JAMES T. MOODY, District Judge.
Kevin J. Mamon, a pro se prisoner, is serving a 3-year sentence for a conviction of battery by bodily waste in the Hancock County Circuit Court. State v. Mamon, 30C01-1211-FD-1791. He filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 raising two grounds. First, Mamon claims that the trial court denied him the right to present an intoxication and insanity defense. Second, he asserts that the trial court lost jurisdiction to bring him to trial once he filed a petition for removal to federal court. The respondent argues that the petition should be denied because Mamon's first claim is procedurally defaulted and second claim is without merit. This court agrees. For the reasons stated below, the petition is denied and this case is dismissed.
In deciding this habeas petition, the court must presume the facts set forth by the state courts are correct. 28 U.S.C. § 2254(e)(1). It is Mamon's burden to rebut this presumption with clear and convincing evidence. Id. On direct appeal, the Indiana Court of Appeals set forth the facts surrounding Mamon's offenses as follows:
Mamon v. State, 30A05-1309-CR-440, slip op. 2-3 (Ind. Ct. App. March 31, 2014); (DE #11-6.)
The State charged Mamon with battery by bodily waste, a class D felony, on November 21, 2012. (DE #11-1; 11-6.) On January 9, 2013, Mamon filed a petition for removal of the case from the Hancock Circuit Court to the United States District Court for the Southern District of Indiana. (Id.) Mamon proceeded pro se at a jury trial that commenced on February 26, 2013, and he was found guilty as charged. (Id.) On May 8, 2013, the United States District Court terminated Mamon's removal by remanding the case. (Id.) On June 3, 2013, the trial court entered judgment and sentenced Mamon to a three year term of imprisonment. (Id.)
On direct appeal, Mamon raised four arguments: (1) whether the trial court improperly excluded evidence regarding involuntary intoxication and insanity defenses under Indiana law; (2) whether the sentence was inappropriate; (3) whether the trial court improperly conducted a trial while his petition for removal was pending in federal court; and (4) whether the trial court lost jurisdiction due to a delay in sentencing. (DE #11-2; 11-3.) On March 31, 2014, the Indiana Court of Appeals affirmed his conviction and sentence. (DE #11-6.) Mamon then sought transfer to the Indiana Supreme Court where he argued that the trial court erred in conducting a trial while his petition for removal was pending and that the trial court lost jurisdiction and could not sentence him due to a delay in sentencing. (DE #11-7.) The Indiana Supreme Court denied transfer on July 24, 2014. (DE #11-2.)
On January 16, 2015, Mamon filed this federal habeas petition raising two grounds for relief: (1) the trial court denied his right to present a defense; and (2) the trial court lost jurisdiction and the ability to bring him to trial once he filed a petition for removal under 28 U.S.C. § 1443 in federal district court. (DE #5.)
This petition is governed by the provisions of the Anti-Terrorism and Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA allows a district court to issue a writ of habeas corpus on behalf of a person in custody pursuant to a state court judgment "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The court can grant an application for habeas relief if it meets the requirements of 28 U.S.C. § 2254(d), which provides:
Before considering the merits of a habeas petition, a federal court must ensure that the petitioner has exhausted all available remedies in state court. 28 U.S.C. § 2254(b)(1)(A); Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). The exhaustion requirement is premised on concerns of comity; the state courts must be given the first opportunity to address and correct violations of their prisoner's federal rights. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir. 2004). For that opportunity to be meaningful, the petitioner must fairly present his constitutional claims in one complete round of state review. Baldwin v. Reese, 541 U.S. 27, 30-31 (2004); Boerckel, 526 U.S. at 845.
The companion procedural default doctrine, also rooted in comity concerns, precludes a federal court from reaching the merits of a habeas petition when either: (1) the claim was presented to the state courts and was denied on the basis of an adequate and independent state procedural ground; or (2) the claim was not presented to the state courts and it is clear those courts would now find the claim procedurally barred under state law. Coleman v. Thompson, 501 U.S. 722, 735 (1991); Perruquet, 390 F.3d at 514. When a habeas petitioner fails to fairly present his claim to the state courts and the opportunity to raise that claim has now passed, the claim is procedurally defaulted. Boerckel, 526 U.S. at 853-54.
