JON E. DeGUILIO, District Judge.
More than a decade ago, a jury found Virgil Hall, III, guilty of neglecting and murdering his three-year-old step-son, Peyton Fetterhoff. The Grant Circuit Court sentenced him to 65 years under cause number 27C01-0006-CF-35. Having completed his direct and post-conviction appeals, he has now filed this habeas corpus petition raising six grounds for relief. Five of the six grounds were adjudicated on the merits by the state courts.
28 U.S.C.S. § 2254(d).
The Court of Appeals of Indiana has reviewed this case three times and each time the Indiana Supreme Court denied transfer. In Hall v. State, 760 N.E.2d 688 (Ind.Ct.App.2002) (hereinafter Hall I), the court denied his appeal from the denial of his motion to correct error. ECF 12-5. In Hall v. State, 796 N.E.2d 388 (Ind.Ct. App.2003) (hereinafter Hall II), the court denied his direct appeal. ECF 12-9. In Hall v. State, 27A04-0812-PC-740, 2009 WL 2486383, 2009 Ind.App. Unpub. LEXIS 1054 (Ind.Ct.App. August 14, 2009) (hereinafter Hall III), the court denied his appeal from the denial of his post-conviction relief petition. ECF 12-12. Relevant facts and applicable legal standards are provided as necessary in each section below.
"Hall alleged in his Petition that he was denied an impartial jury due to extrinsic prejudicial information that was conveyed to his jury." Traverse at 12, ECF 24. He argues that the limitations of 28 U.S.C. § 2254(d) are inapplicable because the state court did not adjudicate this claim on the merits. Though he acknowledges that the state court did discuss and deny this claim, he argues that because the decision was based on Indiana law and did not mention the Sixth Amendment, his federal claim was not adjudicated. This is incorrect. "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington v. Richter, 562 U.S. ___, ___, 131 S.Ct. 770, 784-85, 178 L.Ed.2d 624, 639 (2011). Here, there is no indication that this federal claim was denied for a state-law procedural reason. Though the state court did not cite to federal law, the United States Supreme Court has made clear that "a state court need not cite or even be aware of our cases under § 2254(d)." Id., 131 S.Ct. at 784, 178 L.Ed.2d at 638. Therefore habeas relief can only be granted on this claim if Hall is able to meet one of the exceptions of § 2254(d).
In adjudicating this claim, the state court found "that extrinsic communications concerning a contested matter reached Hall's jury during deliberations." Hall II, 796 N.E.2d at 396. Specifically, the court found that
Id. at 393-394 (citations omitted).
Id. at 396.
The respondent argues that "[t]here is nothing in the record to support the Court
Having found "juror misconduct involving an out-of-court communication with an unauthorized person," Hall II at 394, the Court of Appeals of Indiana explained "that the State should bear the burden of proving that Hall was not prejudiced by the extrinsic communications," id., but that it was constrained by the Indiana Supreme Court opinion in Griffin v. State, 754 N.E.2d 899 (Ind.2001). "[B]ecause mandatory precedent clearly places the burden of proving prejudice on the defendant, we require Hall to prove he was prejudiced by the misconduct." Id. at 396.
Hall argues that placing the burden on him to prove prejudice violated Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954) which held:
347 U.S. at 229, 74 S.Ct. 450.
The respondent argues that Hall cannot obtain habeas corpus relief based on Remmer because it is not clearly established law. "Section 2254(d)(1)'s `clearly established' phrase `refers to the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision.'" Lockyer v. Andrade, 538 U.S. 63, 71, 123 S.Ct. 1166,
The court has carefully considered respondent's argument and the case law on which it relies. It is true that later Supreme Court statements contradicted Remmer's placement of the burden of proof. See Smith v. Phillips, 455 U.S. 209, 215, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) ("[t]his Court has long held that the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias." (emphasis added)); United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ("[t]here may be cases where an intrusion should be presumed prejudicial[,]" but the ultimate inquiry is "[d]id the intrusion affect the jury's deliberations and thereby its verdict?"); see also United States v. Williams-Davis, 90 F.3d 490 (D.C.Cir.1996) (for a thorough chronological summary of the Supreme Court's intrusion jurisprudence). It is also true that the federal appellate courts have taken diverse approaches to resolving the conflict,
Based solely on the foregoing, this court would struggle to independently conclude that no fairminded jurist could disagree about the placement of the burden of proof at a Remmer hearing, as is required to grant habeas relief. Bobby v. Dixon, ___ U.S. ___, 132 S.Ct. 26, 27-28, 181 L.Ed.2d 328 (2011) ("[u]nder the Antiterrorism and Effective Death Penalty Act, a state prisoner seeking a writ of habeas corpus from a federal court must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." (internal citations omitted)); Harrington v. Richter, 131 S.Ct. at 786 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) ("[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.")). Jurists do disagree, with at least the Eighth and Sixth Circuit Courts of Appeal joining the Indiana Supreme Court in placing the burden on the defendant pursuant to Smith v. Phillips. See Tunstall, 306 F.3d at 611; Pennell, 737 F.2d at 532. However, the case law in the Seventh Circuit appears clear, and we are bound by our circuit's previous determination that the law has been clearly established. Tolliver, 594 F.3d at 916 n. 6.
