WILLIAM T. LAWRENCE, District Judge.
For the reasons explained in this Entry, the petition of Alan Jenkins for a writ of habeas corpus must be
Jenkins was convicted in Johnson County of two counts of child molesting, each as a Class A felony, and was found to be a habitual offender. The Indiana Court of Appeals provided the following recitation of facts in Jenkins' appeal from the partial denial of post-conviction relief:
Jenkins v. State, 41 N.E.3d 306, *1-5 (Ind.Ct.App. October 14, 2015). The Indiana Court of Appeals rejected Jenkins' challenges in that appeal—challenges to the representation he received both at trial and in his direct appeal. These challenges are renewed in the present action for habeas corpus relief.
In the appeal just referenced, Jenkins claims that his trial counsel was ineffective for failing to:
Jenkins also claimed that his appellate counsel was ineffective for failing to raise these same asserted errors of trial counsel in the direct appeal. These claims were rejected. Jenkins sought review by the Indiana Supreme Court, fairly presenting four specifications of asserted trial counsel ineffectiveness—specifications (a), (b), (h) and (i). The Indiana Supreme Court denied transfer on December 7, 2015.
Jenkins then filed this action seeking a writ of habeas corpus. He asserts ineffective assistance of trial counsel as in specifications (a), (f), (h), (i), (j) and (k) above. He also asserts the ineffectiveness of counsel in his direct appeal.
"[I]n all habeas corpus proceedings under 28 U.S.C. § 2254, the successful petitioner must demonstrate that he `is in custody in violation of the Constitution or laws or treaties of the United States.'" Brown v. Watters, 599 F.3d 602, 611 (7th Cir. 2010) (quoting 28 U.S.C. § 2254(a)).
Cheeks v. Gaetz, 571 F.3d 680, 684 (7th Cir. 2009). "AEDPA thus imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt." Renico v. Lett, 559 U.S. 766, 773 (2010) (citations and internal quotation marks omitted). This standard is both mandatory and difficult to meet. White v. Woodall, 134 S.Ct. 1697, 1702 (2014); Cullen v. Pinholster, 563 U.S. 170, 183 n.3 (2011) (criticizing the dissent for failing to "take seriously" the Antiterrorism and Effective Death Penalty Act's (AEDPA) "requirement that federal courts defer to state-court decisions") (emphasis added); Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (noting that AEDPA's "highly deferential standard for evaluating state-court rulings . . . demands that state-court decisions be given the benefit of the doubt") (quotation marks omitted) (emphasis added). Also, "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). As one court has explained, "[i]t is this Court's obligation to focus "on the state court decision that previously addressed the claims rather than the petitioner's freestanding claims themselves." McLee v. Angelone, 967 F.Supp. 152, 156 (E.D.Va. 1997).
In addition to the substantive standard recited above, "[i]t is the rule in this country that assertions of error in criminal proceedings must first be raised in state court in order to form the basis for relief in habeas. Claims not so raised are considered defaulted." Breard v. Greene, 523 U.S. 371, 375 (1998) (citing Wainwright v. Sykes, 433 U.S. 72 (1977)). "[T]he burden is on the petitioner to raise his federal claim in the state court at a time when state procedural law permits its consideration on the merits. . . ." Bell v. Cone, 543 U.S. 447, 451 n.3 (2005). "Fair presentment contemplates that both the operative facts and the controlling legal principles must be submitted to the state court." Malone v. Walls, 538 F.3d 744, 753 (7th Cir. 2008).
A habeas petitioner may overcome procedural default by demonstrating cause for the default and actual prejudice or by showing that the Court's failure to consider the claim would result in a fundamental miscarriage of justice. See House v. Bell, 547 U.S. 518, 536 (2006); Coleman v. Thompson, 501 U.S. 722, 750 (1991). The Supreme Court defines cause sufficient to excuse procedural default as "some objective factor external to the defense" which prevents a petitioner from pursuing his constitutional claim in state court. See Murray v. Carrier, 477 U.S. 478, 492 (1986); Weddington v. Zatecky, 721 F.3d 456, 465 (7th Cir. 2013). Prejudice means actual prejudice infecting the "entire trial with error of constitutional dimensions." Murray, 477 U.S. at 494 (citation omitted). A fundamental miscarriage of justice occurs when a habeas petitioner establishes that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Id. at 496.
