United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
P. SIMON, JUDGE
Alkhalidi, by counsel, seeks habeas corpus relief from his
conviction following a jury trial in St. Joseph Superior
Court for murder, robbery, and theft. Alkhalidi was sentenced
to sixty-five years of incarceration. His principal argument
is that he received ineffective assistance of counsel during
plea negotiations. But because Alkhalidi has failed to
establish that the State court rendered an opinion that was
contrary to, or involved an unreasonable application of,
clearly established Supreme Court precedent, his petition
must be denied.
reviewing this petition, I must presume the facts set forth
by the State courts are correct unless they are rebutted with
clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
The evidence against Alkhalidi was overwhelming as
demonstrated by the facts as recounted by the Court of
Appeals of Indiana. Here's what the evidence showed:
On May 2, 1999, Claude Purdiman (“Purdiman”) and
his brother, Terrance Purdiman (“Terrance”), were
at the home of their father. Purdiman showed Terrance and his
father $3, 000 and said that he was going to the Blue Chip
Casino in Michigan City, Indiana. Purdiman and Terrance left
their father's house at the same time in separate cars.
Terrance went to Benton Harbor and Purdiman turned off the
highway to go to the casino. A surveillance tape from the
Blue Chip Casino showed Alkhalidi and Purdiman leaving the
casino at the same time around 2:37 in the morning on May 3,
On May 3, 1999, around 12:30 or 1:00 p.m., Purdiman spoke
with Kimberly Holmes and Marjorie Scott in South Bend,
Indiana. Purdiman said that he was going over to
Alkhalidi's house because they were going back to the
On May 4, 1999, a neighbor saw Alkhalidi washing and
shampooing the inside of his car and scrubbing the mats of
his car. That same day, Alkhalidi went to the Blue Chip
Casino and “bought in” for $1, 600, which was
unusual for him because his typical “buy in” was
fifty to one hundred dollars.
After being unable to reach Purdiman, Terrance and Chantae
Taylor, Purdiman's girlfriend, filed a report with the
Elkhart Police on May 6, 1999. Taylor and Terrance went
through some of Purdiman's personal effects at
Taylor's house and found a piece of paper with
Alkhalidi's phone number on it.
On May 8, 1999, a call was placed from Purdiman's cell
phone at 11:01 p.m. to Dawn Schooley, a woman that Alkhalidi
had a child with in 1997. That same day, the Berrien County
Sheriff's Department in Michigan received a call that a
body was found in the woods. The body was partially burned.
The police identified the body as Purdiman. Purdiman died due
to a gunshot wound to the head, which was caused by a .44
caliber or .45 caliber bullet. Purdiman's vehicle was
discovered in Michigan, and it did not have a license plate.
The police spoke to a casino employee who identified the man
on the video as Alkhalidi, and the police obtained
Alkhalidi's address from his gaming card. The Berrien
County Sheriff's Department contacted the Indiana
authorities after obtaining Alkhalidi's name.
On May 13, 1999, Detective Dave Roseneau of the Berrien
County Sheriff's Department and members of the State
Police observed Alkhalidi's residence in South Bend,
Indiana. Alkhalidi drove up to his residence and exited his
vehicle. While detectives spoke with Alkhalidi, Detective
Roseneau saw Purdiman's license plate sitting in the
trunk of Alkhalidi's vehicle, which was open and did not
have a trunk liner.
The detectives asked Alkhalidi about the license plate.
Alkhalidi became “very, very nervous” and then
became “very argumentative.” The detectives asked
to see Alkhalidi's driver's license. Alkhalidi bent
into his vehicle and got a planner out and “was acting
like he was going to show” the officers his
driver's license. Alkhalidi then began patting around on
the seat until Detective Roseneau said, “That's
enough. Get out of there.” Alkhalidi attempted to grab
the license plate out of the car. Alkhalidi came out of the
car, shoved Detective Roseneau to the ground, and ran. The
detectives chased after Alkhalidi until a bystander tackled
Alkhalidi. After obtaining a search warrant for
Alkhalidi's house and vehicle, the police discovered the
trunk liner in a trash can. The police recovered a bottle of
ammonia and Purdiman's license plate from the trunk of
Alkhalidi's vehicle. The police also discovered a Ruger
nine-millimeter handgun, a .45 caliber cartridge, a .45
caliber spent case, a bullet, and Purdiman's driver's
license in Alkhalidi's vehicle. The police discovered
ammonia, wash cloths or towels, a shirt, an empty “Blue
Chip matchbook, ” and a partially burnt piece of paper
that had the word “Blue” on it in a trash can.
The police also discovered an item from the Blue Chip Casino
with Purdiman's name on it. Purdiman's blood was
detected on the floor mat, the towel, the paper towels, a
t-shirt, the trunk mat, and the floor carpeting from the
passenger seat. Alkhalidi's fingerprint was discovered on
the cartridge holder.