In Wisehart v. Davis, 408 F.3d 321 (7th Cir.2005), the Seventh Circuit had occasion to decide what rule, if any, was clearly established by the Supreme Court in Remmer and its progeny. Like the petitioner here, the petitioner in Wisehart sought habeas relief under Remmer's broad holding that "any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury" triggers a presumption of prejudice that the government
Although the court in Wisehart did not explicitly state that the quoted rule was clearly established by Supreme Court precedent, that is the obvious and necessary implication of the ruling. This was a habeas corpus case governed by the AEDPA, and the state court had decided the case on the merits. The court proceeded to apply the rule to the facts. In Wisehart, a juror learned through a private communication that the reason the trial had been adjourned for the day was so that the defendant could take a polygraph test. Though the juror was never told the result of the test, the intrusion "was bad enough to require a hearing, however abbreviated, to determine what impact the news that he had taken the test had on the jury." Id. at 328. Furthermore, "it was the state's burden, given [knowledge that word of the test had reached the juror], to present evidence that the jury's deliberations had not been poisoned by the reference to Wisehart's having been given a polygraph test." Id. at 327-328. The petitioner's request for relief was granted, and the Seventh circuit directed the state to release Wisehart, to retry him, or to conduct a Remmer hearing addressed to the issue of jury bias. Id. at 328. We are therefore precedentially bound to treat the Remmer rule, as stated in Wisehart, as clearly established, and we analyze the state court decision accordingly.
Here, like in Wisehart, the information that reached the jury was "of a character that create[d] a reasonable suspicion that further inquiry [was] necessary to determine whether the defendant was deprived of his right to an impartial jury." 408 F.3d at 326. The Indiana Court of Appeals recognized that reality:
Hall II, 796 N.E.2d at 398. The court continued, "if the jury allowed themselves to consider this information, there can be little doubt that the information had a prejudicial impact on the verdict obtained." Id. In stating as much, the court recognized that this communication was, by its nature, probably prejudicial. Such "probably prejudicial" communications are exactly the sort of contact that, under the rule Wisehart held was clearly established by the Remmer line of cases, necessitate a hearing at which the state must show that the deliberative process was not actually poisoned. Wisehart, 408 F.3d at 326;
Ordinarily under these circumstances, the court would afford the state an opportunity to conduct the missing Remmer hearing. See Wisehart, 408 F.3d at 328. Without a developed record, this court would be unable to conclude whether jury deliberations were actually tainted by the communication and whether, therefore, Hall's Sixth Amendment right to an impartial jury was actually violated. But the Indiana Court of Appeals, believing that — consistent with Remmer — the burden should have been placed on the prosecution, explained that "the burden of proof is absolutely pivotal in this case. If we were to place the burden of proof on the State... Hall would prevail on this issue and be entitled to a new trial." Hall II, 796 N.E.2d at 396 n. 7. Thus, the state court determined that, with or without a hearing, the prosecution could not meet its burden of proving that the extrinsic communication did not infringe Hall's right to an impartial jury. The respondent has not presented any reason why this court cannot or should not defer to that conclusion, but even if he had, this court would reach the same decision based on an independent analysis of the facts in this case. A hearing would be little more than a formality, with the trial court already bound to find in Hall's favor based on the appellate court decision. Hall is therefore entitled to habeas corpus relief on this claim in the form of either release or retrial.
