Opinion
CAUSE NO. IP 98-0089-C H/K
August 11, 2003
ENTRY ON PETITION FOR WRIT OF HABEAS CORPUS
Indiana prisoner David Bowley was convicted of four counts of Dealing Cocaine, charged as Class A felonies under Indiana law. Bowley is serving three concurrent 30-year sentences and a consecutive 30-year sentence. Bowley's conviction was affirmed on direct appeal. Bowley v. State, No. 34A02-9012-CR-738 (Ind.App. Dec. 12, 1991) (unpublished) (Bowley I). He did not seek further review of that decision by the Indiana Supreme Court. In 1994, Bowley sought post-conviction relief. The trial court denied his petition for post-conviction relief, and that decision was affirmed on appeal in Bowley v. State, No. 34A02-9501-PC-55 (Ind.App. Dec. 13, 1996) (unpublished) (Bowley II). The Indiana Supreme Court denied his petition for transfer.
On direct appeal, the Indiana Court of Appeals summarized the facts and circumstances of Bowley's offenses:
[O]n December 9, 1988, December 12, 1988, January 19, 1989, and August 17, 1989, the Kokomo Police Department, working with the Indiana State Police and Peru Police Department, made controlled buys of cocaine in excess of three grams from [Bowley]. On each occasion, James Darden, a civilian informant and acquaintance of [Bowley's], telephoned [Bowley] and agreed to meet him at a certain location for the purpose of purchasing the cocaine. Trooper Ronald Hernandez accompanied Darden on the January 18 buy and participated in the transaction. [Bowley] brought his seven-year-old twin daughters with him on the August 17 buy and was arrested by surveillance officers immediately thereafter.
Bowley I at 2.
In Bowley I, Bowley challenged: (1) the imposition of consecutive sentences totaling 60 years, and (2) the trial court's limitation of Bowley's ability to cross-examine informant James Darden regarding Darden's employment and place of residence. In Bowley II, Bowley challenged: (1) the denial of his motion for a mistrial after a police detective testified that Bowley had used a racial epithet in describing the source of the cocaine, (2) the trial court's refusal to give a proposed final jury instruction about altered evidence, (3) the trial court's admission of an incriminating statement by Bowley, and (4) the effectiveness of Bowley's appellate attorney in Bowley I.
In his federal habeas corpus petition, Bowley seeks relief based on the following specifications:
1. Testimony of State Witness. Bowley asserts that his right to a fair trial was denied when the detective testified that Bowley had made a statement to police that contained a racial epithet without providing prior notice to the defense that the officer's testimony would include the statement or contain such language.
2. Jury Instruction. Bowley contends that his right to a fair trial was denied when the trial court refused to instruct the jury that it could draw an adverse inference from the State's alleged tampering with audio tapes of the controlled buys of cocaine.
3. Miranda Rights. Bowley asserts that his Miranda rights were violated when the State introduced a statement he made during custodial interrogation without demonstrating that he knowingly and voluntarily waived his Miranda rights.
4. Ineffective Assistance of Appellate Counsel. Bowley contends that his counsel in his direct appeal was ineffective by failing to raise the following issues on appeal:
a. The trial court's denial of a mistrial based on the failure to disclose before trial the racial epithet in Bowley's statement to the police.
b. The trial court's admission of Bowley's statement to the police, allegedly in violation of his Miranda rights.
c. The trial court's failure to instruct the jury on adverse inferences from the State's alleged editing of audio tapes of the controlled buys.
d. Appellate counsel failed to file a petition for transfer to the Indiana Supreme Court regarding the issue of Bowley's consecutive sentences.
The record has been appropriately expanded and the parties have fully presented their arguments relative to Bowley's petition.
