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Brown v. Warden

United States District Court, N.D. Indiana, South Bend Division

June 4, 2019

BRYAN KEITH BROWN, Petitioner,
v.
WARDEN, Respondent.

          OPINION AND ORDER

          JON E. DEGUILIO JUDGE

         Bryan Keith Brown, a prisoner without a lawyer, filed a habeas corpus petition to challenge his convictions for felony murder, unlawful possession of a firearm by a serious violent felon, battery, and resisting law enforcement under Case No. 49G01-208-MR-211449. Following a jury trial, on October 3, 2003, The Marion County Superior Court sentenced Brown to sixty 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:

[O]n August 9, 2002, Eric Johnson and Sonia Rivera went to Johnson's apartment at Scarborough Lake Apartments to spend the night. Around 7:00 a.m. the following morning, Johnson went out to Rivera's car to retrieve a CD. Upon returning to his apartment, Johnson heard a noise, and as he turned around, one of three individuals held a gun in his face. The three individuals later identified as Brown, Jonathan Exum, and Lawrence Duff, pushed Johnson into his apartment, and Brown then repeatedly “pistol-whipped” Johnson, causing Johnson to suffer from a deep cut and knot on his head a “busted” lip.
Meanwhile in the back bedroom, Rivera awoke and heard voices coming from the front of the apartment. Shortly thereafter the bedroom door was opened by an individual Rivera described as shorter black male with braids in his hair. This individual was later identified as Brown. Brown entered the bedroom, pulled at the covers which Rivera had wrapped herself in and began asking, “Where it at? Where's it at?” Brown then hit Rivera in the side of the head with the gun causing her pain and a large knot on her head. Brown then asked one of the other individuals to watch Rivera as he forced his way into a second locked bedroom in the apartment. Rivera could hear things falling and being moved around in the second bedroom and as Brown exited the room, he asked, “Where's the shit?” Johnson then struggled with and got away from the third individual who was restraining him in the front of the apartment. Johnson made his way to the bedroom in which Rivera was located and “rushed” Brown. Tr. At 56. During the struggle which ensued, the gun Brown was holding fired. Johnson eventually wrestled the gun away from Brown and threw it across the bed. Johnson retrieved his own gun which was lying on the dresser and began firing. The three intruders tried to leave the apartment. Johnson went to the bedroom doorway and kept firing shots down the hall as the three men were exiting. One of the three, Lawrence Duff, was shot and killed by Johnson. Before exiting the apartment, Brown was shot in the right chest area and in the right buttock.
Johnson and Rivera then left the apartment and drove away from the apartment complex in Rivera's car. They stopped several blocks away, and Johnson called 911. Johnson and Rivera then returned to Johnson's apartment, where police had already arrived. As additional officers responded they set up a perimeter to look for the two suspects who were said to be fleeing on foot. Brian Schemenaur, a Deputy Sheriff with the Marion County Sherriff's Department, observed an individual he believed to be one of the two suspects running in the area of the apartment complex. Deputy Schemenaur was in a marked police car in uniform and identified himself as a police officer before ordering the individual to stop. The individual, later identified as Brown, kept running away from Deputy Schemenaur. Eventually, Deputy Schemenaur came across Brown hiding behind some bushes and was able to apprehend him. While being treated at the hospital Johnson identified Brown as one of the individuals who had accosted him and Rivera.
On August 13, 2002, the State charge Brown with felony murder, conspiracy to commit robbery, unlawful possession of a firearm by a serious violent felon, two counts of battery, carrying a handgun without a license, and resisting law enforcement. A jury trial was held on September 8 and 9, 2003, at the conclusion of which the jury found Brown guilty of all offenses, with the exception of the charge of conspiracy to commit robbery upon which the jury found Brown not guilty. The trial court held a sentencing hearing on October 3, 2003. Because of double jeopardy implication, the trial court vacated Brown's convictions for attempted robbery and carrying a handgun without a license. The trial court then sentenced Brown to concurrent imprisonment for unlawful possession of a firearm by a serious violent felon, eight years on each battery conviction, and 365 days for resisting laws enforcement, for a total aggregate sentence of sixty years.

ECF 7-6 at 2-5.