This court is not insensitive to the difficulties of re-trying a case that was originally tried over a decade ago. Nor is it oblivious to costs that this decision imposes on the State of Indiana or the pain that it will cause the victim's family. Nevertheless, the Indiana Court of Appeals expressed it best when, in 2003, it stated:
Id. Today is the subsequent time that the Indiana Court of Appeals foresaw. Because "[t]he integrity of jury proceedings must not be jeopardized by unauthorized invasions" Remmer, 347 U.S. at 229, 74 S.Ct. 450, habeas corpus relief must be conditionally granted. "Conditional writs enable habeas courts to give States time to replace an invalid judgment with a valid one." Wilkinson v. Dotson, 544 U.S. 74, 87, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005) (Scalia J., concurring). The State of Indiana is free to re-try Virgil Hall, III, providing that it files appropriate documents in the state trial court seeking such relief within 120 days of this Order.
Hall argues that he was denied his Sixth Amendment right to confront and cross-examine Kelli Fetterhoff. During his trial, "Hall sought to admit alleged evidence of Fetterhoff striking Peyton on the morning of his death as a means of establishing an alternate cause of death." Hall II, 796 N.E.2d at 398. Once again, Hall contends that he is entitled to a de novo review because the state court did not adjudicate this claim on the merits. As previously explained, 28 U.S.C. § 2254(d) applies
The United States Supreme Court has made clear that "the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process." Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). In addressing this claim on direct appeal, the Court of Appeals of Indiana explained that although "[b]ias and infirmities in testimony are always relevant; exploration of a theory expounding an impossible cause of death and contradicting the defendant's own theory of the case is not." Id., 796 N.E.2d at 399, n. 10. The state court held that testimony about Fetterhoff having hit Peyton earlier in the day was not relevant because the medical evidence indicated that such a blow could not have caused his death. It also reasoned that such testimony would contradict Hall's own statements about how Peyton was injured.
In reviewing a similar Sixth Amendment Confrontation Clause claim, the Seventh Circuit affirmed the denial of a habeas corpus petition by explaining that, "[t]he trial court in the instant case did not exclude vital evidence by applying evidentiary rules in an unyielding or mechanistic fashion. Rather, the court, for good reason, found the evidence at issue to be speculative, remote, and therefore irrelevant, and it applied the state evidentiary rules accordingly." Hood v. Uchtman, 414 F.3d 736, 738-739 (7th Cir.2005). "As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 131 S.Ct. at 786-87, 178 L.Ed.2d at 641. Here, Hall has not done so. Though there is room to disagree with the decision to exclude Fetterhoff's testimony about having hit Peyton earlier in the day, the trial court's decision to do so was not so lacking in justification that habeas corpus relief can be granted on this ground because "[i]n order for a federal court to find a state court's application of [United States Supreme Court] precedent `unreasonable,' the state court's decision must have been more than incorrect or erroneous. The state court's application must have been `objectively unreasonable.'" Wiggins v. Smith, 539 U.S. 510, 520-521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (citations omitted). Therefore habeas corpus relief will not be granted on this ground.
This claim is procedurally defaulted. As Hall explains in his traverse, the "Respondent points out that Hall did not present [this ground as] a federal claim to the state court. Hall must concede that Respondent is correct." Traverse at 24, ECF 24. Nevertheless, a habeas petitioner can overcome a procedural default by showing cause and prejudice or by establishing that the court's refusal to consider a defaulted claim on the merits would result in a fundamental miscarriage of justice. House v. Bell, 547 U.S. 518, 536, 126 S.Ct. 2064, 165 L.Ed.2d
Hall argues that he has demonstrated cause and prejudice because his attorney was ineffective for not presenting this claim on direct appeal. Attorney error rising to the level of ineffective assistance of counsel can constitute cause to set aside a procedural default, but to succeed on such a claim Hall must demonstrate that the state courts were unreasonable in adjudicating his ineffective assistance of appellate counsel claim. See Wrinkles v. Buss, 537 F.3d 804, 812-13 (7th Cir.2008). The Court of Appeals of Indiana addressed this ineffective assistance claim; therefore, pursuant to 28 U.S.C. § 2254(d), habeas corpus relief cannot be granted unless that decision was unreasonable. Wrinkles, 537 F.3d at 812-813.
