United States District Court, Southern District of Indiana, Indianapolis Division
ENTRY DISCUSSING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
SARAH EVANS BARKER, JUDGE
For the reasons explained in this Entry, the petition of Armand Robinson for a writ of habeas corpus must be denied and the action dismissed with prejudice. In addition, the court finds that a certificate of appealability should not issue.
I. The Petition for Writ of Habeas Corpus
Robinson is serving the executed portion of a sentence of 50 years imposed in 2009 in Marion County following his convictions for dealing in cocaine and resisting law enforcement. His convictions were affirmed on appeal in Robinson v. State, No. 49A02-0901-CR-92 (Ind.Ct.App. October 13, 2009)(Robinson I). The Indiana Supreme Court denied transfer on January 11, 2010. The direct appeal was followed with a petition for post-conviction relief, which the trial court denied. Robinson’s appeal of that disposition was dismissed with prejudice based on Robinson’s failure to submit a missing transcript in a timely manner pursuant to the Indiana Rules of Appellate Procedure. Robinson’s petition for transfer was denied on June 4, 2012.
The circumstances surrounding Robinson’s offenses and prosecution were summarized by the Indiana Court of Appeals in Robinson’s direct appeal:
At approximately 10:00 p.m. on January 28, 2008, two undercover Indianapolis Metropolitan police officers drove to an alley behind a Marathon Station at the intersection of 29th Street and Dr. Martin Luther King, Jr., Street, a location which was approximately 564.8 feet from Holy Angels School. Detective Christopher Jones stopped the truck he was driving, Robinson approached and asked what he wanted, and Detective Jones replied that he “was trying to get a 40 rock for my guy here.” Tr. p. 55. Robinson retrieved 0.2835 grams of a substance containing crack cocaine from a confederate nearby and delivered it to Detective Jones in exchange for money.
At that point, Detective Jones exchanged telephone numbers with Robinson and his confederate, which was his signal for the “take-down” officers to approach. Tr. p. 58. As uniformed Indianapolis Metropolitan Police Officer Zachary Taylor approached, Robinson ran and did not stop when Officer Taylor said, “Stop. Police.” Tr. p. 77. Robinson eventually turned around, faced Officer Taylor, and assumed a “fighting stance.” Tr. p. 78. Officer Taylor ordered Robinson to the ground, but he did not comply. Eventually, Officer Taylor performed a front kick to Robinson's torso, and, once on the ground, Robinson forcibly resisted efforts to handcuff him.
On January 30, 2008, the State charged Robinson with Class A felony conspiracy to commit dealing in cocaine, Class A felony dealing in cocaine, Class B felony cocaine possession, two counts of Class A misdemeanor resisting law enforcement, and Class A misdemeanor marijuana possession. At trial, Robinson did not argue that he was only briefly within 1000 feet of Holy Angels or that there were no children present at the school at the time, nor was the jury instructed on Indiana Code section 35–48–4–16 (2007), which outlines circumstances that mitigate some drug-related crimes, including the ones Robinson was facing. On December 19, 2008, a jury found Robinson guilty of Class A felony dealing in cocaine, Class B felony cocaine possession, and two counts of Class A misdemeanor resisting law enforcement. On January 6, 2009, the trial court sentenced Robinson to fifty years of incarceration for dealing in cocaine and one year for each resisting law enforcement conviction, all sentences to be served concurrently.
Robinson I, at pp.2-3 (footnote omitted).
Robinson now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254(a). Robinson claims that: 1) he was denied the ineffective assistance of trial counsel; 2) his sentence was excessive, inappropriate and disproportionate to the severity of the crime; and 3) there was insufficient evidence to support the resisting law enforcement offense.
A. Procedural Default
"[W]hen examining a habeas corpus petition, the first duty of a district court . . . is to examine the procedural status of the cause of action." United States ex rel. Simmons v. Gramley, 915 F.2d 1128, 1132 (7th Cir. 1990). "A state prisoner . . . may obtain federal habeas review of his claim only if he has exhausted his state remedies and avoided procedurally defaulting his claim." Thomas v. McCaughtry, 201 F.3d 995, 999 (7th Cir. 2000). Procedural default occurs “when a habeas petitioner has failed to fairly present to the state courts the claim on which he seeks relief in federal court and the opportunity to raise that claim in state court has passed.” Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir. 2004). If a petitioner neglects to properly present a claim to the state's highest court, the claim is procedurally defaulted and barred from district court consideration. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999); Moffat v. Boyles, 288 F.3d 978, 982 (7th Cir. 2002); Wilson v. Briley, 243 F.3d 325, 327 (7th Cir. 2001). Procedural default can also occur with respect to “a claim rejected by a state court ...