United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
L. Miller, Jr. Judge
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
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.)
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.
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.
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.
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)).
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
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.
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.
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 ...