         Brown challenged his conviction and sentence on direct appeal, but, on October 13, 2004, the Court of Appeals of Indiana affirmed the decision of the trial court. ECF 7-6. On January 6, 2005, the Indiana Supreme Court denied Brown's petition to transfer the case for discretionary review. ECF 7-2 at 3. On September 9, 2005, Brown initiated post-conviction proceedings in Marion Superior Court. ECF 7-1 at 10. On December 7, 2016, [1] after an evidentiary hearing, the Marion Superior Court denied the petition for post-conviction relief. ECF 7-7. Brown filed a notice of appeal, but, on November 3, 2017, the Court of Appeals of Indiana dismissed the appeal, citing Brown's failure to file a timely appellate brief. ECF 7-14.

         Brown argues that he is entitled to habeas corpus relief, alleging that trial counsel was ineffective for: (1) failing to investigate and introduce evidence that Sonia Rivera also fired gunshots during the incident and that the incident was the result of a poorly executed drug deal rather than an attempted robbery; (2) failing to record the interview of Sonia Rivera; (3) preventing Brown from testifying at trial; and (4) failing to object to the prosecution's comments during closing argument. Brown also alleges that his appellate counsel was ineffective for failing to raise arguments about the prosecution's closing arguments and the sufficiency of the evidence.[2]

         PROCEDURAL DEFAULT

         Before considering the merits of a habeas petition, I must ensure that the petitioner has exhausted all available remedies in State court-including seeking relief from the State's highest court. 28 U.S.C. § 2254(b)(1)(A); Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004); O'Sullivan v. Boerckel, 526 U.S. 838 (1999). To bring a claim in federal habeas, the petitioner must have “fully and fairly presented his federal claims” in state court. Rodriquez v. Scillia 193, F.3d 913, 916 (7th Cir. 1999). Moreover, a federal court will deny a petition if the petitioner has presented his or her federal claims to the state courts, but nevertheless, the state dismissed the petition on adequate and independent state procedural grounds. Coleman v. Thompson, 501 U.S. 722, 729-31 (1991). Brown raised several of his ineffective assistance of counsel claims during post-conviction relief proceedings before the Marion Superior Court, but the Court of Appeals of Indiana dismissed his appeal on the basis that he failed to file a timely brief. ECF 7-14. Therefore, his claims are procedurally defaulted.

         Brown argues that his procedural default should be excused. Federal courts may consider procedurally defaulted claims if the petitioner demonstrates “cause for his default and prejudice resulting therefrom, or that a miscarriage of justice will result if we do not consider the merits of his case.” Anderson v. Benik 471 F.3d 811, 815 (7th Cir. 2006). “Cause under the cause and prejudice test must be something external to the petitioner, something that cannot fairly be attributed to him.” Coleman v. Thompson, 501 U.S. 722, 753 (1991). “[T]he existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded [his] efforts to comply with the State's procedural rule.” Id. “For example, a showing that the factual or legal basis for a claim was not reasonably available to counsel, or that some interference by officials' made compliance impracticable, would constitute cause under this standard.” Id.

         Brown argues that his deadline to file his appellate brief was thirty days after the trial court clerk served a “new Notice of Completion of Transcript” but that the trial court clerk never served or filed this notice. After reviewing the record, it appears that Brown misinterpreted arguably ambiguous phrasing in the appellate court's order that set the filing deadline. Though it is unclear whether this phrasing is sufficient to excuse procedural default, Brown's confusion regarding the appellate court's order was understandable in light of his pro se status. As a result, the court will consider the merits of his claims.[3]

         LEGAL STANDARDS

         Habeas Corpus

         “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) (quotations and citation omitted).

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 in the State court proceeding.

28 U.S.C. § 2254(d).

[This] standard is intentionally difficult to meet. We have explained that clearly established Federal law for purposes of ยง2254(d)(1) includes only the holdings, as opposed to the dicta, of this Court's decisions. And an unreasonable application of those holdings must be objectively unreasonable, not merely wrong; even clear error will not suffice. To satisfy this high bar, a habeas petitioner is required to show that the state court's ruling on the claim being presented in federal court was so lacking in ...

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