To demonstrate ineffective assistance of appellate counsel, Hall must show that his appellate counsel's performance was deficient and that the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish prejudice, "the question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." Strickland, 466 U.S. at 695, 104 S.Ct. 2052. "The likelihood of a different result must be substantial, not just conceivable." Richter, 131 S.Ct. at 792, 178 L.Ed.2d at 647.
The Court of Appeals of Indiana explained that the omission of this federal claim during Hall's direct appeal was neither deficient nor prejudicial.
Hall III, 2009 WL 2486383, *9, 2009 Ind. App. Unpub. LEXIS 1054 *28. On direct appeal, the state court had previously explained why Hall was not prejudiced by the exclusion of the testimony of Dr. Bernstein.
Hall II, 796 N.E.2d at 400 (citations omitted).
Though there is room to disagree as to how much influence Dr. Bernstein's testimony might have had on the jury, there is no merit to Hall's contention that his testimony would have caused the jury to totally disregard the testimony of the state's medical experts. Rather, had the jury heard Dr. Bernstein testify, it would
For the same reason, Hall is unable to demonstrate that it would be a miscarriage of justice not to consider the merits of this federal claim. To met the miscarriage of justice test, Hall must establish that "a constitutional violation has resulted in the conviction of one who is actually innocent of the crime." Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). A petitioner who asserts actual innocence "must demonstrate innocence; the burden is his, not the state's...." Buie v. McAdory, 341 F.3d 623, 626-27 (7th Cir.2003) (emphasis in original). Here, the introduction of a divergent expert opinion does not demonstrate innocence. Therefore Hall has not overcome the procedural default and habeas corpus relief cannot be granted on this claim.
Hall presents a number of reasons why he believes that his trial counsel was ineffective. He also argues that 28 U.S.C. § 2254(d) does not apply to this claim. He recognizes that the state court opinion cited Strickland, addressed the merits of this claim, and then denied it. However, he argues that § 2254(d) does not apply because the opinion does not "elaborate on whether there was no deficient performance or no prejudice." However, it is not relevant "whether or not the state court reveals which of the elements in a multipart claim it found insufficient, for § 2254(d) applies when a `claim,' not a component of one, has been adjudicated." Richter, 131 S.Ct. at 784, 178 L.Ed.2d at 638. Therefore the state court opinion is entitled to the deference required by § 2254(d).
"Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. ___, ___, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284, 297 (2010). "Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult [because]... [w]hen § 2254(d) applies [as it does here], the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Richter, 131 S.Ct. at 788, 178 L.Ed.2d at 643.
Here, Hall identifies several instances where he argues that his trial counsel was ineffective in regard to the State's medical evidence.
Each of those claims were considered by the Court of Appeals of Indiana. The court explained "that it is evident that
Id. at WL *5, LEXIS *12-13.
Id. at WL *5, LEXIS *14.
Id. at WL *5, LEXIS *15-16 (quotation marks, brackets, and citation omitted).
Id. at WL *6, LEXIS *18 (citations omitted). "That the jury ultimately decided that it was Hall's actions, rather than DIC, that caused Peyton's death, does not mean that trial counsel were ineffective." Id. at WL *6, LEXIS *19.
In evaluating an ineffective assistance of counsel claim, there is a strong presumption that counsel acted effectively. Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "Judicial scrutiny of counsel's performance must be highly deferential." Id. at 689, 104 S.Ct. 2052. "There are countless ways to provide effective assistance in any given case." Id. "The question is whether an attorney's representation amounted to incompetence under `prevailing professional norms,' not whether it deviated from best practices or most common custom." Richter, 131 S.Ct. at 788, 178 L.Ed.2d at 643. Here, Hall has not demonstrated that it was unreasonable for the Court of Appeals of Indiana to have denied his claim that trial counsel was ineffective. Therefore he has not established this as a basis for habeas corpus relief.
Hall argues that his appellate counsel was ineffective for not challenging the trial court's failure to give jury instructions on the lesser included offenses of reckless homicide, voluntary manslaughter, and involuntary manslaughter. The Court of Appeals of Indiana rejected the reckless homicide instruction stating, "Given that Hall's theory of the case was that Peyton's death was purely accidental, there was no evidence supporting a jury instruction that related to reckless homicide." Hall III, 2009 WL 2486383, *8, 2009 Ind.App. Unpub. LEXIS 1054 *26. It rejected the voluntary manslaughter instruction because the difference between murder and voluntary manslaughter is sudden heat and "there was no evidence of sudden heat...." Id. Finally, it rejected the involuntary manslaughter instruction because involuntary manslaughter requires that the death be caused by a battery and, "Hall argued that he neither battered Peyton nor killed him." Id. at WL *9, LEXIS *27.
