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Azania v. Superintendent, Indiana State Prison

United States District Court, N.D. Indiana, South Bend Division

February 18, 2015

ZOLO AGONA AZANIA, fka Rufus Lee Averhart, Petitioner,
v.
SUPERINTENDENT, INDIANA STATE PRISON, Respondent.

OPINION AND ORDER

JAMES T. MOODY, District Judge.

Petitioner Zolo Agona Azania, a prisoner confined at the Indiana State Prison, submitted a petition[1] for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (DE # 1.) Azania is currently serving an aggregate sentence of 74 years, imposed by the Allen Superior Court, for committing armed robbery and murdering a police officer during the course of the robbery.

I. Background

On May 5, 1982, the Petitioner, under the name Rufus Averhart, [2] was convicted of murder and felony murder of a police officer, and was sentenced to death. The Indiana Supreme Court affirmed both the conviction and sentence on direct appeal. Averhart v. State, 470 N.E.2d 666, 697 (Ind. 1984). Azania sought post-conviction relief, which the trial court denied. On appeal, the Indiana Supreme Court concluded that Azania was denied effective assistance of counsel at the sentencing phase, and remanded the case for imposition of a term of years or for a new penalty phase. Averhart v. State, 614 N.E.2d 924, 935 (Ind. 1993). On remand, Azania was again sentenced to death, and the Indiana Supreme Court affirmed the sentence on appeal. Azania v. State, 730 N.E.2d 646, 655 (Ind. 2000).

Azania filed a successive petition for post-conviction relief and the Indiana Supreme Court authorized "the filing of Azania's successive petition for post-conviction relief but only for the purpose of presenting his first claim regarding the Allen County jury selection system." Azania v. State, 738 N.E.2d 248, 252 (Ind. 2000). The Supreme Court further ordered that this successive petition for post-conviction relief "shall be consolidated with the proceedings in Azania's separate successive petition for post-conviction relief alleging newly discovered evidence relevant to the guilt phase of his murder trial, which was authorized to be filed by our order of October 12, 2000." Id.

The trial court denied relief on Azania's successive petitions for post-conviction relief. On appeal the Indiana Supreme Court affirmed the trial court in part, but held that Allen County's computerized jury selection system did not substantially comply with Indiana's jury selection statute, requiring that the death sentence be vacated and that a new penalty phase be conducted. Azania v. State, 778 N.E.2d 1253, 1263 (Ind. 2002).

On remand, the trial court granted Azania's motion barring the State from seeking the death penalty. On appeal from that order, the Indiana Supreme Court reversed the trial court, and remanded the case for a new penalty phase that would include the possibility of a death penalty. Azania v. State, 865 N.E.2d 994, 1010 (Ind. 2007). The State sought rehearing, and the Supreme Court granted "the State's petition for rehearing and [held] that Azania should be re-sentenced under the post-2002 death penalty statute, but without the availability of [life without parole]." State v. Azania, 875 N.E.2d 701, 705 (Ind. 2007). On remand, the trial court sentenced Azania to an aggregate term of 74 years pursuant to a stipulated sentencing agreement. (DE # 16-1 at 58.)

II. Discussion

This petition is governed by the provisions of the Anti-Terrorism and Death Penalty Act of 1996, see Lindh v. Murphy, 521 U.S. 320, 336 (1997), which 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). In reviewing a petition for federal collateral relief from a state court judgment of conviction, this court must presume as correct the facts as found by the state courts. 28 U.S.C. § 2254(e)(1); Sumner v. Mata, 449 U.S. 539, 547 (1981); Ruvalcaba v. Chandler, 416 F.3d 555, 559-60 (7th Cir. 2005). The petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Ruvalcaba, 416 F.3d at 559-60.

