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Heffern v. State

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

November 13, 2018




         Petitioner 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.

         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). 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 his pocket.
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 September 7.
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 that motion.
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).

         Mr. 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 transfer.

         On 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 petition.

         Mr. 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.

         On September 25, 2017, Mr. Heffern filed this petition for a writ of habeas corpus.

         II. Applicable Law

         A 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).

         The 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).

         Under 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 (2002)).

         III. Discussion

         Mr. 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.

         A. Newly Raised Claims in Reply Brief

         In his 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.

         Because 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.

         B. Ground One: Amending the Charging Information

         Ground 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.

         On this 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 Amendment.
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 ...

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