After a jury trial in 2000, Alkhalidi was convicted of
murder, robbery, and theft. The trial court sentenced
Alkhalidi to a total sentence of sixty-five years.
* * *
In 2002, Alkhalidi filed a petition for post-conviction
relief. The trial court granted Alkhalidi's petition for
post-conviction relief and ordered a new trial.
* * *
The jury found Alkhalidi guilty as charged [at the second
trial in 2008]. The trial court merged Count I, murder, and
Count III, felony murder. The trial court convicted Alkhalidi
of Count I, murder, Count II, theft as a class D felony, and
Count IV, robbery as a class B felony. The trial court
sentenced Alkhalidi to fifty-five years for murder, ten years
for robbery as a class B felony, and eighteen months for
theft as a class D felony. The trial court ordered that the
sentences for murder and robbery be served consecutively. The
trial court ordered that the sentence for theft run
concurrently with the sentence for robbery. Thus, Alkhalidi
received an aggregate sentence of sixty-five years in the
Indiana Department of Correction.
ECF 12-5 at 2-10; Alkhalidi v. State, 912 N.E.2d 448
argues that he is entitled to habeas corpus relief because of
three instances of ineffective assistance of counsel: (1)
failing to inform him of a plea offer before it expired; (2)
failing to insist that the trial court answer the jury's
question regarding accomplice liability correctly; and (3)
failing to request a jury instruction on the lesser-included
offense of assisting a criminal.
considering the merits of a habeas petition, I need to enter
the labyrinth otherwise known as procedural default. For
petitioners, it's a fraught process: make one false move,
and your case is a goner. The first step is ensuring that
Alkhalidi has exhausted all available remedies in state
court. 28 U.S.C. § 2254(b)(1)(A); Lewis v.
Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). To avoid
procedural default, a habeas petitioner must fully and fairly
present his federal claims to the state courts. Boyko v.
Parke, 259 F.3d 781, 788 (7th Cir. 2001). Fair
presentment “does not require a hypertechnical
congruence between the claims made in the federal and state
courts; it merely requires that the factual and legal
substance remain the same.” Anderson v.
Brevik, 471 F.3d 811, 814-15 (7th Cir. 2006) (citing
Boyko, 259 F.3d at 788). It does, however, require
“the petitioner to assert his federal claim through one
complete round of state-court review, either on direct appeal
of his conviction or in post-conviction proceedings.”
Lewis, 390 F.3d at 1025 (internal quotations and
citations omitted). “This means that the 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.
“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
presented his claim that trial counsel was ineffective for
failing to inform him of a plea offer to the Indiana Supreme
Court and the Court of Appeals of Indiana at the
post-conviction relief stage. ECF 12-8 at 14; ECF 12-12 at 2.
Therefore, I will consider the merits of this claim. But he
did not present his remaining claims to the State court and
so those claims are procedurally defaulted.
habeas petitioner can overcome a procedural default by
showing both cause for failing to abide by state procedural
rules and a resulting prejudice from that failure.
Wainwright v. Sykes, 433 U.S. 72, 90 (1977);
Wrinkles v. Buss, 537 F.3d 804, 812 (7th Cir. 2008).
Cause sufficient to excuse procedural default is defined as
“some objective factor external to the defense”
which prevented a petitioner from pursuing his constitutional
claim in state court. Murray v. Carrier, 477 U.S.
478, 492 (1986).
excuse procedural bar, Alkhalidi asserts that he had
ineffective assistance of counsel during the post-conviction
relief stage. As a general rule, “[n]egligence on the
part of a prisoner's postconviction attorney does not
qualify as cause.” Maples v. Thomas, 565 U.S.
266, 280 (2012). However, “[i]nadequate assistance of
counsel at initial-review collateral proceedings may
establish cause for a prisoner's procedural default of a
claim of ineffective assistance at trial.” Martinez
v. Ryan, 566 U.S. 1, 9 (2012); Brown v. Brown,
847 F.3d 502 (7th Cir. 2017). Alkhalidi alleges, first, that
his PCR lawyer provided ineffective assistance and, second,
that he received ineffective assistance of trial counsel in
the two procedurally defaulted claims. “[A] prisoner
must also demonstrate that the underlying
ineffective-assistance-of-trial-counsel claim is a
substantial one, which is to say that the prisoner must
demonstrate that the claim has some merit.”
Martinez, 566 U.S. at 14. I will assume without
deciding that his post-conviction counsel was ineffective and
that the two defaulted claims have some merit, and I will
therefore consider the claims. See 28 U.S.C. §
getting into the merits of the issues presented by this
petition, let's first set out some basics about the
standards that govern the decision making. Habeas corpus is
an important error correction tool that helps to ensure the
proper functioning of the criminal justice system. But the
available relief is very limited. “Federal habeas
review ... exists as a guard against extreme malfunctions in
the state criminal justice systems, not a substitute for
ordinary error correction through appeal.” Woods v.
