United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
WILLIAM C. LEE, JUDGE UNITED STATES DISTRICT COURT
Farrell, III, by counsel, filed a petition for writ of habeas
corpus attempting to challenge his conviction and 63 year
sentence for felony murder in Elkhart Circuit Court on August
12, 2010. The respondent argues that the habeas corpus
petition must be dismissed because the claims are
procedurally defaulted and without merit. Farrell filed a
reply and this matter is ripe for consideration.
deciding the petition, the court must presume the facts set
forth by the state courts are correct. 28 U.S.C. §
2254(e)(1). It is Farrell's's burden to rebut this
presumption with clear and convincing evidence. Id.
On direct appeal, the Indiana Court of Appeals set forth the
facts underlying this case as follows:
On July 25, 2009, Farrell asked Daron Tuggle if Farrell could
“get some work, ” which Tuggle understood to mean
Farrell wanted to purchase cocaine. Farrell indicated he
wanted a “kilo or two.” Tuggle contacted Alphonso
James, whom Tuggle had assisted with large quantity cocaine
deals in the past, and arranged a deal between Farrell and
Farrell arrived at the designated site with Bruce White and
an unidentified third person. James was present with Tuggle
and Noble Dennie. All six men entered a lower level
apartment, where James handed Farrell two packages that were
three inches wide and eleven inches long and wrapped in duct
tape. Tuggle testified such packaging was indicative of a
“bird or brick” of cocaine. Farrell asked for
something to open the “brick” and Tuggle went to
the kitchen to look for a knife.
While Tuggle was out of the room, White pulled out a gun,
pointed it at James, and told James to “give it
up.” While James and White struggled with the gun,
Farrell pulled out a gun and pointed it at Tuggle. When he
saw the gun, Tuggle ducked down to the floor, saw White shoot
James, and covered his head until the gunfire stopped. After
the other men left, Tuggle called 911 to get help for James.
When police arrived, James was dead.
Farrell, Tuggle, and White were charged with felony murder.
Tuggle agreed to plead guilty to conspiracy to deliver
cocaine and to testify against Farrell. In exchange, the
State dropped the murder charge against Tuggle. A jury found
Farrell guilty of felony murder.
Farrell v. State, No. 20A03-1008-CR-457, slip op. at
*2-3 (Ind.Ct.App. July 19, 2011); attached as ECF 7-6.
role in setting up the drug deal that resulted in James'
death, Farrell was convicted of felony murder as an
accomplice; the underlying felony was delivery of cocaine.
Id. On direct appeal, Farrell argued: (1) there was
insufficient evidence to support the conviction; (2) the
trial court had improper communications with the jury; and
(3) the trial court abused its discretion by denying his
motion for mistrial. ECF 7-3 at p. 5. The Indiana Court of
Appeals affirmed his conviction. ECF 7-6 at p. 9. Farrell
then petitioned the Indiana Supreme Court, arguing that the
Indiana Court of Appeals' opinion conflicts with another
appellate opinion interpreting the felony-murder statute. ECF
7-7 at pp. 6-7. The Indiana Supreme Court denied transfer.
ECF 2 at p.2.
filed a petition for post-conviction relief and, after a
hearing, the trial court denied the petition on February 10,
2014. ECF 7-1 at 5. On appeal from the denial of
post-conviction relief, Farrell raised two claims. First, he
argued that he was convicted of a different crime than the
one he was charged with because the State cited to a
different subsection of the dealing statute on direct appeal.
ECF 7-10 at pp. 10-13. Farrell labeled this a due process
violation. Second, Farrell argued that his appellate counsel
was ineffective for not raising this due process violation on
direct appeal. Id. at pp. 13-15. The Indiana Court
of Appeals affirmed the post-conviction court's decision.
ECF 7-12. After the court of appeals denied his request for a
rehearing, Farrell sought transfer in the Indiana Supreme
Court. ECF 7-14. He raised two issues: (1) whether the
Indiana Court of Appeals decided an important question of
law; and (2) whether he was denied due process because he did
not have notice of the crime for which he was charged.
Id. at 2. The Indiana Supreme Court denied transfer.
has filed his petition for writ of habeas corpus here raising
two claims: (1) ineffective assistance of appellate counsel;
and (2) a due process violation because he was ...