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Garrett v. Knight

United States District Court, S.D. Indiana, Indianapolis Division

May 28, 2019

EQWAN GARRETT, Petitioner,
v.
WENDY KNIGHT, Respondent.

          Henry A. Flores, Jr., INDIANA ATTORNEY GENERAL.

          Kelly A. Loy OFFICE OF THE INDIANA ATTORNEY GENERAL.

          Mark Small ATTORNEY AT LAW.

          ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS

          HON. JANE MAGNUS-STINSON, CHIEF JUDGE.

         Petitioner Eqwan Garrett was convicted of several drug and firearm-related charges in an Indiana state court. Mr. Garrett now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

         The Court previously denied his first four grounds for relief and claims 3, 5, 7, 8, and 9 of his fifth ground for relief and ordered the parties to brief claims 1, 2, 4, and 6, made in his fifth ground for relief. Dkt. 23. The Court finds that the four remaining claims of ineffective assistance of trial lack merit even if they had not been procedurally defaulted. Therefore, Mr. Garrett's petition for a writ of habeas corpus is denied and a certificate of appealability will not issue.

         I.

         Background

         Federal habeas review requires the Court to “presume that the state court's factual determinations are correct unless the petitioner rebuts the presumption by clear and convincing evidence.” Perez-Gonzalez v. Lashbrook, 904 F.3d 557, 562 (7th Cir. 2018); see 28 U.S.C. § 2254(e)(1). On direct appeal, the Indiana Court of Appeals summarized the relevant facts and procedural history as follows:

In 2007, after a year-long surveillance operation of a residence on North Pershing Avenue in Marion County, the Indianapolis Metropolitan Police Department (IMPD) suspected that the residence was used as a facility for the manufacture of cocaine. IMPD observed Garrett, along with several other individuals, frequent the residence approximately eight to ten times over the course of the surveillance. While conducting surveillance on July 24, 2007, Detective Jake Hart observed Garrett and two others park near the residence and carry a large duffle bag full of rifles.
On August 14, 2007, officers with IMPD's narcotic[s] division executed a ‘no-knock' search warrant on the residence. SWAT team members Detective Garry Riggs, Sergeant Robert Stradling, and Officer Baker breached the residence through the front door using a battering ram. During this time, police officers loudly announced, ‘[P]olice, search warrant. Everybody get down on the ground!'
Upon entering the house, Detective Riggs and Sergeant Stradling noticed Garrett repeatedly popping out of the second bedroom, approximately ten to twelve feet away from them. Garrett again and again pointed a semi-automatic handgun at Detective Riggs and Sergeant Stradling. Each time, he attempted to fire the handgun, but it misfired. A second SWAT team entered the residence from the rear and secured Garrett in the second bedroom. Three other individuals were also in the house and arrested during the execution of the search warrant.
The police then searched the residence for evidence. In the kitchen, police recovered cocaine, digital scales, over $8, 000, and an assault rifle. In the second bedroom, where police apprehended Garrett, they found a silver and black Smith & Wesson .40 caliber semi-automatic handgun within arm's length of Garrett. No other suspects were in the second bedroom. In the living room, police recovered an additional assault rifle, two handguns, and a magazine for the handgun found near Garrett. The weapons in the living room were within ten feet of where Garrett had stood in the second bedroom.
On August 22, 2007, the State charged Garrett under Cause Number 49G20- 0708-FA-167078 (FA-167078) with: conspiracy to commit dealing in cocaine, a Class A felony; dealing in cocaine, a Class A felony; possession of cocaine, a Class C felony; possession of a firearm by a serious violent felon (possession of a firearm by a SVF), a Class B felony; and pointing a firearm, a Class D felony. On January 22, 2009, the State moved to dismiss the charges, and the trial court granted the motion.
On August 22, 2009, the State charged Garrett, along with four other defendants, with: Count I, conspiracy to commit dealing in cocaine, a class A felony; Count II, dealing in cocaine, a class A felony; Count III, possession of cocaine, a class C felony; Count IV, possession of a firearm by a serious violent felon (possession of a firearm by a SVF), a class B felony; Count V, pointing a firearm, a class D felony; and Count VI, possession of cocaine and a firearm, a class C felony. After a two-day jury trial on Counts I, II, III, V, and VI, the jury found Garrett guilty on Counts, I, V, and VI. The jury convicted Garrett on a lesser included offense on Count III and acquitted him on Count II.
Garrett waived his right to a jury trial on Count IV, possession of a firearm by a SVF and, on November 24, 2010, the trial court found Garrett guilty. At the sentencing hearing, the court entered convictions on conspiracy, possession of a firearm by a SVF, and pointing a firearm. Because of double jeopardy, the court found that the lesser included offense for possession of cocaine merged with the conspiracy conviction, and that possession of cocaine and a firearm merged with conspiracy and possession of a firearm by a SVF. The trial court sentenced Garrett to forty years for conspiracy and twelve years for possession of a firearm by a SVF, both to run concurrently. For pointing a firearm, the court sentenced Garrett to three years to run consecutively to the sentences for conspiracy and possession of a firearm by a SVF, for a total executed term of forty-three years in the Department of Corrections.

