United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
WILLIAM C. LEE, District Judge.
Brad Passwater, a pro se prisoner, is serving a 55-year sentence for a murder committed in Madison County, Indiana. State v. Passwater, No. 48D03-0210-MR-355. He filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (DE 1.)
In deciding the petition, the court must presume the facts set forth by the state courts are correct. 28 U.S.C. § 2254(e)(1). It is Passwater's burden to rebut this presumption with clear and convincing evidence. Id. On post-conviction review, the Indiana Supreme Court set forth the facts underlying this case as follows:
On October 26, 2002, Passwater struck his mother in the head twice with a frying pan and then stabbed her in the head with a knife. A few days later, the State charged Passwater with murder. On November 25, 2003, Passwater filed a notice of intent to present an insanity defense. The trial court appointed a psychiatrist, Dr. Susan Anderson, and a psychologist, Dr. Frank Krause, to make a determination concerning Passwater's current competency and to evaluate his mental health. Following a Competency Hearing the trial court concluded that Passwater was competent to stand trial.
The trial began in August 2004. During voir dire there was extended dialogue between the prospective jurors and the attorneys regarding the insanity defense. Several jurors expressed concerns that the defense was overused. One juror questioned whether a defendant who was mentally challenged would actually receive the treatment he needed before returning to society. Another juror opined that defendants who used the insanity defense "get a slap on the hand."
During trial the healthcare professionals presented conflicting testimony regarding Passwater's mental health. The defense offered Dr. George Parker who testified that Passwater suffered from paranoid schizophrenia, experienced a schizophrenic episode at the time of the offense, and lacked the ability to "appreciate the wrongfulness of his behavior." The court's first expert witness, Dr. Anderson, testified that she was unable to offer an opinion concerning Passwater's sanity at the time of the offense in part because Passwater refused to cooperate with her evaluation. The court's second expert, Dr. Krause, testified that he had an adequate opportunity to evaluate Passwater and make a determination as to his state of mind. According to Dr. Krause, Passwater experienced some mental health issues but he was nonetheless able to appreciate the wrongfulness of his actions at the time of the offense. Various lay witnesses testified about Passwater's calm and deliberate demeanor shortly before and after he struck his mother.
At the close of evidence, defense counsel requested a jury instruction on the penal consequences of guilty but mentally ill and not responsible by reason of insanity verdicts. He specifically requested a pattern jury instruction apparently used in the state of California. The trial court rejected the tendered instruction because it was inconsistent with Indiana law and instead gave an instruction proposed by the State and approved of by this Court in Georgopulos v. State, 735 N.E.2d 1138, 1143 n.3 (Ind. 2000). Defense counsel did not object to the State's tendered instruction.
Passwater v. State, 989 N.E.2d 766, 768-69 (Ind. 2013) (internal citations omitted). The jury found Passwater guilty but mentally ill. Id. at 769. He was sentenced to a term of 60 years in prison. Id. On direct appeal, the Indiana Court of Appeals affirmed the conviction, but remanded for resentencing after concluding that Passwater's sentence had been improperly enhanced in violation of Blakely v. Washington, 542 U.S. 296 (2004). Id .; see also Passwater v. State , No. 48A02-0501-CR-50 (Ind.Ct.App. Dec. 28, 2005). On remand, the trial court sentenced him to the presumptive sentence of 55 years. Passwater, 989 N.E.2d at 769. Passwater did not seek further review in the Indiana Supreme Court or the U.S. Supreme Court. (DE 1 at 1.)
In April 2007, Passwater filed a petition for state post-conviction relief. Passwater, 989 N.E.2d at 769. Following an evidentiary hearing at which Passwater was represented by counsel, the petition was denied. Id. He appealed, arguing that his trial counsel was ineffective in failing to object to the jury instruction given pursuant to Georgopolus. Id. at 769-70; Passwater v. State , No. 48A05-1201-PC-17, at *1, 5 (Ind.Ct.App. July 25, 2012). The appellate court found that Passwater failed to establish deficient performance or prejudice, since the instruction was an accurate statement of Indiana law. Passwater, No. 48A05-1201-PC-17, at *5-10.
Passwater sought transfer to the Indiana Supreme Court, seeking review of his claim that counsel was ineffective in failing to object to the jury instruction. Passwater, 989 N.E.2d at 770. The court granted transfer, and thereafter held that counsel was not ineffective in failing to object to the instruction, because the instruction had been expressly approved of by the court in Georgopolus, and it was an accurate statement of Indiana law. Id. at 771-73. Accordingly, the court affirmed the denial of post-conviction relief. Id. at 773. Passwater did not seek review in the U.S. Supreme Court. (DE 1 at 2.) Thereafter, he filed a federal habeas petition raising one claim: that his counsel was ineffective in failing to object to the jury instruction. (DE 1 at 3.)
Passwater'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 may grant an application for habeas relief only if it meets the stringent requirements of 28 U.S.C. § 2254(d), set forth as follows:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State ...