JANE MAGNUS-STINSON, District Judge.
Petitioner Curtis Jones was convicted of murder in an Indiana state court. He is currently serving a sixty-year sentence for this crime. Mr. Jones now seeks a writ of habeas corpus.
For the reasons explained in this Entry, Mr. Jones'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 Daniels v. Knight, 476 F.3d 426, 434 (7th Cir. 2007). On post-conviction appeal, the Indiana Court of Appeals summarized the relevant factual and procedural history:
Jones v. State, 2013 WL 5753773, *1-2 (Ind. Ct. App. 2013) ("
The Indiana Court of Appeals in Jones II affirmed the denial of post-conviction relief. See id. at *3. Mr. Jones filed a petition to transfer with the Indiana Supreme Court, and it denied transfer on March 20, 2014. See Jones v. State, 5 N.E.3d 371 (Ind. 2014).
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) (1996). The petitioner filed his 28 U.S.C. § 2254 petition after the effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA"). His petition, therefore, is subject to AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336 (1997).
"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); Guys v. Taylor, 529 U.S. 362 (2000); Morgan v. Krenke, 232 F.3d 562 (7th Cir. 2000)). 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). "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. Jones raised three claims in his petition to transfer his post-conviction appeal to the Indiana Supreme Court, and he appears to raise the same three claims here. The Court restates them as follows: (1) whether his appellate counsel provided ineffective assistance by failing to argue that his sentence was manifestly unreasonable; (2) whether Blakely and Apprendi apply retroactively; and (3) whether, if Blakely and Apprendi apply retroactively, juvenile convictions can be considered "prior convictions," and, as such, used to enhance a sentence. [Filing No. 1 at 4-5; Filing No. 12-10.] The Court will address each claim in turn.
A defendant has a right under the Sixth Amendment to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984). For a 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 the petitioner. Id.
"Appellate lawyers are not required to present every nonfrivolous claim on behalf of their clients—such a requirement would serve to bury strong arguments in weak ones—but they are expected to `select[] the most promising issues for review.'" Shaw v. Wilson, 721 F.3d 908, 915 (7th Cir. 2013) (quoting Jones v. Barnes, 463 U.S. 745, 752-53 (1983)). "For this reason, if [the petitioner's appellate counsel] abandoned a nonfrivolous claim that was both `obvious' and `clearly stronger' than the claim that he actually presented, his performance was deficient, unless his choice had a strategic justification." Id.; see Sanders v. Cotton, 398 F.3d 572, 585 (7th Cir. 2005). "This standard is difficult to meet because the comparative strength of two claims is usually debateable." Shaw, 721 F.3d at 915. Appellate counsel's performance is assessed "from the perspective of a reasonable attorney at the time of [the] appeal, taking care to avoid the distorting effects of hindsight." Id. (citation and quotation marks omitted); see also Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).
The Indiana Court of Appeals in Jones II addressed Mr. Jones's ineffective assistance of appellate counsel claim on the merits, reasoning as follows:
Jones II, 2013 WL 5753773, at *2-3.
The petitioner maintains that the Indiana Court of Appeals unreasonably applied clearly established federal law in concluding that the unraised sentencing challenge was not "clearly stronger" than his inconsistent verdict claim. Specifically, the petitioner contends that, although the "manifestly unreasonable" standard is difficult to meet, it is not impossible, and that the inconsistent verdict claim had no chance of success. [Filing No. 14 at 2-6.] The respondent maintains that the Indiana Court of Appeals reasonably applied clearly established federal law in concluding that Mr. Jones's appellate counsel did not render deficient performance because the state court correctly noted that the "manifestly unreasonable" standard was difficult to meet and that the claims appellate counsel chose to raise offered the potential for significantly greater relief. [Filing No. 12 at 7-8.]
"A state-court decision involves an unreasonable application of this Court's clearly established precedents if the state court applies [the Supreme] Court's precedents to the facts in an objectively unreasonable manner." Brown, 544 U.S. at 141 (internal citations omitted). As discussed below, there was nothing objectively unreasonable about the Indiana Court of Appeals' application of the standards governing ineffective assistance of appellate counsel claims. It concluded that the unraised claim was not clearly stronger because of the difficult showing necessary for success on such a claim and because it would have only resulted in a lower sentence, while the two claims that were raised would have resulted in the reversal of his conviction. This represents a reasonable application of Supreme Court precedents to the facts.
