Entry Discussing Petition for a Writ of Habeas Corpus

JANE MAGNUS-STINSON, District Judge.

Petitioner Guy Ivester pleaded guilty in an Indiana state court of dealing in a schedule II controlled substance. He is currently serving a twenty-year sentence for this crimes. Mr. Ivester now seeks a writ of habeas corpus.

For the reasons explained in this Entry, Mr. Ivester's petition for a writ of habeas corpus is denied and the action dismissed with prejudice. In addition, the Court finds that a certificate of appealability should not issue.

I.

Background

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 facts and procedural history as follows:

Ivester v. State, 993 N.E.2d 652, 2013 WL 4727536, *1 (Ind. Ct. App. 2013) ("Ivester II").

The Indiana Court of Appeals affirmed the denial of post-conviction relief. See Ivester II, 2013 WL 4727536, at *7. Mr. Ivester filed a petition to transfer with Indiana Supreme Court on February 4, 2014. The Indiana Supreme Court denied transfer on May 13, 2014. See Ivester v. State, 4 N.E.3d 1187 (Ind. 2014). Although the parties initially disputed whether Mr. Ivester timely filed the instant petition for a writ of habeas corpus, they no longer dispute that his petition is timely.

II.

Applicable Law

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)).

III.

Discussion

Mr. Ivester raises numerous claims in his habeas petition, several of which are difficult to follow. Broadly construed, the Court can discern the following claims: (1) his trial counsel provided ineffective assistance in several respects; (2) his guilty plea was involuntary; (3) the trial court violated his due process rights; and (4) the prosecutor committed misconduct by improperly withholding exculpatory evidence. In addition to contesting the merits of those claims, the respondent contends that Mr. Ivester procedurally defaulted several of them. The Court will first assess whether those claims are procedurally defaulted before addressing the merits of the claims that are not.

A. Procedural Default

Procedural default "occurs when a claim could have been but was not presented to the state court and cannot, at the time that the federal court reviews the habeas petition, be presented to the state court." Resnover v. Pearson, 965 F.2d 1453, 1458 (7th Cir. 1992) "Inherent in the habeas petitioner's obligation to exhaust his state court remedies before seeking relief in habeas corpus, see 28 U.S.C. § 2254(b)(1)(A), is the duty to fairly present his federal claims to the state courts." Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). To meet this requirement, a petitioner "must raise the issue at each and every level in the state court system, including levels at which review is discretionary rather than mandatory." Id. at 1025-26. A federal claim is not fairly presented unless the petitioner "put[s] forward operative facts and controlling legal principles." Simpson v. Battaglia, 458 F.3d 585, 594 (7th Cir. 2006) (citation and quotation marks omitted). "A habeas petitioner who has exhausted his state court remedies without properly asserting his federal claim at each level of state court review has procedurally defaulted that claim." Lewis, 390 F.3d at 1026.

In his petition to transfer to the Indiana Supreme Court, Mr. Ivester purported to raise three claims. These claims are difficult to follow and weave together numerous alleged errors. As far as the Court can discern, Mr. Ivester's three claims can be restated as follows: (1) trial counsel provided ineffective assistance by not compelling the disclosure of an informant utilized by law enforcement and that the failure to discover this witness precluded his attorney from raising an entrapment defense at trial; had this occurred, Mr. Ivester contends he would not have plead guilty, [Filing No. 23-8 at 7-14]; (2) trial counsel provided ineffective assistance of counsel by making an oral motion to withdraw the guilty plea when Indiana law requires such a motion to be in writing and the trial court erred in failing to permit him to withdraw his guilty plea, [Filing No. 23-8 at 14-20]; and (3) his guilty plea was involuntary because it was induced by the trial court's statement that he would not be "penalized" for pleading guilty on the day of trial, which Mr. Ivester understood to mean he would serve no time in prison if he plead guilty, and the trial court did not explain to him otherwise during the plea colloquy, [Filing No. 23-8 at 20-25].

Again, it is difficult to ascertain the precise claims Mr. Ivester asserts in his habeas petition, but he asserts at least a close enough version of the foregoing claims raised in his petition to transfer in his habeas petition such that they are not procedurally defaulted. Mr. Ivester has, however, procedurally defaulted the other claims raised in his habeas petition. See Lewis, 390 F.3d at 1026. Accordingly, the Court will turn to the merits of the three claims Mr. Ivester did not procedurally default.

B. Ineffective Assistance of Trial Counsel

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. With respect to the performance requirement, "[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting Strickland, 466 U.S. at 688). "[T]o establish prejudice, a `defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 534 (quoting Strickland, 466 U.S. at 694). If the petitioner asserts that his counsel was ineffective at the guilty plea stage, the prejudice showing requires a showing that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985).

When the deferential AEDPA standard is applied to a Strickland claim, the following calculus emerges:

Harrington, 562 U.S. 86, 105 (2011).

