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Orr v. Warden

United States District Court, N.D. Indiana

August 27, 2018

SHEPELL ORR, Petitioner,
WARDEN, Respondent.



         Shepell Orr, a pro se prisoner, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his murder convictions and consecutive 55 year sentences by the Lake County Superior Court on June 10, 2011, under cause number 45G01-1001-MR-1. [ECF No. 1.]


         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 Orr's burden to rebut this presumption with clear and convincing evidence. Id. On appeal from the denial of post-conviction relief, the Indiana Court of Appeals set forth the facts surrounding Orr's offenses as follows:

At approximately 12:00 a.m. on December 31, 2009, Orr entered an apartment building located at 3513 Guthrie in East Chicago to visit a friend, and he walked past four people visiting in a hallway. Approximately forty-five minutes later, Orr left his friend's apartment and walked past the same four people, Steven Williams, Joshua Hayward, LaTonya Burnett, and Tyree Tolbert. As he passed by the group, Orr asked Williams, “What's that smart remark you said.” Tr. at 223. Williams responded, “I don't know you to even be saying anything about you.” Id. Orr then left the building, met Billy Galloway, who was sitting in Galloway's truck parked across the street, and got a firearm from Galloway.
A few minutes later, Orr came back inside the apartment building and said to the group, “Folks, let me holler at you.” Id. at 225. In response, Tolbert walked outside with Orr. Orr then asked Tolbert, “what [Williams and Haywood were] on.” Id. at 226. Tolbert interpreted that question to mean “like what [are] they about[?]” Id. Tolbert responded, “They ain't on nothing. They just moved out here with they [sic] wife and kids.” Id. Orr then said to Tolbert, “Don't worry about it. I'm finna[1] kill everybody in this building.” Id. at 227. Orr then pulled out a gun and entered the apartment building. After Orr entered the building, Burnett ran outside, and she and Tolbert ran to a friend's apartment inside a nearby building. As soon as they were inside, Tolbert heard multiple gunshots from the building where he had left Orr and the others.
A neighbor called 9-1-1, and officers arrived at the scene approximately ten minutes after the shootings to find Williams' and Haywood's dead bodies lying in pools of blood inside the apartment building. Williams had been shot seven times, and Haywood had been shot four times. There were no eyewitnesses to the shootings, but, after an investigation implicated Orr, police arrested him.
The State charged Orr with two counts of murder. A jury found Orr guilty as charged and the trial court entered a judgment of conviction accordingly. The trial court sentenced Orr to two consecutive terms of fifty-five years, for an aggregate sentence of 110 years.

Orr v. State, No. 45A04-1503-PC-87, slip op. pp. 2-3 (Ind.Ct.App. Oct. 7, 2015), [ECF No. 8-10].

         After his conviction, Orr appealed, arguing only that the trial court committed reversible error in allowing the State to impeach a witness with extrinsic evidence of a prior inconsistent statement. [ECF No. 8-3 at 5; ECF No. 8-5 at 2.] The Indiana Court of Appeals affirmed Orr's conviction and sentence. [ECF No. 8-5.] Orr did not seek transfer to the Indiana Supreme Court. [ECF No. 8-2.] He admits as much. [ECF No. 1 at 1.]

         On February 7, 2013, Orr filed a petition for post-conviction relief in State court. [ECF No. 8-1 at 1.] After a hearing, the post-conviction court denied Orr's request for post-conviction relief. Orr appealed, arguing that he was denied the effective assistance of trial and appellate counsel. [ECF No. 8-10 at 2; ECF No. 8-7.] The Court of Appeals of Indiana denied Orr's appeal. [ECF No. 8-10.] Orr sought transfer to the Indiana Supreme Court raising the same issues he presented to the court of appeals. [ECF No. 8-11.] The Indiana Supreme Court denied transfer. [ECF No. 8-6.]

         On January 26, 2016, Orr signed and submitted this federal habeas petition challenging his convictions and sentence, arguing that: (1) the trial court improperly admitted extrinsic evidence of a witness's prior inconsistent statement; (2) he received ineffective assistance of trial and appellate counsel because they both failed to challenge the voluntary manslaughter instructions; and (3) he received ineffective assistance of trial counsel because his attorney failed to adequately impeach Antonio Foster. [ECF No. 1 at 3, 4.]


