JOSEPH S. VAN BOKKELEN, District Judge.
Paul Mishler, Jr., a pro se prisoner, filed a habeas petition under 28 U.S.C. § 2254 challenging a state conviction and thirty-eight year sentence for child molestation committed in Elkhart County, Indiana in State v. Mishler, 20D03-0602-FA-3. (DE 1.)
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 Mishler'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 Mishler's offenses as follows:
Mishler v. State, 894 N.E.2d 1095, 1097-99 (Ind. Ct. App. 2008). Ex. E (record citations in original).
After his conviction, Mishler appealed, arguing: (1) the evidence was insufficient; (2) the victim's out-of-court statements were improperly admitted; and (3) that his sentence was inappropriate. (DE 6-2; DE 6-3.) The Indiana Court of Appeals affirmed Mishler's convictions, but reversed and revised his sentence to thirty-eight years. (DE 6-5.) Mishler did not seek further review by the Indiana Supreme Court. (DE 6-2.) The trial court entered a new sentencing order, revising Mishler's sentence to thirty-eight years. (DE 6-1.
On September 17, 2009, Mishler filed a petition for post-conviction relief in State court. (DE 6-1.) After a hearing, the post-conviction court denied Mishler's request for post-conviction relief. (DE 6-1.) Mishler appealed, arguing that: (1) he was denied a full post-conviction hearing; and (2) his trial, appellate, and post-conviction counsel were ineffective. (DE 6-7 at 2.) The Indiana Court of Appeals denied Mishler's appeal. (DE 6-9.) Mishler sought transfer to the Indiana Supreme Court, claiming: (1) the trial court erred by using his juvenile adjudications as aggravating circumstances; (2) there was insufficient evidence to prove when the charged offenses occurred; (3) his trial counsel was ineffective for failing to call witnesses; and (4) the post-conviction court denied him due process by failing to issue subpoenas and by not entering written findings of fact and conclusions of law. (DE 6-10 at 1, 2.) The Indiana Supreme Court denied transfer. (DE 6-6.)
On October 14, 2014, Mishler filed this federal habeas petition challenging his convictions for child molestation, arguing that: (1) trial counsel was ineffective for failing to argue for a directed verdict based on the testimony of the victim; (2) trial and appellate counsel were ineffective for failing to challenge the trial court's use of aggravating factors at sentencing; (3) there was insufficient evidence to prove when the charged offenses occurred possibly violating the Double Jeopardy clause; (4) trial counsel was ineffective for failing to properly investigate his case and call witnesses to impeach the victim; and, (5) the post-conviction court denied him due process by not issuing subpoenas or entering findings of fact and conclusions of law. (DE 1 at 3, 4.)
Mishler's petition is governed by the provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997). 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:
As a threshold matter, the Respondent argues that the first four of Mishler's five claims are procedurally defaulted. 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.
The record indicates that Mishler did not raise his first claim — trial counsel's ineffectiveness for failing to argue for a directed verdict based on the victim's testimony — to the Indiana Supreme Court. (DE 6-7, 6-9.) In his traverse, Mishler attempts to argue that this claim is not defaulted because he raised the issue before the Indiana Court of Appeals. (DE 16-3.) Although whether he actually raised the issue is questionable, (See DE 6-7), it is clear that he never raised it to the Indiana Supreme Court, (DE 6-10), which he was required to do. The record also indicates that he did not raise his second claim — trial and appellate counsel's ineffectiveness for failing to object to the aggravating sentencing factors — was not presented as an independent claim before the Indiana Court of Appeals or Indiana Supreme Court. (DE 6-7; 6-10.) Although Mishler complained about the use of aggravating sentencing factors, he did not argue that the errors were incidents of ineffective assistance of counsel. Mishler's third claim — a double jeopardy violation due to the State's failure to present evidence as to when the crimes occurred — was raised before the Indiana Supreme Court, (DE 6-11), but was not presented as an independent claim to the Indiana Court of Appeals. (DE 6-7.) Mishler concedes as much.
