United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
RUDY LOZANO, District Judge.
This matter is before the Court on the Petition under 28 U.S.C. Paragraph 2254 for Writ of Habeas Corpus filed by Phillip White, a pro se prisoner, on January 2, 2013. For the reasons set forth below, the petition (DE #1) is DENIED and White is DENIED a certificate of appealability.
Phillip White is challenging his conviction and 55 year sentence for murder by the Delaware Circuit Court on July 17, 2006, under cause number 18C05-0506-MR-2. White filed a direct appeal; the Court of Appeals of Indiana affirmed in an unpublished opinion, White v. State, 870 N.E.2d 1093 (table), 18A02-0607-CR-604 (Ind.Ct.App. 2007) (DE 9-5); and the Indiana Supreme Court denied transfer. White filed a petition for post-conviction relief which was denied; the Court of Appeals of Indiana affirmed in White v. State, 971 N.E.2d 203 (Ind.Ct.App. 2012) (DE #9-11); and the Indiana Supreme Court denied transfer.
In this habeas corpus petition, White argues that he "was denied the right to the effective assistance of appellate counsel in violation of the Fifth, Sixth, and Fourteenth Amendments when appellate counsel failed to argue his conviction for felony murder violates the Proportionality Clause of the Indiana Constitution because involuntary manslaughter has identical elements but carries a lesser penalty." (DE #1 at 4.)
White raised this claim during his post-conviction proceedings and it was denied on the merits.
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(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). Under this deferential standard, a federal habeas court must "attend closely" to the decisions of state courts and "give them full effect when their findings and judgments are consistent with federal law." Williams v. Taylor, 529 U.S. 362, 383 (2000). A state court decision is contrary to federal law if the state court arrives at a conclusion opposite to that reached by the U.S. Supreme Court or reaches an opposite result in a case involving facts materially indistinguishable from relevant U.S. Supreme Court precedent. Bell v. Cone, 535 U.S. 685, 694 (2002). To warrant relief, a state court's decision must be more than incorrect or erroneous; it must be "objectively" unreasonable. Wiggins v. Smith, 539 U.S. 510, 520 (2003). This is a difficult standard to meet, and "[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. ___, ___; 131 S.Ct. 770, 786 (2011).
Under Strickland v. Washington, [counsel] cannot be found to be constitutionally ineffective unless (1) his performance was deficient, meaning it fell below an objective standard of reasonableness informed by prevailing professional norms and (2) his deficient performance [was] prejudic[al], meaning that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. In evaluating an attorney's performance, courts must defer to any strategic decision the lawyer made that falls within the wide range of reasonable professional assistance, even if that strategy was ultimately unsuccessful. And because of AEDPA an extra layer of deference enters the picture: we will defer to the Indiana appellate court's determination [of] effective assistance of counsel unless that determination is contrary to, or an unreasonable application of, clearly established Supreme Court precedent, or was based on an unreasonable determination of the facts. An application of Supreme Court precedent is reasonable - even if wrong in our view - so long as fairminded jurists could disagree over its correctness. The combination of Strickland and Section 2254(d) requires deference upon deference from federal courts reviewing the constitutionality of state criminal convictions.
Shaw v. Wilson, 721 F.3d 908, 914 (7th Cir. 2013) (quotation marks and citations omitted).
Appellate lawyers are not required to present every nonfrivolous claim on behalf of their clients - such a requirement would serve to bury strong arguments in weak ones - but they are expected to select the most promising issues for review. For this reason, if [counsel] abandoned a nonfrivolous claim that was both obvious and clearly stronger than the claim that he actually presented, his performance was deficient, unless his choice had a strategic justification. This standard is difficult to meet because the comparative strength of two claims is usually debatable. But Smith [ v. Robbins, 528 U.S. 259, 288 (2000)] confirms that the theory is available. ...