In his first claim, Mamon claims that the trial court's exclusion of evidence that he intended to introduce to support defenses of involuntary intoxication and temporary insanity violated his federal constitutional right to present a defense. (DE #5.) However, the record reflects that Mamon did not raise that claim before the Indiana Supreme Court in his petition to transfer. (DE #11-7.) Because he did not raise this claim in one complete round of state review, the claim is procedurally defaulted. Boerckel, 526 U.S. at 848 (a prisoner who fails to present his claims in a petition for discretionary review to a state court of last resort has not properly presented his claims to the state courts); Hough v. Anderson, 272 F.3d 878, 892 (7th Cir. 2001) (petitioner who failed to raise his claims in a petition to transfer with the Indiana Supreme Court procedurally defaulted those claims).
In addition to failing to present any challenge to the Indiana Supreme Court, Mamon failed to present a federal constitutional claim before the Indiana Court of Appeals when he challenged the exclusion of this evidence. He only challenged it on state law grounds. Because the Indiana Court of Appeals dismissed Mamon's claim based on state law, his claim is also defaulted based on an independent and adequate state law ground. Coleman, 501 U.S. at 729.
A habeas petitioner can overcome a procedural default by showing both cause for failing to abide by state procedural rules and a resulting prejudice from that failure. Wainwright v. Sykes, 433 U.S. 72, 90 (1977); Wrinkles v. Buss, 537 F.3d 804, 812 (7th Cir. 2008), cert. denied, 129 S.Ct. 2382 (2009). Cause sufficient to excuse procedural default is defined as "some objective factor external to the defense" which prevented a petitioner from pursuing his constitutional claim in state court. Murray v. Carrier, 477 U.S. 478, 492 (1986). Mamon filed a traverse in support of his petition, but does not allege any grounds in his traverse for excusing this procedural default, and instead focuses on the merits of this claim. (See DE #22.) However, because this claim is defaulted, the court cannot reach the claim on its merits.
A habeas petitioner may also overcome a procedural default 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 (2006); Coleman, 501 U.S. at 750. Under this narrow exception, the petitioner 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 (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). Mamon does not show any fundamental miscarriage of justice would occur, nor does the court find that to be that case.
In his second claim, Mamon asserts that the trial court lost jurisdiction over his state criminal proceeding when he filed a petition for removal to federal court before the trial commenced. Pursuant to federal statute:
28 U.S.C. § 1455(b)(2). The Indiana Court of Appeals held that 28 U.S.C. § 1455(b)(2) permits state courts to conduct proceedings in a criminal case while a removal petition is pending. The Indiana Court of Appeals held that 28 U.S.C. § 1455(b)(2) permits state courts to conduct proceedings in a criminal case while a removal petition is pending. In addition, as stated above in the factual summary, on May 8, 2013, the United States District Court remanded the case, prior to the state court entering a judgment of conviction on June 3, 2013. (DE #11-6.)
Under the deferential standard under which the court operates in habeas proceedings, it must "attend closely" to the decisions of state courts and "give them full effect when their findings and judgments are consistent with federal law." Williams v. Taylor, 529 U.S. 362, 383 (2000). To warrant relief, a state court's decision must be more than incorrect or erroneous; it must be "objectively" unreasonable. Id. "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." Harrington v. Richter, 562 U.S. 86, 101 (2011). Based upon the plain language of the statute, and no case law to the contrary, the Indiana Court of Appeals' adjudication was not unreasonable. As such, this claim is not a basis for habeas relief.
As a final matter, pursuant to RULE 11 of the RULES GOVERNING SECTION 2254 CASES, the court must either issue or deny a certificate of appealability in all cases where it enters a final order adverse to the petitioner. To obtain a certificate of appealability, 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) (internal quotation marks and citation omitted). For the reasons fully explained above, Mamon's claims are not cognizable in this proceeding or are otherwise without merit under AEDPA standards. The court finds no basis to conclude that jurists of reason could debate the outcome of the petition or find a reason to encourage Mamon to proceed further. Accordingly, the court declines to issue Mamon a certificate of appealability.
For the reasons set forth above, the petition (DE #5) is
