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Marshall v. Superintendent

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

December 29, 2016

ANDRE MARSHALL, JR., Petitioner,
v.
SUPERINTENDENT, Respondent.

          OPINION AND ORDER

          JAMES T. MOODY, JUDGE

         Andre Marshall, Jr., a pro se prisoner, filed an amended petition for writ of habeas corpus challenging his conviction and 42-year sentence on April 24, 2013, under cause number 45G02-1009-FB-00095. (DE # 3.) Respondent argues that the petition should be denied because Marshall's claims are procedurally defaulted. This court agrees. For the reasons stated below, the amended petition is DENIED, the petitioner is DENIED a certificate of appealability, and this case is DISMISSED.

         I. FACTS

         In deciding this habeas petition, the court must presume the facts set forth by the state courts are correct. 28 U.S.C. § 2254(e)(1). It is Marshall's burden to rebut this presumption with clear and convincing evidence. Id. On direct appeal, the Indiana Court of Appeals set forth the facts surrounding Marshall's offenses as follows:

On July 24, 2010, Gregory Mason, Jr., was driving in Gary. While stopped at an intersection, Mason waved Marshall, who was on foot, across the street. Instead of crossing the street, Marshall approached the passenger side of Mason's car and lifted his shirt, revealing a gun. Marshall then got into Mason's car and demanded money. Marshall threatened to kill Mason and unsatisfied with the $30 Mason gave him, pointed the gun at Mason and demanded that Mason take him to Mason's house to get more money. In an effort to protect his children, Mason drove to his aunt's house instead of his own house. While at Mason's aunt's house, Marshall took Mason's necklace, watch and wedding rink, hit him with the gun several times, and threatened to kill him. Mason then offered to withdraw money from an ATM, and drove to a nearby bank while Marshall pointed the gun at him. Mason was able to withdraw $200 but an attempt to withdraw another $200 was declined. While Mason drove to another bank, Marshall again threatened to kill Mason and hit him with the gun. Mason went to a walk-up ATM machine and twice tried to withdraw more money. Mason then fled on foot and flagged down help. Marshall was later apprehended in Indianapolis driving Mason's car. Marshall was eventually charged with Class B felony car jacking, Class felony confinement, Class B felony robbery, two counts of Class C felony battery, Class C felony intimidation, and Class D felony point a firearm. A jury trial was conducted in August 2011. Marshall was acquitted of the car jacking charge and found guilty of battery as a Class A misdemeanor, and the jury was deadlocked on the remaining count. In November 2011, the trial court entered a judgment of conviction on the battery charge, and Marshall was sentenced to 320 days in jail on that charge.
On March 25, 2013, Marshall was retried on the confinement, robbery, intimidation, and pointing a firearm charges. A jury found him guilty as charged. (Ex. E).
The trial court entered judgment and sentenced Marshall to forty-two years.

Marshall v. State, 45A03-1305-CR-191, slip op. 2-4 (Ind.Ct.App. Jan. 29, 2014); (DE # 9-5.)

         On direct appeal, Marshall raised four arguments: (1) whether the trial court improperly permitted hearsay under the Indiana Rules of Evidence; (2) whether the trial court erred in admitting evidence of Marshall's prior bad conduct; (3) whether the trial court failed to properly sentence him; and (4) whether the trial court erred in not merging the previous battery conviction with his robbery conviction in the second trial. (DE ## 9-2; 9-3.) On January 29, 2014, the Indiana Court of Appeals affirmed his conviction and sentence. (DE # 9-5.) Marshall then sought transfer to the Indiana Supreme Court where he raised two arguments: (1) whether the Indiana Court of Appeals failed to consider the proportionality of the sentence imposed; and (2) whether the Indiana Court of Appeals failed to merge his convictions for battery and robbery. (DE # 9-6.) The Indiana Supreme Court denied transfer on May 1, 2014. (DE # 9-2.)

         On March 13, 2015, Marshall filed his amended federal habeas petition raising two grounds for relief. First, Marshall claims that the trial court improperly admitted hearsay in violation of the Sixth Amendment and the Confrontation Clause, and the Indiana Constitution. Second, Marshall argues that the trial court improperly sentenced him on both the battery and robbery convictions in violation of the Fifth Amendment and the principles of double jeopardy. (DE # 5.)

         II. LEGAL STANDARD

         This petition is governed by the provisions of the Anti-Terrorism and Death Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 336 (1997). AEDPA allows a district court to issue a writ of habeas corpus on behalf of a person in custody pursuant to a state court judgment “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The court can grant an application for habeas relief if it meets the requirements of 28 U.S.C. § 2254(d), which provides:

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 ...

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