Mr. Ivester raises two ineffective assistance of trial counsel claims that were not procedurally defaulted. The Court will address each in turn.

1. Disclosure of Confidential Informant

Mr. Ivester contends that his trial counsel provided ineffective assistance for failing to compel the discovery of a confidential informant involved in purchasing drugs from Mr. Ivester. Had his counsel done so, says Mr. Ivester, he would have not plead guilty because he would have had a viable entrapment defense at trial.

After setting forth the legal standards governing an ineffective assistance of counsel The Indiana Court of Appeals addressed this claim on the merits in Ivester II:

Ivester II, 2013 WL 4727536, at *3.

As an initial matter, despite the recognized confusion as to the identity of the informant to which Mr. Ivester refers, he still has not clarified the identity of the informant or explained in any specific terms how this informant would have provided the basis for a viable entrapment defense. Nevertheless, the Indiana Court of Appeals reasonably concluded that Mr. Ivester was not prejudiced by any lack of knowledge regarding the informant, chiefly because the underlying crime was a hand-to-hand drug transaction between Detective Strong and Mr. Ivester. As the Indiana Court of Appeals reasoned, this makes any additional witness to that transaction of very little value to Mr. Ivester in disputing the charge.

Moreover, the Indiana Court of Appeals reasonably concluded that Mr. Ivester's proposed entrapment defense would not have been viable such that he would not have plead guilty. Under Indiana law, "[t]here is no entrapment if the State shows either (1) there was no police inducement, or (2) the defendant was predisposed to commit the crime." Griesemer v. State, 26 N.E.3d 606, 609 (Ind. 2015). In drug cases, evidence that the defendant engaged in "multiple transactions" and a familiarity with "drug . . . prices" are sufficient to prove predisposition. Riley v. State, 711 N.E.2d 489, 494 (Ind. 1999). The Indiana Court of Appeals relied on this exact type of evidence— specifically, that there were multiple transactions, agreements as to price, and that one transaction occurred in Ivester's home—in concluding that Mr. Ivester did not have a viable entrapment defense and thus was not prejudiced by his counsel's failure to identify the informant who could allegedly support an entrapment defense. This was not an unreasonably application of Strickland's prejudice prong, and thus Mr. Ivester is not entitled to relief on this claim.1

2. Motion to Withdraw the Guilty Plea

Mr. Ivester contends that his trial counsel provided ineffective assistance in handling his motion to withdraw his guilty plea. The Indiana Court of Appeals addressed this claim on the merits in Ivester II:

Ivester II, 2013 WL 4727536, at *4.

Mr. Ivester maintains he was prejudiced by his trial counsel's failure to properly act upon his desire to withdraw his guilty. Mr. Ivester wrote a letter to the trial court not long after he plead guilty, seeking to withdraw his guilty plea. The letter stated that he was "confused about [his] constitutional rights," was unaware that he could not appeal, and misunderstood the sentence he "could receive." PCR App. at 493. The trial court forwarded that letter to Mr. Ivester's trial counsel Mr. Hovanec who, on the date of sentencing, orally moved to withdraw Mr. Ivester's guilty plea.

As noted by the Indiana Court of Appeals in Ivester II, the trial court noted several reasons why the motion to withdraw should be denied. This included that proper procedure for withdrawing a guilty plea was not followed. However, the trial court also noted that after receiving Mr. Ivester's letter it independently "reviewed the transcript and the plea agreement." Id. at 445. This review revealed to the trial court that at the original plea hearing Mr. Ivester was advised that he was giving up a variety of constitutional rights by pleading guilty and of the potential penalties he faced. See id. The trial court also noted that Mr. Ivester provided a factual basis for his plea. See id. For all of these reasons, the trial court determined that Mr. Ivester would not be allowed to withdraw his guilty plea.

Mr. Hovanec acknowledged that he made a mistake in failing to properly file a motion to withdraw his client's guilty plea, and he expressed concern that this was the reason his client was not permitted to withdraw it. But the trial court responded that this failure was only "one of many things, which would have been the basis for the Court denying the motion to withdraw the plea." Id. at 446. Again, the trial court reiterated to Mr. Hovanec that "the Court's rulings [regarding the withdraw of the guilty plea] would . . . stand for all the other reasons that the Court set forward." Id. at 447.

The Indiana Court of Appeals in Ivester II relied on the foregoing facts in holding that Mr. Ivester was not prejudiced by any deficient performance by his counsel in relation to the withdraw of his guilty plea. The trial court made clear that, even though Mr. Ivester felt he was unaware of his constitutional rights and the sentence he would face by pleading guilty, he was informed otherwise at his guilty plea hearing and thus would not be permitted to withdraw his guilty plea even if his counsel had properly filed a written motion to withdraw. The Indiana Court of Appeals reasonably applied Strickland's prejudice prong in concluding that these facts demonstrated that Mr. Ivester was not prejudiced by any deficient performance on his counsel's part related to the withdraw of his guilty plea.

