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Schwartz v. Zatecky

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

July 25, 2018

THEODORE T. SCHWARTZ, Petitioner,
v.
DUSHAN ZATECKY, Respondent.

          ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY

          SARAH EVANS BARKER, JUDGE

         Petitioner Theodore T. Schwartz is serving a 100-year sentence for his 2010 Allen County, Indiana convictions for rape, criminal deviate conduct, robbery, criminal confinement, strangulation, and auto theft. He brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons that follow, Mr. Schwartz's petition for a writ of habeas corpus is denied and the action is dismissed with prejudice. In addition, the Court finds that a certificate of appealability should not issue.

         I. Factual and Procedural 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 28 U.S.C. § 2254(e)(1); Daniels v. Knight, 476 F.3d 426, 434 (7th Cir. 2007). On direct appeal, the Indiana Court of Appeals summarized the relevant facts:

On August 19, 2009, Schwartz escaped from the Berne Police Station. He went to J.H.'s house in Allen County where he had previously done restoration work on her barn. Schwartz parked the car he was driving behind J.H.'s barn and broke into her house. When J.H. returned home from work at 6:15 p.m., she unlocked the door, and Schwartz accosted her. Schwartz grabbed J.H. and told her to give him money. J.H. told Schwartz her money was in her car, and he led her outside. J.H. gave Schwartz the money from her purse. When Schwartz tried to get J.H. to go back inside, a struggle ensued. Schwartz struck J.H. in the face, causing her head to go through the glass window. He also placed his hands on J.H.'s throat, causing her to momentarily stop breathing.
Schwartz forced J.H. back into the house, retrieved a knife from the kitchen, and forced her upstairs. Schwartz cut off some of J.H.'s clothing with the knife, fondled her, forced her to perform oral sex on him, and performed oral sex on her. Schwartz also forced J.H. to have intercourse with him. At one point, Schwarz put a pillow over J.H.'s head and tied a bandana around her mouth to keep her from screaming. J.H. believed she was going to die. After the sexual assault, Schwartz attempted to tie up J.H. with a belt and the reins from a horse bridle. He also tried to lock her in a closet.
In the meantime, J.H.'s mother, who lived nearby, saw the strange car parked behind the barn and J.H. struggling outside. J.H.'s mother investigated and sought help from neighbors, who called police. When police arrived, Schwartz jumped out of a second story window, stole J.H.'s car, and fled. Schwartz was eventually apprehended in Wells County.

Dkt. 35-6 at 1; Schwartz v. State, 2011 WL 1204832, at *1 (Ind.Ct.App. Mar. 31, 2011) (footnotes omitted), trans. denied.

         On appeal from the denial of post-conviction relief, the Indiana Court of Appeals summarized the relevant procedural history:

On October 8, 2009, the State charged Schwartz with fifteen felony counts. Schwartz was initially represented by a public defender; however, attorney Stanley Campbell (“Campbell”) was later hired to represent Schwartz during his plea proceedings. During an August 20, 2010 guilty plea hearing, the trial court questioned Schwartz concerning his mental health. Schwartz informed the trial court that he was being treated for depression, but was able to understand the proceedings, was able to assist in his defense, was not under the influence of drugs or alcohol, and was competent to enter a plea. Guilty Plea Tr. at 5-6. The trial court also informed Schwartz of the charges against him and the rights he would be giving up by pleading guilty. That same day, Schwartz pleaded guilty to: Count 1, rape as a Class A felony (armed with a deadly weapon); Count 2, criminal deviate conduct as a Class A felony (armed with a deadly weapon); Count 3, criminal deviate conduct as a Class A felony (armed with a deadly weapon); Count 4, burglary as a Class A felony (resulting in bodily injury); Count 5, robbery as a Class A felony (resulting in serious bodily injury); Count 6, criminal confinement as a Class B felony (armed with a deadly weapon); Count 7, battery as a Class C felony (resulting in serious bodily injury); Count 9, strangulation, a Class D felony; and Count 10, auto theft as a Class D felony. Sentencing was left to the trial court's discretion. There was no agreement as to: Count 8, forgery, a Class C felony; Count 11, receiving stolen auto parts as a Class D felony; Count 12, dealing in methamphetamine as a Class B felony; Count 13, possession of methamphetamine as a Class D felony; Count 14, possession of chemical reagents with intent to manufacture methamphetamine as a Class D felony; and Count 15, possession of a controlled substance as a Class D felony. Following a sentencing hearing, Schwartz was committed to the Indiana Department of Correction for an aggregate sentence of 100 years.
In arriving at the sentence, the trial court considered Schwartz's guilty plea to be a mitigating factor and his criminal history to be neither a mitigator nor a significant aggravator. The trial court rejected Schwartz's argument that his methamphetamine use was a mitigating factor, reasoning that Schwartz had a history of substance abuse, and his claim—that drug use prevented him from knowing what he was doing—lacked credibility. The trial court considered the offenses to be either property-related or sex-related. The trial court sentenced Schwartz to fifty years for the property-related offenses, consisting of fifty years each for the burglary and robbery convictions and one and one-half years for the auto theft conviction, all of which were to be served concurrently. Sentencing Tr. at 49. The trial court sentenced Schwartz to fifty years on each of the Class A felony sex-related convictions, ten years on the criminal confinement conviction, and one and one-half years on the strangulation conviction and ordered those sentences to be served concurrent with each other. The trial court entered no sentence for the battery, merging that conviction into the robbery. The trial court justified this sentence on the basis of the nature of the offenses, i.e., the brutality and injury suffered by J.H., and the number of different offenses, and noted that the sentence was “far from a maximum.” Id. at 50. The trial court then ordered the sentences for the two groups of offenses to be served consecutively and committed Schwartz to the Indiana Department of Correction for a period of 100 years. At the conclusion of the sentencing hearing, Counts 8, 11, 12, 13, 14, and 15 were dismissed.

Dkt. 35-14 at 3-6 (footnotes omitted); Schwartz v. State, 2016 WL 6585374, at *1-2 (Ind.Ct.App. 2016), trans. denied, 2017 WL 599247 (Ind. Feb. 9, 2017).

         Mr. Schwartz appealed, arguing that the trial court abused its discretion in finding and considering aggravating and mitigating circumstances, and that his sentence was inappropriate under Indiana Appellate Rule 7(B). On March 31, 2011, the Indiana Court of Appeals affirmed the conviction and sentence. Schwartz, 2011 WL 1204832, at *5. On August 18, 2011, the Indiana Supreme Court denied transfer.

         On September 6, 2011, Mr. Schwartz filed his petition for post-conviction relief. He filed an amended petition on November 14, 2014. The trial court conducted a post-conviction evidentiary hearing on April 24, 2015. On January 15, 2016, the post-conviction court granted relief, in part, by reducing the robbery conviction under Count V to a Class C felony and the merged battery conviction under Count VII to a Class A misdemeanor. The post-conviction court denied relief on the remaining issues.

         Mr. Schwartz appealed, arguing that attorney Campbell rendered ineffective assistance during his guilty plea proceedings and on direct appeal of Mr. Schwartz's sentence and that his guilty plea was not knowing and voluntary. On November 7, 2016, the Indiana Court of Appeals affirmed the denial of post-conviction relief, determining that Mr. Schwartz's attorney provided effective assistance in the trial court and on direct appeal and that Mr. Schwartz's guilty pleas were knowing and voluntary. Schwartz, 2016 WL 6585374, at *4-12. Mr. Schwartz sought review from the Indiana Supreme Court, but that court denied transfer on February 9, 2017.

         On April 12, 2017, Mr. Schwartz filed this petition for a writ of habeas corpus.

         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). Mr. Schwartz'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).

         The Supreme Court has described AEDPA as “a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court” and has emphasized that courts must not “lightly conclude that a State's criminal justice system has experienced the ‘extreme malfunction' for which federal habeas relief is the remedy.” Burt v. Titlow, 571 U.S. 12, 19-20 (2013) (quoting Harrington v. Richter, 562 U.S. 86 (2011)); see also Renico v. Lett, 559 U.S. 766, 773 (2010) (“AEDPA . . . imposes a highly deferential standard for evaluating state-court rulings, and demands that state court decisions be given the benefit of the doubt.”) (internal quotation marks, citations, and footnote omitted).