Donald, 135 S.Ct. 1372, 1376 (2015) (quotations and
citation omitted). Habeas relief can only be granted in one
of two ways: if it is shown that the adjudication of the
claim by the state court resulted “in a decision that
was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States;” or if the state court
decision was 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).
a demanding standard. Indeed, it has been described by the
Supreme Court as being “intentionally difficult to
meet. We have explained that clearly established Federal law
for purposes of §2254(d)(1) includes only the holdings .
. . of this Court's decisions. And an unreasonable
application of those holdings must be objectively
unreasonable, not merely wrong; even clear error will not
suffice.” Woods, 135 S.Ct. at 1376 (quotation
marks and citations omitted). What this means is that to
succeed on a habeas claim the petitioner must show that the
state court's ruling “was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. See also
Harrington v. Richter, 562 U.S. 86, 101 (2011).
brings us to the law that applies to Alkhaildi's specific
claims of ineffective assistance of counsel. To prevail on an
ineffective assistance of counsel claim, a petitioner must
show that counsel's performance was deficient and that
the deficient performance prejudiced him. Strickland v.
Washington, 466 U.S. 668 (1984). The test for prejudice
is whether there was a reasonable probability that “but
for counsel's unprofessional errors, the result of the
proceeding would have been different.” Id. at
694. A reasonable probability is a probability
“sufficient to undermine confidence in the
outcome.” Id. at 693. In assessing prejudice
under Strickland “[t]he likelihood of a
different result must be substantial, not just
conceivable.” Harrington, 562 U.S. at 112.
However, “[o]n habeas review, [the] inquiry is now
whether the state court unreasonably applied
Strickland.” McNary v. Lemke, 708
F.3d 905, 914 (7th Cir. 2013). “Given this high
standard, even ‘egregious' failures of counsel do
not always warrant relief.” Id.
noted above, Alkhalidi raises three instances of ineffective
assistance of counsel. The first issues involves how his
attorney handled the plea offer that was made to Alkhalidi
some months prior to trial. The second relates to how trial
counsel handled the response to a jury question. And finally,
the third claim of ineffectiveness relates to trial
counsel's handling of a jury instruction issue. I will
take each issue in turn below.
Alleged Ineffectiveness Relating to the Plea Offer
most substantial claim is that the State court's decision
that he was not prejudiced by trial counsel's failure to
advise him of the plea offer was unreasonable. He argues
that, in reaching this decision, the State court applied the
incorrect standard and unreasonably determined that, as a
matter of fact, Alkhalidi would not have accepted the plea
offer even if it were assumed the offer was not presented to
him. Alkhalidi also argues that the court's back up
argument - that the trial court would not have accepted the
plea agreement even if it were entered into by Alkhalidi -
how things unfolded prior to trial related to plea
negotiations: During the pretrial proceedings for
Alkhalidi's retrial, on September 13, 2007, the
prosecution sent a letter addressed to trial counsel with a
The best offer I can extend to resolve this case is that Mr.
Alkhalidi enters a plea of guilty to Robbery, Class A Felony
and Auto Theft, Class D Felony. At sentencing, the State
would dismiss the remaining counts and both parties are free
to argue at sentencing.
Please discuss this offer with your client and let Chris
Wrage know, because I will not be in the office much longer
and she will be handling this case. The deadline for this
offer is September 21, 2017 at 4:00 p.m.
PCR. Ex. B.
pretrial hearing, on October 16, 2007, the trial court held a
hearing to address Alkhalidi's motion for change of
counsel, which included a discussion of the plea offer. I set
it out at length below because of the importance to the issue
presently before me:
Alkhalidi: And most recently, basically,
from the period of late August and early September, was there
is a plea negotiation between my attorney. Which is the only
thing I'm aware of is there is a plea investigation. On
September 24, you know, I noticed that. They can't let me
know, say, well, this is what they offer you. They offer you
a class B, you know, a class A, you know.
Prosecution: Judge, we probably
shouldn't get into all the specific plea negotiations in
front of the court, I don't think, but there were
The Court: No. I think that we've got to
make the record here.
Prosecution: The problem, yes, we did send a
letter to Mr. Skodinksi--
Prosecution: Excuse me. With a timeline on
it, with a plea offer, and it was told to us that he had no
interest in it.
Alkhalidi: Oh, that's correct. I have
not get the letter. The letter, you know, I specifically,
because if there's negotiation, if there is a period, I
was supposed to be involved. I'm supposed to know the--
The Court: He transmitted it to you.
The Court: He told you about it.
Alkhalidi: Yes, he told me about it.
The Court: Yeah.
Alkhalidi: But that was exactly the date. I
mean, the time's already expired, and it's for the
crime is not even on the [inaudible]. The crime has to ...