The Indiana Supreme Court set forth the facts regarding Azania's crimes on direct appeal as follows:

The facts tend to show that on August 11, 1981, at about noon, the Gary National Bank at 3600 Broadway, Gary, Indiana, was robbed by three men. Gary Police Officer Lieutenant George Yaros was killed by gunfire in a shootout with the robbers as they attempted their escape.
Witness William E. Pendleton was in the Bank parking lot by his automobile when he saw three masked people, one of them quite well dressed, run toward the Bank and enter it. When Pendleton observed this, he did not enter the Bank. Elton Bourseir, a security guard at the Bank, stated that an armed man came up behind him, took his gun, and pushed him into the lobby, telling him to lie on the floor. Bourseir did so. The man was about 6'3'', a very dark complexioned black man with an "afro" hairdo, sunglasses, a light blue coat, and black gloves. The firearm taken from Bourseir was a.38 Colt nickel-plated, pearl handled, two inch revolver. Employees of the Bank testified that the three men came into the branch with weapons drawn, had everyone lie down on the floor, and took money belonging to the Bank. Louis Lepp, the Assistant Manager of the Bank branch, testified to these events. As he lay down, he reached for an alarm button and set off the alarm. This button also activated a Diebold security camera. The alarm button activated an alarm in the office of the alarm company and notified the police department. Mavis Reeves testified she was sitting at her typewriter where she could see the back door. The back door opened and a man with a gun ran in and jumped over the counter, holding the gun to a guard's head. Two other men with guns and masks ran in. The first man was pushing the guard to get him out into the lobby. This man had a large gun in his hands and was wearing a blue suit. One of the other two men wore a shirt and vest and the third wore a plaid shirt. When it was apparent the police were on the scene, the three men started to leave the Bank. Mrs. Reeves saw them standing between the two sets of doors at the back of the Bank, shooting out. The man in the blue suit still had the long gun. Witnesses on the outside, including Pendleton, saw Officer Yaros pull up, block the exit lane of the Bank parking lot in a marked police car, and step out in an attempt to apprehend the robbers. He was in full police uniform. All three of the perpetrators opened fire on him and he fell to the ground. He was speaking into his walkie-talkie as he fell and other police officers testified they received a dispatch from him that indicated there was a robbery in progress and he needed help. The three robbers then ran past the squad car to get to their own vehicle. Two of them, the one in the sleeveless vest and the one in the plaid shirt, entered the car. The one in the blue suit went over to the police officer and kicked his pistol away from him. This individual then held his hand gun close to the police officer and fired another shot into his body. All three of them then left hurriedly in a light blue sedan type automobile. Officer Walter Jagilea was on the scene in a marked vehicle and saw the shooting of Yaros. He advised Officer Pastoret as to the identity of the two-tone blue four-door Ford in which the perpetrators were making their escape and Pastoret closely pursued them. Jagilea attempted to give aid to Yaros. Corporal Charles Oliver, of the Patrol Division of the Gary Police Department, was close behind Pastoret in pursuing the blue Ford. The subjects in the blue Ford leaned out of the side windows of the automobile, and shot back at the police officers while the pursuit took place. The vehicles reached speeds of 80 to 100 m.p.h. while going through the streets of Gary. The blue car finally struck a tree and was forced to stop. One of the occupants jumped out and ran south down 25th Street. Pastoret continued to pursue the automobile and finally apprehended defendants North and Hutson. Oliver pursued the man on foot and saw that this person was wearing a dark blue shirt, a light blue jacket, and light blue sports trousers. Oliver saw the man throw a wig to the ground while running down the alley and later recovered this wig. He saw the suspect run to the back of the second house on the left, which had a six foot fence at the rear, and saw the suspect jump over it. Oliver ent through a gate and then realized too much time had passed to pursue the suspect any further on foot, so he jumped back into his automobile and circled to 26th Avenue. The suspect was no longer in sight but there was a street crew working and Oliver asked them if they had seen the man. One of the workers came up and gave Oliver directions, stating that the man he wanted had gone east to Buchanan Street. This witness was James Charles McGrew, who stated he was working for Vulcan Basement Waterproofing at Lincoln Street around 26th Avenue when he heard gunshots. McGrew looked up twice. The second time he saw a black man in a blue jacket. The black man reached into the waist band of his trousers, removed a pistol and placed it in the bushes. After he walked four steps further and placed a bag into the bushes, he walked a few more steps and put his jacket into the bushes. McGrew watched the man cross the street very slowly and start walking towards the next corner. At this point, the police officer came by and McGrew advised him as to the direction in which this man had gone. Oliver then went in that direction and found defendant Averhart slowly walking north. His clothing closely matched that of the suspect he had been following. Oliver stopped him and handcuffed him. McGrew identified Averhart as being the same man he saw come by and place the items he had described into the bushes. Oliver recovered the light blue jacket in the bushes of the yard at 2532 Lincoln through which Averhart had fled. A six-shot Colt revolver was found wrapped inside the jacket. This was the gun taken from security guard Bourseir at the Bank. The clothing recovered from the bushes was identified by eye witnesses as that worn by Averhart during the robbery and murder. There also was a fragment of a bullet in the leg of Averhart's trousers. James Springfield was a security officer, working that day at the supermarket at 1421 West 25th Street in Gary, the scene of Averhart's course while being chased on foot by Oliver. He found a.44 magnum pistol behind the store. This he turned over to the police officer Elijah Cole. Witness Donald McDuffie testified that he had sold this weapon to Rufus Averhart. Ballistics tests indicated that this weapon had fired the shot that caused the death of Yaros. Lewis Lepp, the assistant general manager of the Bank, who had activated the Diebold bank camera, testified that he had checked the camera that morning and said it was loaded and ready to operate. Security officer Razumich removed the film and it was processed by Captain Phil Wieklinski. There were 309 frames showing activities of the robbery as described above. Mrs. Reeves viewed these photographs and was able to identify many of the scenes as those she observed. She particularly identified two through thirty three, 144 to 146, 200 to 213, 265 to 285, and 292 to 296, as corresponding to, and truly and accurately depicting what she saw during the incident. All of the photographs were admitted into evidence. There were also handguns, a shotgun, and over $19, 000.00 taken from the Bank, that were recovered from the blue Ford pursued by Pastoret and Oliver and from which Hutson and North were arrested. The money included several twenty dollar bills which were especially packaged and held in reserve in the teller's cage as "bait money" with the serial numbers of these bills marked and kept on record by the Branch Manager and the security office.

