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Alkhalidi v. Warden

United States District Court, N.D. Indiana, South Bend Division

February 1, 2019

ABDULLAH ALKHALIDI, Petitioner,
v.
WARDEN, Respondent.

          OPINION AND ORDER

          PHILIP P. SIMON, JUDGE

         Abdullah 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.

         Factual Background

          In 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, 1999.
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 gambling boat.
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 (Ind.Ct.App. 2009).

         Alkhalidi 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.[1]

         Procedural Default

          Before 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 claim.” Id.

         Alkhalidi 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.

         A 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).

         To 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. § 2254(b)(2).

         Legal Standards

         Before 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).

         This is 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).

         That 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.

         Discussion

          As 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.

         A. Alleged Ineffectiveness Relating to the Plea Offer

         Alkhalidi's 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 - was unreasonable.

         Here's 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 plea offer:

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.

         At a 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 negotiations.
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--[2]
Alkhalidi: Which-- 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.
Alkhalidi: No.
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 ...

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