Garrett v. State, 953 N.E.2d 676 (Ind.Ct.App. 2011).

         Mr. Garrett's convictions were affirmed on direct appeal and the Indiana Supreme Court denied transfer. Dkts. 17-7, 17-12. On May 10, 2012, Mr. Garrett filed a petition for post-conviction relief. During the evidentiary hearing, Mr. Garrett's post-conviction counsel raised two claims of ineffective assistance of counsel. First, he argued ineffective assistance of trial counsel for the following reasons: failing to file a motion to suppress evidence; failing to make proper objections at trial; failing to effectively cross-examine the State's witness at trial; and failing to file a motion to dismiss under Criminal Rule 4. Dkt. 17-9, p. 34. Second, he argued ineffective assistance of appellate counsel for the following reasons: failing to argue that the criminal charges should have been discharged pursuant to Criminal Rule 4; and failing to argue sufficiency of the evidence. Dkt. 17-9, p. 36.

         The post-conviction court denied the petition. Dkt. 17-9, pp. 29-39. With respect to trial counsel's performance, the post-conviction court found that Mr. Garrett failed to meet his burden of proof to show that counsel made errors so serious they resulted in a denial of the right to counsel guaranteed under the Sixth Amendment. Dkt. 17-9, pp. 35-36. Similarly, as to appellate counsel, the post-conviction court found that Mr. Garrett failed to meet his burden of proof to show that counsel made errors so serious they resulted in a denial of the right to counsel guaranteed under the Sixth Amendment. Dkt. 17-9, p. 37.

         On appeal from the denial of post-conviction relief, Mr. Garrett claimed that: 1) his trial counsel was ineffective for failing to move to suppress evidence obtained as a result of an allegedly illegal search and failing to file a proper motion to dismiss and/or discharge for the violation of Indiana Criminal Rule 4; and 2) he was denied a procedurally fair post-conviction relief hearing. Dkt. 17-9; dkt. 17-12, pp. 5-6. Mr. Garrett also argued that his direct appeal counsel rendered ineffective assistance by failing to raise the Indiana Criminal Rule 4 issue on appeal and for failing to challenge the “sufficiency of the evidence for his conviction of conspiracy to commit dealing in cocaine.” Dkt. 17-12, p. 18. Finally, Mr. Garrett argued that his post-conviction counsel was ineffective because he “should have amended his petition for post-conviction relief to add other claims, submitted additional evidence at the hearing, and submitted proposed findings of facts and conclusions thereon.” Dkt. 17-9, pp. 6, 24-27; dkt. 17-12, p. 24.

         On November 5, 2015, the Indiana Court of Appeals affirmed the denial of post-conviction relief. Dkt. 17-12. On transfer to the Indiana Supreme Court, Mr. Garrett raised only two issues: 1) the Indiana Court of Appeals erred when it incorrectly applied the law with respect to his argument that his criminal charges should have been dismissed pursuant to Indiana Criminal Rule 4; and 2) whether his direct appeal counsel was ineffective for failing to challenge the sufficiency of the evidence with respect to his conviction for conspiracy to commit dealing in cocaine. Dkt. 17-13, pp. 6-7. On March 31, 2016, the Indiana Supreme Court denied transfer. Dkt. 17-2, p. 7. Mr. Garrett filed this action on November 29, 2016. Dkt. 1. The Court previously denied ...


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