United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
ROBERT
L. MILLER, JR. JUDGE
Henry
Lee Shell, Jr., a prisoner without a lawyer, filed a motion
he titled as “Motion to Object to Magistrate's
Order.” (ECF 30.) In the motion, Mr. Shell asserts that
the magistrate judge erred by denying his habeas petition
pursuant to 28 U.S.C. § 2254 challenging his convictions
for dealing in methamphetamine and theft and his
fourteen-year sentence by the Miami County Court on July 21,
2011, under cause number 52C01-1001-FB-1 (ECF 1). The order
denying Mr. Shell's petition (ECF 28), however,
wasn't issued by a magistrate judge, and it isn't
subject to review pursuant to Federal Rule of Civil Procedure
72(b). Accordingly, court construes the motion as one to
alter or amend the judgment under Federal Rule of Civil
Procedure 59(e). “Altering or amending a judgment under
Rule 59(e) is permissible when there is newly discovered
evidence or there has been a manifest error of law or
fact.” Harrington v. City of Chicago, 433 F.3d
542, 546 (7th Cir. 2006). “But such motions are not
appropriately used to advance arguments or theories that
could and should have been made before the district court
rendered a judgment, or to present evidence that was
available earlier.” Miller v. Safeco Ins. Co. of
Am., 683 F.3d 805, 813 (7th Cir. 2012).
In
denying Mr. Shell's habeas petition, the court determined
that some of Mr. Shell's grounds for relief were
procedurally defaulted. Mr. Shell's petition challenged
the trial court's decision to admit evidence resulting
from the stop of the truck and seizure of the pitcher, but
Mr. Shell didn't raise these arguments in his direct
appeal. Shell v. State, No. 52A04-1107-CR-370, 2012
WL 1655164, *2 (Ind.Ct.App. May 9, 2012). And, while he did
raise these arguments in his petition for post-conviction
relief, the Indiana Court of Appeals declined to consider
these arguments as freestanding claims. The court of appeals
instead disposed of Mr. Shell's argument on the basis of
an independent state law. Shell v. State, 43 N.E.3d
272 at n. 1 (Ind.Ct.App. Dec. 9, 2015) (table). Thus, this
court determined that it was barred from reviewing the merits
of Mr. Shell's argument as a freestanding claim, although
the argument was addressed in the context of Mr. Shell's
ineffective assistance of counsel claims. In his petition,
Mr. Shell also argued that the state courts deprived him of
his rights under the Due Process Clause and Equal Protection
Clause by denying his petition for post-conviction relief,
but the court of appeals found that this ground was waived
because Mr. Shell did not make a cogent argument, Shell
v. State, 43 N.E.3d 272 n. 4, [1] barring this court from
reviewing the issue. 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 and so is barred from
review by this court.[2]
While 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, Mr. Shell
didn't present any basis for excusing his procedural
default on these claims in his petition. See 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). Now, Mr. Shell argues
that the court's refusal to consider the defaulted claims
would result in a fundamental miscarriage of justice because
he is innocent. House v. Bell, 547 U.S. 518, 536
(2006). To meet this “actual innocence”
exception, the petitioner must establish that “a
constitutional violation has resulted in the conviction of
one who is actually innocent of the crime.” Schlup
v. Delo, 513 U.S. 298, 324 (1995). “[I]f a
petitioner . . . presents evidence of innocence so strong
that a court cannot have confidence in the outcome of the
trial unless the court is also satisfied that the trial was
free of nonharmless constitutional error, the petitioner
should be allowed to pass through the gateway and argue the
merits of his underlying claims.” Id. at 316.
The petitioner must show that “in light of new
evidence, it is more likely than not that no reasonable juror
would have found petitioner guilty beyond a reasonable
doubt.” Gladney v. Pollard, 799 F.3d 889, 896
(7th Cir. 2015). “[The] evidence must . . . be new in
the sense that it was not before the trier of fact.”
Arnold v. Dittmann, 901 F.3d 830, 836-837 (7th Cir.
2018). “The actual innocence standard is a demanding
one that permits review only in the extraordinary
case.” Coleman v. Lemke, 739 F.3d 342, 349
(7th Cir. 2014). Mr. Shell waived this argument by not
raising it in either his petition or traverse, But in any
event, he hasn't made the necessary showing. The court
stands by its ruling that these claims are procedurally
defaulted.
This
court addressed Mr. Shell's ineffective assistance of
counsel claims on the merits. In his petition, Mr. Shell
argued that his trial counsel was ineffective because he
didn't impeach three separate witnesses: Joni
Espenschied, Officer Josh Maller, [3] and Officer Robert Land. Mr.
Shell argued that his trial counsel was ineffective when he
failed to impeach Joni Espenschied about her use of a
“large amount” of methadone. Her methodone use,
however, had already been explored on direct examination, and
the court of appeals reasonably determined that there was not
a reasonable probability that revisiting this on
cross-examination would have led to a different outcome for
Mr. Shell. He appears to concede this point, as he indicated
in his traverse that he wouldn't be addressing this issue
(ECF 12 at 25), and he hasn't revisited this issue in his
motion to reconsider.
This
court also decided that the court of appeals reasonably
applied constitutional precedent, see Strickland v.