Averhart v. State, 470 N.E.2d 666, 673-75 (Ind. 1984). Following the Indiana Supreme Court's affirmance of his conviction and sentence, petitioner filed his first petition for post-conviction relief. On appeal from the denial of post-conviction relief, the Indiana Supreme Court found the following facts:

The facts are: On August 11, 1981, at approximately noon, three men robbed the Gary National Bank in Gary, Indiana. The police were informed that a robbery was in progress, and Police Officer George Yaros responded to the call. He was killed in an exchange of gunfire with the robbers as they exited the bank.
One of the robbers wore a blue suit. All three robbers opened fire and Yaros fell to the ground. The man wearing the blue suit walked back, kicked Officer Yaros's gun away from him, and then fired another shot into the officer. The three robbers left in a two-tone blue sedan. A high-speed chase ensued during which the robber's car stopped, and the man in the blue suit exited the car and discarded an afro wig he was wearing. The pursuing officer then momentarily lost view of him. However, workers at a construction site nearby informed the officer which way the man had gone and also that they had seen the man place a pistol, a bag, and his jacket in some bushes.
The officer soon caught sight of appellant and identified him by his clothing. Appellant was arrested and the revolver and other discarded items were recovered from the bushes. A security officer also recovered a.44 magnum pistol from behind a supermarket along the route of the robber's escape. A witness testified that this was the.44 magnum pistol that he had sold to appellant. Ballistics tests indicated that this gun had fired the shot which killed Officer Yaros.
In the original record there are 309 photographs taken by the bank security camera which were introduced in evidence. From an examination of these exhibits, it becomes apparent that the three robbers readily can be identified.
The photographs show that only one of the robbers was wearing a suit and only one had an afro hair style. It also is apparent that all three robbers were wearing gloves. The last series of photographs, which were taken within seconds of Officer Yaros's death, show the same three robbers exiting the bank, with only one of them wearing a suit and an afro hairdo.

Averhart v. State, 614 N.E.2d 924, 926-27 (Ind. 1993).

