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Garrett v. Knight

United States District Court, S.D. Indiana, Indianapolis Division

May 10, 2018

EQWAN GARRETT, Petitioner,
v.
WENDY KNIGHT, Respondent.

          ENTRY DISCUSSING PETITION FOR A WRIT OF HABEAS CORPUS AND DIRECTING FURTHER PROCEEDINGS

          Hon. Jane Magnus-Stinson, Chief Judge

         Petitioner Eqwan Garrett was found guilty of several crimes following a jury trial in Marion County, Indiana. He is currently serving a 43-year sentence for these crimes. Mr. Garrett now seeks a writ of habeas corpus. For the reasons explained in this Entry, Mr. Garrett's petition for a writ of habeas corpus is denied in part with respect to grounds one, two, three and four. See infra p. 6. The respondent is directed to further brief the claims raised in ground five consistent with the instructions in section III. C.

         I. Background

         District court review of a habeas petition presumes all factual findings of the state court to be correct, absent clear and convincing evidence to the contrary. See Daniels v. Knight, 476 F.3d 426, 434 (7th Cir. 2007). On post-conviction appeal, the Indiana Court of Appeals summarized the relevant facts and procedural history as follows:

In 2007, after a year-long surveillance operation of a residence on North Pershing Avenue in Marion County, the Indianapolis Metropolitan Police Department (IMPD) suspected that the residence was used as a facility for the manufacture of cocaine. IMPD observed Garrett, along with several other individuals, frequent the residence approximately eight to ten times over the course of the surveillance. While conducting surveillance on July 24, 2007, Detective Jake Hart observed Garrett and two others park near the residence and carry a large duffle bag full of rifles. On August 14, 2007, officers with IMPD's narcotic[s] division executed a ‘no-knock' search warrant on the residence. SWAT team members Detective Garry Riggs, Sergeant Robert Stradling, and Officer Baker breached the residence through the front door using a battering ram. During this time, police officers loudly announced, ‘[P]olice, search warrant. Everybody get down on the ground!' Upon entering the house, Detective Riggs and Sergeant Stradling noticed Garrett repeatedly popping out of the second bedroom, approximately ten to twelve feet away from them. Garrett again and again pointed a semi-automatic handgun at Detective Riggs and Sergeant Stradling. Each time, he attempted to fire the handgun, but it misfired. A second SWAT team entered the residence from the rear and secured Garrett in the second bedroom. Three other individuals were also in the house and arrested during the execution of the search warrant.
The police then searched the residence for evidence. In the kitchen, police recovered cocaine, digital scales, over $8, 000, and an assault rifle. In the second bedroom, where police apprehended Garrett, they found a silver and black Smith & Wesson .40 caliber semi-automatic handgun within arm's length of Garrett. No. other suspects were in the second bedroom. In the living room, police recovered an additional assault rifle, two handguns, and a magazine for the handgun found near Garrett. The weapons in the living room were within ten feet of where Garrett had stood in the second bedroom.
Garrett v. State, No. 49A05-1101-CR-2, slip op. at 1-2 (Ind.Ct.App. Aug. 31, 2011).
On August 15, 2007, the State charged Garrett under Cause Number 49G20- 0708-FA-167078 (FA-167078) with: conspiracy to commit dealing in cocaine, a Class A felony; dealing in cocaine, a Class A felony; possession of cocaine, a Class C felony; possession of a firearm by a serious violent felon (possession of a firearm by a SVF), a Class B felony; and pointing a firearm, a Class D felony. On January 22, 2009, the State moved to dismiss the charges, and the trial court granted the motion.
On August 25, 2009, the State charged Garrett under Cause Number 49G20- 0908-FA-74802 (FA-74802) with: Count I, conspiracy to commit dealing in cocaine, a class A felony; Count II, dealing in cocaine, a class A felony; Count III, possession of cocaine, a class C felony; Count IV, possession of a firearm by a SVF, a class B felony; Count V, pointing a firearm, a class D felony; and Count VI, possession of cocaine and a firearm, a class C felony. On November 3 and 4, 2010, a two-day jury trial was held on Counts I, II, III, V, and VI. The jury found Garrett guilty on Counts, I, V, and VI. The jury convicted Garrett on a lesser included offense on Count III and acquitted him on Count II. Garrett waived his right to a jury trial on Count IV, possession of a firearm by a SVF and, on November 24, 2010, the trial court found Garrett guilty.
On appeal, Mr. Garrett argued that his convictions for possession of a firearm by a serious violent felon and pointing a firearm violated Indiana's constitutional prohibition of double jeopardy. A panel of the Court affirmed the trial court's judgment. Id. at 3.[1]

Dkt. 17-12.

