RUDY LOZANO, District Judge.
This matter is before the Court on the Amended Petition under 28 U.S.C. Paragraph 2254 for Writ of Habeas Corpus filed by Daniel E. Wilkins, a pro se prisoner, on May 28, 2014. For the reasons set forth below, the Court
Daniel E. Wilkins is challenging his convictions for robbery, criminal confinement, and unlawful possession of a firearm by a serious violent felon. He was sentenced to an aggregate term of 30 years on March 24, 2008, by the Allen Superior Court under cause number 02D04-0707-FB-98.
Wilkins filed a direct appeal. The Court of Appeals of Indiana affirmed in Wilkins v. State, 901 N.E.2d 535 (Ind. Ct. App. 2009), DE 17-7. The Indiana Supreme Court denied transfer. DE 17-3 at 2-3. The Court of Appeals of Indiana affirmed the denial of his post-conviction relief petition in Wilkins v. State, 2013 WL 5777074, (Ind. Ct. App. 2013), DE 17-12. The Indiana Supreme Court denied transfer. DE 17-4 at 1. In this habeas corpus petition, Wilkins raises eleven grounds for habeas corpus relief.
"Federal habeas review . . . exists as a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal." Woods v. Donald, 575 U.S. ___, ___; 135 S.Ct. 1372, 1376 (2015) (quotation marks and citation omitted).
28 U.S.C. § 2254(d).
Woods v. Donald, 575 U.S. ___, ___; 135 S.Ct. 1372, 1376 (2015). (quotation marks and citations omitted).
In Ground One, Wilkins argues that he was denied his Sixth Amendment right to a Speedy trial. The respondent argues that Ground One was not fairly presented to the State Courts. Nevertheless, "[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C.A. § 2254(b)(2).
In Ground Two, Wilkins argues that he was denied the effective assistance of counsel in connection to his speedy trial claim. However, "[w]ithout a meritorious speedy trial claim, [he] cannot possibly demonstrate that he was prejudiced by his . . . counsel's failure to argue such a claim. As the Court noted in Strickland, if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Ashburn v. Korte, 761 F.3d 741, 751 (7th Cir. 2014) (quotation marks, brackets, and citations omitted).
Here, because Wilkins is not entitled to habeas corpus relief even under a de novo review, it is unnecessary to address any of the procedural issues in connection with Ground One and Ground Two.
Ashburn v. Korte, 761 F.3d 741, 751-752 (7th Cir. 2014) (parallel citations and quotation marks omitted). However, all four factors of the Barker test are not equal. "Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." Barker v. Wingo, 407 U.S. 514, 530 (1972). Thus, "the length of the delay operates as a trigger — a delay longer than one year triggers the full Barker analysis." O'Quinn v. Spiller, 806 F.3d 974, 977 (7th Cir. 2015). Conversely, a delay of less than one year ends the analysis.
Here, Wilkins was charged on July 6, 2007, and his jury trial was held on February 20 and 21, 2008. Wilkins v. State, 901 N.E.2d 535, 536-37 (Ind. Ct. App. 2009). DE 17-7 at 2-3. This was less than an eight month delay. Because an eight month delay is not presumptively prejudicial, a full Barker analysis is not necessary, and Wilkins has not established a Sixth Amendment violation. Therefore neither Ground One nor Ground Two is a basis for habeas corpus relief.
Wilkins argues that his trial counsel was ineffective because he prevented Wilkins from waiving a jury and demanding a bench trial. However, "there is no federally recognized right to a criminal trial before a judge sitting alone." United States v. Clark, 943 F.2d 775, 784 (7th Cir. 1991) (ellipsis omitted) quoting Singer v. United States, 380 U.S. 24, 34 (1965). Because Wilkins could not have a meritorious bench trial demand claim, he "cannot possibly demonstrate that he was prejudiced by his . . . counsel's failure" to demand a bench trial. Ashburn v. Korte, 761 F.3d 741, 751 (7th Cir. 2014). Therefore Ground Three is not a basis for habeas corpus relief.
Wilkins argues that his trial counsel was ineffective because he incorrectly advised him that the maximum sentence possible was 50 years. Wilkins argues that if he had known that the maximum sentence was only 30 years, he might have taken the State's 16 year guilty plea offer. However, as the Court of Appeals of Indiana explained, "fifty years was the maximum penalty he faced for the charges against him." Wilkins v. State, 2013 WL 5777074, at *3 (Ind. Ct. App. 2013), DE 17-12 at 7 (emphasis in original). A misstatement by the trial judge at sentencing did not change that fact. Moreover, even if the maximum sentence had been shorter than he was advised, such an error would not have made it more likely that he would have decided to plead guilty. Rather it would have made it less likely. Because his trial counsel was not wrong and Wilkins would not have been prejudiced even if he had been, Ground Four presents no basis for habeas corpus relief.
