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Fowler v. Zatecky

United States District Court, S.D. Indiana, Indianapolis Division

January 21, 2015

ROBERTSON FOWLER, III Petitioner,
v.
DUSHAN ZATECKY, Respondent.

ENTRY DISCUSSING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

JANE MAGNUS-STINSON, District Judge.

For the reasons explained in this Entry, the petition of Robertson Fowler, III 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

Background

On September 25, 2006, Fowler was charged with several felonies. After various proceedings, he was convicted based on his guilty plea to unlawful possession of a firearm by a serious violent felon and to being a habitual offender. The State of Indiana and Fowler stipulated in the plea agreement to a 35-year sentencing cap. Other charges were dismissed. The trial court imposed a 30-year sentence-15 years for the unlawful possession offense, enhanced by 15 years for the habitual offender adjudication.

Fowler filed an appeal, arguing that the sentence was excessive under Indiana law. This argument was rejected in Folwer v. State, No. 49A02-0701-CR-19 (Ind.Ct.App. Aug. 31, 2007). His petition to transfer was denied.

Fowler's petition for post-conviction relief was denied by the trial court and this denial was affirmed on appeal in Fowler v. State, 977 N.E.2d 464 (Ind.Ct.App. 2013), and the Indiana Supreme Court again denied Fowler's petition for transfer. This action followed, and is now fully at issue on the pleadings and the expanded record. Fowler's habeas claims are these: 1) his sentence is illegal, constituting cruel and unusual punishment and a violation of federal due process; 2) appellate counsel was ineffective for not challenging the sentence as illegal; and 3) his guilty plea was invalid because he was not accurately advised when he pled guilty.

All of Fowler's claims require attention to the following matters, noted in the appeal from the denial of his petition for post-conviction relief:

When Fowler entered into his plea agreement, Indiana law permitted the State to use the same prior felony to support a charge of unlawful possession of a firearm by a serious violent felon and to support an habitual offender enhancement. See Townsend v. State, 793 N.E.2d 1092, 1097 (Ind.Ct.App. 2003), trans. denied.
Fowler was sentenced to thirty years executed-fifteen years for the firearm charge and fifteen for the habitual offender enhancement. He appealed the sentence. In June of 2007, after the State filed its Appellee's brief, but while Fowler still could have filed a reply brief, our Indiana Supreme Court decided Mills v. State, which held "a defendant convicted of unlawful possession of a firearm by a serious violent felon may not have his or her sentence enhanced under the general habitual offender statute by proof of the same felony used to establish that the defendant was a serious violent felon'" 868 N.E.2d 446, 450 (Ind. 2007) (internal citation and quotation omitted). Fowler's appellate counsel did not file a reply brief or Notice of Additional Authorities to assert the Mills decision might render Fowler's sentence improper. Nor did he raise the issue in his transfer petition.

Fowler v. State, 977 N.E.2d 464, 466 (Ind.Ct.App. 2012), aff'd on reh'g, 981 N.E.2d 623 (Ind.Ct.App. 2013).

II. Applicable Law

A federal court may grant habeas relief only if the petitioner demonstrates that he is in custody "in violation of the Constitution or laws... of the United States." 28 U.S.C. § 2254(a) (1996). Fowler filed his 28 U.S.C. § 2254 petition after the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA). His petition, therefore, is subject to the AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA "place[s] a new constraint" on the ability of a federal court to grant habeas corpus relief to a state prisoner "with respect to claims adjudicated on the merits in state court." Williams v. Taylor, 529 U.S. 362, 412 (2000). The Court of Appeals has reviewed the standard to be applied here:

When a state court has ruled on the merits of a habeas claim, our review is circumscribed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See 28 U.S.C. § 2254(d); Harrington v. Richter, 131 S.Ct. 770, 783-84, 178 L.Ed.2d 624 (2011). Under AEDPA, we may grant relief only if the state court's decision on the merits "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "resulted in a decision that was based on an unreasonable determination of the facts ...

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