         On May 10, 2012, Mr. Garrett filed a petition for post- conviction relief. During the evidentiary hearing, Mr. Garrett's post-conviction counsel raised two claims of ineffective assistance of counsel. First, he argued ineffective assistance of trial counsel for the following reasons: failing to file a motion to suppress evidence; failing to make proper objections at trial; failing to effectively cross-examine the State's witness at trial; and failing to file a motion to dismiss under Criminal Rule 4. Dkt. 17-9, p. 34. Second, he argued ineffective assistance of appellate counsel for the following reasons: failing to argue that the criminal charges should have been discharged pursuant to Criminal Rule 4; and failing to argue sufficiency of the evidence. Dkt. 17-9, p. 36.

         The trial court denied the petition. Dkt. 17-9, pp. 29-39. With respect to trial counsel's performance, the post-conviction court found that Mr. Garrett failed to meet his burden of proof to show that counsel made errors so serious they resulted in a denial of the right to counsel guaranteed under the Sixth Amendment. Dkt. 17-9, pp. 35-36. Similarly, as to appellate counsel, the post-conviction court found that Mr. Garrett failed to meet his burden of proof to show that counsel made errors so serious they resulted in a denial of the right to counsel guaranteed under the Sixth Amendment. Dkt. 17-9, p. 37.

         On appeal from the denial of post-conviction relief, Mr. Garrett claimed that: 1) his trial counsel was ineffective for failing to move to suppress evidence obtained as a result of an allegedly illegal search and failing to file a proper motion to dismiss and/or discharge for the violation of Indiana Criminal Rule 4; and 2) he was denied a procedurally fair post-conviction relief hearing. Dkt. 17-9; dkt. 17-12, pp. 5-6. Mr. Garrett also argued that his direct appeal counsel rendered ineffective assistance by failing to raise the Indiana Criminal Rule 4 issue on appeal and for failing to challenge the “sufficiency of the evidence for his conviction of conspiracy to commit dealing in cocaine.” Dkt. 17-12, p. 18. Finally, Mr. Garrett argued that his post-conviction counsel was ineffective because he “should have amended his petition for post-conviction relief to add other claims, submitted additional evidence at the hearing, and submitted proposed findings of facts and conclusions thereon.” Dkt. 17-9, pp. 6, 24-27; dkt. 17-12, p. 24.

         On November 5, 2015, the Indiana Court of Appeals affirmed the denial of post-conviction relief. Dkt. 17-12.

         On transfer to the Indiana Supreme Court, Mr. Garrett raised only two issues: 1) the Indiana Court of Appeals erred when it incorrectly applied the law with respect to his argument that his criminal charges should have been dismissed pursuant to Indiana Criminal Rule 4; and 2) whether his direct appeal counsel was ineffective for failing to challenge the sufficiency of the evidence with respect to his conviction for conspiracy to commit dealing in cocaine. Dkt. 17-13, pp. 6-7. On March 31, 2016, the Indiana Supreme Court denied transfer. Dkt. 17-2, p. 7.

         Mr. Garrett filed this action on November 29, 2016. Dkt. 1.