The Indiana Court of Appeals correctly noted that Indiana's prior appellate standard of review for sentencing decisions—which was effective at the time of Mr. Jones's appeal—made relief on such a claim extremely difficult to obtain. To succeed on such a claim, Mr. Jones would have had to convince an Indiana appellate court that his sentence was "manifestly unreasonable" in light of the offense and the offender. Reed v. State, 856 N.E.2d 1189, 1198 (2006). The Indiana Supreme Court has described this standard as "incredibly high," and thus relief based on such a claim was "seldom granted." Id.; see Walker v. State, 747 N.E.2d 536, 538 (Ind. 2001) (describing the standard as "very tough" and noting that "Indiana appellate courts have exercised this responsibility . . . with great restraint"). Even a showing that the sentence was unreasonable was insufficient; the defendant had to show that the sentence was "clearly, plainly, and obviously" unreasonable. Powell v. State, 687 N.E.2d 563, 568 (Ind. 1997). In fact, this standard was "so high that it ran the risk of impinging" the defendant's Indiana constitutional right to an appeal. Serino v. State, 798 N.E.2d 852, 856 (Ind. 2003). This led Indiana to lessen the showing required "to provide a more realistic appeal of sentencing issues." Id. Mr. Jones is correct, however, that this difficult standard is not impossible to meet. See Walker, 747 N.E.2d at 538 (revising a sentence because it was manifestly unreasonable and collecting cases).
Instead of challenging Mr. Jones's sentence, Mr. Jones's appellate counsel challenged the sufficiency of the evidence and whether the jury's verdicts were inconsistent.
It is "difficult" to show that an unraised claim is "clearly stronger" than claims that were raised "because the comparative strength of two claims is usually debateable." Shaw, 721 F.3d at 915. Mr. Jones's appellate counsel essentially had the choice between several weak claims. Given this, the unraised sentencing claim was not clearly stronger than the claims that were raised. More importantly, even if it arguably was clearly stronger, it was certainly not unreasonable for the state court to conclude otherwise. Therefore, because the state court reasonably applied established federal law, Mr. Jones is not entitled to habeas relief on this claim.
Mr. Jones contends that Blakely and Apprendi apply retroactively and that he should receive the benefit of those decisions. The Indiana Court of Appeals addressed this claim on the merits as follows:
Jones, 2013 WL 5753773, at *3.
Mr. Jones's claim has no merit. The Indiana Court of Appeals correctly recognized that, although Blakely claims are available in cases that were still pending when Blakely was decided, see White v. Battaglia, 454 F.3d 705, 706 (7th Cir. 2006), it does not apply retroactively in challenges to final convictions on collateral review, see Simpson v. United States, 721 F.3d 875, 876 (7th Cir. 2013); Wilson v. United States, 414 F.3d 829, 831 (7th Cir. 2005). Mr. Jones acknowledges that his conviction was final when Blakely was decided. Accordingly, he is not entitled to habeas relief on this claim.
Mr. Jones's third and final claim is that his juvenile adjudication should not be considered a conviction that can be used to enhance his sentence. The nature of this claim is not entirely clear from Mr. Jones's habeas petition.
Mr. Jones raised a similar claim in his petition to transfer to the Indiana Supreme Court. [Filing No. 12-10 at 11-12.] That claim was predicated on success on his Blakely claim discussed above. [See Filing No. 12-10 at 11 ("If this Court decides that Blakely and Apprendi do not apply to cases final before they were decided, there is no need to reach this question.").] To the extent his is raising this same claim here, it has no merit for the same reasons discussed above regarding his Blakely claim. Moreover, this claim appears to be predicated on a question of state law. See Jones II, 2013 WL 5753773, at *3. To the extent that it is, the United States Supreme Court has "repeatedly held that `federal habeas corpus relief does not lie for errors of state law.'" Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (quoting Estelle v. McGuire, 502 U.S. 62, 67 (1991)).
Mr. Jones is not entitled to habeas relief on this claim for both of the foregoing reasons.
This Court has carefully reviewed the state record in light of Mr. Jones's claims and has given such consideration to those claims as the limited scope of its review in a habeas corpus proceeding permits. Because Mr. Jones failed to carry his burden on his claims, he is not entitled to habeas relief, and his petition is therefore
Judgment consistent with this Entry shall now issue.
Rule 11(a) of the Rules Governing § 2254 Cases requires the district courts to "issue or deny a certificate of appealability when it enters a final order adverse to the applicant," and "[i]f the court issues a certificate, the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2)." Pursuant to § 2253(c)(2), a certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." Such a showing includes demonstrating "that reasonable jurists could debate whether . . . 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) (citation and quotation marks omitted). Mr. Jones has failed to make this showing, and therefore a certificate of appealability is