United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
ROBERT L. MILLER, Jr., District Judge.
Robert Spears, a pro se prisoner, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 which raises three grounds to challenge his two convictions and sentences for dealing in controlled substances by the Marion Superior Court under cause number 49G20-0510-FB-184297. The respondent briefed those issues and filed the state court record. Mr. Spears has filed a traverse.
In deciding this habeas petition, the court must presume the facts set forth by the state courts are correct unless rebutted by the petitioner with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). On direct appeal, the Court of Appeals of Indiana set forth the facts regarding these convictions as follows:
The evidence most favorable to the convictions is that Spears regularly sold tablets of hydrocodone (Vicodin) and alprazolam (Xanax) to his niece, Shannon Welsh, for over a year. Welsh also occasionally sold pills she obtained from Spears to other persons and gave the proceeds to Spears. Welsh knew that Spears had his prescriptions for the drugs filled towards the end of each month, and the two would arrange to meet shortly thereafter for Welsh to obtain some pills. Sometimes Welsh initiated the contact, and sometimes Spears did.
At some point, Welsh and her family obtained a protective order against Spears because of allegedly threatening behavior towards them. Welsh and her family contacted law enforcement for assistance with Spears's alleged threats. Indianapolis Metropolitan Police Department ("IMPD") Detective Noble Duke met with Welsh and her family several times to discuss Spears. At one of these meetings, Welsh told Detective Duke about Spears selling controlled substances. Eventually, Welsh agreed to make a controlled buy of drugs from Spears as a way "to try to help Welsh's family with their problems." Tr. p. 286.
On October 25, 2005, Welsh contacted Detective Duke to let him know that Spears probably had medication in his possession. Welsh went to an IMPD district office, where she was thoroughly searched by a female officer. Officers also thoroughly searched Welsh's vehicle. No contraband was found on Welsh or in her car. She was given money that was photocopied beforehand and outfitted with a transmitting device.
Welsh drove directly to Spears's home in Indianapolis, followed by IMPD officers. Detective Duke parked where he could see the rear of Spears's home and another group of officers were parked where they could see the front. When Welsh pulled up to Spears's house he was standing outside. Welsh asked Spears if he had any pills, and Spears responded that he wanted to drive around the block to see if there were any police officers observing them. Spears drove around the block in his truck, with Welsh following in her car. Officers observed Welsh driving, although they temporarily lost sight of her at one point. At the end of the block, Welsh drove up beside Spears and told him she did not see anybody, and they both drove back to Spears's house and went inside.
No one else was inside the home aside from Welsh, Spears, and Spears's four-year-old son. Officers could not directly see Spears's back door for some of the time Welsh was inside, but over the transmitter they heard no one enter the house while Welsh was there. Welsh again asked if Spears had any pills for sale, and he said that he did. She requested ten Xanax and six Vicodin pills, which he gave to her in exchange for fifty dollars. Welsh then left and drove directly to a pre-arranged location, followed by Detective Duke. Welsh gave Detective Duke six pills containing hydrocodone, a schedule III controlled substance, and nine pills containing alprazolam, a schedule IV controlled substance. A search of Welsh and her vehicle uncovered no other contraband. Police then went to Spears's house and arrested him. During a search incident to arrest, officers found on Spears's person two prescription bottles containing hydrocodone and alprazolam, and cash that matched the buy money provided to Welsh.
DE 10-2 at 2-5 (brackets omitted).
In his traverse, Mr. Spears raises numerous factual disputes. He spends many pages setting forth an alternative factual history and drawing alternative conclusions based on those facts. He argues that he didn't sell drugs to Shannon Welsh for over a year, but she testified that he did. He argues that she didn't sell pills for him and give him the money, but she testified that she did. He argues that she didn't meet with Detective Noble Duke several times and tell him about those drug transactions, but she testified that she did. He argues that she didn't contact Detective Duke on October 25, 2005 because she believed that Mr. Spears had pills to sell, but Detective Duke testified that she did. Mr. Spears argues that opinions of the Court of Appeals of Indiana incorrectly identified the date of the controlled buy as October 25, 2005 - rather than October 24, 2005 - but the testimony at trial repeatedly identified the correct date. Moreover, a scrivener's error in the appellate opinions has no bearing on the merits of the claims in Mr. Spears's habeas corpus petition.
Mr. Spears argues that IMPD officers didn't follow Shannon Welsh when she drove directly from the police station to his house for the controlled buy, but both she and Detective Duke testified that she didn't make any stops that weren't allowed by the police. Moreover, Sergeant Miller, Detective Duke, and Detective Reed testified that they were members of the Indianapolis Metropolitan Police Department and that they followed her as she drove to the controlled buy. Mr. Spears argues that she didn't agree to participate in the controlled buy to help her family because they had been threatened by Mr. Spears, but she testified that she did. He argues that officers couldn't verify that they didn't hear anyone enter the house during the controlled buy, but Detective Duke testified testified that he did not hear anyone go into or out of the house during the controlled buy. Mr. Spears argues that Ms. Welsh didn't ask him to purchase ten Xanax and six Vicodin pills in exchange for $50.00, but she testified that she did. He argues that Detective Duke didn't follow her when she left the house after the controlled buy, but Detective Duke testified that he did. Moreover, Ms. Welsh testified that "I really don't remember." He argues that she bought ten Xanax pills, but only gave nine of them to Detective Duke, but she testified that "[h]e might not have gave it to me" and "[h]e could have miscounted." He argues that Ms. Welsh testified that her car was not searched after the controlled buy, but her testimony was, "[t]hey looked in it. I guess not - not a search. I really don't remember. They looked in there. I don't remember if they - I don't remember." In addition, Detective Reed testified that he searched the car, and Detective Duke corroborated that testimony. Mr. Spears argues that officers didn't find two prescription bottles containing hydrocodone and alprazolam as well as cash matching the buy money when they searched him, but Detective Duke testified that they did. Mr. Spears argues that he didn't request that the jury hear the entire recording of the controlled buy, but his trial lawyer did on his behalf. He argues that his trial counsel didn't present evidence about a federal gun investigation to the jury even though the judge ruled that she could do so, but he must know that such evidence was ultimately excluded because he explains that "[t]he fact is Spears testified because... the court changed its ruling about the gun case...."
