United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
P. SIMON JUDGE
Morris Wheeler, a prisoner without a lawyer, has filed a
motion under Fed.R.Civ.P. 59(e) to reconsider the July 11,
2018 order denying his petition for habeas relief. “A
court may grant a Rule 59(e) motion to alter or amend the
judgment if the movant presents newly discovered evidence
that was not available at the time of trial or if the movant
points to evidence in the record that clearly establishes a
manifest error of law or fact.” Matter of
Prince, 85 F.3d 314 (7th Cir. 1996); Deutsch v.
Burlington N. R.R. Co., 983 F.2d 741 (7th Cir. 1993).
habeas petition, Wheeler argued that the trial court violated
his right to due process by improperly relying on inaccurate
information to enhance his sentence, and that his trial
counsel was ineffective for failing to investigate the
inaccurate information and challenge it at the sentencing
hearing. ECF 38. Specifically, he argued that the sentencing
court should not have considered its finding that Wheeler
committed an attempted rape while he was on bond awaiting
trial on September 11, 1988. After reviewing the State court
record, I denied these claims because Wheeler had not shown
that the State court's decisions on these claims were
unreasonable. ECF 52.
instant motion, Wheeler argues that my order denying the
habeas petition relies on the same inaccurate information as
the sentencing court and ignores the evidence that exonerated
him of the attempted rape. However, the order shows that I
considered the exculpatory evidence presented by Wheeler,
including the timing of the dismissal of the attempted rape
charge, the victim's reluctance to participate in trial,
and the victim's initial description of the perpetrator.
ECF 52 at 5-8. The sentencing court knew of this evidence as
well but found that Wheeler committed the attempted rape
after the prosecution informed it of the victim's
identification of Wheeler in a photographic array and his
proximity to the scene of the crime. Id.
maintains that the attempted rape finding is erroneous, but,
on habeas review, federal courts must credit State court
findings unless they are rebutted with clear and convincing
evidence. 28 U.S.C. § 2254(e)(1). Wheeler counters that
the prosecution did not prove that he committed the attempted
rape with clear and convincing evidence, but this argument
misses the mark. At sentencing, the prosecution was not
constitutionally required to prove by clear and convincing
evidence that Wheeler committed the attempted rape. See
United States v. Watts, 519 U.S. 148, 156-57 (1997).
Instead, the applicable standard was preponderance of the
evidence. Id. at 156. And on this federal habeas
review, it is the petitioner who bears the clear and
convincing evidence burden of proof. Though Wheeler raises
valid concerns about the strength of the evidence supporting
the attempted rape finding, these concerns simply fall short
of the clear and convincing evidence necessary to prevail on
his habeas claims.
Wheeler argues that he is entitled to an evidentiary hearing
to prove that he did not commit the attempted rape.
“Federal courts sitting in habeas are not an
alternative forum for trying facts and issues which a
prisoner made insufficient effort to pursue in state
proceedings.” Williams v. Taylor, 529 U.S.
420, 437 (2000). “If a claim has been adjudicated on
the merits by a state court, a federal habeas petitioner must
overcome the limitation of § 2254(d)(1) on the record
that was before that state court.” Cullen v.
Pinholster, 563 U.S. 170, 185 (2011). Because the State
court decided Wheeler's claims on the merits, the scope
of habeas review is limited to the evidence in the State
court record. As a result, an evidentiary hearing would be
futile, and the request is denied.
also argues that the State court erred by determining that
his sentence would have been the same even without
consideration of the attempted rape. On habeas review,
Wheeler must show that this determination is unreasonable, 28
U.S.C. § 2254(d)(1). However, his contention that a
lesser sentence was available is insufficient, particularly
in light of the other aggravating factors noted by the
sentencing court, including the nature of the offense and the
need for rehabilitation in a correctional setting. Wheeler
has not shown, for example, that the sentencing court
increased his sentence by a certain number of years based
solely on the attempted rape finding or that individuals who
have been convicted in Indiana courts of similar crimes
typically receive lesser sentences. At bottom, Wheeler has
provided an insufficient basis to conclude that the State
court unreasonably determined that he would have received the
same sentence even without the attempted rape.
Wheeler argues that, even if he would have received the same
sentence, procedural due process requires a new sentencing
hearing with only accurate information. Again, Wheeler
misunderstands the deferential nature of federal habeas
review. Even assuming the attempted rape finding was
inaccurate, Wheeler would be entitled to habeas relief only
if he could demonstrate that the trial court's reliance
on the misinformation had a substantial and injurious effect
on his sentence, Burr v. Pollard, 546 F.3d 828, 832
(7th Cir. 2008), or, in the context of his ineffective
assistance of counsel claim, if he could demonstrate that the
State courts made an unreasonable determination by finding
that correcting the misinformation would have not resulted in
a lesser sentence, McNary v. Lemke, 708 F.3d 905,
914 (7th Cir. 2013). He has not done so, and, as such, he is
not entitled to a new sentencing hearing or any other remedy
available on habeas review.
petitioner Anthony Morris Wheeler has not provided new
evidence or shown a manifest error or law or fact as required
by Fed.R.Civ.P. 59(e), his ...