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Shell v. Warden

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

February 5, 2019

HENRY LEE SHELL, JR., Petitioner,
v.
WARDEN, Respondent.

          OPINION AND ORDER

          Robert L. Miller, Jr. Judge

         Henry Lee Shell, Jr. a prisoner without a lawyer, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his convictions for dealing in methamphetamine and theft and his fourteen-year sentence by the Miami Circuit Court.

         BACKGROUND

         A court deciding a habeas petition must presume the facts set forth by the state courts are correct. 28 U.S.C. § 2254(e)(1). It is Mr. Shell's burden to rebut this presumption with clear and convincing evidence. Id. On appeal from the denial of post-conviction relief, the Indiana Court of Appeals set forth the facts surrounding Mr. Shell's offenses as follows:

Crop Production Services, a Miami County company, requested police assistance regarding theft from its anhydrous ammonia tanks. The Indiana State Police established a surveillance team and posted officers throughout CPS's remotely located facility. There were approximately eight officers involved in this surveillance operation, which included the use of night-vision goggles and thermal imaging.
A little after 1:00 a.m. on January 14, 2010, a pickup truck pulled up to CPS's anhydrous ammonia storage facility, and one person exited the truck. The officers did not see the person, who was wearing Carhartt-type clothing, carrying anything at this time. The person entered the fenced-in yard of the facility, quickly filled a pitcher with anhydrous ammonia, and ran out of the yard. The officers observed vapors rising from both the tank and the pitcher. The person then squatted down by a utility pole, set the pitcher down, and waited for a few minutes. The truck returned, picked up the person, and left. The officers followed and stopped the truck. There were four people inside the truck, including Shell. Shell, however, was the only person wearing Carhartt-type clothing, and an officer smelled a strong odor of anhydrous ammonia on his clothing. In addition, according to one of the occupants of the truck, they dropped off Shell at CPS's anhydrous ammonia storage facility and later returned to get him. Because no anhydrous ammonia was found in the truck, the officers returned to the utility pole where they had seen the person crouching and found the pitcher, which contained anhydrous ammonia and other ingredients used to manufacture methamphetamine, specifically, lithium and pseudoephedrine. The ingredients were in the beginning stages of manufacturing. The contents of the pitcher were later analyzed and determined to contain methamphetamine. Shell v. State, No. 52A04- 1107-CR-370, 2012 WT 1655164, at*1 (Ind.Ct.App. May 9, 2012), trans. denied.
The State charged Shell with Class B felony dealing in methamphetamine (manufacturing) and Class D felony theft. A jury trial was held in May 2011. During the trial, counsel unsuccessfully attempted to suppress all evidence resulting from the stop of the truck in which Shell was riding. Tr. p. 226-31. Also during the trial, Joni Espenschied, who was in the truck, high on methadone, and was arrested with Shell, testified that Shell got out of the truck and, after some time had passed, the truck stopped again to collect Shell from the side of the road. Id. at 269. She further testified that Shell was wearing a coat which matched the description given by the officers who observed the anhydrous ammonia theft. Id. at 275.
Shell was convicted as charged. The trial court sentenced Shell to fourteen years for dealing in methamphetamine and three years for theft, to be served concurrently.

Shell v. State, No. 52A04-1107-CR-370, 2012 WL 1655164 (Ind.Ct.App. May 9, 2012); See also Shell v. State, 43 N.E.3d 272 (Ind.Ct.App. Dec. 9, 2015) (table); (ECF 4-6; 4-13.)

         Mr. Shell argued on appeal that that there was insufficient evidence to support his conviction and that the trial court abused its discretion by refusing to give two jury instructions. The Indiana Court of Appeals affirmed Mr. Shell's conviction and sentence. Shell v. State, 2012 WL 1655164, at *2. The Indiana Supreme Court, denied his petition for transfer.

