in 28 U.S.C. § 2254(d) were designed to prevent federal habeas retrials and to ensure that state-court convictions are given effect to the extent possible under law." Id. (citation and quotation marks omitted).
A federal habeas court cannot grant relief unless the state court's adjudication of a federal claim on the merits:
28 U.S.C. § 2254(d).
"The decision federal courts look to is the last reasoned state-court decision to decide the merits of the case, even if the state's supreme court then denied discretionary review." Dassey, 877 F.3d at 302. "Deciding whether a state court's decision `involved' an unreasonable application of federal law or `was based on' an unreasonable determination of fact requires the federal habeas court to train its attention on the particular reasons — both legal and factual — why state courts rejected a state prisoner's federal claims, and to give appropriate deference to that decision[.]" Wilson v. Sellers, 138 S.Ct. 1188, 1191-92 (`) (citation and quotation marks omitted). "This is a straightforward inquiry when the last state court to decide a prisoner's federal claim explains its decision on the merits in a reasoned opinion." Id. "In that case, a federal habeas court simply reviews the specific reasons given by the state court and defers to those reasons if they are reasonable." Id.
"For purposes of § 2254(d)(1), an unreasonable application of federal law is different from an incorrect application of federal law." Harrington v. Richter, 562 U.S. 86, 101 (2011). "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." Id. "If this standard is difficult to meet, that is because it was meant to be." Id. at 102. "The issue is not whether federal judges agree with the state court decision or even whether the state court decision was correct. The issue is whether the decision was unreasonably wrong under an objective standard." Dassey, 877 F.3d at 302. "Put another way, [the Court] ask[s] whether the state court decision `was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'" Id. (quoting Richter, 562 U.S. at 103). "The bounds of a reasonable application depend on the nature of the relevant rule. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations." Schmidt v. Foster, 911 F.3d 469, 477 (7th Cir. 2018) (en banc) (citation and quotation marks omitted).
Federal district court review of a habeas corpus petition presumes all factual findings of the state courts to be correct, absent clear and convincing evidence to the contrary. See Daniels v. Knight, 476 F.3d 426, 434 (7th Cir. 2007). The facts of Mr. Fairley's case, as taken from the Indiana Court of Appeals' decision on post-conviction appeal, are these:
Dkt. 9-7, ¶¶ 3-12 (Ind. Ct. App. memorandum opinion) (internal record citations and footnote omitted).
The Court of Appeals made other fact determinations, both as to the murder and to Mr. Fairley's trial court representation. Such facts will be discussed as necessary in the following sections of this Order.
Three grounds for relief are presented in Mr. Fairley's petition, which the Court summarizes:
Mr. Fairley argues that he sustained a traumatic brain injury during the crime and was later unable to accurately recall the events that resulted in his being charged with murder. He argues that this raised an issue of competency. Mr. Fairley also argues that his statement to the police was taken in violation of his Miranda rights, see Miranda v. Arizona, 384 U.S. 436 (1966), and was not challenged by his trial counsel, and had it been, the state's case would have been significantly weaker and he would not have pled guilty. Dkt. 2, p. 5.
The respondent argues that Mr. Fairley did not present any federal constitutional claims to the Indiana courts concerning his guilty plea. Rather, he argues, Mr. Fairley challenged his guilty plea solely on state law grounds. Specifically, when Mr. Fairley argued that his guilty plea should not have been accepted because he had professed his innocence in a subsequent pre-sentence report, he cited only to state law and did not invoke federal constitutional law. Because Mr. Fairley did not fairly present his federal claim to the state courts, the respondent urges that this Court cannot reach the merits of Mr. Fairley's claim that his guilty plea was not knowingly, intelligently, and voluntarily made.
Alternatively, the respondent argues, if this Court reaches the merits of Mr. Fairley's claim, relief should be denied because the claim is not contrary to or an unreasonable application of Boykin v. Alabama, 395 U.S. 238 (1969) (discussing guilty pleas).
The respondent is correct that when Mr. Fairley presented this claim to the Indiana courts he did not title it as a federal constitutional claim or cite and argue controlling Supreme Court precedent. The claim cited to Indiana law and statutes. But that is not the end of a "fair presentment" analysis. A claim may be considered to have been fairly presented to the state courts when "the petitioner framed the claim in terms so particular as to call to mind a specific constitutional right;" and when "the petitioner alleged a pattern of facts that is well within the mainstream of constitutional litigation." Anderson v. Benik, 471 F.3d 811, 815 (7th Cir. 2006).
