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Zamarron v. Warden

United States District Court, S.D. Indiana, Terre Haute Division

September 14, 2018

KENNETH LEE ZAMARRON, Petitioner,
v.
WARDEN, [1] Respondent.

          KENNETH LEE ZAMARRON, WABASH VALLEY - CF WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels, Chandra Hein INDIANA ATTORNEY GENERAL

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

          HON. JANE MAGNTTS-STINSON, CHIEF JUDGE.

         Petitioner Kenneth L. Zamarron is serving a 97-year sentence for his 2009 Lake County, Indiana, convictions for murder, robbery, burglary, cruelty to animal, attempted carjacking, and attempted criminal confinement. He brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons that follow, Mr. Zamarron's petition for a writ of habeas corpus is denied and the action 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).[2] On direct appeal, the Indiana Court of Appeals summarized the relevant facts and procedural history:

Gregory Grudzien (“Grudzien”) and Marianna Bobella (“Bobella”) were co-owners of a Hammond, Indiana business. Customarily, while Bobella worked the early evening shift, Grudzien would go to Bobella's house to gather the mail and let her dog outside. On November 29, 2007, at about 8:30 p.m., Grudzien called Bobella and told her that her house had been “ransacked.” When Bobella arrived home approximately fifteen minutes later, Grudzien was lying dead in the street. He had suffered a skull fracture and multiple stab wounds. Bobella's dog was lying dead in a pool of blood underneath the kitchen table.
The front door windows of Bobella's home had been broken; numerous items inside the house were broken or overturned. A Dodge Neon with a flat tire was parking in front of Bobella's house. Inside it were several items of Bobella's property. Grudzien's blood was on the gearshift. The Neon was registered to the step-parent of Victor Hernandez (“Hernandez”).
Approximately one half hour after Bobella was called home, Zamarron and Hernandez were seen walking in the middle of the street one block away from Bobella's residence. As Jack and Loretta Simmons pulled their vehicle into their driveway, Zamarron and Hernandez approached the vehicle. Zamarron pounded on the windshield and yelled. He tried unsuccessfully to open the driver's side door. Loretta Simmons was able to drive away.
Approximately five to six blocks from Bobella's home, Ana and Doris Almaraz were seated in a vehicle at a gas station when Zamarron and Hernandez approached the vehicle. Zamarron demanded the key while Hernandez, holding an object that appeared to be a bloody kitchen knife, ordered Doris to get out of the vehicle. Ana refused to tender the key, and Zamarron doused her with gasoline. Doris began screaming, and the two men ran away.
Police officers responded to reports of these various encounters. When the officers spotted Zamarron and Hernandez, they began to run. However, they were apprehended while still covered in blood later determined to be from Grudzien. Zamarron's DNA was found inside the Bobella home, and his fingerprint was found on a bottle of liquor retrieved from the house. A shoeprint in Grudzien's blood near his body was made by a Converse athletic shoe; Zamarron was wearing Converse athletic shoes when he was apprehended.
The State charged Zamarron with ten criminal offenses, including murder, robbery, attempted carjacking, attempted criminal confinement, burglary, and cruelty to an animal. At the conclusion of a jury trial on November 24, 2008, Zamarron was found guilty as charged.
The trial court entered judgments of conviction on a single count of murder, robbery (reduced to a Class C felony), burglary, and cruelty to an animal, and two counts each of attempted carjacking and attempted criminal confinement. On January 5, 2009, Zamarron was sentenced to an aggregate term of imprisonment of ninety-seven years.

Zamarron v. State, 2009 WL 2869933, *2 (Ind.Ct.App. Sept. 4, 2009) (“Zamarron I”); see also dkt. 10-5 at 2-3.

         Mr. Zamarron appealed, challenging the sufficiency of the evidence to support his convictions for murder, robbery, and cruelty to an animal. Zamarron I at *1. The Indiana Court of Appeals affirmed his conviction. Id. at *3. Mr. Zamarron sought review from the Indiana Supreme Court, but that court denied transfer on October 29, 2009. Dkt. 10-2 at 3.

         On October 4, 2010, Mr. Zamarron filed a pro se petition for post-conviction relief. On December 16, 2015, after five years of Mr. Zamarron's stalling and failure to litigate his various post-conviction petitions, the PCR court dismissed Mr. Zamarron's petition with prejudice for failure to prosecute. On appeal for post-conviction relief, the Indiana Court of Appeals summarized the relevant procedural history:

On October 4, 2010, Zamarron filed a pro se petition for post-conviction relief and alleged that his trial counsel and appellate counsel were ineffective. On November 12, 2010, a public defender filed an appearance on behalf of Zamarron. On January 10, 2011, the public defender filed a motion to continue the post-conviction hearing. The next day, the court granted the motion to continue, rescheduled the hearing for May 2, 2011, and stated that “[t]his will be the last continuance of the hearing on the petition for post-conviction relief barring any extraordinary circumstances.” Appellant's Appendix at 49.
On March 8, 2011, the public defender withdrew her appearance and moved for a continuance to allow Zamarron to be prepared if he wished to proceed pro se. On March 11, 2011, the court rescheduled the hearing to August 2, 2011, and directed the clerk to notify Zamarron that he may either hire private counsel or represent himself at the hearing.
On August 2, 2011, Zamarron orally requested a continuance. The court granted the motion and rescheduled the hearing to August 8, 2012. The court's order states that “[t]his will be the last continuance of the hearing on the petition for post-conviction relief barring any extraordinary circumstances.” Id. at 57.
On August 8, 2012, the court held a hearing. At the hearing, Zamarron stated: “I don't have nothing to say.” Transcript at 3. After some discussion, Zamarron stated that the trial court committed a sentencing error and that he could not knowingly or intentionally commit murder if he was intoxicated and that he did not have the right mind set. The court told Zamarron that he would have to set forth evidence. Zamarron stated that he asked his lawyer about the Breathalyzer “to bring it up during the trial, and he didn't, so it's ineffective of [sic] counsel.” Id. at 8. The court asked Zamarron if he wanted it to accept the record of proceedings into evidence, and Zamarron said yes. The court indicated that it would obtain the record of proceedings from ...

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