United States District Court, N.D. Indiana
OPINION AND ORDER
THERESA L. SPRINGMANN, District Judge.
This case is on remand from the Seventh Circuit to reconsider the Court's Opinion and Order [ECF No. 53] denying the Petitioner's Amended Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody [ECF No. 39], which challenged his state convictions for burglary, battery, intimidation, and an adjudication that he is a habitual offender. On remand, the Court must reconsider its prior ruling in light of Shaw v. Wilson, 721 F.3d 908 (7th Cir. 2013), which was decided subsequent to the Court's ruling. The matter at issue is "whether [the Petitioner's] appellate attorney rendered ineffective assistance for not raising on appeal a claim that the State's second amendment to his charges, which added two counts for burglary and intimidation, was error." (7th Cir. Order, ECF No. 70-1 at 1.) For the reasons stated in this Opinion and Order, the Petition Under 28 U.S.C. § 2254 is conditionally granted in part.
Following his 2003 convictions in Floyd County, Indiana, the Petitioner raised two issues on direct appeal. First, the Petitioner's counsel argued "that the trial court improperly allowed the State to amend the information to include [a] habitual offender enhancement." (Ind.Ct.App. Mem. Decision, ECF No. 18-4 at 4.) The information charging the Petitioner was amended twice. The issue raised on direct appeal only challenged the first amendment to the information. The second amendment to the information was not raised on direct appeal-and it is the basis for the ineffective assistance of counsel claim presented here.
The second issue raised on direct appeal was "that the trial court improperly denied [the Petitioner's] motion to correct error because a juror knew one of his witnesses." ( Id. at 5.) The Indiana Court of Appeals set out the facts related to the two amendments to the information, as well as the juror misconduct issue:
On December 13, 2002, the State charged [the Petitioner] with one count of Class C felony battery. The trial court set the omnibus date for January 7, 2003. On February 4, 2003, the State filed an amended information, which included an habitual offender allegation. On February 12, 2003, the State filed a second amended information charging [the Petitioner] with Class A felony burglary resulting in bodily injury, Class C felony battery resulting in serious bodily injury, Class D felony intimidation, and with being an habitual offender.
A jury trial began on May 12, 2003, after which the jury found [the Petitioner] guilty as charged. After [the Petitioner] was sentenced, he filed a motion to correct error asserting that defense witness Gary Brown knew one of the jurors. The motion alleged that Brown had dated the juror's daughter and that the two had had a stormy relationship, thus, presumably affecting [the Petitioner's] credibility with that juror. The trial court denied the motion.
( Id. at 4.)
The Indiana Court of Appeals affirmed the Petitioner's state convictions, and the Indiana Supreme Court declined to accept a petition to transfer. The Petitioner then filed a state court petition for post-conviction relief, which the trial court denied. (Chronological Case Summ. 21, ECF No. 18-1.) The Indiana Court of Appeals affirmed the trial court's denial of post-conviction relief (Mem. Decision, ECF No. 18-12), and the Indiana Supreme Court denied transfer (Appellate Case History 6-7, ECF No. 18-7). Thereafter, with permission of this Court, the Petitioner filed an Amended Petition for Writ of Habeas Corpus [ECF No. 39], which was denied by the Court on July 2, 2013 [ECF No. 53].
On February 26, 2014, the Seventh Circuit issued an Order [ECF No. 70-1] vacating the judgment of this Court and remanding the case in light of Shaw. Both parties have submitted briefing [ECF Nos. 74 and 82], and the remanded petition is now ripe for ruling.
"The Sixth Amendment entitles criminal defendants to the effective assistance of counsel'-that is, representation that does not fall below an objective standard of reasonableness' in light of prevailing professional norms.'" Bobby v. Van Hook, 558 U.S. 4, 7 (2009) (quoting Strickland v. Washington, 466 U.S. 668, 686 (1984)). To establish ineffective assistance of counsel under Strickland, the Petitioner must show that his counsel's performance was deficient and that the deficient performance prejudiced him. A court's review of counsel's performance is "highly deferential, " and the petitioner "must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Davis v. Lambert, 388 F.3d 1052, 1059 (7th Cir. 2004) (quoting Strickland, 466 U.S. at 689). The prejudice prong requires the petitioner to show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Furthermore, as the Seventh Circuit noted in Shaw, 28 U.S.C. § 2254(d) "requires deference upon deference from federal courts reviewing the constitutionality of state criminal convictions." 721 F.3d at 914.
In ground four of his Amended Petition-the only ground for relief at issue here-the Petitioner asserted that his appellate counsel was ineffective by failing to argue that the burglary and intimidation charges, as included in the second amended ...