Mr. Spears argues that his prior criminal history should have been inadmissible under any circumstances because his conviction was more than ten years old and it was unrelated to whether he was guilty of the current charges, but he had been released from prison on in February 2005, and Indiana Rule of Evidence 609(b) (like the federal rule) allows the introduction of such evidence when less than ten years have passed since the, "conviction or release from confinement for it, whichever is later." Moreover, Mr. Spears's prior criminal history would be relevant if he wanted to demonstrate that he was being investigated for being a felon in possession of a magazine for a firearm.
Mr. Spears argues that there was no foundation for the state court to conclude that the search was sufficiently controlled, but the testimony of Mr. Welsh and four police officers (Noble Duke, Chris Reed, David Miller, and Paul Arkins) during the suppression hearing provided the court with plenty of information about the controls implemented during the controlled buy. Mr. Spears argues that Ms. Welsh was promised leniency in return for her testimony against him, but she testified that she wasn't. Moreover, Mr. Spears hasn't identified anything in the record indicating such a promise other than his own conjecture. He argues that his trial lawyer didn't impeach Ms. Welsh with her prior deposition testimony about whether she and her car were searched after the controlled buy, but she was impeached on those subjects.
Mr. Spears hasn't satisfied the requirements of 28 U.S.C. § 2254(e)(1) because he hasn't provided clear and convincing evidence that the facts found by the Court of Appeals of Indiana are incorrect. So too, he hasn't satisfied the requirements of 28 U.S.C. § 2254(d) by demonstrating that the state courts made an unreasonable determination of the facts in light of the evidence presented. The court must accept as true those facts that were found by the Indiana courts.
Other facts, relevant to the particular claims raised by Mr. Spears in his habeas corpus petition, will be provided as needed.
In Ground 1, Mr. Spears argues that he was denied the effective assistance of trial counsel for five reasons:
(1) [A] Counsel failed to conduct a professional investigation into the facts and circumstances surrounding the federal entrapment scheme whereby ATF agents planted illegal gun accessories in Spears' house to return Spears to prison. When that scheme failed, State agents charged Spears with allegedly selling his prescribed Vicodin and Xanax drugs to his niece, a long-term drug addict. [B] Counsel failed to present material and relevant evidence to the jury, namely the fact that the prosecutor and the lead detective made a deal with the niece to forego charging her with possession of drugs, theft, and armed robbery in exchange for her cooperation in planting the illegal gun accessories in Spears house under the pretext of buying Spears prescribed medications. [C] Counsel further failed to challenge the inadequate controls of the alleged drug buy.
(2) Counsel failed to properly cross-examine and impeach police officers with inconsistent statements that clearly demonstrated the fabricated testimony of police officers and their involvement in a conspiracy to entrap Spears with false evidence.
(3) Counsel failed to conduct professional interviews of available defense witnesses who could have testified to material and relevant evidence that Spears niece, the long-term drug addict, was not a credible or reliable witness, and that the niece had been coerced by the State to cooperate in planting false evidence in exchange for not being charged for thefts, armed robbery, and other felonies.
(4) Counsel failed to object and challenge multiple versions of drug buy recordings and transcripts on the alleged drug buy that were not authenticated by any audio expert.
(5) Counsel failed to object and challenge the paid testimony of the niece, working as a confidential informant, and failed to properly cross-examine and impeach the informant with prior bad acts.
DE 1 at 4-5.
Because the Court of Appeals of Indiana adjudicated these ineffective assistance of trial counsel claims on the merits, habeas corpus relief can't be granted unless that adjudication "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). "In order for a federal court to find a state court's application of [United States Supreme Court] precedent unreasonable, ' the state court's decision must have been more than incorrect or erroneous. The state court's application must have been objectively unreasonable.'" Wiggins v. Smith , 539 U.S. 510, 520-521 (2003) (citations omitted).
"Judicial scrutiny of counsel's performance must be highly deferential." Strickland v. Washington , 466 U.S. 668, 689 (1984). "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. There are countless ways to provide effective assistance in any given case." Id . (quotation marks and citations omitted).
However, counsel need not be perfect, indeed not even very good, to be constitutionally adequate. As we noted, Strickland has two prongs, both of which must be satisfied to succeed on an ineffectiveness claim. A defendant must show that his attorney performed below minimal professional standards and that the substandard performance prejudiced him. Under AEDPA, establishing that a state court's application of the Strickland standard was unreasonable is a tall task, and only a clear error in applying Strickland will support a writ of habeas corpus.
McAfee v. Thurmer , 589 F.3d 353, 355-356 (7th Cir. 2009) (quotation marks and citations omitted). "Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky , 130 S.Ct. 1473, 1485 (2010). "Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult [because] the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Harrington v. Richter , 131 S.Ct. 770, 778 (2011). The Court of Appeals of Indiana correctly identified and applied the Strickland standard to each of Mr. Spears's claimed instances of ineffectiveness. In each instance, the court reasonably explained how his lawyer satisfied the Strickland standard.
In addressing the claim raised in Ground 1-(1)[A] that his trial counsel didn't properly investigate the ATF's effort to entrap him in a gun crime, ...