United States District Court, S.D. Indiana, Terre Haute Division
MICHAEL P. HEFFERN, Petitioner,
STATE OF INDIANA, DICK BROWN, Respondents.
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND
DENYING A CERTIFICATE OF APPEALABILITY
WILLIAM T. LAWRENCE, SENIOR JUDGE
Michael P. Heffern is serving a 75-year sentence for his 2010
Jay County, Indiana convictions for murder and robbery. He
brings this petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. For the reasons that follow, Mr.
Heffern'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:
In September 2008, Heffern was staying at the home of Joseph
Randall, who lived at 117 South Munson Avenue in Portland. On
the evening of September 7, Heffern, Addison Pijnapples, her
husband Tom Smith, and Rod Berry were at the home of Tina
Whiting, a neighbor of Randall. The group snorted crushed
Valium and then drove to Ohio, where Berry purchased one or
two thirty-packs of beer. After having dinner with his
girlfriend, Randall went to Whiting's home to watch a
football game on television. Randall's young daughter,
Heffern, Pijnapples, her husband Tom Smith, and Rod Berry
were also there. At some point, while Randall was watching
television, Heffern and Whiting were talking in the kitchen.
Whiting told Heffern “about a guy that she was having
problems with, ” and Heffern “asked her if she
wanted him to beat him up for her, get him to leave him [sic]
alone or leave her alone.” Transcript at 30. Whiting
told Heffern that if he beat up the guy “he might have
some pills [Heffern] could take from him.” Id.
Randall then left the apartment with his child.
Heffern told Pijnapples, Smith, and Berry that Shawn Buckner
had raped Whiting. Heffern also talked to them about
“going to get Shawn so he could beat his ass.”
Id. at 268. The group continued to ingest Valium
pills, drank beer, and discussed a plan to beat up Buckner
and take prescription pills from him. Specifically, Whiting
and Pijnapples were to offer to have a joint sexual encounter
with Buckner in order to lure him to Whiting's apartment.
The three men were to wait in hiding in the apartment and,
when Buckner arrived, Heffern wanted to “initiate the
action” against Buckner because he wanted to
“beat up Shawn.” Id. at 275.
Whiting and Pijnapples left to find Buckner. About the same
time, Berry moved his car from in front of Whiting's home
so that Buckner would not know that anyone else was there.
Whiting and Pijnapples found Buckner at his uncle's home,
helping his uncle clean copper for resale. Buckner said he
was busy and asked them to come back in twenty minutes. When
the women returned thirty minutes later, Buckner washed his
hands and told his uncle that the women had asked if Buckner
wanted to “have a threesome.” Transcript at 42.
Buckner borrowed twenty dollars from his uncle and left with
Whiting and Pijnapples.
Whiting, Pijnapples, and Buckner arrived at Whiting's
home, where Heffern, Smith, and Berry were hiding in a back
room. When Whiting gave a previously agreed upon code word,
the men came out of hiding, and Heffern began punching
Buckner. Buckner tried to escape, but Berry grabbed him and
began hitting Buckner as well. At one point Smith pushed
Buckner to the kitchen floor. Heffern, Berry, and Smith
kicked and punched Buckner's head and body numerous times
while he was on the floor. During the assault, Buckner
moaned. The men then removed Buckner's clothing and took
twenty dollars they had found in his sock. Smith gave the
money to Pijnapples and told her to buy more beer. Smith
threatened to cut off Buckner's penis, but Heffern would
not allow it.
The men wrapped Buckner in blankets and carried him to
Berry's Jeep. The men then left the apartment in the
Jeep, with Berry driving, Heffern and Smith as passengers,
and Buckner moaning loudly in the back. Smith called Buckner
a child molester. In the rear view mirror, Berry saw Heffern
reach back and punch Buckner rapidly at least ten times.
Buckner stopped moaning. At some point Berry stopped the Jeep
on a secluded road near a cornfield. After Heffern and Smith
opened the Jeep's back hatch and removed Buckner, Berry
drove down the road to find a place to turn the vehicle
around. When he returned to the site where the others had
exited the vehicle, Berry saw no one beside the road. He
stopped the Jeep and waited, but when no one appeared, he
exited the vehicle.
Berry walked into the cornfield, looking for Heffern and
Smith. Eventually he saw two silhouettes, Heffern and Smith.
