United States District Court, S.D. Indiana, Terre Haute Division
PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
JANE MAGNUS-STINSON, District Judge.
Petitioner Daymon Holbert is serving the executed portion of sentences imposed for his 2007 Marion County convictions for murder and robbery. He now seeks a writ of habeas corpus, arguing that his convictions were obtained in violation of his constitutional rights.
For the reasons explained in this Entry, Holbert's petition 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.
The Petition for Writ of Habeas Corpus
Instead of consummating a drug transaction with LaShawn Campbell on June 21, 2004, Holbert and Jacque Johnson met Campbell and Johnson shot her in the back six times and the two then left with cocaine Campbell had been carrying. A portion of the evidence at Johnson's and Holbert's joint trial consisted of testimony from Dana Foley, Johnson's girlfriend. As recounted by the Indiana Court of Appeals:
Johnson and Holbert returned to Foley's apartment, and Foley noticed that Johnson looked scared, "like he had saw [sic] a ghost." Id. at 737. When Foley asked him what was wrong, Johnson just shook his head. Holbert then told Johnson that "he did fine, " and reassured him, saying "don't worry about it." Id. at 737-38. Johnson went to the closet and placed something in a brown paper bag in the top of the closet. Holbert advised Johnson to "hurry up, they had to go, " and the two men left Foley's apartment. Id. at 738. Later that evening, Johnson told Foley about shooting Campbell. He told Foley that, after Campbell was shot, she looked at Holbert and said, "Why, D, why." Id. at 751. Foley later looked in the bag Johnson had placed in the closet and saw that it contained the gun Johnson usually carried on his person. The next day, Foley observed Johnson in possession of a large amount of crack.
Holbert v. State, 900 N.E.2d 85, *1 (Ind.Ct.App. 2008), trans. denied. The reference to "D" is a reference to Holbert, who was known by the nickname "D."
On direct appeal, Holbert challenged Foley's alleged hearsay testimony implicating him in the murder. The Indiana Court of Appeals held that although the statement was admitted in error, the admission of the testimony was harmless due to the admission of additional evidence that established Holbert's involvement in the crimes. Id.
Following his direct appeal, Holbert filed an action for post-conviction relief, claiming that his trial counsel was ineffective for not conveying a plea offer and that his direct appeal counsel was ineffective for not challenging the sufficiency of the evidence for his robbery and murder convictions. The trial court's denial of Holbert's petition for post-conviction relief was affirmed on appeal in Holbert v. State, 985 N.E.2d 372 (Ind.Ct.App.) transfer denied, 989 N.E.2d 337 (Ind. 2013).
This action followed. Holbert seeks relief on all the claims referenced above as having been submitted to the Indiana appellate courts, both in his direct appeal and in the appeal from the denial of his action for post-conviction relief. He also asserts a claim not previously presented to the Indiana state courts, this being that the trial court committed error in denying his motion to sever his trial from that of Johnson.
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).
The scope of the Great Writ is limited because a viable habeas claim pursuant to § 2254(a) necessarily precludes a claim which is not based on alleged noncompliance with federal law. See Wilson v. Corcoran, 131 S.Ct. 13, 16 (2010)("But it is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts."). As the Supreme Court has clearly stated, "federal habeas corpus relief does not lie for errors of state law." Swarthout v. Cooke, 131 S.Ct. 859, 861 (2011) (citing Estelle v. McGuire, 502 U.S. 62, 67 (1991)). "To say that a petitioner's claim is not cognizable on habeas review is thus another way of saying ...