Wilkins argues that his trial counsel was ineffective because he did not object to the testimony of two eye witnesses who identified him at trial. He argues that "[i]n determining whether an identification is reliable despite suggestive pre-trial identification procedures, courts" must apply a five factor test. Cossel v. Miller, 229 F.3d 649, 655 (7th Cir. 2000). He argues that because the State could not meet that test, the objection would have been sustained and the testimony excluded. However, "Cossel is readily distinguishable [because] there is no allegation of any prior impermissibly suggestive identification procedure here." United States v. Miller, 795 F.3d 619, 628 (7th Cir. 2015). As such, it was not unreasonable for the Court of Appeals of Indiana to have found that "Wilkins cannot prove either substandard performance or prejudice." Wilkins v. State, 2013 WL 5777074, at *5 (Ind. Ct. App. 2013), DE 17-12 at 9. Therefore Ground Five presents no basis for habeas corpus relief.
Wilkins argues that his trial counsel was ineffective because he did not object to fingerprint testimony based on the Simultaneous Latent Print Impressions method. He argues that Commonwealth v. Patterson, 445 Mass. 626 (2005), held that Simultaneous Latent Print Impressions is a questionable method for analyzing fingerprints. The court in Patterson explained that,
Id. at 645, overruled on other grounds by Com. v. Britt, 465 Mass. 87, 987 N.E.2d 558 (2013).
However, no such testimony was admitted during Wilkins' trial. There is no mention of using the Simultaneous Latent Print Impressions method. Eric Black testified, "In the comparison of latent fingerprint evidence, we use a scientific method called ACE-V, and that's an acronym for A-C-E dash V, and it stands for analysis, comparison, evaluation, and then verification." Trial Transcript at 299.
David Young did testify that "Three (3) fingers placed on there appear to be placed in — in — in an order that appeared to me to be a simultaneous impression, in other words close enough together that they appeared to be laid down at the same time when an item was picked up, the spacing between `em and just the orientation of the prints appeared to be in that order." Trial Transcript at 331. He also testified that two prints were "consistent with the — another finger, a simultaneous impression." Trial Transcript at 337. However, he clearly stated that "There was sufficient information within `em to individually identify both prints." Trial Transcript at 339. "These were made independent of each other. I didn't need the other one to substantiate what was there, both of `em had more than enough information for me to identify strictly on its own if the other one wasn't present." Id. Thus, the identification of Wilkins as the person who had left these two prints was not based on "an otherwise unacceptably small number of similarities" with multiple prints, but on a complete and independent analysis of each print. David Young testified that "I was completely confident . . . I was a hundred percent (100%) with both." Trial Transcript at 361. Based on the testimony presented at trial, there was no factual basis for an objection to the use of the Simultaneous Latent Print Impressions method because it was not used to identify any fingerprints presented during Wilkins' trial. Therefore Ground Six is not a basis for habeas corpus relief.
Wilkins argues that his trial counsel was ineffective because he did not object to the State's use of a peremptory strike of what he alleges was the only African-American juror. Here is how the Court of Appeals of Indiana addressed the claim.
Wilkins v. State, 2013 WL 5777074, at *5-6 (Ind. Ct. App. 2013) (citations and quotation marks omitted), DE 17-12 at 11-13.
"When the claim at issue is one for ineffective assistance of counsel . . . federal courts are to afford both the state court and the defense attorney the benefit of the doubt." Woods v. Etherton, 578 U.S. ___, ___; 2016 WL 1278478 at *2 (2016) (quotation marks omitted). Because the Court of Appeals of Indiana accurately stated the Batson standard and did not unreasonably apply it to the facts of this case, Ground Seven is not a basis for habeas corpus relief.
Wilkins argues that his trial counsel was ineffective because during the second phase of his bifurcated trial, he did not make an opening statement, cross-examine witnesses, object to the State's evidence, nor make a closing argument. "After Wilkins was convicted of Counts 1 & 2 the proceedings continued and the jury was instructed on count (3) which alleges that the defendant omitted the offense of unlawful possession of a firearm by an individual with a prior conviction enumerated under I.C. 35-47-4-5." DE 9-1 at 45 and DE 22 at 31. The Court of Appeals of Indiana explained that "Wilkins has failed to articulate what trial counsel would or could have said during opening and closing statements that would have had any meaningful impact on the outcome of this case. Having failed to establish prejudice, his argument with respect to those claims is without merit." Wilkins v. State, 2013 WL 5777074, at *7 (Ind. Ct. App. 2013), DE 17-12 at 13. This was not an unreasonable determination. Even now in his habeas corpus filings, Wilkins has provided no explanation as to what his trial counsel could have said or done which would have resulted the exclusion of any admitted evidence or the inclusion of any additional evidence. Neither has he provided any suggestion as to what could have been said in opening or closing which would have given the jury an alternative perspective on the State's evidence. Because the State's adjudication of this claim was not unreasonable, Ground Eight is not a basis for habeas corpus relief.