Buckner was lying on the ground nearby. Smith handed Berry a
knife, told Berry he had stabbed Buckner, and instructed
Berry to do the same. Buckner was not making any noise, and
Berry believed him to be dead. Berry stabbed Buckner in the
lower side twice. Berry left the knife on Buckner's chest
and walked back to the Jeep. Smith and Heffern followed a
minute later. As Berry drove, he began to worry that leaving
the knife at the scene could implicate him, but Smith said he
had the knife and showed Berry that it was sticking out of
When the men arrived at Whiting's home, Whiting and
Pijnapples were not yet there. Although it appeared that the
home had been cleaned some since the struggle, the men worked
to clean the scene of any evidence of Buckner's beating
and gathered anything with blood on it. When Whiting and
Pijnapples arrived, all five took off any item of clothing
that could have come into contact with Buckner. They placed
the clothing and items from the house tainted by the struggle
into a trash bag. When Smith and Berry later left, Heffern
was burning something, not food, on the grill.
Taking the trash bag with them, Berry and Smith drove to a
gas station where Smith bought gas for Berry's Jeep.
Berry and Smith threw the knife over a bridge. They then
drove to the country and burned the trash bag and its
contents in a cornfield. From Whiting's home, Heffern
went to see Sierra Ferrara, the mother of his children. When
she saw scrapes on his knuckles, he said that he had been in
a fight on the way to her house. Some days later, Heffern
called Ferrara and told her that, if police questioned her,
she should say that Heffern had spent the night with her on
Two or three days after the murder, Berry, Smith, and
Pijnapples used Berry's Jeep to move Buckner's body
from the cornfield. They buried the body behind a barn
belonging to a friend. Berry had told the friend that they
were burying a dog. A missing persons report was filed
regarding Buckner, and police officers found the burial site
on or around September 10.
On September 11, the State charged Heffern with murder, a
felony, and robbery resulting in bodily injury, as a Class B
felony. The robbery charge alleged in part that Heffern had
knowingly taken property, money, from Buckner “by using
force, to-wit: by punching, kicking, and choking; said act
resulting in bodily injury to Shawn M. Buckner, to-wit:
lacerations and bruising ….” Appellant's
App. at 14. On October 14, 2009, the State moved to amend the
robbery count to charge robbery resulting in serious bodily
injury, a Class A felony. Heffern filed a motion to strike
the amendment. Following a hearing, the trial court denied
On December 10, 2009, the State filed a second amendment to
the robbery charge (“Second Amendment”). The
Second Amendment alleged that Heffern had knowingly taken
property from Buckner “by using force, while armed with
a deadly weapon, to-wit: a knife ….”
Id. at 113. And on January 21, 2010, the State
amended the information by adding count 3, which alleged that
Heffern had committed felony murder. Heffern filed a motion
to strike the amendment adding count 3. After a hearing, the
trial court denied that motion.
On June 4, 2010, Heffern filed a motion objecting to the
admission of portions of the transcript of police
interrogations and videotapes of those interrogations. The
jury trial commenced on June 14, at which time the trial
court overruled Heffern's objection but agreed to give a
“limiting instruction and admonishment[.]”
Transcript at 5. The trial proceeded through June 17.
Following deliberations, the jury returned a verdict finding
Heffern guilty on all three counts. The court entered
judgment on the verdict as to murder and robbery and
sentenced Heffern to an aggregate term of seventy-five years.
Heffern v. State, 2011 WL 1565999, at *1-3
(Ind.Ct.App. Apr. 26, 2011) (footnotes omitted), trans.
denied.; Dkt. No. 14-5 at 2-7 (Slip Opinion).
Heffern appealed, raising four issues: (1) that the amendment
to the robbery charging information violated Indiana law and
his right to due process; (2) that the trial court should
have given a limiting instruction about the police
officers' statements during the recorded interview under
the Indiana Rules of Evidence; (3) that the evidence was
insufficient to convict him of murder and robbery; and (4)
that his convictions for murder and robbery violated federal
and state double jeopardy. Dkt. No. 14-5 at 2. On April 26,
2011, the Indiana Court of Appeals affirmed the conviction
and sentence. Heffern, 2011 WL 1565999, at *11. The
Indiana Court of Appeals held that: (1) Mr. Heffern waived
his argument about the charging information by failing to
object at trial and, in any case, he failed to show
fundamental error; (2) Mr. Heffern waived his argument about
the jury instruction, but that, in any case, the Indiana
Rules of Evidence did not require the trial court to provide
that limiting instruction to the jury; (3) there was
sufficient evidence to support his convictions; and (4) Mr.
