United States District Court, S.D. Indiana, Indianapolis Division
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS,
DENYING CERTIFICATE OF APPEALABILITY, AND
DIRECTING ENTRY OF FINAL JUDGMENT
R. SWEENEY II, JUDGE
Sterling, an Indiana prisoner in the custody of Warden Dushan
Zatecky at the Pendleton Correctional Facility in Indiana,
petitions pursuant to 28 U.S.C. § 2254 for habeas corpus
contending his state conviction for murder is
constitutionally flawed. Finding no cognizable constitutional
error, the Court denies the petition for the reasons
explained below. Additionally, a certificate of appealability
will not issue.
Scope of Review
federal court may grant habeas relief only if a 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 the 1996
amendments to the substantive habeas corpus statutes, known
as the Antiterrorism and Effective Death Penalty Act (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
the grounds for relief in a habeas corpus action must have
first been presented to the highest available state court for
review, even if that review is discretionary, before it can
be reviewed by a federal court. This exhaustion of state
remedies requirement is codified at 28 U.S.C. §
1154(b)(1)(A). See Resnover v. Pearson, 965 F.2d
1453, 1458 (7th Cir. 1992) (procedural default “occurs
when a claim could have been but was not presented to the
state court and cannot, at the time that the federal court
reviews the habeas petition, be presented to the state
court”). “Inherent in the habeas petitioner's
obligation to exhaust his state court remedies before seeking
relief in habeas corpus . . . is the duty to fairly present
his federal claims to the state courts.” Lewis v.
Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). 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, 593 (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
up the standard of review, “the critical question on
the merits of most habeas corpus petitions shifted [following
enactment of the AEDPA] from whether the petitioner was in
custody in violation of the Constitution, laws, or treaties
of the United States to a much narrower question: whether the
decision of the state court keeping the petitioner in custody
was ‘contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
resulted in a decision that was based on an unreasonable
determination of the facts . . . .'” Avila v.
Richardson, 751 F.3d 534, 535 (7th Cir. 2014) (quoting
28 U.S.C. § 2254(d)).
A decision is contrary to clearly established federal law if
the state court applies a rule that conflicts with a rule
identified by the Supreme Court, or if the state court
reaches a different conclusion than the Supreme Court in a
case with materially indistinguishable facts. Williams v.
Taylor, 529 U.S. 362, 405-06 (2000). A decision involves
an unreasonable application of clearly established law if the
state court “identifies the correct governing legal
principle . . . but unreasonably applies that principle to
the facts of the prisoner's case.” Id. at
413. Under both tests, mere error is not sufficient; a state
court's decision must be “objectively
unreasonable.” Lockyer v. Andrade, 538 U.S.
63, 76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003).
Simonson v. Hepp, 549 F.3d 1101, 1105-06 (7th Cir.
Timeliness of Petition
Independent of whether the grounds for relief asserted in the
petition have been exhausted in state court prior to the
commencement of the habeas action is the question of
timeliness. “Under 28 U.S.C. § 2244(d)(1)(A), a
state prisoner seeking federal habeas relief has just one
year after his conviction becomes final in state court to
file his federal petition.” Gladney v.
Pollard, 799 F.3d 889, 894 (7th Cir. 2015). In this
case, respondent does not contend that Mr. Sterling's
petition is untimely. This Court's review of the filing
and disposition dates of Mr. Sterlings's state court
challenges to his conviction do not raise any timeliness
concerns. The petition is timely pursuant to 28 U.S.C. §
Sterling was charged by the State of Indiana with murder and
attempted murder in Marion County Superior Court case number
49G01-0706-MR-105725. He was tried by jury in the fall of
2008 before The Honorable Tanya Walton Pratt, then a Superior
Court judge. The jury was unable to reach a verdict, and a
re-trial occurred in 2009 before Marion County Superior Court
Judge Kurt Eisgruber. Mr. Sterling was acquitted of attempted
murder but convicted of murder. A sentence of sixty years
imprisonment was imposed.
direct appeal was taken to the Indiana Court of Appeals,
which affirmed Mr. Sterling's conviction and sentence in
all respects. Sterling v. State, 931 N.E.2d 441
(Ind.Ct.App. 2010) (unpub. mem. decision; text in Westlaw).
The Indiana Supreme Court denied transfer on December 9,
2010. Sterling v. State, 940 N.E.2d 831 (Ind. 2010)
(unpub. order; text in Westlaw). Review by the Supreme Court
of the United States by means of a petition for a writ of
certiorari was not attempted.
April 4, 2011, Mr. Sterling commenced state post-conviction
relief attempts in the trial court. He received evidentiary
hearings on some of his claims, and witnesses included his
trial attorneys from both jury trials who testified about
their strategy and defense theories. The trial court denied
post-conviction relief and entered findings of fact and
conclusions of law on December 8, 2014. The Indiana Court of
Appeals affirmed the denial of post-conviction relief.
Sterling v. State, 42 N.E.3d 587 (Ind.Ct.App. 2015)
(unpub. decision; text in Westlaw). On May 12, 2016, the
Indiana Supreme Court denied transfer. Sterling v.
State, 50 N.E.3d 147 (Ind. 2016) (table in Westlaw).
Again, Mr. Sterling did not seek review in the Supreme Court
of the United States.
agrees that Mr. Sterling's available state remedies are
December 16, 2018, Mr. Sterling commenced this petition for a
writ of habeas corpus, asserting seven grounds for relief.
Facts of the Case
Federal district court review of a habeas corpus petition
presumes all factual findings of the state courts to be
correct, absent clear and convincing evidence to the
contrary. See Daniels v. Knight, 476 F.3d 426, 434
(7th Cir. 2007). The facts of Mr. Sterling's case, as
taken from the Indiana Court of Appeals' decision on
direct appeal, are these:
On June 8, 2007, Sterling was attending the same neighborhood
block party as the decedent, Dewayne Butts. Several months
before, there had been a dispute between Dewayne and
Sterling's father concerning the ownership of a dog that,
at the time, Dewayne had at his mother's home. A physical
argument ensued between Dewayne and Sterling's father,
and the dog was given to the Sterlings. Because of this prior
confrontation, both Dewayne and his girlfriend, Marie Ball,
were familiar with Sterling at the time of the block party.
Before leaving the block party, Dewayne and Sterling had a
tense encounter and had to be separated by Marie. Dewayne and
Marie headed to her vehicle, accompanied by Marie's
daughter, DeAsia, and Dewayne's mother, Judy Butts, and
her niece, Rockita Brown. Before leaving, while all five were
seated inside Marie's vehicle, Dewayne and Marie were
both shot multiple times. The shooter, standing outside the
passenger's window, was later identified by both Marie
and Rockita as Sterling. Dehaven Butts, who was standing near
the vehicle at the time of the shooting, identified Sterling
as the man he witnessed running from the vehicle in the
moments after the shooting. Dewayne died as a result of the
Sterling turned himself into police on June 10, 2007, and was
accompanied by his family, who had retained counsel for him.
Detective David Labanauskas was aware that they were awaiting
the arrival of counsel, but the interrogation proceeded when
Detective Labanauskas learned that the attorney had been
delayed. The State ...