Hall argues that the Court of Appeals of Indiana misapplied State law in deciding whether these lesser included jury instructions should be given. In Lopez v. Thurmer, 594 F.3d 584 (7th Cir.2010), the Seventh Circuit examined a similar argument.
Related to his extrinsic jury communications claim in Ground 1, Hall argues that the State court denied his request to depose the jury. Though true, this is not a basis for habeas corpus relief. "In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Here, the denial of juror depositions merely denied him the opportunity to gather additional information in support of Ground 1. As such, his efforts to obtain that discovery in the State courts might have permitted him to conduct discovery in this proceeding pursuant to 2254 HABEAS RULE 6 and 28 U.S.C. § 2254(e)(2)(A)(ii). See Holland v. Jackson, 542 U.S. 649, 653, 124 S.Ct. 2736, 159 L.Ed.2d 683 (2004) and Boyko v. Parke, 259 F.3d 781, 790 (7th Cir.2001). However, because he has prevailed on Ground 1 without those deposition, the question of additional discovery is moot.
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, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (internal quote marks and citation omitted). When the court dismisses a petition on procedural grounds, the determination of whether a certificate of appealability should issue has two components. Id. at 484-85, 120 S.Ct. 1595. First, the petitioner must show that reasonable jurists would find it debatable whether the court was correct in its procedural ruling. Id. at 484, 120 S.Ct. 1595. Next, the petitioner must show that reasonable jurists would find it debatable whether the petition states a valid claim for denial of a constitutional right. Id. To obtain a certificate of appealability, the petitioner must satisfy both components. Id. at 485, 120 S.Ct. 1595.
Here, the court has denied the writ on five of the six grounds: three on the merits and two on procedural grounds. For the reasons previously explained, reasonable jurists would not disagree that Ground 2 was properly resolved on the merits. Neither would they disagree that Grounds 3 and 6 were properly dismissed for procedural reasons. Grounds 4 and 5, addressing ineffective assistance of counsel claims, are different. Even if no jurist would reach a different conclusion, because reasonable jurists could debate how much the jury could have been influenced by additional information and jury instructions, a certificate of appealability will issue as to those two grounds.
For the foregoing reasons, habeas corpus is conditionally
SO ORDERED.
Most Circuits have attempted to reconcile the conflicting case law, either indicating that the court must weigh the likelihood of prejudice before any burden attaches, or forging some other compromise method. See, e.g., United States v. Sylvester, 143 F.3d 923, 934 (5th Cir.1998) (stating "[w]e agree that the Remmer presumption of prejudice cannot survive Phillips and Olano" and holding that "the trial court must first assess the severity of the suspected intrusion; only when the court determines that prejudice is likely should the government be required to prove its absence"); United States v. Williams-Davis, 90 F.3d 490, 496 (D.C.Cir.1996) (noting inconsistency between Remmer and Phillips, and stating "this court has in fact not treated the supposed "presumption" as particularly forceful, but rather has accepted the necessity of focusing on the specific facts of the alleged contact[.]"); United States v. Cheek, 94 F.3d 136, 141 (4th Cir.1996) (describing a three-step process for analyzing allegations of extrajudicial juror contact: first, the complaining party must show that the contact was more than innocuous; second, the presumption is triggered; third, the opposing party must prove a lack of prejudice); United States v. Dutkel, 192 F.3d 893, 895 (9th Cir.1999) (distinguishing "prosaic" kinds of jury misconduct, where no presumption attaches, from "jury tampering," where the Remmer directive controls). The Seventh Circuit usually falls into this "compromise" category. See United States v. Spano, 421 F.3d 599, 605 (7th Cir.2005) (ordinarily when extraneous materials are brought into the jury room, a hearing is required, "[b]ut that is not a hard and fast rule.").
Still other solutions exist. The Tenth Circuit has held, for example, in cases analogous to the one before the court, that the Remmer presumption is "a rule of federal criminal procedure, rather than a rule of federal criminal law." See Crease v. McKune, 189 F.3d 1188, 1193 (10th Cir. 1999). Accordingly, it does not control in the habeas context.