I. Standard of Review
Bowley seeks relief pursuant to 28 U.S.C. § 2254(a), under which a federal court may grant relief only if the petitioner shows that he is in custody "in violation of the Constitution or laws or treaties of the United States." Because Bowley filed his habeas corpus petition after enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA) in 1996, the AEDPA's restrictions on federal review of state court rulings apply here. See Williams v. Taylor, 529 U.S. 362 (2000); Lindh v. Murphy, 521 U.S. 320, 322-23 (1997). Bowley therefore must show that the state courts' adjudication of a claim on the merits either "(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).Under § 2254(d)(1), a state court decision is "contrary to" Supreme Court precedent "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law" or "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [that reached by the Supreme Court]." Williams v. Taylor, 529 U.S. at 405. A state court decision will be deemed an "unreasonable application" of clearly established federal law "if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.
The Seventh Circuit has explained:
When faced with the task of determining whether a particular application of Supreme Court precedent is unreasonable, we have often taken a more pragmatic approach to answering the question, scrutinizing the practical operation and effect of the principles at issue in the particular facts of the case. See, e.g., Miller v. Anderson, 255 F.3d 455, 456-59 (7th Cir. 2001); Redmond v. Kingston, 240 F.3d 590, 591-92 (7th Cir. 2001); Washington v. Smith, 219 F.3d 620, 627-35 (7th Cir. 2000). We ask whether the decision is "at least minimally consistent with the facts and circumstances of the case" or "if it is one of several equally plausible outcomes," Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir. 1997); Hall v. Washington, 106 F.3d 742, 749 (7th Cir. 1997), granting a writ of habeas corpus if the determination is "at such tension with governing U.S. Supreme Court precedents, or so inadequately supported by the record, or so arbitrary" as to be unreasonable. Hall, 106 F.3d at 749.
Boss v. Pierce, 263 F.3d 734, 741-42 (7th Cir. 2001) (granting relief where state court unreasonably applied Brady v. Maryland). And more recently, the Seventh Circuit has explained:
An incorrect application of clearly established federal law is not necessarily an unreasonable one. Hough v. Anderson, 272 F.3d 878, 890 (7th Cir. 2001). As such, a federal court cannot substitute its independent judgment as to the correct outcome; rather, it must determine that a state court decision was both incorrect and unreasonable before it can issue a writ of habeas corpus. Washington v. Smith, 219 F.3d 620, 628 (7th Cir. 2000).
Davis v. Litscher, 290 F.3d 943, 946 (7th Cir. 2002) (emphasis in original) (affirming denial of relief).
In addition to the two clauses of § 2254(d)(1) addressing the state courts' legal determinations, a petitioner can also obtain relief if the state courts' decision 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)(2). However, "such attacks are accompanied by a rigorous burden of proof: state court factual findings are presumed to be correct unless the petitioner rebuts the presumption with 'clear and convincing' evidence." Sanchez v. Gilmore, 189 F.3d 619, 623 (7th Cir. 1999) (affirming denial of relief in death penalty case), citing 28 U.S.C. § 2254(e)(1). "The upshot of all of this is that federal review is now severely restricted; the fact that we may think certain things could have been handled better by the state trial judge or by the prosecuting attorney or by a state reviewing court means very little." Id.
In addition to the substantive standards, "assertions of error in criminal proceedings must first be raised in state court in order to form the basis for relief in habeas. Claims not so raised are considered defaulted." Breard v. Greene, 523 U.S. 371, 375 (1998), citing Wainwright v. Sykes, 433 U.S. 72 (1977). A procedural default sharply limits the availability of federal relief:
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); accord, Edwards v. Carpenter, 529 U.S. 446, 451 (2000). "Cause" for a procedural default exists if the petitioner can demonstrate that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). Prejudice is demonstrated by showing that the errors worked to the petitioner's "actual and substantial disadvantage." United States v. Frady, 456 U.S. 152, 170 (1982).
