United States District Court, N.D. Indiana
OPINION AND ORDER
S. VAN BOKKELEN, UNITED STATES DISTRICT JUDGE
Lee Gipson, a pro se prisoner, filed a habeas corpus petition
(DE 6) raising four grounds for challenging his convictions
and 12-year sentence by the St. Joseph Superior Court on
August 10, 2011, under cause number 71D02-1012-FB-165. The
Respondent argues that all of these grounds are procedurally
defaulted. “To avoid procedural default, a habeas
petitioner must fully and fairly present his federal claims
to the state courts.” Anderson v. Benik, 471
F.3d 811, 814-15 (7th Cir. 2006) (quotation marks and
Inherent in the habeas petitioner's obligation to exhaust
his state court remedies before seeking relief in habeas
corpus is the duty to fairly present his federal claims to
the state courts. Only if the state courts have had the first
opportunity to hear the claim sought to be vindicated in the
federal habeas proceeding does it make sense to speak of the
exhaustion of state remedies. Fair presentment in turn
requires the petitioner to assert his federal claim through
one complete round of state-court review, either on direct
appeal of his conviction or in post-conviction proceedings.
This means that the petitioner must raise the issue at each
and every level in the state court system, including levels
at which review is discretionary rather than mandatory.
Lewis v. Sternes, 390 F.3d 1019, 1025-1026 (7th Cir.
2004) (citations and quotation marks omitted).
court records show that after Gibson was convicted, he took a
direct appeal to the Court of Appeals of Indiana, but he did
not file a timely Petition to Transfer to the Indiana Supreme
Court. (DE 25-2 at 2-3.) He filed a post-conviction relief
petition, but when it was denied, he did not appeal that
decision. (DE 25-6 at 5.) Therefore Gipson's claims are
presents two arguments to excuse his procedural default.
First, citing to Neder v. United States, 527 U.S. 1
(1999), he argues that a per se prejudicial error occurred
which requires that he be granted habeas corpus relief.
However, none of Gipson's four grounds meet that
standard. In Ground One, Gipson argues that the victim's
past sexual history should not have been excluded. In Ground
Two, he argues that the lead investigator should have
testified at his trial. In Ground Three, he argues that there
was insufficient evidence to have found him
guilty.In Ground Four, he argues that his counsel
were ineffective because they did not properly argue that he
did not know the age of the victim.
Supreme Court in Neder “recognized that most
constitutional errors can be harmless. If the defendant had
counsel and was tried by an impartial adjudicator, there is a
strong presumption that any other constitutional errors that
may have occurred are subject to harmless-error
analysis.” Neder v. United States, 527 U.S. 1,
8 (1999) (quotation marks, citations, and brackets omitted).
“The error[s] at issue here . . . differ markedly
from the constitutional violations we have found to defy
harmless-error review. Those cases, we have explained,
contain a defect affecting the framework within which the
trial proceeds, rather than simply an error in the trial
process itself.” Id. (quotation marks and
brackets omitted). Here, because all of the grounds raised by
Gipson are merely alleged errors in his trial process,
Neder does not excuse their procedural default.
Gipson argues that he is innocent. Procedural default can be
excused, “if the petitioner can . . . demonstrate that
the district court's failure to consider the claim would
result in a fundamental miscarriage of justice.”
Richardson v. Lemke, 745 F.3d 258, 272 (7th Cir.
2014). In order to demonstrate a fundamental miscarriage of
justice, the petitioner must prove that “a
constitutional violation has resulted in the conviction of
one who is actually innocent of the crime.” Schlup
v. Delo, 513 U.S. 298, 324 (1995). “[T]enable
actual-innocence gateway pleas are rare: A petitioner does
not meet the threshold requirement unless he persuades the
district court that, in light of the new evidence, no juror,
acting reasonably, would have voted to find him guilty beyond
a reasonable doubt.” McQuiggin v. Perkins, 133
S.Ct. 1924, 1928 (2013) (quotation marks, brackets, and
citation omitted). A petitioner who asserts actual innocence
“must demonstrate innocence; the burden is his, not the
state's . . . .” Buie v. McAdory, 341 F.3d
623, 626-27 (7th Cir. 2003). To do so, he must come forward
“with new reliable evidence - whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or
critical physical evidence - that was not presented at
trial.” Schlup v. Delo, 513 U.S. 298, 324
Gipson has not provided any new evidence. He merely argues
that the evidence presented at trial was insufficient to
prove that he knew the victim's age. This alone precludes
finding that he has demonstrated actual innocence and excused
procedural default. Moreover, his insufficient evidence
argument is meritless because there was ample evidence
presented during his trial which demonstrated that he knew
the victim's age.
At some point, Gipson and N.B. began having conversations
over the telephone. During their first lengthy phone
conversation, N.B. told Gipson that she was only fourteen
years old. After N.B. told Gipson that she was only fourteen
years old, Gipson “was kind of quiet for a minute, and
was like, ‘Nah, you're just playing.'”
Tr. pp. 193-94. N.B. assured Gipson that she was not
“just playing” and that she was only fourteen
years old. From that point forward, N.B. continued to tell
Gipson that she was only fourteen years old. N.B. told Gipson
about her school, including her information about her
favorite classes, teachers, and a class trip to Six Flags.
Gipson also contacted N.B.'s older sister through MySpace
to ask about N.B. N.B.'s older sister did not reply at
first, but in early June of 2010, replied to a post left by
Gipson, informing him that N.B. “was fourteen, and that
he should leave her alone.” Tr. p. 318. In addition,
N.B.'s family repeatedly told Gipson that N.B. was
fourteen years old.
Gipson v. State, 968 N.E.2d 343, *1 (Ind.Ct.App.
2012) (table), DE 25-5 at 2-3.
pursuant to Rule 11 of the Rules Governing Section 2254
Cases, the court must consider whether to grant a certificate
of appealability. When the court dismisses a petition on
procedural grounds, the determination of whether a
certificate of appealability should issue has two components.
Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).
First, the petitioner must show that reasonable jurists would
find it debatable whether the court was correct in its
procedural ruling. Id. at 484. If the petitioner
meets that requirement, then he must show that reasonable
jurists would find it debatable whether the petition states a
valid claim for the denial of a constitutional right.
Id. As previously explained, all of Gipson's
claims are procedurally defaulted and there is no reason to
encourage him to proceed further. Therefore, he will be
denied a certificate of appealability. For the same reasons,
he may not appeal in forma pauperis because an appeal could
not be taken in good faith.
these reasons, the court-
• DENIES this habeas corpus ...