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Sterling v. Zatecky

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

November 21, 2018

DUSHAN ZATECKY, Warden of the Pendleton Correctional Facility, [1] Respondent.



         I. Introduction

         Devon 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.

         II. Scope of Review

          A 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 (2002)).

         Each of 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 1026.

         To sum 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. 2008).

         III. 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. § 2244(d)(1)(A).

         IV. Procedural History

         Mr. 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.

         A 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.

         On 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.

         Respondent agrees that Mr. Sterling's available state remedies are exhausted.

         On December 16, 2018, Mr. Sterling commenced this petition for a writ of habeas corpus, asserting seven grounds for relief.

         V. 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 gunshot wounds.
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 ...

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