The Sixth Amendment entitles criminal defendants to the effective assistance of counselthat is, representation that does not fall below an objective standard of reasonableness in light of prevailing professional norms. Bobby v. Van Hook, 130 S.Ct. 13, 16 (2009). The governing Supreme Court case for resolving an ineffective assistance claim is Strickland v. Washington, 466 U.S. 668 (1984). To establish ineffective assistance of counsel under Strickland, the petitioner must show that counsel's performance was deficient and that the deficient performance prejudiced him. Id. For a petitioner to establish that "counsel's assistance was so defective as to require reversal" of a conviction or a sentence, he must make two showings: (1) deficient performance that (2) prejudiced his defense. Id., at 687.
With respect to the first prong, "[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). In determining whether counsel's performance was constitutionally deficient, the Court's review of counsel's performance is highly deferential, and the petitioner must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Davis v. Lambert, 388 F.3d 1052, 1059 (7th Cir. 2004). With respect to the prejudice requirement, the petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; see also Benefiel v. Davis, 357 F.3d 655, 661 (7th Cir. 2004).
When the AEDPA standard is applied to a Strickland claim, the following calculus emerges:
Knowles v. Mirzayance, 129 S.Ct. 1411, 1420 (2009)(internal citations and quotations omitted).
The Seventh Circuit Court of Appeals has expressed the operation of AEDPA deference in these terms:
Murrell v. Frank, 332 F.3d 1102, 1111-12 (7th Cir. 2003).
Contending that there were circumstances which actually resulted in the deprivation of representation, Jenkins presents a second category of ineffective assistance of counsel specifications under the holding in United States v. Cronic, 466 U.S. 648 (1984). In Cronic, decided the same day as Strickland, the Supreme Court held that there are situations where the ineffectiveness of counsel "is properly presumed without inquiry into actual performance at trial." Id. at 661. A presumption of prejudice is appropriate where (1) the accused is denied counsel at a critical stage of the trial, (2) counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, or (3) although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is small under the circumstances. Id. at 659-60; Bell v. Cone, 535 U.S. 685, 695-96 (2002). The Supreme Court has described Cronic as a "narrow exception" to Strickland that should be applied "infrequently." Florida v. Nixon, 543 U.S. 175, 190 (2004). To successfully invoke the presumption of prejudice, counsel's "failure must be complete." Wright v. Van Patten, 552 U.S. 120, 124 n.1 (2008); Bell, 535 U.S. at 697; Smith v. Brown, 764 F.3d 790, 796 (7th Cir. 2014). It has been held that Cronic describes merely a subset within the universe of Strickland claims that includes "the most extreme instances of lawyerly incompetence." Barrow v. Uchtman, 398 F.3d 597, 603 n.4 (7th Cir. 2005). By the same token, however, the difference between a Strickland claim and a Cronic claim "is not of degree but of kind." Bell, 535 U.S. at 697. Jenkins presented his Cronic claim to the Indiana state courts based on the third Cronic exception. The third Cronic exception applies where "counsel [was] called upon to render assistance under circumstances where competent counsel very likely could not." Bell, 535 U.S. at 696.
Although ineffective assistance of counsel is a single ground for relief, Peoples v. United States, 403 F.3d 844, 848 (7th Cir. 2005)("ineffective assistance of counsel is a single ground for relief no matter how many failings the lawyer may have displayed"), a petitioner must raise the particular factual basis for each aspect of the alleged ineffective assistance in order to preserve the respective argument. Pole v. Randolph, 570 F.3d 922, 934-35 (7th Cir. 2009). "A bare mention of ineffective assistance of counsel is not sufficient to avoid a procedural default"; a petitioner "must have identified the specific acts or omissions of counsel that form the basis for" the claim of ineffective assistance. Johnson v. Hulett, 574 F.3d 428, 432 (7th Cir. 2009) (internal quotation marks and brackets omitted). Additionally, the Court must "evaluate [counsel's] performance as a whole rather than focus on a single failing or oversight," Ebert v. Gaetz, 610 F.3d 404, 412 (7th Cir. 2010), and must respect its "limited role in determining whether there was manifest deficiency in light of information then available to counsel." Premo v. Moore, 131 S.Ct. 733, 741 (2011). "[C]ounsel need not be perfect, indeed not even very good, to be constitutionally adequate." McAfee v. Thurmer, 589 F.3d 353, 355-56 (7th Cir. 2009) (citation omitted).
Several specifications of ineffective assistance of counsel were presented in the post-conviction relief action, and several are also presented here. The first step in this case is thus to determine which of the ineffective assistance of counsel specifications in Jenkins' habeas petition have been fully and fairly presented to the Indiana state courts. The specifications which are renewed here are those identified previously as specifications (a), (f), (h), (i), (j) and (k) above. The specifications which were fairly presented to the Indiana Supreme Court are specifications (a), (h) and (i) above. Consequently, the specifications which are both presented here and which were presented to the Indiana Supreme Court are specifications (a), (h) and (i). These are the specifications that Jenkins' attorney at trial was ineffective by failing to: (a) depose or subpoena CASA Roger York; (h) strike prospective jurors; and (i) act as counsel guaranteed by the Sixth Amendment. Jenkins has committed procedural default as to other claims. His defaulted claim includes the claim that he was denied the effective assistance of counsel in his direct appeal.