         Mr. Shell filed a petition for post-conviction relief, later amended, in the Miami Circuit Court. (ECF 4-8.) After a hearing, the court denied Mr. Shell's request for post-conviction relief. Mr. Shell appealed, arguing that he was denied the effective assistance of trial and appellate counsel. Shell v. State, 43 N.E.3d 272. Mr. Shell argued that his trial counsel was ineffective because he didn't move to suppress evidence gathered as a result of the stop of the truck and seizures of the pitcher, failed to impeach three different witnesses, and failed to timely tender preliminary jury instructions. Mr. Shell argued that his appellate counsel was ineffective because he didn't argue that the initial stop of the truck and seizure of the pitcher were unconstitutional. The Court of Appeals of Indiana denied Mr. Shell's appeal. Id. Mr. Shell sought transfer to the Indiana Supreme Court raising the same issues. The Indiana Supreme Court denied transfer.

         Mr. Shell submitted this federal habeas petition challenging his convictions and sentence, arguing that: (1) he was arrested as a result of an unconstitutional search and seizure; (2) he received ineffective assistance of trial and appellate counsel; and (3) the state court proceedings on his post-conviction relief petition violated the Due Process Clause and Equal Protection Clause.

         DISCUSSION

         Procedural Default

         Before considering the merits of a habeas petition, the court must ensure that the petitioner 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). The warden argues that procedural default bars two of Mr. Shell's claims from review in federal court. “There are two distinct ways in which a state prisoner can procedurally default a federal claim.” Snow v. Pfister, 880 F.3d 857, 864 (7th Cir. 2018). The first occurs in “cases where the state court declines to address a petitioner's federal claims because the petitioner did not meet state procedural requirements.” Id. When a state procedural requirement hasn't been met, “the state court judgment rests on an independent and adequate state ground and principles of comity and federalism dictate against upending the state-court conviction.” Thomas v. Williams, 822 F.3d 378, 384 (7th Cir. 2016) (citing Coleman v. Thompson, 501 U.S. 722, 729-30 (1991)).

         The second type of procedural default “stems from the requirement that a state prisoner must exhaust his remedies in state court before seeking relief in federal court, ” which requires the petitioner include his claims in “one complete round of the State's established appellate review process.” Snow v. Pfister, 880 F.3d at 864 (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). This means “the petitioner must raise the issue at each and every level in the state court system.” Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). A petitioner “who has exhausted his state court remedies without properly asserting his federal claim at each level of state review has procedurally defaulted that claim.” Id. at 1026.

         Mr. Shell challenges the trial court's admission of evidence resulting from the stop of the truck and seizure of the pitcher. Mr. Shell didn't raise these arguments in his direct appeal. Shell v. State, 2012 WL 1655164, at *2. He tried to raise these arguments in his PCR, but the court of appeals declined to consider these arguments as freestanding claims because “[a] defendant in a postconviction proceeding may allege a claim of fundamental error only when asserting either (1) deprivation of the Sixth Amendment right to effective assistance of counsel, or (2) an issue demonstrably unavailable to the petitioner at the time of his or her trial and direct appeal.” Shell v. State, 43 N.E.3d 272 at n. 1 (quoting Lindsey v. State, 888 N.E.2d 319, 325 (Ind.Ct.App. 2008) (internal quotations, citations, and brackets omitted). Because the court of appeals disposed of Mr. Shell's argument on an independent state law ground, this court can't review the merits of this argument as a freestanding claim. Like the court of appeals, however, this court will address the arguments in the context of Mr. Shell's ineffective assistance of counsel claims.

         Mr. Shell also argues in his habeas petition that the state courts deprived him of his rights under the Due Process Clause and Equal Protection Clause by denying his PCR petition. He believes the denial of the petition was an abuse of discretion. The court of appeals found that this ground was waived because Mr. Shell didn't make a cogent argument. Shell v. State, 43 N.E.3d 272 n. 4. The court of appeals also found that this argument appeared to be a derivative of his ineffective assistance claims, which were separately found to lack merit. Id. Because Mr. Shell didn't meet a state procedural requirement, the disposition of Mr. Shell's claim that his rights under the Due Process Clause and Equal Protection Clause were violated rested on an adequate and independent state ground, meaning that this court can't review it.[1]

         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), cert. denied, 129 S.Ct. 2382 (2009). 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). A habeas petitioner can also overcome a procedural default by establishing that the court's refusal to consider a defaulted claim would result in a fundamental miscarriage of justice. House v. Bell, 547 U.S. 518, 536 (2006). To meet ...


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