II. Timeliness
The State argues that Bowley's habeas petition was not timely filed. Pursuant to the AEDPA, federal habeas petitions challenging a judgment of a state court are subject to a one-year statute of limitations. 28 U.S.C. § 2244(d)(1). The one-year period runs from the latest of four dates. The latest applicable date in Bowley's case would be "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). The time is tolled, however, during the "time during which a properly filed application for State post-conviction relief . . . is pending." 28 U.S.C. § 2244(d)(2). The State bases its timeliness argument on Bowley's delay of more than one year from the time his convictions and sentences became final in 1993 until he filed his state post-conviction petition in 1994, all of which occurred before the AEDPA took effect.
The Seventh Circuit has held that such pre-AEDPA delay may not be counted toward the one-year time limit. Gendron v. United States, 154 F.3d 672, 675 (7th Cir. 1998) (for § 2254 petitions the period of limitations does not begin to run until April 24, 1996, the AEDPA's enactment date"), overruled on other grounds, Clay v. United States, 537 U.S. 522 (2003); Fernandez v. Sternes, 227 F.3d 977, 978 (7th Cir. 2000). Bowley's post-conviction petition was properly filed and pending when the AEDPA took effect. His post-conviction petition was filed on August 12, 1993, and the Indiana Supreme Court denied transfer on February 12, 1997. Bowley's federal petition was filed on January 23, 1998, within the one-year limit of countable time, so his petition was timely filed. The court turns to Bowley's claims of constitutional error.
III. Testimony about the Racial Epithet
Before trial, the court ordered the prosecution to disclose the substance of all statements by Bowley that would be offered as evidence at trial. The prosecution made its disclosures. TR 55, 88. Those disclosures did not provide notice to Bowley or his lawyer regarding the following statement that was presented at trial by Detective Mote, who was asked about his conversation with Bowley in a police car on his way to jail:
I informed Mr. Bowley that he was in a great deal of trouble which acknowledged and he indicated he didn't want to go to jail. I then advised him that perhaps we could work some things out and he could get some help. He indicated then that he would be willing to help the police and I advised him that one of the first things will have to be would be truthful. I then requested to know where he had purchased the cocaine we'd just acquired and he stated "from some nigger." I then stated to Dave that we knew better than this, that this was not the first case we made on him, we know where he's getting the cocaine and he then indicated, "Well, if you know, then you know I can't do him."
TR 601-02. At the next opportunity outside the presence of the jury, Bowley's lawyer moved for a mistrial based on the State's failure to disclose the statement and the inflammatory racial content of the statement, which Bowley denied making. TR 639-40 (motion for mistrial; TR 804 (Bowley denial). Bowley's counsel pointed out that three jurors were black, and that if she had known in advance about the statement, she could have filed a motion in limine to exclude the unnecessary racial epithet and could also have tried to deal with the issue in jury selection. TR 639-40. The trial court denied the motion for a mistrial.
This issue was not presented in Bowley's direct appeal, but it was raised in his post-conviction petition. The State argued waiver. The Indiana Court of Appeals concluded that the issue had been waived by not having been included in Bowley I, as made clear through the following statement: "The issues Bowley raises are waived except to the extent that they may be addressed as fundamental error or within the framework of ineffective assistance of appellate counsel." Bowley II at 5. The Court of Appeals then considered whether the admission of the statement with the racial epithet satisfied the requirements of Indiana's "fundamental error" doctrine, which permits a reviewing court to consider the merits of improperly raised errors as an exception to waiver. See Madden v. State, 656 N.E.2d 524, 526 (Ind.App. 1995).
The Indiana Court of Appeals noted the trial court's broad discretion to supervise discovery and to fashion corrective action when a discovery obligation is violated. It then noted that Bowley had sought a mistrial, not a continuance to respond to the unexpected testimony, and that the evidence against Bowley was "overwhelming." The Court of Appeals stated that because it was
convinced that Bowley would have been convicted regardless of the racist statement ascribed to him by the testifying officer, the trial court's refusal to grant Bowley's motion for mistrial did not subject him to "grave peril" and did not constitute fundamental error depriving him of a fair trial.
Bowley II at 5.
