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Hummel v. Warden

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

April 11, 2018

NATHAN HUMMEL, Petitioner,
v.
WARDEN, Respondent.

          OPINION AND ORDER

          ROBERT L. MILLER, JR. UNITED STATES DISTRICT JUDGE.

         Nathan Hummel, a prisoner without a lawyer, filed a habeas corpus petition to challenge his convictions for dealing in a narcotic drug, robbery, and disarming an officer under cause number 75C01-1112-FA-15. Following a guilty plea, on May 22, 2012, the Starke Circuit Court sentenced Mr. Hummel to twenty-five years of incarceration.

         FACTUAL BACKGROUND

         In deciding this habeas petition, the court must presume the facts set forth by the state courts are correct unless they are rebutted with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The Court of Appeals of Indiana summarized the facts:

In December 2011, the State charged Hummel with six felony counts related to his participation in an armed robbery of a CVS pharmacy. In particular, the State alleged that Hummel: jumped over the counter in the pharmacy and, armed with a knife, took controlled substances from the presence of the pharmacist and stole cartons of cigarettes; possessed with intent to deliver morphine, methadone, oxycodone, oxycontin, Ritalin, Fentora, Nucynta, and Avinza; and attempted to take a police officer's gun. During a guilty plea hearing in April 2012, Hummel pleaded guilty to dealing in a narcotic drug, as a Class B felony; two counts of robbery, as Class B felonies; and disarming an officer, as a Class C felony. In exchange for Hummel's plea, the State reduced the dealing count from a Class A felony to a Class B felony and dismissed two of the felony counts. And the terms of the plea agreement provided for an aggregate sentence of twenty-five years executed. The trial court entered judgment of conviction and sentence according to the terms of the plea agreement.

ECF 26-7 at 2-3.

         Mr. Hummel says he was denied effective assistance of counsel when trial counsel failed to object to the charge of dealing.[1] He also says he was denied due process when the prosecutors in his case abused their discretion by charging him with dealing, [2] and that he was denied effective assistance of counsel at the post-conviction relief stage when his appointed counsel failed to investigate his case and ultimately withdrew. The respondent argues Mr. Hummel's petition is untimely and his claims are procedurally defaulted.

         TIMELINESS

         Habeas corpus petitions are subject to a strict one-year statute of limitations. 28 U.S.C. §2244(d)(1). This limitation is tolled for any time “during which a properly filed application for State post-conviction or other collateral review” is pending. Id. §2244(d)(2). Assuming, as the respondent says, Mr. Hummel's conviction became final on the date of his plea, May 22, 2012, his petition is well within this limit. Mr. Hummel had properly filed petitions for collateral relief pending in State courts from December 17, 2012-March 3, 2015; April 27, 2015-July 20, 2015; and August 18, 2015-January 19, 2017, all of which were listed in his petition. ECF 10 at 2-3. He filed this case on January 25, 2017. ECF 1 at 6. The number of days between Mr. Hummel's conviction on May 22, 2012, and his petitioning this court on January 25, 2017, not counting pending proceedings as defined above, was 300.[3] This petition is timely.

         PROCEDURAL DEFAULT

         The respondent argues Mr. Hummel's claims are barred from review in federal court due to procedural default. There are two distinct ways in which a state prisoner can procedurally default a federal claim. Snow v. Pfister, 880 F.3d 857, 864 (7th Cir. 2018). The first occurs when “the state court declines to address a petitioner's federal claims because the petitioner did not meet state procedural requirements.” Id. In those cases, “the state court judgment rests on an independent and adequate state ground and principles of comity and federalism dictate against upending the state-court conviction.” Thomas v. Williams, 822 F.3d 378, 384 (7th Cir. 2016) (citing Coleman v. Thompson, 501 U.S. 722, 729-730 (1991)).

         The second type of procedural default “stems from the requirement that a state prisoner must exhaust his remedies in state court before seeking relief in federal court, ” which requires the petitioner include his claims in “one complete round of the State's established appellate review process.” Snow v. Pfister, 880 F.3d at 864 (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). This means “the petitioner must raise the issue at each and every level in the state court system.” Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). A petitioner “who has exhausted his state court remedies without properly asserting his federal claim at each level of state review has procedurally defaulted that claim.” Id. at 1026.

         Mr. Hummel presented a claim of ineffective assistance of trial counsel to the Court of Appeals of Indiana, ECF 26-4 at 17-24, but that court held that Mr. Hummel didn't present a cogent argument in support of this claim, in violation of Ind.App. Rule 46(A)(8)(a). ECF 26-7 at 5. Thus, it found he had waived the claim for review. Because Mr. Hummel didn't meet a state procedural requirement, the disposition of the claim of ineffective assistance of counsel rested on an adequate and independent state ground and this court can't review it.

         Mr. Hummel's claims of abuse of prosecutorial discretion and ineffective assistance of post-conviction counsel are barred due to lack of exhaustion in the state court system. Mr. Hummel didn't pursue these claims at every level of the state court system. He didn't raise these claims until his petition for transfer to the Indiana Supreme Court. See ECF 26-9. The state courts ...


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