         II. Applicable Law

         A federal court may grant habeas relief only if the petitioner demonstrates that he is in custody “in violation of the Constitution or laws . . . of the United States.” 28 U.S.C. § 2254(a) (1996). “Under the current regime governing federal habeas corpus for state prison inmates, the inmate must show, so far as bears on this case, that the state court which convicted him unreasonably applied a federal doctrine declared by the United States Supreme Court.” Redmond v. Kingston, 240 F.3d 590 (7th Cir. 2001) (citing 28 U.S.C. § 2254(d)(1); Guys v. Taylor, 529 U.S. 362 (2000); Morgan v. Krenke, 232 F.3d 562 (7th Cir. 2000)). Thus, “under AEDPA, federal courts do not independently analyze the petitioner's claims; federal courts are limited to reviewing the relevant state court ruling on the claims.” Rever v. Acevedo, 590 F.3d 533, 536 (7th Cir. 2010). “A state-court decision involves an unreasonable application of this Court's clearly established precedents if the state court applies this Court's precedents to the facts in an objectively unreasonable manner.” Brown v. Payton, 544 U.S. 131, 141 (2005) (internal citations omitted). “The habeas applicant has the burden of proof to show that the application of federal law was unreasonable.” Harding v. Sternes, 380 F.3d 1034, 1043 (7th Cir. 2004) (citing Woodford v. Visciotti, 537 U.S. 19, 25 (2002)).

         III. Discussion

         Mr. Garrett raises five grounds in his petition:

         Ground One: ineffective assistance of trial counsel because trial counsel failed to challenge the probable cause for the search warrant; Ground Two: ineffective assistance of trial counsel because trial counsel failed to file a motion to dismiss for a violation of Indiana Criminal Rules 4(B) and (C); Ground Three: ineffective assistance of appellate counsel because appellate counsel failed to raise as an issue on direct appeal the violation of Indiana Criminal Rules 4(B) and (C); Ground Four: ineffective assistance of appellate counsel because appellate counsel failed to argue the evidence was insufficient to support a judgment of conviction for conspiracy to commit dealing in cocaine as a Class-A felony; Ground Five: ineffective assistance of post-conviction counsel because post-conviction counsel failed to amend Mr. Garrett's petition for post-conviction relief, failed to present or otherwise preserve for the record items of material evidentiary value exculpatory to Mr. Garrett; and failed to submit proposed findings of fact.

         The respondent argues that grounds one, two, three, and five are procedurally defaulted. The Court agrees with respect to grounds one, two, and three.

         A. Procedurally Defaulted Grounds:

         “Inherent in the habeas petitioner's obligation to exhaust his state court remedies before seeking relief in habeas corpus, see 28 U.S.C. § 2254(b)(1)(A), is the duty to fairly present his federal claims to the state courts.” Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). To meet this requirement, a 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.” Id. at 1025-26. In Indiana, that means presenting his arguments in a petition to transfer to the Indiana Supreme Court. Hough v. Anderson, 272 F.3d 878, 892 (7th Cir. 2001). A federal claim is not fairly presented unless the petitioner “put[s] forward operative facts and controlling legal principles.” Simpson v. Battaglia, 458 F.3d 585, 594 (7th Cir. 2006) (citation and quotation marks omitted). Procedural default “occurs when a claim could have been but was not presented to the state court and cannot, at the time that the federal court reviews the habeas petition, be presented to the state court.” Resnover v. Pearson, 965 F.2d 1453, 1458 (7th Cir. 1992). “A habeas petitioner who has exhausted his state court remedies without properly asserting his federal claim at each level of state court review has procedurally defaulted that claim.” Lewis, 390 F.3d at 1026.

         1. Ground One

         Garrett raised ground one in his appeal of the denial of the motion for post-conviction relief to the Indiana Court of Appeals. However, he did not present this issue in his petition for transfer to the Indiana Supreme Court. See Dkt. 17-13. (Garrett's Petition for Transfer filed May 11, 2016). Because Mr. Garrett did not fairly present this claim to each and every level in the state court system, he failed to exhaust his state court remedies. At this juncture, this failure constitutes a procedural default of this ground.

         “A procedural default can be overlooked when the petitioner demonstrates cause for the default and consequent prejudice, or when he shows that a fundamental miscarriage of justice will occur unless the federal court hears his claim.” Wilson v. Briley,243 F.3d 325, 329 (7th Cir. 2001) (citing Coleman v. Thompson,501 U.S. 722, 750 (1991)). However, Mr. Garrett does not address the ...


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