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Clover v. Superintendent

United States District Court, N.D. Indiana

February 19, 2019

SEAN W. CLOVER, Petitioner,
v.
SUPERINTENDENT, Respondent.

          OPINION AND ORDER

          ROBERT L. MILLER, JR. JUDGE

         Sean W. Clover, a prisoner without a lawyer, filed a habeas corpus petition to challenge his convictions for two counts of dealing cocaine under Cause No. 3D01-1002-FA-263. After a jury trial, the Bartholomew Superior Court sentenced Mr. Clover to forty years of incarceration.

         FACTUAL BACKGROUND

         In a brief filed with the Court of Appeals of Indiana on direct appeal, Mr. Clover summarized the facts of his case as follows:

On two occasions - August 21, 2008, and September 5, 2008 -Detective Grant Martin, an undercover officer with the Columbus Police Department, contacted the Defendant, Sean W. Clover, by telephone in order to set up the purchase of more than three (3) grams of cocaine.
On August 21, 2008, after requesting Mr. Clover provide him with one-quarter (1/4) ounce of cocaine, he drove to Mr. Clover's residence. Mr. Clover joined him in the vehicle, then directed him to Beech Acres Trailer Park where Mr. Clover exchanged currency with another individual for a quantity of cocaine; the money he exchanged included $350.00 in cash provided by Det. Martin. They returned to Mr. Clover's home where Mr. Clover weighed out one-quarter (1/4) ounce of cocaine, gave it to Det. Martin, and kept the rest. Laboratory tests later confirmed that the substance provided to Det. Martin was cocaine; it weighed 6.82 grams.
On September 5, 2008, this time after requesting Mr. Clover provide him with one-half (1/2) ounce of cocaine, Det. Martin again drove to Mr. Clover's residence. Again, Mr. Clover joined him in the vehicle, then directed him back to Beech Acres Trailer Park. After Det. Martin provided Mr. Clover with $550.00 in cash, Mr. Clover left the vehicle and returned later with a quantity of cocaine he promptly handed to Det. Martin. Laboratory tests later confirmed that the substance provided to Det. Martin was cocaine; it weighed 13.36 grams.
After obtaining the cocaine on September 5, 2008, it was time to take Mr. Clover back to his residence. However, Det. Martin had arranged with another police officer to make a “bogus” traffic stop of his vehicle. This stop was intended to verify Mr. Clover's identity. Mr. Clover had been referring to himself as Bobby Johnson. (Det. Martin had been referring to himself as Matt.) Therefore, on the way to Mr. Clover's residence, Officer Morgan Homer stopped Det. Martin's vehicle; he indicated that he stopped the vehicle because “Matt” had been swerving. He proceeded to check the identity of both men, and he was able to verify the defendant's identity as Scan W. Clover. Once the stop was completed, Det. Martin proceeded to take Mr. Clover home.
* * *
On September 10, 2010, the jury convicted Mr. Clover of both counts as charged. On October 26, 2010, the trial court sentenced Mr. Clover to forty (40) years on each count, to be run concurrently.

         Brief for Appellant at 3-6, Clover v. State, No. 3A04-1010-CR-675 (Ind.Ct.App. March 28, 2011), 2011 WL 1849276.

         Mr. Clover says his trial counsel was ineffective for: (1) failing to challenge the traffic stop for lack of probable cause; (2) failing to object to an audio recording at trial on the basis of authenticity and as a violation of his rights under the Confrontation Clause; (3) failing to object to the prosecution's violation of the order of separation between witnesses with respect to Detective Neal; and (4) failing to impeach Detective Martin's testimony about the authenticity of the audio recording.

         PROCEDURAL DEFAULT

         Before considering the merits of a habeas petition, a federal 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). 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 requires “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 v. Sternes, 390 F.3d at 1025 (internal quotations and citations omitted). If the State court declines to address the petitioner's claims based on a lack of ...


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