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Briscoe v. Warden, Pendleton Correctional Facility

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

September 27, 2019

THEODORE BRISCOE, Petitioner,
v.
WARDEN, Pendleton Correctional Facility, [1] Respondent.

          ORDER GRANTING MOTION TO DISMISS AND DENYING CERTIFICATE OF APPEALBILITY

          TANYA WALTON PRATT, JUDGE

         Petitioner Theodore Briscoe was convicted of carrying a handgun without a license with a prior conviction within 15 years, felony resisting law enforcement, and misdemeanor resisting law enforcement in an Indiana state court. Mr. Briscoe now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondent filed a motion to dismiss arguing that Mr. Briscoe’s claims are procedurally defaulted. Mr. Briscoe responded, the respondent replied, and Mr. Briscoe surreplied. The motion is now ripe for review. For the reasons explained below, the respondent’s motion to dismiss, dkt. [8], is granted, Mr. Briscoe’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 Supreme Court summarized the relevant facts and procedural history as follows:

In the evening of February 1, 2016, Officer Matthew Minnis observed a vehicle turn without signaling. He checked the license plate of the vehicle and discovered it was stolen. After calling for backup, Officer Minnis activated his emergency lights and air horn. Instead of stopping, the vehicle accelerated and a high-speed chase ensued through residential areas of northwest Indianapolis.
The chase ended when the vehicle struck a house. Officer Minnis and Officer Craig Solomon helped pull Briscoe out of the car. The officers placed Briscoe on his stomach on the ground. Officer Minnis testified there was nothing on the ground when they placed Briscoe on the ground. Officer Minnis testified Briscoe initially refused to put his hands behind his back, kept his hand “directly under the center of his body towards his belt line[, ]” (Tr. Vol. II at 18), and “approximately in 10 or 15 seconds of pulling out his hands we were able to get his hands behind his back, handcuffed him and at that time we rolled him over to search his person and that’s where we located the small black handgun[.]” (Id. at 17).

Briscoe v. State, No. 49A04–1709–CR–2327, 2018 WL 2228118, at *1 (Ind.Ct.App. May 16, 2018).

         A jury found Mr. Briscoe guilty of carrying a handgun without a license as a Level 5 felony, resisting law enforcement by use of a vehicle as a Level 6 felony, and resisting law enforcement as a Class A misdemeanor. He was sentenced to an aggregate sentence of eight years.

         On direct appeal, Mr. Briscoe challenged the sufficiency of the evidence to support his felony resisting-law-enforcement and handgun convictions. Dkt. 8-2. The Indiana Court of Appeals affirmed his convictions on May 16, 2018. He did not seek transfer to the Indiana Supreme Court. Dkt. 8-3.

         Mr. Briscoe filed a petition for post-conviction relief raising six instances of deficient performance by his trial counsel and one instance of deficient performance by his appellate counsel. The post-conviction court denied the petition, and Mr. Briscoe did not appeal.

         He filed his present petition for a writ of habeas corpus in this Court on May 29, 2019. Dkt. 1. In his petition, he makes the following claims:

• A conspiracy existed among the trial judge, his trial counsel, and the prosecuting attorney.
• The State exercised racially motivated peremptory challenges in violation of Batson v. Kentucky, 476 U.S. 79 (1986).
• The underlying conviction that enhanced his present handgun-carrying conviction “was unconstitutional.” • His trial counsel was ineffective for failing ...

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