"[T]he Constitution prohibits a court from accepting a criminal[] defendant's guilty plea `without an affirmative showing that it was intelligent and voluntary.'" Dansberry v. Pfister, 801 F.3d 863, 864 (7th Cir. 2015) (quoting Boykin, 395 U.S. at 242 (1969)). This requires the defendant to "be fully aware of the direct consequences of his plea, including the permissible range of sentences." Id. (citation and quotation marks omitted).
The Indiana Court of Appeals set out the relevant portion of Mr. Fairley's guilty plea proceeding:
Dkt. 9-7, pp. 11-14.
On this plea colloquy, the trial court accepted Mr. Fairley's guilty plea and ordered a pre-sentence investigation. In the post-conviction appeal, the Indiana Court of Appeals applied Indiana law on guilty pleas as discussed in Williams v. State, 42 N.E.3d 107, 113 (Ind. Ct. App. 2015). It wrote that to accept a guilty plea, the trial court must ensure that a defendant (1) understands the nature of the charges; (2) has been informed that a guilty plea effectively waives several constitutional rights — including trial by jury, confrontation and cross-examination of witnesses, compulsory process, and proof of guilt beyond a reasonable doubt without self-incrimination; and (3) has been informed of the maximum and minimum sentences for the crimes charged. Dkt. 9-7, pp. 24-25 (citing Williams, 42 N.E.3d at 113). These requirements are the same requirements set out in Boykins, holding that the record must be clear that a defendant pleading guilty knows that his plea waives these rights:
Boykins, 395 U.S. at 243.
But Mr. Fairley does not specifically argue that the trial court failed to inform him that his plea waived his constitutional rights. Rather, he implicitly argues that because of his brain injury and his inability to remember the events of the shooting, his competency should have been investigated. The Indiana Court of Appeals disagreed.
Dkt. 9-7, pp. 25-26.
Focusing on the state court's decision and the record upon which it is based, this Court cannot say that the decision was contrary to, or involved an unreasonable application of, clearly established federal law. Nor can the Court say that the decision was based on an unreasonable determination of the facts. See Avila, 751 F.3d at 535. The Indiana Court of Appeals application of state law also satisfied the Boykin requirements. Mr. Fairley was advised of the rights he was waiving and stated clearly that he understood his plea waived those rights, and nothing in this record shows otherwise. Nothing in the record suggests that the trial judge should have questioned Mr. Fairley's competency and had him evaluated before taking a plea.
Mr. Fairley's reference in this ground for relief of his Miranda rights does not change this outcome. A Miranda claim was not asserted as a free-standing claim at any point in the state post-conviction proceedings, and it is not a freestanding claim in this action. Additionally, Mr. Vowels testified at the post-conviction evidentiary hearing that Mr. Fairley's statement to police and the question of its admissibility played no part in the plea negotiations. Dkt. 9-7, ¶ 17. And, moreover, the statement was not used against him and there is no indication it was considered by the trial court.
This Court must give deference to the state court's decision. The decision that Mr. Fairley's plea was knowingly, intelligently, and voluntarily made, and that the trial court judge had no reason to question Mr. Fairley's competency is not contrary to, and is not an unreasonable application of, clearly defined federal law as set out in Boykins. It is not based on an unreasonable determination of the facts from the state court record.
Habeas corpus relief on Mr. Fairley's first ground for relief is
Mr. Fairley argues that trial counsel was ineffective because (a) he failed to attempt to have the statement to police suppressed; and (b) he failed to hire an expert to investigate the impact of Mr. Fairley's head injury on his ability to process information, recall what had happened, or his competency to plead guilty. Mr. Fairley does not allege in his petition that but for these failures he would have obtained a better result.
The respondent argues that the Indiana Court of Appeals rejected Mr. Fairley's ineffective assistance of counsel claims on the merits, and therefore relief cannot be granted unless the Court of Appeals unreasonably applied clearly defined federal law, or the decision was based on an unreasonable determination of the facts. The respondent argues the state court's decision that Mr. Fairley was not ineffective was not an unreasonable decision.
A criminal defendant has a right under the Sixth Amendment to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). For a habeas corpus petitioner to establish that "counsel's assistance was so defective as to require reversal," he must make two showings: (1) that counsel rendered deficient performance that (2) prejudiced him. Id. With respect to the performance requirement, "[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting Strickland, 466 U.S. at 688). "[T]o establish prejudice, a `defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 534 (quoting Strickland, 466 U.S. at 694).