Contrary to Bowley's argument in this case, this adjudication supplied "an independent and adequate state ground for the judgment, so that questions of federal law no longer affect[ed] the outcome." Jenkins v. Gramley, 8 F.3d 505, 507 (7th Cir. 1993); see Willis v. Aiken, 8 F.3d 556, 561 (7th Cir. 1993) (Indiana's review under the fundamental error doctrine is an independent and adequate state law ground for its decision). This conclusion triggers the federal doctrine of procedural default because
"when a state court has declined to address a prisoner's federal claims because the prisoner ha[s] failed to meet a state procedural requirement," the independent and adequate state grounds doctrine bars federal review of that state court judgment.
Thomas v. McCaughtry, 201 F.3d 995, 1000 (7th Cir. 2000), quoting Coleman v. Thompson, 501 U.S. at 729-30.
A state's application of a forfeiture rule may be inadequate if it is hostile to the federal right in question or its application could not have been anticipated. Liegakos v. Cooke, 106 F.3d 1381, 1385 (7th Cir. 1997). There is no apparent basis for such an argument here, and Bowley has not tried to make one.
In response to the procedural default point, Bowley argues that the Indiana Court of Appeals ultimately decided the federal claim anyway because, in applying the fundamental error doctrine, it decided the merits of his claim when it found that the asserted error had not deprived him of a fair trial. The argument illustrates the often complex and frustrating relationship between a state's procedural rules — in this case requiring that available issues be presented on direct appeal — and the merits of claimed errors when the state courts decide whether to overlook failures to comply with those rules. See Willis v. Aiken, 8 F.3d at 562-67 (where defendant had failed to object at trial to jury instruction giving jury power to decide both facts and law, Indiana court's determination that no fundamental error resulted from instruction rested on an independent and adequate state ground).
Bowley has tried to distinguish Willis on the basis that no timely objection had been made at trial in Willis, while Bowley raised a prompt objection to the racial epithet evidence during his trial. That distinction does not affect the fundamental error analysis, though, because Bowley's waiver under state law was his failure to raise the issue on his direct appeal. The fact that the Indiana Court of Appeals considered the racial epithet issue through the fundamental error lens does not excuse the procedural default. Nevertheless, this court must still consider the issue below, in terms of whether the failure to raise this issue on direct appeal denied Bowley effective assistance of counsel on his direct appeal, for such a failure could show cause and prejudice that would excuse his failure.
Bowley fairly presented to the Indiana Court of Appeals the federal nature of this claim in Bowley II. He cited the Fifth and Fourteenth Amendments to the United States Constitution. Though those citations may not be sufficient by themselves, Bowley framed the claims in terms particular enough to call to mind the federal constitutional guarantee of a fair trial, and he alleged a pattern of facts within the mainstream of federal constitutional litigation. See, e.g., Ellsworth v. Levenhagen, 248 F.3d 634, 639 (7th Cir. 2001) (identifying factors relevant for deciding fair presentment questions).
IV. Jury Instruction
Bowley contends that the trial court erroneously refused to instruct the jury that it could draw an adverse inference from evidence that the State had tampered with audio tape recordings of the controlled buys. As with the racial epithet claim, the Indiana Court of Appeals concluded that this claim had been waived when it was not raised in Bowley's direct appeal. The Indiana Court of Appeals did not separately analyze this claim under Indiana's doctrine of fundamental error. Rather, the court considered Bowley's argument that appellate counsel's failure to raise this issue on direct appeal denied him effective assistance of appellate counsel. The state court's waiver holding bars review of this claim except as a form of ineffective assistance of appellate counsel, addressed below.V. Miranda Rights
Bowley also contends his rights under Miranda v. Arizona, 384 U.S. 436 (1966), were violated when the State was permitted to introduce statements he made during a custodial interrogation. Bowley argues that the State failed to prove that he knowingly and voluntarily waived his Miranda rights. This claim also was not raised in Bowley's direct appeal, and the Court of Appeals held in Bowley II that it had been waived. Bowley II at 5. The Court of Appeals did not undertake a review of this claim for fundamental error. As with the evidence-tampering instruction, the Court of Appeals considered the issue in terms of whether Bowley had effective assistance of counsel on his direct appeal. Accordingly, the state court's waiver holding bars review of this claim except as a form of ineffective assistance of counsel.