With respect to specifications (a) and (h), the Indiana Court of Appeals recognized the controlling Supreme Court authority of Strickland. Jenkins v. State, 41 N.E.3d 306, *4. "Under Strickland, we first determine whether counsel's representation `fell below an objective standard of reasonableness.' Then we ask whether `there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Hinton v. Alabama, 134 S.Ct. 1081, 1087-88 (2014)(parallel citations omitted) (quoting Padilla v. Kentucky, 559 U.S. 356, 366 (2010) (quoting Strickland, supra, at 688, 694)). The Indiana Court of Appeals then assessed the specifics of this claim:
Jenkins v. State, 41 N.E.3d 306, *4.
Jenkins also presents the argument that Wilson was ineffective in permitting a potentially possibly biased juror to be selected. This claim is self-evidently tentative and weak. The Indiana Court of Appeals discussed this claim in the following terms:
Id. at *11.
"Under AEDPA, if the state-court decision was reasonable, it cannot be disturbed." Hardy v. Cross, 132 S.Ct. 490, 495 (2011) (per curiam). Because the Indiana Court of Appeals' treatment of the above Strickland-based specifications of ineffective assistance of counsel at trial was reasonable, Jenkins is not entitled to habeas relief as to this claim.
The Indiana Court of Appeals also recognized the distinct analysis which is warranted under Cronic. Jenkins v. State, 41 N.E.3d 306, *5. It noted that the focus in Jenkins' appeal was on the third scenario from Cronic and that such a petitioner "`faces an extremely heavy burden in making his Cronic claims." Id. at *6 (quoting Ward v. State, 969 N.E.2d 46, 77 (Ind. 2012)). The Indiana Court of Appeals proceeded to explain why Jenkins' Cronic argument was unavailing:
The foregoing explains precisely what is attributed to the circumstances surround Wilson's appointment and his representation of Jenkins at trial: "This case is not one in which the surrounding circumstances make it unlikely that the defendant could have received the effective assistance of counsel." The representation Wilson provided demonstrates just the contrary.
As the foregoing shows, and as to both Strickland and Cronic, the Indiana Court of Appeals in Jenkins "took the constitutional standard seriously and produced an answer within the range of defensible positions." Mendiola v. Schomig, 224 F.3d 589, 591 (7th Cir. 2000). Because this Court cannot find that the Indiana Court of Appeals "unreasonably applie[d] [the Strickland or Cronic standards] to the facts of the case," Jenkins' claim of ineffective assistance of counsel at trial does not support the award of habeas corpus relief. Murrell, 332 F.3d at 1111 (citing Bell v. Cone, 535 U.S. 685, 694 (2002)).
Jenkins' conviction withstood challenge in the Indiana courts, and thus a presumption of constitutional regularity attaches to it. See Farmer v. Litscher, 303 F.3d 840, 845 (7th Cir. 2002) (citing Parke v. Raley, 506 U.S. 20, 29-30 (1992)); Milone v. Camp, 22 F.3d 693, 698-99 (7th Cir. 1994).
After a defendant has been convicted and exhausted his appeal rights, a court may presume that "he stands fairly and finally convicted." United States v. Frady, 456 U.S. 152, 164 (1982). This Court has carefully reviewed the state record in light of Jenkins' claims and has given such consideration to that claim as the limited scope of its review in a habeas corpus proceeding permits. Several specifications of ineffective assistance of counsel are unreviewable here because of unexcused procedural default. The other specifications are completely lacking in merit. These claim of ineffective assistance of counsel at trial does not warrant relief in light of the deferential standard required by the AEDPA. Harrington v. Richter, 562 U.S. 86, 101 (2011)("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.")(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)); Stern v. Meisner, 812 F.3d 606, 610 (7th Cir. 2016)("In other words, [the habeas petitioner] must show a complete absence of reasonableness in the [state] appellate court's decision.")(citing Harrington, 562 U.S. at 98).
Jenkins' petition for a writ of habeas is therefore
Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, the Court finds that Jenkins has failed to show that reasonable jurists would find "it debatable whether the petition states a valid claim of the denial of a constitutional right" and "debatable whether [this court] was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court therefore
IT IS SO ORDERED.
