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Crittenden v. Butts

United States District Court, S.D. Indiana, Indianapolis Division

November 16, 2018

KEITH BUTTS Warden, Respondent.


          Hon. Jane Magnus-Stinson, Chief Judge

         Petitioner Lamarr Crittenden was found guilty of child molesting following a bench trial in an Indiana state court. He is currently serving a 35-year sentence for this conviction. Crittenden now seeks a writ of habeas corpus. For the reasons explained in this Entry, Crittenden'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. 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 Daniels v. Knight, 476 F.3d 426, 434 (7th Cir. 2007). On direct appeal, the Indiana Court of Appeals summarized the relevant facts as follows:

In 2006, Crittenden began cohabiting with Shontae Matlock and her daughter D.M., born February 8, 1999, on Denny Street in Indianapolis. On one occasion during 2007 or 2008, Crittenden entered D.M.'s bedroom while she was sleeping and ordered her to perform fellatio on him.
When she refused, Crittenden placed his hand inside her vagina and moved it around. He then performed anal intercourse on her. Crittenden admonished D.M. not to tell anyone about the incident. Nevertheless, D.M. told her mother, who refused to believe her allegations. On May 11, 2008, D.M. reported the incident to her aunt, Lawanna Smith, who took her to the hospital for a medical examination.
On October 7, 2008, the State charged Crittenden with two counts of class A felony child molesting and two counts of class C felony child molesting. On April 7, 2009, the State filed a notice of intent to introduce child hearsay statements at trial. On April 27, 2009, the trial court held a hearing on the matter and determined that such statements were admissible, subject to limitations set forth in Tyler v. State, 903 N.E.2d 463 (Ind. 2009). That same day, Crittenden waived his right to jury trial, and a bench trial ensued. The trial court found Crittenden guilty of one count of class A felony child molesting and one count of class C child molesting.

Crittenden v. State, 920 N.E.2d 277 (Ind.Ct.App. 2010) (Crittenden I).

         In his direct appeal, Crittenden argued that the State presented insufficient evidence to prove that he molested D.M. in Indiana's territorial jurisdiction. The Indiana Court of Appeals found sufficient evidence and affirmed Crittenden's convictions. Id. Crittenden raised the same issue in a petition to transfer to the Indiana Supreme Court, which denied his petition on March 11, 2010.

         On August 10, 2010, Crittenden filed a petition for post-conviction relief, which the trial court granted in part and denied in part, ordering a new sentencing hearing. Crittenden appealed to the Indiana Court of Appeals, raising procedural issues in the post-conviction court, challenging the admission of evidence at the post-conviction evidentiary hearing, and arguing that he received ineffective assistance of trial and appellate counsel. The Indiana Court of Appeals affirmed the trial court. Crittenden v. State, 2015 WL 3965812 (Ind.Ct.App. 2015) (Crittenden II). Crittenden then filed the instant 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) (1996). “Under the current regime governing federal habeas corpus for state prison inmates, the inmate must show, so far as bears on this case, that the state court which convicted him unreasonably applied a federal doctrine declared by the United States Supreme Court.” Redmond v. Kingston, 240 F.3d 590 (7th Cir. 2001) (citing 28 U.S.C. § 2254(d)(1); Guys v. Taylor, 529 U.S. 362 (2000); Morgan v. Krenke, 232 F.3d 562 (7th Cir. 2000)). 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). “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

         In support of his petition for habeas relief, Crittenden argues that: (1) his counsel was ineffective for failing to investigate, failing to call witnesses, and failing to present any evidence on his behalf; (2) his counsel was ineffective for failing to correctly advise him about a plea offer; (3) his counsel was ineffective for failing to cross-examine D.M. during the pre-trial child hearsay hearing; (4) his counsel had a conflict of interest; (5) his classification as a sexually violent predator violated the ex post facto clause of the United States Constitution; (6) it was an ex post facto violation for the Indiana Court of Appeals to cite a case in its second direct-appeal opinion that was not available when Crittenden committed his crimes; (7) his counsel was ineffective for failing to request sentencing transcripts; and (8) the evidence against him is insufficient to sustain the conviction. The respondent argues that grounds Four and Seven are procedurally defaulted and that Crittenden is not entitled to relief on the merits of the remaining grounds.