VI. Ineffective Assistance of Appellate Counsel
Bowley contends that his appellate counsel in Bowley I was ineffective by failing to include the foregoing three issues on direct appeal — the failure to declare a mistrial after the racial epithet testimony, the failure to instruct the jury on evidence tampering, and the admission of statements from custodial interrogation. The Sixth Amendment right to counsel exists "in order to protect the fundamental right to a fair trial." Strickland v. Washington, 466 U.S. 668, 684 (1984). "Thus, 'the right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial.'" Lockhart v. Fretwell, 506 U.S. 364, 369 (1993), quoting United States v. Cronic, 466 U.S. 648, 658 (1984). The Seventh Circuit has often stated the test for an ineffective assistance claim. For example:
To succeed on an ineffective assistance claim, a defendant must establish that his counsel's performance was constitutionally deficient, "meaning that the performance fell below the legal profession's objective standards for reasonably effective representation" and that the deficiency prejudiced the defendant's defense, "meaning that 'there is a reasonable probability that but for [counsel's] unprofessional errors, the results of the proceedings would have been different.'" United States ex rel. Partee v. Lane, 926 F.2d 694, 701 (7th Cir. 1991) (quoting Strickland v. Washington, 466 U.S. 668, 687-88 (1984)).
Anderson v. Sternes, 243 F.3d 1049, 1057 (7th Cir. 2001).
The Sixth Amendment right to effective assistance of counsel extends to an initial appeal as a matter of right. Evitts v. Lucey, 469 U.S. 387, 396-97 (1985); Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986). In the context of an appeal, "[w]hen a claim of ineffective assistance of counsel is based on failure to raise viable issues, the district court must examine the trial court record to determine whether appellate counsel failed to present significant and obvious issues on appeal. Significant issues which could have been raised should then be compared to those which were raised. Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome. . . ." Gray v. Greer, 800 F.2d at 646. The reason the issue must be "clearly stronger" is because ordinarily the strategic decisions of counsel, including the selection of issues for appeal, do not violate the Sixth Amendment. Bond v. United States, 1 F.3d 631, 635 n. 2 (7th Cir. 1993).
The Indiana Court of Appeals correctly identified these governing standards. Bowley II at 9-10. Bowley argues that the state court merely paid lip service to the "reasonable probability" test of prejudice and actually applied an erroneous standard, presumably that a different result was more probable than not but for counsel's errors. See Pet. Reply Br. at 5-6. This court disagrees. The state court wrote that "Bowley has not demonstrated any likelihood of success on the merits of the issues he raises," Bowley II at 10, and the court's use of the phrases that the outcome of Bowley's appeal "would have been no more successful" and "would have been no different" if these issues had been raised, see Bowley II at 11, 16, does not show that the state court applied the wrong standard. Overall, the state court's rejection of Bowley's ineffective assistance arguments was not an unreasonable application of these standards.
A. Denial of Mistrial based on Racial Epithet
Bowley's attorney did not include as error in Bowley I the trial court's denial of the motion for mistrial made on the grounds that the prosecutor failed to disclose the substance of Bowley's oral statements made to police officers. During trial, the issue had been preserved for appellate review. Bowley had solid arguments to show that the prosecution had failed to comply with its discovery obligations and that a continuance — the usual remedy for discovery violations — would not have been an effective remedy for this violation.