Accordingly, Mr. Ivester is not entitled to habeas relief on either of ineffective assistance of counsel claims.

C. Involuntary Guilty Plea

Mr. Ivester contends that his guilty plea was involuntary and thus unconstitutional. "[T]he Constitution prohibits a court from accepting a criminal[] defendant's guilty plea `without an affirmative showing that it was intelligent and voluntary.'" Dansberry v. Pfister, 801 F.3d 863, 864 (7th Cir. 2015) (quoting Boykin v. Alabama, 395 U.S. 238, 242 (1969)). This requires the defendant to "be fully aware of the direct consequences of his plea, including the permissible range of sentences." Id. (citation and quotation marks omitted).

Mr. Ivester explained at the post-conviction hearing that he believed his plea was involuntary. Specifically, he testified that he would not have plead guilty had he be given the appropriate discovery (a state crime lab report) and had he not been misled by the trial court's statement that he would not be "penalized," which Mr. Ivester understood to mean he would not be sentenced to prison. See PCR Tr. at 235-38. The post-conviction court rejected Mr. Ivester's contentions that his plea was involuntary based on either ground.

The Indiana Court of Appeals affirmed the post-conviction court, reasoning as follows:

Ivester II, 2013 WL 4727536, at *5.

The foregoing reveals that the Indiana Court of Appeals addressed Mr. Ivester's claim on the merits, and it rejected the arguments he raised as to why his plea was involuntary. Mr. Ivester raises those same challenges here, but the Indiana Court of Appeals rejection of those claims represents a reasonable application of the facts to the governing legal principles.

First, the Indiana Court of Appeals' assessment that the trial court's comment about not penalizing Mr. Ivester is not only reasonable but the most persuasive interpretation of that statement when read in context. See PCR App. at 428 (following a discussion regarding the failure of the parties to have the state police lab report yet, the trial court stated that it "won't penalize [the defendant] for pleading guilty today if he wants to do that. That's still an option. I am not going to tax him for not having the state police lab until the last minute"). Moreover, although Mr. Ivester testified during post-conviction proceedings that he did not commit the crime and would not have plead guilty but for the trial court's statement that he would not be "penalized," see PCR Tr. at 235-38, he nonetheless provided a factual basis for his plea during the plea colloquy, see PCR App. at 436. These contradictory statements about his guilt undermine Mr. Ivester's credibility and provided a sound basis for the post-conviction court to conclude that, despite the "penalized" comment, he was "aware of the actual sentencing possibilities." Ivester II, 2013 WL 4727536, at *5.

Perhaps more importantly, for reasons similar to those discussed above regarding Mr. Ivester's failed attempt to withdraw his guilty plea, any argument that he did not understand that he could be sentenced to a period of incarceration is contradicted by the plain terms of the plea agreement he signed and the plea colloquy with the trial court. See PCR App. at 509-10 (plea agreement explaining that the defendant's maximum sentence will be twenty years and that "[t]he Court shall be free to impose any sentence within the full range of possibilities available under Indiana law up to the State's agreed `cap'"); id at 430 (trial court explaining the possible sentences to Mr. Ivester during the plea colloquy and Mr. Ivester's recognition that he understands the possible sentences). As noted by the Indiana Court of Appeals, "[Mr.] Ivester was advised as to the potential sentence under his plea agreement and that he stated under oath his comprehension of the possible sentence." Ivester II, 2013 WL 4727536, at *5. At the end of the plea colloquy, Mr. Ivester answered "no" when asked if he was promised anything the trial court did not cover. PCR App. at 432.

"Solemn declarations in open court carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 74 (1977). Mr. Ivester's post hoc argument regarding whether or not he would be "penalized" if he plead guilty was reasonably rejected by the Indiana Court of Appeals and thus is insufficient to overcome this presumption. Accordingly, the Indiana Court of Appeals was correct to rely on Mr. Ivester's statements regarding the possible punishment as presumptively true, and on this basis it was reasonable to conclude that Mr. Ivester was aware of the consequences of his plea.2

Second, the Indiana Court of Appeals reasonably concluded that Mr. Ivester's lack of the state crime lab did not make his plea—for which he provided a factual basis—involuntary. See United States v. Graf, ___ F.3d ___, 2016 WL 3513460, *4 (7th Cir. 2016) ("A plea can be perfectly voluntary in the face of incomplete information." (citation and quotation marks omitted)).

Accordingly, Mr. Ivester is not entitled to habeas relief on this claim.3

IV.

Conclusion

This court has carefully reviewed the state record in light of Mr. Ivester'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. Ivester failed to carry his burden on his claims, he is not entitled to habeas relief, and his petition is therefore denied. Mr. Ivester's motions for decision [dkts. 37, 41] and motion for conditional release [dkt. 42] are denied as moot.

Judgment consistent with this Entry shall now issue.

V.

Certificate of Appealability

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. Ivester has failed to make this showing, and therefore a certificate of appealability is denied.

IT IS SO ORDERED.