In guilty plea cases, the prejudice prong has a slightly different requirement:
Hill v. Lockhart, 474 U.S. 52, 58-59 (1985) (emphasis added). Recently, in Lee v. United States, 137 S.Ct. 1958 (2017), the Court clarified the showing necessary in a guilty plea case to establish prejudice. It held that in cases where trial counsel was alleged to have erred in providing a defense to the charge (as opposed to a miscalculation of penal consequences), the petitioner must also show "he would have been
When the deferential AEDPA standard is applied to a Strickland claim, the following calculus emerges:
Harrington v. Richter, 562 U.S. 86, 105 (2011).
The Indiana Court of Appeals set out the legal standard it would follow in assessing Mr. Fairley's ineffective assistance of counsel claim:
Stevens v. State, 770 N.E.2d 739, 746-47 (Ind. 2002) (citations omitted). Dkt. 9-7, ¶ 23. Indiana's ineffective assistance of counsel legal standard is essentially the Strickland standard.
Acknowledging that ineffective assistance claims in guilty plea cases have their own unique considerations, the Court of Appeals set out what a post-conviction relief petitioner has to show to obtain relief:
Dkt. 9-7, ¶25. This standard tracks Lee and Hill.
Finally, "[s]trategic decisions . . . so long as they are made after a thorough investigation of law and facts, are `virtually unchallengeable'" in habeas corpus proceedings. Blackmon v. Williams, 823 F.3d 1088, 1103 (7th Cir. 2016) (quoting Strickland, 466 U.S. at 690).
The Indiana Court of Appeals held that Mr. Vowels was not ineffective when he did not seek to suppress Mr. Fairley's statements to police based on Mr. Vowels's testimony about his defense strategy. Dkt. 9-7, ¶ 32. It considered Mr. Vowel's testimony at the post-conviction evidentiary hearing that (1) Mr. Vowels is an experienced criminal defense attorney in Vanderburgh County; (2) his usual practice is to wait until shortly before trial to file a motion to suppress; (3) he was confident the statement would not be admitted; (4) he believed that the prosecutor also thought the statement was inadmissible; and (5) Mr. Vowels does not believe that the statement and the lack of a motion to suppress had any impact on the plea negotiations. Id. On these facts, the state court's decision was not an unreasonable application of the facts to Strickland's performance prong.
The Indiana Court of Appeals next addressed the question of whether trial counsel was ineffective for not hiring an expert to assess Mr. Fairley's competency to plead guilty.
The Fourteenth Amendment's Due Process Clause "does not permit trial of an individual who lacks mental competency." Indiana v. Edwards, 554 U.S. 164, 170 (2008) (internal quotation marks omitted). A person is competent to stand trial when "he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding . . . and . . . a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402 (1960) (per curiam). An inability to remember the crime is insufficient to create a reasonable cause for a competency hearing. United States v. Antonelli, 85 F. App'x 523 (7th Cir. 2004). The focus is on the defendant's mental state at the time of the plea. Id.
Under Indiana law "a defendant is not competent to stand trial when he is unable to understand the proceedings and assist in the preparation of his defense." Mast v. State, 914 N.E.2d 851, 856 (Ind. Ct. App. 2009). The Court of Appeals noted that when "a criminal defendant is thought to lack the ability to understand court proceedings and assist in his own defense," then competency should be investigated. Dkt. 9-7, ¶ 28 (citing Gross v. State, 41 N.E.3d 1043, 1047 (Ind. Ct. App. 2015) (citing Ind. Code § 35-36-3-1(a)).
In assessing whether Mr. Vowels should have had reason to question Mr. Fairley's competency, the Court of Appeals looked to Mr. Vowels's testimony at the post-conviction evidentiary hearing. There, Mr. Vowels acknowledged that when he first met Mr. Fairley he was "non-communicative." However, Mr. Fairley made a rapid recovery and began to respond appropriately to Mr. Vowels's questions. Eventually Mr. Fairley recalled events leading up to the shooting, including Ms. Jones leaving his house and him having to restrain H.G. Mr. Vowels testified that Mr. Fairley was able to go over discovery materials with him, discuss potential defenses, and considered the evidence against him. Mr. Vowels testified that Mr. Fairley was able to assist him in preparing the defense. And, the court noted, "the fact that [Mr.] Fairley could not recall the moments around the shooting does not mean that he was incompetent to stand trial." Dkt. 9-7, ¶ 29.
The Court of Appeals did not end its assessment there. It also took into consideration the testimony of Dr. Unverzagt, a neuropsychologist retained by Mr. Fairley's post-conviction counsel. Dr. Unverzagt was unable to do a "retroactive competency evaluation" to evaluate whether Mr. Fairley was competent at the time he pleaded guilty. The doctor agreed that Mr. Fairley had made a remarkable recovery. Id., ¶ 30.
Taking into account Mr. Vowels's testimony and that of Dr. Unverzagt, the Court of Appeals concluded that the post-conviction court had not erred when it found that Mr. Vowels was not ineffective when he did not further investigate Mr. Fairley's competency or seek a competency hearing. Id.
This Court is required to give the state court decision great deference. The legal standard set forth above bears repeating here. "The issue is not whether federal judges agree with the state court decision or even whether the state court decision was correct. The issue is whether the decision was unreasonably wrong under an objective standard." Dassey, 877 F.3d at 302. "Put another way, [the Court] ask[s] whether the state court decision `was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'" Id. (quoting Richter, 562 U.S. at 103).
Under this standard, this Court cannot say that the Indiana Court of Appeals' decision was contrary to, or involved an unreasonable application of, clearly established federal law, or that it resulted in a decision that was based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d). The Court of Appeals considered numerous factors in the state court record and found no reason that would have compelled Mr. Vowels to have Mr. Fairley's competency evaluated. Mr. Fairley is not entitled to habeas corpus relief on this claim.
Mr. Fairley argues that he was denied due process when the trial court failed to sua sponte order a competency evaluation and hold a hearing in light of the facts of the case. Dkt. 2, p. 8. Mr. Fairley does not specify what facts the trial court knew or should have known that required a competency evaluation.
The respondent maintains that this issue, a free-standing claim independent of Mr. Fairley's other claims, was decided by the Indiana Court of Appeals on state law grounds that were independent of the federal question and adequate to support the judgment. He argues that this claim, in Indiana, is a fundamental error claim because Mr. Fairley contends the trial court should have acted sua sponte. Indiana does not permit fundamental error claims in post-conviction proceedings. Thus the claim was non-reviewable on state law grounds, and, as a result, not reviewable by this Court.
The respondent is correct that a federal court will not review a federal question decided by a state court "on a state law ground that is independent of the federal question and is adequate to support the judgment." Walker v. Martin, 562 U.S. 307, 315 (2011) (citation and internal quotation marks omitted). This is true whether the state law ground is substantive or procedural. Id., 562 U.S. at 315.
The Indiana Court of Appeals disposed of Mr. Fairley's claim thusly:
Dkt. 9-7, ¶ 42.
"In assessing the adequacy of a state procedural ruling, federal courts do not review the merits of the state court's application of its own procedural rules. Instead, we ask whether the rule invoked was firmly established and regularly followed." Crockett v. Butler, 807 F.3d 160, 167 (7th Cir. 2015) (citations and quotations marks omitted). In sum, "[i]f a state court clearly and expressly states that its judgment rests on a state procedural bar and does not reach the merits of a federal claim, then [a federal court is] unable to consider that claim on collateral review." Gray v. Hardy, 598 F.3d 324, 329 (7th Cir. 2010). This Court knows of no case where a state post-conviction court and the Indiana Court of Appeals reviewed, on the merits, a fundamental error claim. The state procedural rule appears to be firmly established, see Sanders, supra, and as far as this Court knows, regularly followed.
Mr. Fairley did not file a reply, thus there is no attempt to show cause and prejudice to excuse this procedural default, and no attempt to show that failing to consider the issue will result in a fundamental miscarriage of justice. On this record, the Court does not discern a basis to evaluate cause and prejudice.
Because Mr. Fairley's third claim for relief is unavailable for federal review, habeas corpus relief cannot be granted on this claim.
Finding no ground warranting relief, the Court
"A state prisoner whose petition for a writ of habeas corpus is denied by a federal district court does not enjoy an absolute right to appeal." Buck v. Davis, 137 S.Ct. 759, 773 (2017). Instead, a state prisoner must first obtain a certificate of appealability. See 28 U.S.C. § 2253(c)(1). "A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.'" 28 U.S.C. § 2253(c)(2). In deciding whether a certificate of appealability should issue, "the only question is whether the applicant has shown that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Buck, 137 S. Ct. at 773 (citation and quotation marks omitted).
Rule 11(a) of the Rules Governing Section 2254 Proceedings in the United States District Courts requires the district court to "issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Mr. Fairley's guilty plea was knowingly, intelligently, and voluntarily made; he was competent to enter the plea; and his counsel was not ineffective. Jurists of reason would not disagree with this Court's resolution of his claims and nothing about the claims deserve encouragement to proceed further. Therefore, a certificate of appealability is
