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Suding v. Superintendent Correctional Industrial Complex

United States District Court, S.D. Indiana, Terre Haute Division

December 28, 2016

NICHOLAS SUDING, Petitioner,
v.
SUPERINTENDENT Correctional Industrial Complex, Respondent

          ENTRY DISCUSSING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

          Hon. William T. Lawrence, Judge.

         For the reasons explained in this Entry, the petition of Nicholas Suding a writ of habeas corpus must be denied and the action will be dismissed with prejudice. In addition, the court finds that a certificate of appealability should not issue.

         I. The Petition for Writ of Habeas Corpus

         A. Background

         In the present case, Nicholas Suding seeks a writ of habeas corpus with respect to his conviction in an Indiana state court. His custodian, on behalf of the State of Indiana, argues that review of Suding's claims is barred by procedural default. Suding opposes this argument.

         Suding was convicted in 2010 of three counts of Class A felony conspiracy to commit murder. His conviction was affirmed in Suding v. State, 945 N.E.2d 731 (Ind.Ct.App. 2011) (Suding I). The trial court's denial of Suding's petition for post-conviction relief was affirmed in Suding v. State, 2014 WL 5094346 (Ind.Ct.App. Oct. 10, 2014)(Suding II). The Indiana Supreme Court denied Suding's petition for transfer in Suding II on April 2, 2015. The facts pertinent to Suding's offenses were summarized in Suding's direct appeal:

In February 2009, Suding's wife, Renee, became concerned about Suding's anger toward Tamara Scott, his ex-wife and mother of his daughter, S.S. Suding purchased devices to open locks and Renee heard him talking about entering Scott's house to stab her. At a June 2009 hearing, the trial court entered an order protecting Scott and S.S. from Suding. After the hearing Renee heard Suding talk about killing Scott, her lawyer, and the judge who presided over the protective order hearing.
In July 2009, Suding took Renee to various locations in Illinois and Kentucky that could serve as hideouts after the murders. Around that same time, Suding sold his rifle and bought two handguns. He told Renee he bought the weapons at a flea market because weapons purchased there could not be traced to him. After purchasing the handguns, Suding made two-liter bottles into silencers. In late July 2009, Suding instructed Renee to follow the judge and Scott's attorney to determine what cars they drove, where they lived, and where they parked.
On July 28, Renee reported Suding's activities to the Hendricks County Sheriff's Department. Detective Roger Call gave Renee a recording device and she recorded a conversation during which Suding discussed how he would blow up the judge's house with propane, what would happen after he killed Scott, and the order and manner in which he would kill his victims. Suding was arrested and the State ultimately charged him with six counts of Class A felony conspiracy to commit murder. A jury found Suding guilty of three counts. The court sentenced him to forty years imprisonment, with five years suspended for each count, to be served concurrently.

Suding I, 945 N.E.2d at 734-35.

         Suding raised three issues in his direct appeal: 1) the charging information was improperly amended; 2) evidence of prior bad acts were improperly admitted; and 3) the trial court improperly denied his motion for a direct verdict. In Suding II, the post-conviction appeal, Suding argued that: 1) the post-conviction court committed various procedural errors; 2) the State failed to turn over exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963); 3) his trial counsel was ineffective for failing to raise an alibi defense, failing to assert his marital privilege for communications with his wife, failing to seek suppression of evidence obtained as a result of a search warrant, and failing to more thoroughly challenge his wife's credibility; 4) his trial counsel had a conflict of interest; 5) and his appellate counsel was ineffective for failing to raise the Brady claim on direct appeal.

         After these claims were rejected, Suding sought transfer to the Indiana Supreme Court, arguing that: 1) there were various procedural errors in the post-conviction proceedings; and 2) his was entitled to assert the marital privilege. The Indiana Supreme Court denied transfer on April 2, 2015.

         The filing of the present action followed on July 20, 2015. Suding's habeas claims are those presented in Suding II. The claim regarding the marital spouse privilege, however, is wrapped in the cloak of ineffective assistance of counsel. The record has been expanded to include the records on appeal in both Suding I and Suding II

         B. ...


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