As the Indiana Court of Appeals recognized, however, the evidence against Bowley was overwhelming. There was no reasonable probability that a jury, without having heard the testimony of Bowley's use of the racial epithet, would have reached a different conclusion regarding his guilt arising from the four controlled buys of cocaine. Nor is there any reason to believe that the decision in Bowley I would have been any more favorable if the claim had been presented there. Bowley II at 11. See Strickland, 466 U.S. at 694. Accordingly, Bowley's attorney on direct appeal could reasonably have omitted this claim that would have resulted at best in a finding of harmless error, for it is "not deficient performance to fail to raise an argument with no real chance of success." Hough v. Anderson, 272 F.3d 878, 898 n. 8 (7th Cir. 2001). In terms of Strickland, the omission of this arguable error did not result in prejudice to Bowley in terms of undermining confidence in the outcome of the trial or appeal.
B. The Miranda Issue
Bowley's attorney did not include as an issue in Bowley I whether the trial court's decision to admit his statement to police on August 17, 1989 violated his Miranda rights. As discussed above, the Indiana Court of Appeals determined that Bowley had made his statement after he was given his Miranda rights, and that he knowingly and voluntarily waived those rights by making his statement to the officer and that the waiver was not rendered ineffective by any improper influence by the officer.
In Bowley II, Bowley argued that appellate counsel was ineffective for failing to argue that Bowley's incriminating statements to Detective Mote were made without a voluntary and knowing waiver of his right against self-incrimination and right to counsel. The statements at issue were made to the detective after Bowley had been given his Miranda rights. Bowley argued that any waiver of his Miranda rights was not effective because the waiver was induced by promises of leniency made by the officer. The Indiana Court of Appeals found that there was no evidence that Bowley's statements were obtained by force, threats, promises or any other type of improper influence. Id. at 16. The court held that the evidence supported a finding that Bowley had waived his Miranda rights, that the outcome of his appeal would have been no different even if appellate counsel had raised this issue, and that Bowley therefore had failed to demonstrate ineffective assistance of counsel. Id. This court finds nothing unreasonable in that analysis based on the lack of credible evidence of specific promises of leniency to induce Bowley to waive his rights. The Indiana Court of Appeals properly applied the Strickland analysis to this claim.
Bowley also argues in this court that the prosecution failed to meet its burden of showing that Bowley actually understood his Miranda rights when Detective Mote read him those rights. The Supreme Court held in Tague v. Louisiana, 444 U.S. 469, 471 (1980), that a court may not presume from a suspect's silence that a person being given the Miranda warnings has understood those rights. The Indiana Court of Appeals rejected the argument: "The officer testified that Bowley was aware of, understood, and waived his Miranda rights, and that Bowley did not request an attorney or attempt to end the conversation." Bowley II at 15. The officer did not in fact testify, however, that Bowley was aware of or understood his Miranda rights. The state court's statement to the contrary is not supported by the record. Its treatment of this argument therefore is not entitled to deference under 28 U.S.C. § 2254(d)(2).
Detective Mote testified that he read Bowley his rights from a card. He paraphrased the card in his testimony, concluding with "Do you understand your right." TR 527. The trial record is silent as to whether Bowley actually responded to that question. Bowley argues that the record therefore supports a winning argument under Tague, which appellate counsel failed to make in Bowley I.
In Tague, the issue of the suspect's understanding of the warnings had been raised specifically at trial in questioning the officer-witness. 444 U.S. at 469. In Bowley's trial, the issue simply was not raised. When Detective Mote testified about the Miranda warnings, Bowley's attorney raised an objection that is a little obscure in the record, apparently tied to the timing of the Miranda warnings and the search of Bowley's person. TR 527-28. When Detective Mote testified about the "great deal of trouble" remark that included the racial epithet, Bowley's attorney objected that the tape recording from the controlled buy the day of the arrest did not show a Miranda warning. TR 601. Neither of those objections alerted the trial court or the prosecution to the specific problem being raised in this case: the failure to show in the record that Bowley understood his Miranda warnings when they were given to him. With a specific objection, the prosecutor could have asked the detective whether Bowley had responded to the question at the end of the Miranda warnings about understanding his rights.
