United States District Court, N.D. Indiana, South Bend Division
STEPHEN M. LEHMAN, Petitioner,
v.
WARDEN, Respondent.
OPINION AND ORDER
JON E.
DEGUILIO JUDGE, UNITED STATES DISTRICT COURT
Stephen
M. Lehman, a prisoner without a lawyer, filed a habeas corpus
petition to challenge his conviction for dealing controlled
substances under Cause No. 35D01-904-FA-63. Following a jury
trial, on August 11, 2009, the Huntington Superior Court
sentenced him as a habitual offender to forty-two years of
incarceration.
FACTUAL
BACKGROUND
In
deciding this habeas petition, the court 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 Court of Appeals of Indiana summarized
the evidence presented at trial:
In August of 2008, Huntington City Police Detective Michael
Slagel (Detective Slagel) worked with Charles Howard
(Howard), a confidential informant. On August 5, 2008, Howard
contacted Detective Slagel to inform the detective that he
had a deal set up. Detective Slagel contacted other officers
to help with the transaction and they all met with Howard at
a predetermined meeting place. At the meeting place,
Detective Slagel searched Howard and his vehicle and placed
an electronic device on him. He also handed Howard $200 to
purchase drugs.
Howard, followed by the officers, traveled to 626 Court
Street in Huntington, Indiana. The officers saw Howard pull
into the alley at the residence and then lost visual contact.
However, Detective Slagel was able to hear the transaction on
the audio device and recognized both Howard and Lehman's
voice. Detective Slagel heard Howard and Lehman talk about
weighing out different amounts of cocaine, and discuss a
“ball, ” “powder, ” and “doing
a line.” Huntington City Police Detective Cory Boxell
(Detective Boxell), who also monitored the transaction
through the audio device, heard Lehman talk about his
upcoming appointment with his probation officer. When the
transaction was complete, Howard left the residence and drove
to the meeting place while being followed by the officers. At
the meeting place, Howard handed Detective Slagel a clear
plastic bag containing a white powdery substance. This
substance tested positive for cocaine.
On August 20, 2008, Detective Slagel received another call
from Howard about setting up another deal with Lehman. Again,
a meeting was set up at a predetermined place where Howard
was searched. He was fitted with an electronic listening
device and given money to buy drugs. Howard and the officers
drove to Lehman's residence in separate vehicles. Howard
pulled into the alley and Huntington City Police Detective
Chad Hacker (Detective Hacker) saw Lehman walk up to
Howard's vehicle. Detective Slagel and Officer Boxell,
who were monitoring the audio device, heard Howard talk to
Lehman about twenty milligram pills and thirty milligram
pills. When the transaction was completed, Howard returned to
the meeting place with the officers in tow and gave Detective
Slagel a clear plastic bag with ten orange twenty-milligram
Adderall capsules. In the fall of 2008, Howard died of a drug
overdose.
On April 2, 2009, the State charged Lehman with Count I,
dealing in cocaine, a Class A felony, I.C. § 35-48-4-1;
and Count II, dealing in a schedule I, II, or III controlled
substance, a Class A felony, I.C. § 35-48-4-2. The next
day, the State amended this charging information by adding an
habitual substance offender Count, I.C. § 35-50-2-10. On
July 9 and 10, 2009, a jury trial was conducted. At the close
of the evidence, the jury returned a guilty verdict on Counts
I and II. Thereafter, Lehman pled guilty to the habitual
substance offender charge. On August 11, 2009, during the
sentencing hearing, the trial court sentenced Lehman to
concurrent sentences of thirty-six years each on Counts I and
II, and enhanced the sentence on Count I by six years because
of the habitual substance adjudication. Lehman's
aggregate sentence amounted to forty-two years.
ECF 6-5 at 2-4; Lehman v. State, 87 N.E.3d 61
(Ind.Ct.App. 2017).
Lehman
argues that he is entitled to habeas relief on the basis that
the trial court violated his rights under the Confrontation
Clause by admitting two audio recordings of a deceased
informant. He further argues that trial counsel was
ineffective for having a conflict of interest, for failing to
investigate the controlled buys, including their location and
the amount of controlled substances, and for failing to
present several witnesses. He also argues that appellate
counsel was ineffective for failing to raise an argument
under the Indiana Constitution and for failing to investigate
the audio recordings of the deceased informant.[1]
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). 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.
Lehman
presented his Confrontation Clause claim to the Court of
Appeals of Indiana and the Indiana Supreme Court on direct
appeal. ECF 6-2; ECF 6-6. At the post-conviction relief
stage, Lehman also properly exhausted his claims that trial
counsel failed to represent him free from conflict, failed to
investigate the controlled buys, including their location and
the amount of controlled substances, and failed to call
several witnesses. ECF 6-9; ECF 6-13. However, while Lehman
raised ineffective assistance of appellate counsel claims
before the Huntington Superior Court, he did not raise them
on appeal. ECF 6-9. Lehman is thus procedurally barred from
pursuing the ineffective assistance of appellate counsel
claims on habeas review, and the court will not consider them
on the merits.
STANDARD
OF REVIEW
“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).
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim-
(1) 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
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
...