III. Petitioner's Request to Expand the Record

With his traverse, Azania has submitted a filing entitled "Submission of Required Documents in Support of Habeas Petition and Request for Evidentiary Hearing." (DE # 20-2 at 2.) Azania argues that "Habeas Corpus Rule 7(a)[3] of the Rules Governing Title 28 U.S.C. § 2254 cases expressly permits the habeas court to allow the inclusion of additional material relevant to the merits of the petition.'" Id. However, federal law places strict limits on a district court's ability to consider evidence that was not included in the State court record. "Because § 2254(e)(2) restricts a petitioner's attempts to supplement the factual record, [the petitioner] must satisfy that provision's requirements before he may place new factual information before the federal court." Boyko v. Parke, 259 F.3d 781, 790 (7th Cir. 2001). See also Owens v. Frank, 394 F.3d 490, 499 (7th Cir. 2005).

If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that-
(A) the claim relies on-
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

28 U.S.C. § 2254(e)(2).

Here, Azania is attempting to submit 39 documents. Pursuant to § 2254(e)(2), he must demonstrate either that the document is relevant to a claim based on a new, retroactive rule of Constitutional law or is new evidence that could not have been discovered previously through the exercise of due diligence. Then, he must demonstrate by clear and convincing evidence that had the information in the tendered document(s) been available at the time of his trial, no reasonable factfinder could have found him guilty.

Azania has not attempted to provide any explanation for how any of his tendered documents meet this standard. Rather he merely states that he "wish[es] to only expand the record to include essential documents to assist the habeas corpus court judge to render a proper decision under federal law in light of facts presented in the court room and before the trial judge. " (DE # 20-2 at 2 (emphasis added).) However, the "facts presented in the court room and before the trial judge" are already included as a part of the State court record. So this argument presents no basis for expanding the record to include the tendered documents.

Additionally, the court's review of these documents in light of the requirements of § 2254(e)(2), show that they cannot be added to this record or considered as a part of the resolution of this case. First, given that none of Azania's claims are based on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, none of his tendered documents are admissible based on that prong of the test. Second, it is clear that at least 32 of these documents are either not newly discovered or could have been previously discovered through the exercise of due diligence. Seven are newspaper articles that were published in the 1980's and 1990's (DE ## 20-2 at 32, 33, 35, 36, 71-72, 77-78, and 79). Eight are letters written to or by Azania in the 1980's and 1990's (DE ## 20-2 at 28-29, 30-31, 34, 39, 40, 42, 56, and 57). Two are pattern jury instructions (DE ## 20-2 at 24-25 and 26-27). Seven are court documents, pleadings, motions, orders, or transcripts (DE ## 20-2 at 7-10, 43-50, 53-55, 58-64, 66-70, 80, and 81-87); and eight are other documents that are already included in the State court record (DE ## 20-2 at 11-13, 14-17, 18, 19, 65, 73-74, 75, 76). The June 11, 1990, Affidavit of Alvin Montgomery (DE # 20-2 at 51-52) is not newly discovered because its contents are consistent with, albeit less detailed, the testimony of Alvin Montgomery during his deposition on February 4, 1992, which is a part of the State court record.

Of the remaining six documents, even if they have been newly discovered, none would have prevented a reasonable factfinder from being able to have found Azania guilty. The Arrest Information Form (DE # 20-2 at 6) shows when he was taken into custody by the Gary Police Department and when he was transferred to the Lake County Jail in Crown Point in August 1981. The handwritten prosecutor's notes (DE # 20-2 at 20-22) briefly describe three witness interviews. The drawing of ankle lock weights (DE # 20-2 at 23) is a drawing of ankle weights with a lock. The two City of Gary internal memos (DE ## 20-2 at 37 and 38) describe Donald McDuffie's refusal to work on March 27, 1986, (nearly 4 years after Azania was convicted) and his 10 day suspension without pay as a result. The May 16, 1987, Affidavit (DE # 20-2 at 41) of John McGrath, a deputy prosecutor during Azania's trial, explains the State's strategic decision to call the victim's wife to the stand as their first witness. None of these documents are the type of "exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence" Schlup v. Delo, 513 U.S. 298, 324 (1995), that qualify as the clear and convincing evidence required by 28 U.S.C. § 2254(e)(2) demonstrating that "no reasonable factfinder would have found the applicant guilty of the underlying offense."

