United States District Court, S.D. Indiana, Indianapolis Division
THEODORE T. SCHWARTZ, Petitioner,
DUSHAN ZATECKY, Respondent.
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND
DENYING A CERTIFICATE OF APPEALABILITY
EVANS BARKER, JUDGE
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.
Factual and Procedural Background
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
Dkt. 35-6 at 1; Schwartz v. State, 2011 WL 1204832,
at *1 (Ind.Ct.App. Mar. 31, 2011) (footnotes omitted),
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).
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.
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.
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.
April 12, 2017, Mr. Schwartz filed this petition for a writ
of habeas corpus.
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).
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).
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
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
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.
reply, Mr. Schwartz elaborates further on the grounds
presented in his petition.
Ground One: Trial Court's Abuse of Discretion
one relates to whether the trial court abused its discretion
by allegedly using aggravating factors which were not
supported by the record.
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 ...