United States District Court, N.D. Indiana
OPINION AND ORDER
S. Van Bokkelen United States District Judge
Richmond, a pro se prisoner, filed a habeas corpus
petition challenging his convictions and sentence by the Lake
County Superior Court on March 21, 2006, under cause number
45G02-0390-FA-25. ECF 1. The respondent argues that all of
Richmond's claims are procedurally defaulted. For the
reasons set forth below, the court agrees. Accordingly, the
court DENIES the petition, DENIES the petitioner a
certificate of appealability, and DISMISSES the case.
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 Richmond'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 Richmond's offenses as follows:
Sometime after midnight on September 18, 2003, Richmond
arrived home to find his wife, DeeDee Richmond (DeeDee), in
the kitchen. An argument ensued when DeeDee refused his
sexual advances. The argument escalated when she informed
Richmond she wanted a divorce. DeeDee decided it would be
best if she left and took their baby with her. Richmond took
her house key off her key ring to make it impossible for her
to reenter the marital residence after leaving. When Richmond
would not return the keys, DeeDee called the police. Before
the police arrived, DeeDee finished packing a bag for herself
and the baby. When the police arrived they advised her not to
worry about the keys. She took their advice and left with the
baby. The two spent the night in a parking lot under the
belief that Richmond would not be able to locate them, as he
would if she took refuge at a friend or relative's house.
Later that morning, DeeDee's sister, Yvonne, awoke to
Richmond's hand over her mouth and a knife to her neck.
Richmond motioned for her to rise and directed her into the
living room. Yvonne asked where DeeDee was, to which he
responded, they had a fight and she was leaving him. He also
told Yvonne that he had always wanted her and now he could
have her while hurting his wife at the same time. Richmond
proceeded to pull up Yvonne's slip and perform oral sex
on her. Then he cut her underwear off with the knife and
penetrated her with his penis. When Richmond left Yvonne
called her mother and 911. Richmond entered Yvonne's home
by cutting a screen in her daughter's bedroom window.
Richmond v. State, No. 45A03-0607-CR-293, slip op.
at 2-3 (Ind.Ct.App. Mar. 27, 2007); ECF 5-5.
jury trial, Richmond was found guilty of rape, criminal
deviate conduct, burglary and confinement. ECF 5-1 at p. 19.
Richmond was also found to be a habitual offender and
sentenced to 93 years imprisonment. Id. On appeal,
the Indiana Court of Appeals reversed his sentence and
remanded for re-sentencing. Id. at 18; ECF 5-5.
Richmond was resentenced and again appealed to the Indiana
Court of Appeals. ECF 5-2. He argued that his sentence was
inappropriate in light of the nature of his offense and
character. ECF 5-6. The court of appeals affirmed his
sentence. ECF 5-2; ECF 5-5. Richmond sought transfer with the
Indiana Supreme Court, again arguing that his sentence was
inappropriate in light of the nature of his offense and
character. ECF 5-9. The Indiana Supreme Court denied
transfer. ECF 5-11.
February 17, 2012, Richmond filed a petition for
post-conviction relief. ECF 5-1 at 17. The post-conviction
court denied his petition. ECF 5-1 at 14. Richmond filed a
motion to correct error, which was deemed denied on April 24,
2015. ECF 5-20. Richmond filed a notice of appeal with the
Indiana Court of Appeals on June 8, 2015. ECF 5-1 at 14; ECF
5-13. Richmond sought permission to file a belated appellate
brief. ECF 5-12. The Indiana Court of Appeals denied that
request because “[p]ursuant to Appellate Rule 9(A)(5)
Appellant has forfeited his right to appeal because his
Notice of Appeal was not timely filed.” ECF 5-20.
Richmond filed a motion to reconsider but, that too, was
denied. ECF 5-20; ECF 5-21. On February 3, 2016, Richmond
sought transfer with the Indiana Supreme Court, alleging that
the Indiana Court of Appeals abused its discretion when it
determined that his notice of appeal was not timely filed.
ECF 5-23. The Indiana Supreme Court denied transfer. ECF
has now filed a habeas corpus petition here, raising six
issues: (1) he was denied his Sixth Amendment right to
self-representation; (2) he was denied his Sixth Amendment
right to be present during the habitual offender phase; (3)
he was denied his Sixth Amendment right to a jury
determination under Blakely v. Washington; (4) he
was denied his Sixth Amendment right to effective assistance
of appellate counsel when counsel failed to raise “that
the trial court erred when it allowed the State to amend the
habitual offender charge;” (5) his appellate counsel
failed to provide effective assistance when he failed to
raise evidentiary issues on appeal; and (6) the Indiana Court
of Appeals “erroneously concluded that Richmond's
notice of appeal was not timely filed.” ECF 1.
petition is governed by the provisions of the Anti-Terrorism
and Effective 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 stringent requirements of 28 U.S.C.
§ 2254(d), set forth as follows:
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 ...