Azania's request for an evidentiary hearing fairs no better. "[A] petitioner seeking an evidentiary hearing must show diligence and, in addition, establish her actual innocence by clear and convincing evidence. §§2254(e)(2)(A)(ii), (B)." McQuiggin v. Perkins, 569 U.S. ___, ___; 133 S.Ct. 1924, 1934 (2013). Here, not only has Azania not demonstrated actual innocence, the evidence against him was overwhelming.

[T]he evidence of his guilt for murder and robbery were overwhelming. Although appellant attempts to argue that he was not properly identified either as participating in the robbery or as the triggerman, these contentions are almost ludicrous in the face of the overwhelming evidence presented to the jury in this case. The 309 photographs taken by the bank security camera gave the jury the opportunity to look at the perpetrators and identify appellant as one of them beyond any reasonable doubt.
The photographs also show that appellant is the only one wearing an afro hair style and a suit. The testimony of eyewitnesses was that the man wearing the suit returned to the fallen officer, kicked his gun aside, and fired another shot into his prostrate body. Appellant was pursued and captured wearing the same suit. The gun, which ballistics showed to be the murder weapon, was found discarded along appellant's path of flight. [This is] an abundance of evidence pointing unerringly to the guilt of appellant....

Averhart v. State, 614 N.E.2d at 927-28. Therefore Azania's request to expand the record and conduct an evidentiary hearing will be denied.

IV. Analysis

The evidence that Azania participated in the robbery of the Gary National Bank at 3600 Broadway, Gary, Indiana, on August 11, 1981, and that he participated in the murder of Officer Yaros during the course of that robbery, is overwhelming. There is no actual innocence claim lurking in this case. The question of the appropriate sentence for Azania, however, was more controversial, and led to repeated appeals to the Indiana Supreme Court. Azania's petition for a writ of habeas corpus raises nineteen separate grounds, which this court will now address.

A. Whether the State Improperly Amended the Charging Information

In ground one of his petition for a writ of habeas corpus, Azania argues that, "[t]he State improperly amended the charging [i]nformation." (DE # 1 at 28.) In his traverse he argues that "the original charging information had been illegally amended" in violation of Indiana Code § 35-3.1-1-5(e) (Burns Repl. 1979). However, as the United States Supreme Court has explained,

The habeas statute unambiguously provides that a federal court may issue the writ to a state prisoner "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). And we have repeatedly held that "federal habeas corpus relief does not lie for errors of state law." Estelle v. McGuire, 502 U.S. 62, 67 (1991).

Wilson v. Corcoran, 562 U.S. 1, 4 (2010) (parallel citations omitted). Therefore the argument about State law presents no basis for habeas corpus relief.

Nevertheless, Azania also argues that, "[t]he State Court decision is contrary to federal law, because neither an indictment nor an information can legally be amended, adding different theories of offenses." (DE # 1 at 28.) Without regard to whether this assertion is legally accurate, it is not a basis for habeas corpus relief in this case because it is not factually accurate. That is to say, neither the information nor the indictment was amended in Azania's case. As the Indiana Supreme Court explained, "[t]he defendant was initially charged by information, but the prosecutor dismissed the information and filed an indictment after the grand jury subsequently returned an indictment...." Azania v. State, 730 N.E.2d 646, 648 (Ind. 2000).

The prosecuting attorney of Lake County... indicated it was his practice where he was seeking the death penalty to have a grand jury hear the matter and be given an opportunity to return indictments. He felt, even though he had the authority to charge the defendants and to seek the death penalty without the aid of the grand jury, it was advisable and desirable to have the community feeling demonstrated by the actions of the grand jury. He therefore presented the entire case to the grand jury.

Averhart v. State, 470 N.E.2d 666, 678 (Ind. 1984).

Thus, the information was not amended, it was dismissed. The information was not amended by the indictment of the grand jury, the information was superceded by the indictment. "A superceding indictment is itself the action of the grand jury, and thus, the rule against amendments has no application." 1 Charles Alan Wright and Andrew D. Leipold, Federal Practice & Procedure Criminal § 128 (4th ed. 2008) (footnote 46 collecting cases). Though a superceding indictment can itself be challenged for any of the same reasons as can any indictment (which Azania did), the mere fact that it replaced a previous information is not, in and of itself, a Constitutional violation nor a basis for habeas corpus relief.