Wilkins argues that he was denied the effective assistance of both trial and appellate counsel because they did not preserve or raise on appeal a claim that the Information charging him with Confinement was inadequate. "An [Information] is constitutionally sufficient if it (1) contains the elements of the offense intended to be charged, (2) sufficiently apprises the accused of what he must be prepared to meet, and (3) enables the accused to plead a judgment under the indictment as a bar to any subsequent prosecution for the same offense." U.S. ex rel. Ballard v. Bengston, 702 F.2d 656, 660 (7th Cir. 1983) citing Russell v. United States, 369 U.S. 749, 763-64 (1962).
Wilkins argues that the Information should have specifically stated where the victims were confined pursuant to Indiana Code 35-34-1-2(a)(8) which requires "stating the place of the offense as definitely as can be done if the place is of the essence of the offense. . . ." However, specific location is not a part of the essence of Confinement which only requires "knowingly or intentionally confin[ing] another person without the other person's consent. . . ." Indiana Code 35-42-3-3. Moreover, even "[w]here a charging instrument may lack appropriate factual detail, additional materials such as the probable cause affidavit supporting the charging instrument may be taken into account in assessing whether a defendant has been apprised of the charges against him." Gilliland v. State, 979 N.E.2d 1049, 1061 (Ind. Ct. App. 2012) (quotation marks, citations, and brackets omitted). Here the Probable Cause Affidavit states that Wilkins "made all the victims go into the office bathroom and used a new pool stick to jam in the door handle to lock them in" at the Stadium Bar and Grill. Trial Record at 22. Thus, the Information was not insufficiently specific and Ground Nine is not a basis for habeas corpus relief.
Wilkins argues that he was denied the effective assistance of both trial and appellate counsel because they did not preserve or raise on appeal a Double Jeopardy claim asserting that the elements of his Confinement conviction were not distinct from his Robbery conviction. The Court of Appeals of Indiana explained that
Wilkins v. State, 2013 WL 5777074, at *7 (Ind. Ct. App. 2013), DE 17-12 at 14-15. Wilkins has not provided any explanation for why this was an unreasonable adjudication of this claim. The facts of this case show that after committing Robbery, he went on to separately commit Confinement by locking his victims in the bathroom. Therefore Ground Ten is not a basis for habeas corpus relief.
Wilkins argues that he was denied the effective assistance of both trial and appellate counsel because they did not preserve or raise on appeal a claim that the charging Informations were not properly sworn. The Court of Appeals of Indiana explained:
Wilkins v. State, 2013 WL 5777074, at *8 (Ind. Ct. App. 2013), DE 17-12 at 15-17. Wilkins has not provided any explanation for why this was an unreasonable adjudication of this claim. The charging Informations were properly sworn under oath and he had no valid basis for objecting. Therefore Ground Eleven is not a basis for habeas corpus relief.
Wilkins argues that even if no individual error was sufficiently prejudicial to merit habeas corpus relief, the Court should grant him relief based on the cumulative prejudice of all of the errors combined. "[P]rejudice may be based on the cumulative effect of multiple errors. Although a specific error, standing alone, may be insufficient to undermine the court's confidence in the outcome, multiple errors together may be sufficient." Malone v. Walls, 538 F.3d 744 (7th Cir. 2008) quoting Hough v. Anderson, 272 F.3d 878 (7th Cir. 2001). However, cumulative prejudice is only possible where there was more than one error. Here, Wilkins has not demonstrated that any errors occurred. Therefore there are no errors to combine.
Wilkins argues that this court should hold an evidentiary hearing before ruling on Grounds One through Eight. Nevertheless, he provides no explanation as to why a hearing is needed, nor what new evidence might be obtained during a hearing. Neither does he provide any explanation for how he meets the requirements of 28 U.S.C. § 2254(e)(2) as required by Boyko v. Parke, 259 F.3d 781, 790 (7th Cir. 2001). Therefore there is no basis for holding an evidentiary hearing in this case.
Finally, pursuant to Rule 11 of the Rules Governing Section 2254 Cases, the Court must consider whether to grant a certificate of appealability. To obtain a certificate of appealability under 28 U.S.C. § 2253(c), the petitioner must make a substantial showing of the denial of a constitutional right by establishing "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000). As previously explained, all of the grounds raised by Wilkins are meritless and none of them deserve encouragement to proceed further. Therefore Wilkins will not be granted a certificate of appealability.
For the reasons set forth above, the court