Washington, 466 U.S. 668 (1984), when it determined that
failure to impeach Officer Josh Maller wasn't ineffective
assistance of counsel. The court of appeals addressed Mr.
Shell's argument as follows:
Shell next argues that the testimony of Indiana State Police
Officer Josh Mailer, one of the officers who participated in
the surveillance of the CPS facility and Shell's arrest,
gave trial testimony that was inconsistent with other
evidence and that trial counsel should have impeached him
with the other evidence. Specifically, Officer Mailer
testified at trial that the suspect ran “diagonally
northeast from the fence directly to the pole
described.” Id. at 222. He further testified
at trial that he could not see which side of the truck the
suspect got into, he “could just tell that he went up
to the cab and entered it.” Id. at 223. Shell,
once again, has failed to demonstrate a reasonable
probability that, but for counsel's cross-examination on
these two points, he would have been found not guilty.
Officer Mailer testified that he saw a person dressed like
Shell take the ammonia, run back to the road near the utility
pole, and then a truck stopped near that location. Shell was
subsequently found in that pick-up truck. He was the only one
wearing similar clothing, and he smelled of ammonia. We see
no reasonable probability that impeaching either of these
details from Officer Mailer's testimony would have
changed the verdict.
Shell v. State, 43 N.E.3d 272 at *4. This
determination was reasonable: in light of the description of
the suspect's clothes, the similarity of Mr. Shell's
clothes to the description, and the strong smell of ammonia
coming from Mr. Shell, it was improbable that efforts to
impeach Officer Maller about the direction the suspect ran or
his inability to see him enter the cab of the truck would
have impacted the outcome of Mr. Shell's trial. In
reaching this conclusion, this court examined both the
“Call Card Report” or “CAD” and the
probable cause affidavit that Mr. Shell relies upon in his
motion to reconsider. (ECF 30-1). This court has again
examined these documents and stands by its ruling.
This
court also decided that the Indiana Court of Appeals
reasonably applied Strickland when it determined
that failure to impeach Officer Land's testimony did not
amount to ineffective assistance of counsel. The court of
appeals addressed Mr. Shell's argument as follows:
Finally, Shell argues that trial counsel was ineffective
because he did not impeach Indiana State Police Sergeant
Robert Land's testimony about his distance from the scene
by holding a ruler to the scaled picture and forcing Sergeant
Land to calculate the distance more precisely. Sergeant Land,
who was among the officers assigned to the surveillance of
CPS on the night Shell was arrested, testified that he was
approximately 150 yards from the anhydrous ammonia facility.
Id. at 315. Trial counsel had another witness, who
worked at CPS, use a ruler to calculate the distance to
Officer Land's position and he testified that Officer
Land's location was closer to 3500 feet away from the
facility. Id. at 161. Trial counsel highlighted this
discrepancy in his closing argument. Id. at 352.
Additionally, trial counsel elicited testimony on cross
examination of Sergeant Land that he was too far away to see
the person who got out of the truck clearly enough to offer a
description or identification-whether that distance was 150
yards or 3500 feet. Id. at 316. Shell fails to
explain how a different presentation of Officer Land's
location, or the dispute over the distance of Officer
Land's location from the anhydrous ammonia tank, would
have led to a different result.
Shell v. State, 43 N.E.3d 272 at *5. This is a
reasonable application of the Strickland standard.
The jury knew that there was a discrepancy between Officer
Land's estimate of 150 yards and the distance that the
other witness measured, and the jury knew that, from his
location, Officer Land couldn't describe or identify the
suspect. Mr. Shell's trial counsel highlighted this
discrepancy in his closing argument. It was reasonable to
conclude that cross-examination of Officer Land on this issue
would not have a reasonably probable impact on the outcome of
this case. The court also stands by this ruling.
Mr.
Shell didn't properly raise a claim that his trial
counsel was ineffective for failure to more to suppress
evidence obtained from the stop of the truck or the seizure
of the pitcher, this court considered the argument and
determined that had he raised the argument in his petition
rather than his traverse, he wouldn't have succeeded. The
court of appeals reasonably applied Strickland when
it decided that the stop and search of the truck and the
seizure of the pitcher were proper. Id. The Indiana
Court of Appeals found that the stop of the truck was lawful
under Terry v. Ohio, 392 U.S. 1 (1968).
Here, officers stopped the truck Shell was riding in because,
at a little after 1:00 in the morning, several police
officers observed a person get out of a truck, run across a
field, enter CPS's property, remove anhydrous ammonia
from a tank, and return to the road. A short time later, the
truck returned and stopped, and it appeared that the person
who had taken the anhydrous ammonia reentered the truck.
These facts are sufficient to warrant a Terry stop
of the truck under both the Fourth Amendment and the Indiana
Constitution.
Shell v. State, 43 N.E.3d 272 at *4. The pitcher
could be seized without a warrant because it was abandoned.
Id. The Indiana Court of Appeals noted that
“[n]either the Fourth Amendment nor the Indiana
Constitution afford any protection for items abandoned in a
public location.” Id. (citing California
v. Hodari D.,499 U.S. 621, 629 (1991); Gooch v.
State, 834 N.E.2d 1052, 1053 (Ind.Ct.App. 2005)). The
court of appeals reasonably concluded that Mr. Shell
hadn't demonstrated his counsel was ineffective ...