B. Whether the Grand Jury Received Improper Information

In ground two of his petition for writ of habeas corpus, Azania asserts that his grand jury received inadmissible, irrelevant, and prejudicial information. (DE # 1 at 29.) He presented this ground to the state courts in his direct appeal.

Respondent argues that this claim is barred by procedural default because the Indiana Supreme Court disposed of it based on waiver, which is an independent and adequate state law ground, citing Coleman, 501 U.S. at 729-32. (DE # 17 at 19.) The doctrine of procedural default precludes a federal court from reaching the merits of a habeas petition if (1) the claim was presented to the state courts, and the state court ruling rested on independent and adequate state procedural grounds, or (2) the petitioner did not fairly present his federal claim to the appropriate state courts, and those state courts would now hold the claim procedurally barred. Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir. 2004). "An adequate and independent state ground bars federal habeas review of constitutional claims only if the last state court rendering judgment in the case clearly and expressly states that its judgment rests on the state procedural bar." Harrison v. McBride, 428 F.3d 652, 664 (7th Cir. 2005) (citations and quotations omitted).

Respondent is correct that the Indiana Supreme Court noted that Azania did not file a timely motion to dismiss on the grounds of defective grand jury proceedings. Averhart, 470 N.E.2d at 677. But the Indiana Supreme Court went on to state that "[a]lthough the trial court's ruling was proper for the reasons we already have given, we will review the contentions raised by Defendant." Id. at 677-78. For procedural default to apply, the last state court ruling on the claim must clearly and expressly state that the judgment rests on a state procedural bar. Harris v. Reed, 489 U.S. 255, 261-62 (1989).

The Indiana Supreme Court did not expressly rely on waiver to dispose of this claim. Rather, it addressed and rejected Azania's grand jury claims on the merits. The Indiana Supreme Court concluded that this claim was insufficient under state law to require dismissal of the indictment, and that his "claim that there was a due process violation based on citation to several federal cases also is without merit." State, 470 N.E.2d at 679. The Indiana Supreme Court stated that in none of the cases cited by Azania:

was there found to be justification for dismissal of the indictments even though the courts found there was misconduct of the federal district attorney in his handling witnesses and testimony before the grand jury. These judgments were held on the basis that there was otherwise competent evidence before the grand jury sufficient to support the indictment, and that the conduct of the prosecutor before the grand jury did not create a defect of constitutional or legal proportions.

Id. at 679.

Azania argues that the Indiana Supreme Court unreasonably applied established federal law to this claim. (DE # 1 at 4.) But a federal court may grant habeas relief under the "unreasonable application" clause[4] if the state court identifies the correct legal principle from Supreme Court precedent but unreasonably applies that principle to the facts of the petitioner's case. Wiggins v. Smith, 539 U.S. 510, 520 (2003). To warrant relief, a state court's decision must be more than incorrect or erroneous; it must be "objectively unreasonable." Id. at 520-21. In this case, the Indiana courts reasonably applied applicable federal law to this claim, and Azania has not cited any United States Supreme Court precedent that suggests that his grand jury claim has any merit.

C. Whether the Allen County Jury Selection System Excluded Eligible African-Americans from the Initial Guilty Phase Jury Pool in 1982

Azania was convicted and sentenced to death in 1982. His original death sentence was overturned by the Indiana Supreme Court, and in 1996, a second penalty phase jury again recommended sentencing him to death. On appeal from his 1996 resentencing, Azania argued to the Indiana Supreme Court that the jury pool selection process for his 1996 penalty phase hearing was not in accordance with the Indiana statutes governing jury selection, and that he was denied his Sixth Amendment right to a jury drawn from a fair cross-section of the community. The Indiana Supreme Court agreed that the jury selection process did not comport with the statute, set aside Azania's death sentence, and remanded the case for for a new penalty phase. Azania, 778 N.E.2d at 1263.

In ground three of his petition for writ of habeas corpus, Azania asserts that:

The Indiana Supreme Court found that the computerized jury selection system used in Allen County operated so as to exclude at least 8% of the eligible African-Americans from Azania's jury pool and, based on this finding, vacated Azania's death penalty, but not his conviction.