Heffern waived his federal double jeopardy argument and there
was no violation of Indiana double jeopardy. Id. at
*4-11. On June 29, 2011, the Indiana Supreme Court denied
October 3, 2011, Mr. Heffern filed his petition for
post-conviction relief. He filed an amended petition on
December 15, 2014. The trial court conducted a
post-conviction evidentiary hearing on June 23, 2015. On
August 9, 2015, the post-conviction court denied his
Heffern appealed, arguing that his appellate counsel was
ineffective for not challenging a sentencing aggravating
circumstance. On July 22, 2016, the Indiana Court of Appeals
affirmed the denial of post-conviction relief. Heffern v.
State, 2016 WL 3960031 (Ind.Ct.App. July 22, 2016). Mr.
Heffern sought review from the Indiana Supreme Court, but it
denied transfer on October 20, 2016.
September 25, 2017, Mr. Heffern 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. Heffern'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
Heffern raises four grounds in his amended petition: (1) the
trial court violated his due process rights by allowing the
state to amend the charging information after the omnibus
date; (2) the trial court erred by not giving a limiting
instruction regarding the officers' statements; (3) the
evidence was insufficient to support his convictions; and (4)
the entry of judgment and conviction for both murder and
armed robbery violated double jeopardy. Dkt. No. 7. The Court
will address each claim in turn.
Newly Raised Claims in Reply Brief
reply brief, Mr. Heffern raises a new claim of ineffective
assistance of counsel. Dkt. No. 38 at 16-17. Additionally, as
part of his challenge to the sufficiency of the evidence, Mr.
Heffern also newly argues that his convictions for armed
robbery and murder under the theory of accomplice liability
was improper and a violation of his due process rights
because he was not properly informed under the charging
information that he would be prosecuted in this manner.
See Id. at 9-15.
these arguments were raised on the first time in his reply
brief, these claims are waived. See Rule 2 of the
Rules Governing Section 2254 Cases (“The
petition must: (1) specify all the grounds for relief
available to the petitioner;”); Griffin v.
Bell, 694 F.3d 817, 822 (7th Cir. 2012)
(“arguments raised for the first time in a reply brief
are deemed waived”); Hernandez v. Cook Cnty.
Sheriff's Office, 634 F.3d 906, 913 (7th Cir. 2011)
(same); United States v. Foster, 652 F.3d 776 n. 5
(7th Cir.2001) (“The reply brief is not the appropriate
vehicle for presenting new arguments or legal theories to the
court.”). Accordingly, no habeas relief is available on
the newly raised grounds of ineffective assistance of counsel
and challenging the theory of accomplice liability.
Ground One: Amending the Charging Information
one asserts that the trial court violated Mr. Heffern's
due process rights by allowing the state to amend the
charging information after the omnibus date in violation of
Ind. Code § 35-34-1-5(b)(2). The respondent argues that
ground one is procedurally defaulted, partly not cognizable,
and meritless. Dkt. No. 14 at 8-10.
issue, the Indiana Court of Appeals held on direct appeal:
Heffern contends that the trial court erred when it permitted
the State to amend the robbery charge pursuant to the Second
Amendment. The State counters that Heffern waived his
challenge to the Second Amendment because he did not object
to the same at trial. We must agree with the State. The
failure to object to the amendment of a charging information
at trial results in waiver of the issue on appeal. See
Fowler v. State, 878 N.E.2d 889, 892 (Ind. 2008)
(holding that defendant had preserved for appeal his
challenge to amendment of charge by timely objecting in the
trial court). Heffern has waived his challenge to the Second
Heffern seeks to avoid waiver by invoking the fundamental
error doctrine. …The thrust of Heffern's complaint
is that he had only six months to prepare his defense based
on the amended charge. But Heffern has not shown or even
discussed why having six months to adjust his defense
resulted in “an undeniable and substantial potential
for harm.” Cooper, 854 N.E.2d at 835. Thus,
Heffern has not demonstrated that the trial ...