United States District Court, N.D. Indiana
OPINION AND ORDER
JOSEPH S. VAN BOKKELEN, District Judge.
Charles Kingery, a pro se prisoner, is serving a 55-year sentence for a murder and robbery committed in Marion County, Indiana. State v. Kingery, No. 49G03-9302-CF-01748. He filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (DE 1.) The respondent argues that the petition is untimely and Kingery's sole claim procedurally defaulted, and therefore requests dismissal of the petition with prejudice. (DE 6.) For the reasons stated below, the court finds the respondent's arguments unavailing, and orders further briefing on the merits.
This case has a convoluted and unusual procedural history. 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 Kingery's burden to rebut this presumption with clear and convincing evidence. Id. On direct appeal, the Indiana Supreme Court set forth the facts underlying this case as follows:
Late in the afternoon of April 1, 1991, the victim, George Wildrick, arrived at Van's Tavern, an establishment which Wildrick frequently patronized. Van's Tavern was hosting a pool tournament, and about 7:00 p.m., Charles Kingery and a friend, John Smith, arrived to compete in that tournament. George Wildrick spent several hours in Van's, displaying large amounts of cash, consuming several drinks, and announcing his plan to visit later another tavern, the Goldfinger Lounge. Witnesses who spoke with George Wildrick as he left Van's Tavern at closing, between 2:30 and 3:00 a.m., testified that Wildrick again stated his plan to have another drink at the Goldfinger Lounge, and was looking for someone to join him there.
Kingery and Smith played pool at Van's Tavern until approximately 1:00 a.m. Smith then left for home. Kingery told Smith that he intended to head home shortly. However, Melissa Haynes, the woman with whom Kingery lived, testified that Kingery did not arrive home until more than two hours later, a little after 3:00 a.m. State's witness Heidi Marter was awake that morning around 3:00 a.m. when she heard, outside her home near the Goldfinger Lounge, three gunshots. Peering out her window, she saw a person, motionless, sitting upright in a large pickup truck parked near the lounge. A man, standing outside the truck, reached inside, opened the driver's side door, lifted the person from inside the truck and placed that motionless individual on the ground. Marter then saw the man look under the truck's seats and wipe down the truck's interior, particularly the passenger area and the steering wheel. He ran his hands up and down the length of the motionless individual's body. Using a rag, the man rolled up the truck's window, left the rag in the window, shut the door and walked toward the Goldfinger Lounge.
Marter left her home and drove over to the scene. She found the victim, George Wildrick, laying on his left side in a pool of blood. She quickly returned home to call the police. After notifying the police, she again looked out her window, and saw that the man whom she had seen earlier had returned. He pulled up next to the body in a small, light-colored pickup truck, got out of the truck, turned the lights of the victim's truck off, wiped down the inside of the victim's truck a second time, returned to his truck, and drove away.
Witness Steven Ross was driving toward the Goldfinger Lounge around 3:30 a.m. when he saw a small white truck speeding in the opposite direction. Finding police at the lounge when he arrived, and discovering that they were looking for a white truck, he told them that he had just seen a white truck speeding away from the Goldfinger.
Arriving at the crime scene at approximately 4:30 that morning, a deputy coroner recovered several items from Wildrick's body, including a pair of sunglasses. These sunglasses were later found to contain a bloody fingerprint which the State demonstrated belonged to Kingery.
Kingery v. State, No. 49S00-9403-CR-226, slip op. at *2-4 (Ind. Dec. 22, 1995). Following a jury trial, Kingery was found guilty of murder and robbery. Id. at *4. The court imposed an aggravated 55-year sentence for the murder conviction and an aggravated 15-year sentence for the robbery conviction, to be served consecutively. Kingery v. State, No. 49A02-1204-CR-317, slip op at *2 (Ind.Ct.App. Jan. 25, 2013).
Kingery appealed, raising the following claims: the evidence was insufficient to support his convictions; there was an error in the jury instructions; the trial court improperly allowed testimony which suggested to jurors that he had a prior criminal record; his Class B robbery conviction was improper based on the instructions given the jury; and the trial court erred at sentencing in several respects. Kinger y, No. 49S00-9403-CR-226, slip op. at *2. The Indiana Supreme Court affirmed Kingery's murder conviction and sentence in all respects. Id. at *18. As to the robbery conviction, the court determined that Kingery was guilty of Class C robbery rather than Class B robbery. Id. at *11-13. The court affirmed the conviction as modified, but remanded for a new sentencing hearing on the robbery count. Id. at *18. However, for reasons not fully explained in the record, the resentencing hearing did not occur for nearly 18 years.
In the interim, Kingery pursued state post-conviction relief, asserting numerous grounds of ineffective assistance of trial counsel. Kingery v. Indiana, No. 49A02-0806-PC-478, slip op. at *4 (Ind.App. Ct. Nov. 19, 2008). Following several evidentiary hearings, the petition was denied. Id. at *4-7. Kingery appealed, and the Indiana Court of Appeals affirmed the denial of post-conviction relief. Id. at *25. He sought transfer to the Indiana Supreme Court, but his petition was denied on January 15, 2009. (DE 6-8 at 2.) He did not seek review in the U.S. Supreme Court. (DE 1 at 2.)
In February 2011, Kingery filed a pro se motion requesting that he be resentenced on the robbery conviction in accordance with the Indiana Supreme Court's 1995 remand order. (DE 1 at 56.) The court appointed counsel to represent him. ( Id. ) Through counsel, Kingery further requested that the court vacate his murder sentence and resentence him on both counts in accordance with Blakely v. Washington, 542 U.S. 296 (2004). ( Id. at 57.) The trial court denied the request as to the murder conviction, but granted the request on the robbery conviction. ( Id. at 58.) At resentencing, the prosecutor opted not to pursue an enhanced sentence, and on March 30, 2012, Kingery was sentenced to the presumptive four-year term for robbery, to run concurrently with his 55-year sentence for the murder conviction. Kingery v. State, No. 49A02-1204-CR-317, slip op. at *4 (Ind.Ct.App. Jan. 25, 2013). The trial court issued a new judgment and order of conviction encompassing the complete sentence for both counts. (DE 8, State Court Record, Appellant's Appx. Vol. I, at 74-75.)
Kingery thereafter pursued a second round of direct appeals. (DE 6-15.) He did not challenge the robbery sentence that was imposed, but argued that that he was entitled to resentencing on his murder conviction in accordance with Blakely. ( Id. ) The Indiana Court of Appeals rejected Kingery's claim. Kingery, No. 49A02-1204-CR-317, slip op. at *2-7. The court concluded that under state law, the trial court lacked jurisdiction to exceed the scope of the Indiana Supreme Court's remand order and resentence Kingery on the murder conviction. Id. at *7. The court further concluded that Kingery was not entitled to the benefit of resentencing under Blakely, because his case was no longer "pending" when Blakely was decided. Id. at *4-7. The court therefore affirmed the sentence imposed by the trial court. Id. at *7. Kingery sought review in the Indiana Supreme Court raising his Blakely claim, but his petition to transfer was denied ...