         Orr'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 requirements of 28 U.S.C. § 2254(d), which provides:

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 Supreme Court of the United States; or
(2) resulted in a decision that was 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).

[This] standard is intentionally difficult to meet. We have explained that clearly established Federal law for purposes of §2254(d)(1) includes only the holdings, as opposed to the dicta, of this Court's decisions. And an unreasonable application of those holdings must be objectively unreasonable, not merely wrong; even clear error will not suffice. To satisfy this high bar, a habeas petitioner is required to show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.

Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (quotation marks and citations omitted).

         A. Ineffective Assistance of Counsel

         To prevail on an ineffective assistance of counsel claim in the State courts, Orr had to show that counsel's performance was deficient and that the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668 (1984). The test for prejudice is whether there was a reasonable probability that “but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A reasonable probability is a probability “sufficient to undermine confidence in the outcome.” Id. at 693. In assessing prejudice under Strickland “[t]he likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011). However, “[o]n habeas review, [the] inquiry is now whether the state court unreasonably applied Strickland . . . .” McNary v. Lemke, 708 F.3d 905, 914 (7th Cir. 2013). In addition, “because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.” Id. (citing Youngblood v. Alvarado, 541 U.S. 652, 664 (2004)). This creates a “doubly deferential” standard of review here. Id. “Given this high standard, even ‘egregious' failures of counsel do not always warrant relief.” McNary, 708 F.3d at 914.

         1. The Indiana Courts reasonably found that trial counsel was not ineffective for not objecting to the jury instructions.

         At the conclusion of Orr's trial, the trial court instructed the jury regarding murder and voluntary manslaughter. The voluntary manslaughter instruction included a definition of sudden heat. In Indiana, “once a defendant presents evidence of sudden heat, the State bears the burden of disproving its existence beyond a reasonable doubt.” Eichelberger v. State, 852 N.E.2d 631, 636 (Ind.Ct.App. 2006). The voluntary manslaughter instructions tendered in Orr's case were erroneous because they did not instruct the jury that the State must disprove sudden heat beyond a reasonable doubt before they could convict him of murder.[2] [ECF No. 8-10 at 8.] Orr argues that his trial counsel was ineffective for not objecting to the trial court's voluntary manslaughter jury instructions or tendering correct instructions. The Indiana Court of Appeals disagreed. (Id.) In rejecting Orr's claim, the Indiana Court of Appeals properly identified Strickland as the governing standard. (Id. at 5.) Though the court acknowledged that the tendered voluntary manslaughter jury instructions were incorrect, the court found that Orr was not entitled to the instructions and he could not show that he was prejudiced by them. (Id. at 5-12.)

There is simply no evidence, let alone a serious evidentiary dispute, to show that sudden heat was a factor in the shootings. Orr was not entitled to a voluntary manslaughter instruction, and he cannot show that he was prejudiced by his trial counsel's failure to object to the trial court's erroneous instructions and to tender a proper instruction. Massey, 955 N.E.2d at 257.

(Id. at 11-12.)

         This conclusion was reasonable. Under Indiana law, a voluntary manslaughter instruction is not warranted unless there is a serious evidentiary dispute regarding evidence of sudden heat. Massey v. State, 955 N.E.2d 247 (Ind.Ct.App. 2011).

Sudden heat is characterized as anger, rage, resentment, or terror sufficient to obscure the reason of an ordinary person, preventing deliberation and premeditation, excluding malice and rendering a person incapable of cool reflection. Anger alone is not sufficient to support an instruction of sudden heat. Nor will words alone constitute sufficient provocation to warrant a jury instruction on voluntary manslaughter, and this is especially true when the words at issue are not intentionally designed to provoke the defendant, such a fighting words.
In addition, to the requirement of something more than mere words, the provocation must be sufficient to obscure the reason of an ordinary man, an objective as opposed to a subjective standard. Finally, Voluntary ...

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