(DE # 1 at 30.)

The reason the Indiana Supreme Court vacated Azania's 1996 death penalty sentence, but not his 1982 conviction, is that Azania's challenge to the jury selection system dealt with the computerized jury selection system in effect in 1996, not the jury selection system in effect in 1982. (DE # 16-30); Azania, 778 N.E.2d at 1257. All of Azania's arguments in his appeal from the denial of his successive petition for post-USDC conviction relief were directed at the jury selection for his 1996 re-sentencing, and he did not challenge the jury selection for his 1982 trial.

Azania did not challenge the composition of the jury pool or the method for selecting the jury pool for the guilt phase of his 1982 trial in any of the appeals he took to the Indiana Supreme Court. The Exhaustion Doctrine requires that a habeas petitioner "fairly present" his federal claims to the state courts before submitting them to the federal courts, and requires that "both the operative facts and the controlling legal principles must be submitted" to the state courts. Verdin v. O'Leary, 972 F.2d 1467, 1472-74 (7th Cir. 1992). (citation and quotation omitted).

Section 28 U.S.C. 2254(b)(1)(A) provides that an application for a writ of habeas corpus by a state prisoner can not be granted unless "the applicant has exhausted the remedies available in the courts of the State." The exhaustion requirement is premised on concerns of comity; the state courts must be given the first chance to address and correct violations of their prisoners' federal rights. O'Sullivan v. Boerckel, 526 U.S. 838, 846-47 (1999); Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir. 2004). For that opportunity to be meaningful, the petitioner must fairly present his constitutional claims in one complete round of state review. O'Sullivan v. Boerckel, 526 U.S. at 845. Failure to exhaust available state court remedies constitutes a procedural default. Id. at 853-54. To avoid a procedural default, a petitioner must have presented his federal claims to the state courts before he seeks federal review of these claims. Id. at 844.

Because Azania did not present the arguments he advances in his traverse to the Indiana Supreme Court, these arguments are procedurally defaulted. Perruquet, 390 F.3d at 514. A habeas petitioner can overcome a procedural default by showing both cause for failing to abide by state procedural rules and a resulting prejudice from that failure. Wainwright v. Sykes, 433 U.S. 72, 90 (1977); Wrinkles v. Buss, 537 F.3d 804, 812 (7th Cir. 2008). Cause sufficient to excuse procedural default is defined as "some objective factor external to the defense" that prevented a petitioner from pursuing his constitutional claim in state court. Murray v. Carrier, 477 U.S. 478, 492 (1986).

A petitioner may also overcome a procedural default by establishing that the court's refusal to consider a defaulted claim would result in a fundamental miscarriage of justice. House v. Bell, 547 U.S. 518, 536 (2006); Coleman v. Thompson, 501 U.S. 722, 750 (1991). Under this narrow exception, a habeas applicant must establish that "a constitutional violation has resulted in the conviction of one who is actually innocent of the crime." Schlup v. Delo, 513 U.S. 298, 324 (1995). A petitioner who asserts actual innocence "must demonstrate innocence; the burden is his, not the state's...." Buie v. McAdory, 341 F.3d 623, 626-27 (7th Cir. 2003) (emphasis in original). "It is important to note in this regard that actual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998).

As the Indiana Supreme court noted:

[T]he evidence of his guilt for murder and robbery were overwhelming. Although appellant attempts to argue that he was not properly identified either as participating in the robbery or as the triggerman, these contentions are almost ludicrous in the face of the overwhelming evidence presented to the jury in this case. The 309 photographs taken by the bank security camera gave the jury the opportunity to look at the perpetrators and identify appellant as one of them beyond any reasonable doubt.
The photographs also show that appellant is the only one wearing an afro hair style and a suit. The testimony of eyewitnesses was that the man wearing the suit returned to the fallen officer, kicked his gun aside, and fired another shot into his prostrate body. Appellant was pursued and captured wearing the same suit. The gun, which ballistics showed to be the murder weapon, was found discarded along appellant's path of flight. When there is such an abundance of evidence pointing unerringly to the guilt of ...

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