         Under AEDPA, the Court reviews the last state court decision to address the merits of a prisoner's claim. See Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018). Where a claim has been adjudicated on the merits in state court, habeas relief is available under the deferential AEDPA standard only if the state court's determination was (1) “contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, ” or (2) “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); see Cullen v. Pinholster, 563 U.S. 170, 181 (2011). 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). “Under § 2254(d)(2), a decision involves an unreasonable determination of the facts if it rests upon fact-finding that ignores the clear and convincing weight of the evidence.” Goudy v. Basinger, 604 F.3d 394, 399-400 (7th Cir. 2010) (citing Ward v. Sternes, 334 F.3d 696 (7th Cir. 2003)). “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. Schwartz raises five grounds in his petition: (1) the trial court abused its discretion by using aggravating factors which were not supported by the trial record; (2) the trial court's sentence is inappropriate; (3) ineffective assistance of trial counsel; (4) his plea was not knowing, voluntary, and intelligent; and (5) ineffective assistance of appellate counsel.

         The respondent argues that grounds one and two are not cognizable as they relate to state-law errors. The respondent further argues that the Indiana Court of Appeals reasonably applied clearly established federal law in finding that Mr. Schwartz was not denied effective assistance of trial or appellate counsel. The respondent finally argues that the Indiana Court of Appeals reasonably concluded that Mr. Schwartz's guilty pleas were knowing and voluntary.

         In reply, Mr. Schwartz elaborates further on the grounds presented in his petition.

         A. Ground One: Trial Court's Abuse of Discretion

         Ground one relates to whether the trial court abused its discretion by allegedly using aggravating factors which were not supported by the record.

         On this issue, the Indiana Court of Appeals held:

Schwartz argues that the trial court abused its discretion when it sentenced him. We evaluate a sentence under the current “advisory” sentencing scheme pursuant to Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh'g by Anglemyer v. State, 875 N.E.2d 218 (Ind. 2007). The trial court must issue a sentencing statement that includes “reasonably detailed reasons or circumstances for imposing a particular sentence.” Anglemyer, 868 N.E.2d at 491. The reasons or omission of reasons given for choosing a sentence are reviewable on appeal for an abuse of discretion. Id. The weight given to those reasons, i.e. to particular aggravators or mitigators, is not subject to appellate review. Id.
Schwartz claims the trial court abused its discretion because it relied on facts not supported by the record when it issued the sentence. See Anglemyer, 868 N.E.2d at 490 (explaining that an abuse of discretion occurs when “entering a sentencing statement that explains reasons for imposing a sentence-including a finding of aggravating and mitigating factors if any—but the record does not support the reasons....”). Specifically, he argues there is no evidence from which the trial court could conclude he was lying in wait for J.H.
At the sentencing hearing, Schwartz stated that his methamphetamine use changed him into someone who did not care about anything, distorted his thinking, prevented him from knowing the difference between right and wrong, and drove him to the “very brink of insanity.” Tr. p. 6. In rejecting Schwartz's methamphetamine addiction as a mitigator, the trial court explained that the crime was not the work of a “deranged addict” and that Schwartz was not “mentally disabled” by drugs. Id. at 48. The trial court observed that this was not “a classic drug addiction burglary where you run in, you grab the stereo equipment and what ever else is saleable and run out and sell it so you can trade for drugs.” Id. at 47. In support of this conclusion, the trial court relied on the fact that Schwartz was sitting inside the door waiting for J.H. to come home, that Schwartz had worked on her property for twelve weeks during the previous year and knew her habits, and that he concealed his car and stole her car.
Schwartz claims that there is no evidence he was waiting in the home for J.H. to return. To the contrary, the probable cause affidavit indicates that, when J.H. unlocked the door and entered her house, there was a man hiding behind a door on the stairs that led to her basement. From this, the trial court could infer ...

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