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Richmond v. Superintendent

United States District Court, N.D. Indiana

April 14, 2017

MARK RICHMOND, Petitioner,
v.
SUPERINTENDENT, Respondent.

          OPINION AND ORDER

          Joseph S. Van Bokkelen United States District Judge

         Mark 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.

         I. BACKGROUND

          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 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.

         After a 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.

         On 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 5-24.

         Richmond 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.

         II. ANALYSIS

         Richmond's 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:

         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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