Mishler failed to fully and fairly present his fourth claim — trial counsel was ineffective for failing to investigate and call witnesses to impeach the victim — to the Indiana Court of Appeals. (DE 6-9 at 11.) While he vaguely raised this issue on direct appeal, the court of appeals determined that he "fail[ed] to develop cogent argument explaining how counsel could have, within the bounds of the law, achieved a different outcome. . . . Mishler's bald assertions of counsel's omissions or mistakes are inadequate to support a post-conviction claim of ineffectiveness of counsel." (Id.) (citation omitted.) Moreover, Mishler's claim underlying this ineffective assistance of counsel claim — seeking more investigation and witnesses to impeach the victim — was denied on an independent and adequate state law ground. In evaluating Mishler's claim that he was denied the ability to show trial counsel's ineffectiveness because the postconviction court denied his request to issue subpoenas, the Indiana Court of Appeals provided:
(Ex. I at 5-7.)
The Indiana Court of Appeals demonstrated that Mishler did not present any evidence to support a challenge to his trial counsel's alleged failure to investigate. And, further, he failed to show that any witness he wanted to present would have provided any admissible or supportive testimony. Ultimately, Mishler failed to fully and fairly present his claim to the state appellate courts and his underlying claim was denied on an independent and adequate state law claim. Therefore, Mishler did not properly present any of these four claims in one complete round of state review, and they cannot be reached on the merits unless he provides grounds for excusing his two levels of default.
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). Here, Mishler does not even attempt to argue cause or prejudice. A habeas petitioner can also overcome a procedural default by establishing that the Court's refusal to consider a defaulted claim would result in a fundamental miscarriage of justice. House v. Bell, 547 U.S. 518, 536 (2006). To meet this 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). Mishler does not argue that any such fundamental miscarriage of justice would occur.
Because Mishler can not show cause for his failure to present these claims in one complete round of state review or that any fundamental miscarriage of justice would occur if the claims are not addressed, these claims are procedurally defaulted and cannot be reviewed on their merits.
Mishler has preserved his claim that the post-conviction court did not issue subpoenas for requested witnesses and failed to enter written findings of facts and conclusions of law. Nevertheless, the respondent argues that, even though these claims are preserved, they are not cognizable. The Court agrees. Although Mishler included the words "due process," his claims are premised on alleged errors committed by the state court on post-conviction review. (DE 1 at 4.) Federal habeas relief is not available for errors occurring in the state post-conviction proceedings, since such errors do not implicate the legality of the petitioner's confinement. See Pennsylvania v. Finley, 481 U.S. 551, 557 (1987); see Jones v. Butler, 778 F.3d 575, 586 (7th Cir. 2015) (holding that post-conviction court's denial of evidentiary hearing was simply a challenge to state law post-conviction procedures and not cognizable on habeas review); Jackson v. Duckworth, 112 F.3d 878 (7th Cir. 1997). Mishler may not "transform a state-law issue into a federal one merely by asserting a violation of due process." Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996). Because Mishler's claim does not present an independent basis for overturning his conviction, it is not a basis for habeas relief.
Finally, Mishler complains that the post-conviction court should not have allowed his post-conviction counsel to withdraw from the case. Even assuming Mishler could establish the factual basis for this claim, he had no right to counsel during the state post-conviction proceedings. Finley, 481 U.S. at 555; Wainwright, 455 U.S. at 587. Therefore, he cannot claim the court deprived him of any constitutional rights. Nor can he allege any ineffective assistance of counsel under the Sixth Amendment based on counsel's alleged deficient performance. Coleman, 501 U.S. 752; Anderson v. Cowan, 227 F.3d 893, 901 (7th Cir. 2000).
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, four of Mishler's claims are procedurally defaulted, and he has not provided any meritorious basis for excusing his default. As to his fifth claim, Mishler has not made a substantial showing of the denial of a constitutional right, nor could jurists of reason debate the outcome of the claim or find a reason to encourage him to proceed further. Accordingly, the court declines to issue Mishler a certificate of appealability.
For the reasons set forth above, the court:
