United States District Court, S.D. Indiana, Indianapolis Division
ORDER GRANTING MOTION TO DISMISS AND DENYING
CERTIFICATE OF APPEALBILITY
WALTON PRATT, JUDGE
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. , is granted, Mr.
Briscoe’s petition for a writ of habeas corpus is
denied, and a certificate of appealability
will not issue.
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
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).
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.
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.
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.
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 ...