         A. Grounds Four, Six, and Seven

         In grounds Four and Seven of his habeas petition, Crittenden argues that his counsel had a conflict of interest and that his counsel was ineffective for not requesting the sentencing transcripts because the sentencing transcripts would have shown the conflict of interest. The respondent argues that these claims are procedurally defaulted. In Ground Six, Crittenden argues that in reviewing his sentence, the Indiana Court of Appeals violated the ex post facto clause because it, when it reviewed his sentence as part of his second direct appeal, relied on caselaw that did not exist at the time the acts at issue took place. This claim, too, is procedurally defaulted.

         “Inherent in the habeas petitioner's obligation to exhaust his state court remedies before seeking relief in habeas corpus, see 28 U.S.C. § 2254(b)(1)(A), is the duty to fairly present his federal claims to the state courts.” Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). To meet this requirement, a petitioner “must raise the issue at each and every level in the state court system, including levels at which review is discretionary rather than mandatory.” Id. at 1025-26. A federal claim is not fairly presented unless the petitioner “put[s] forward operative facts and controlling legal principles.” Simpson v. Battaglia, 458 F.3d 585, 594 (7th Cir. 2006) (citation and quotation marks omitted). “A habeas petitioner who has exhausted his state court remedies without properly asserting his federal claim at each level of state court review has procedurally defaulted that claim.” Lewis, 390 F.3d at 1026. “A prisoner can overcome procedural default by showing cause for the default and resulting prejudice, or by showing he is actually innocent of the offense.” Brown v. Brown, 847 F.3d 502, 509 (7th Cir. 2017). This is at least in part because “[c]ause is defined as an objective factor, external to the defense, that impeded the defendant's efforts to raise the claim in an earlier proceeding.” Johnson v. Foster, 786 F.3d 501, 505 (7th Cir. 2015).

         Crittenden does not dispute that he has failed to present Grounds Four and Seven to the Indiana state courts, but he argues that the sentencing transcripts were not available at the time he sought relief in the state court. Crittenden bases his claims in Grounds Four and Seven on an alleged conflict of interest on the part of trial counsel. He states that his counsel requested that a “conflict attorney” be appointed at his sentencing hearing, but none was appointed and that the court did not make an inquiry into the conflict. He concludes that because the transcripts were unavailable, the facts supporting this claim were not reasonably available to him at the time of his post-conviction proceedings. The respondent contends that the transcripts have been available since Crittenden's direct appeal, and the record seems to support this assertion. Even if the transcripts were not available to Crittenden, he does not argue that he was somehow unaware of, or could not have discovered, the facts upon which his conflict of interest claim are based at the time of his post-conviction proceedings. As long as he was aware of those facts he could have presented them whether he had the transcript or not. He therefore has not shown good cause for his procedural default and he is not entitled to relief on grounds Four and Seven. Crittenden also did not present Ground Six to the state courts and he provides no reason for failing to do so. He is thus not entitled to relief on this ground either.

         B. Grounds One, Two, and Three

         In Grounds One, Two, and Three, Crittenden argues that his counsel was ineffective. A defendant has a right under the Sixth Amendment to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984). For a petitioner to establish that “counsel's assistance was so defective as to require reversal, ” he must make two showings: (1) that counsel rendered deficient performance that (2) prejudiced the petitioner. Id. With respect to the performance requirement, “[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting Strickland, 466 U.S. at 688). “[T]o establish prejudice, a ‘defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'” Id. at 534 (quoting Strickland, 466 U.S. at 694).

         When the deferential AEDPA standard is applied to a Strickland claim, the following calculus emerges:

Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is . . . difficult. The standards created by Strickland and § 2254(d) are both “highly deferential, ” [Strickland] at 689, 104 S.Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 333, n.7 (1997), and when the two apply in tandem, review is “doubly” so, Knowles, 556 U.S. at 123. The Strickland standard is a general one, so the range of reasonable applications is substantial. 556 U.S., at 123. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the ...

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