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White v. Superintendent

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

November 3, 2016

JERRY D. WHITE, Petitioner,
v.
SUPERINTENDENT Respondent.

          OPINION AND ORDER

          JAMES T. MOODY JUDGE

         Jerry D. White, a pro se prisoner, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his 2007 convictions for attempted murder and criminal confinement in Elkhart County. State v. White, 20C01-0701-FA-1. In deciding the petition, the Court must presume the facts set forth by the state courts are correct. 28 U.S.C. § 2254(e)(1). On appeal from the denial of post-conviction relief, the Indiana Court of Appeals set forth the facts surrounding White's offenses as follows:

On the night of January 19, 2007, Kimberly Walker and her sister, Pamela Walker, returned to Kimberly's residence. Kimberly was with her four children, Ja.W., Ju.W., Ky.W., and Ka.W.; and Pamela was with her two children, N.T. [ ] and J.J., and her boyfriend, Lathie Turnage. Unbeknownst to anyone in the group, White, the father of Kimberly's children, was in the house. White used to live in the residence with Kimberly and the children, but Kimberly had asked White to move out in November or December of 2006.
Turnage, Pamela, and N.T. went into the front bedroom to lie down. A few minutes later, White entered the front bedroom, turned on the light, and told the three to come out of the room. After Pamela objected, White pulled out a handgun and repeated his demand. Pamela grabbed N.T. and began to exit the room, and Turnage began to get out of bed. White fired at Turnage, but missed. White then moved closer to Turnage and fired again, this time striking Turnage in the left temple. Turnage fell back into the wall and then slumped to the floor.
Pamela began to run to the front door with N.T., but came back because she realized that White was with J.J. White was still holding a gun and waving it around. White instructed Pamela to sit on a couch, and she complied. Kimberly, Ka.W., and Ky.W. were also on the couch. Ja.W. and Ju.W. were on the floor in front of the couch in their sleeping bags. White collected cell phones. At some point, J.J. attempted to leave out the back door, but White demanded that he not leave the house.
At some point during the night, Turnage made a noise, and the group realized that he was not dead. Throughout the rest of the night and following morning, Pamela asked if she could get help for Turnage. White denied her requests.
Around 10:00 a.m. the following morning, White took Kimberly and their four children to a motel, where they stayed until January 23, when police discovered their location and apprehended White. As soon as White left the residence, Pamela called 911. Emergency responders transported Turnage to the hospital. Turnage survived, but suffered what appears to be permanent blindness.
The State ultimately charged White with attempted murder for shooting Turnage; four counts of Class B felony confinement, two with regard to Kimberly, and one each with regard to Pamela and Turnage; two counts of Class C felony confinement with regard to J.J. and N.T.; and two counts of Class D felony confinement with regard to Ju.W. and Ja.W.
On November 26 through 28, 2007, the trial court held a jury trial, at which the jury found White guilty of all counts.
* * *
The trial court then sentenced White to consecutive terms of fifty years for attempted murder, twenty years for one count of Class B felony confinement, and ten years for one count of Class B felony confinement. The trial court also sentenced White to concurrent terms of twenty years for a third count of Class B felony confinement, eight years for each count of Class C felony confinement, one and one-half years for each count of Class D felony confinement. The trial court found that the fourth count of Class B felony confinement merged with another count, and declined to enter judgment on that count.
White v. State, No. 20A03-0803-CR-115, slip op. at 2-5 (Ind.Ct .App. July 29, 2008), trans. denied. White appealed, challenging the sufficiency of the evidence and the appropriateness of his sentence. A panel of this Court affirmed his convictions and sentence. [The Indiana Supreme Court denied transfer on September 18, 2008. Ex. C.].
Next, [On September 10, 2009] White filed a petition for post-conviction relief. [Ex. A at 4]. The court held a hearing, at which White was represented by counsel. The ...

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