Even today, Bowley has not claimed that he did not understand his Miranda rights and warnings. Under these circumstances, the court finds that Bowley was not prejudiced by his appellate lawyer's failure to raise the Miranda issue in Bowley I because the claim would have been rejected for failure to make a sufficiently specific objection. See Ingram v. State, 547 N.E.2d 823, 829 (Ind. 1989) ("A defendant may not state one reason for an objection at trial and then rely upon another on appeal."); Goodman v. State, 479 N.E.2d 513, 515 (Ind. 1985) (same); Phelan v. State, 406 N.E.2d 237, 239 (Ind. 1980) (same). The Indiana Supreme Court insists that grounds for objection must be specific, and any grounds not raised in the trial court are not available on appeal. Goodman, 479 N.E.2d at 515; Brown v. State, 417 N.E.2d 333, 337 (Ind. 1981).
C. Instruction on Altered Evidence
Bowley's appellate attorney also did not argue as error in Bowley I the trial court's refusal to give Bowley's proposed instruction to the effect that the jury could infer from alteration or editing of the tape recordings of the controlled drug purchases that the omitted material would have been helpful to him. The Indiana Court of Appeals found that the record did not show intentional or willful destruction of evidence, so that the trial court was not required to give the instruction. Bowley II at 13. This court agrees.
Bowley's tendered instruction was based on the testimony of recording engineer Bob Haggard, who had analyzed the tapes. Two tapes showed editing or that they had been stopped and re-started during recording. The Indiana Court of Appeals wrote: "Nothing in the record suggests that this involved a conscious editing of conversations, nor that the exculpatory portions of the conversations were missing." Bowley II at 12. In addition, the court noted that Haggard testified that "he could find no direct evidence of editing." Id. at 13. The court determined that under Indiana law, the proposed instruction would have been required only if the record indicated an intentional or willful destruction of evidence, and that the evidence in Bowley's case did not support such a finding. Id. The court held that under such circumstances, the post-conviction court was not obligated to find ineffective assistance of appellate counsel on this issue. Id. at 14. Finally, Bowley did not show that any missing portion of the conversations contained any crucial remarks that would have changed the nature of the conversations or provided exculpatory evidence. Id. This court finds no error in the analysis of this claim in Bowley II.
In reviewing ineffective assistance of counsel claims, the ultimate question is "whether, but for counsel's errors, there is reasonable probability that the outcome of the proceeding would have been different." Mason v. Hanks, 97 F.3d 887, 893 (7th Cir. 1996) (citation omitted). With respect to the mistrial and jury instruction issues specified as attorney error, the Indiana Court of Appeals properly determined that there was not a reasonable probability that the outcome of Bowley's appeal would have been different if his attorney had raised these issues. With respect to the Miranda issue, this court determines that the claim based on the record's silence about Bowley's understanding of his Miranda rights had been waived, so that it was not unreasonable for the attorney to omit that issue in the direct appeal.
D. Consecutive Sentences
Bowley alleges in his petition a final claim of ineffective counsel, which he did not raise in Bowley II. After challenging the consecutive sentences in Bowley I, Bowley's appellate counsel did not include that issue in his petition for transfer to the Indiana Supreme Court after Bowley's petition for rehearing had been denied by the Indiana Court of Appeals. Bowley contends that the consecutive sentences are contrary to the Indiana Supreme Court's decision in Beno v. State, 581 N.E.2d 922 (Ind. 1991), where the court overturned consecutive maximum sentences for each of three controlled cocaine purchases by the same buyer carried out over four days. "[B]ecause the crimes committed were nearly identical State-sponsored buys, consecutive sentences were inappropriate." Id. at 924. Although the controlled buys of cocaine from Bowley were spread out over several months, it appears that he would have had a strong argument under Beno for a reduction of his sentence from a total of 60 years to a total of 30 years.
Nonetheless, Bowley's procedural default of this claim bars this court from reaching the merits. Procedural default "occurs when a claim could have been but was not presented to the state court and cannot, at the time that the federal court reviews the habeas petition, be presented to the state court." Resnover v. Pearson, 965 F.2d 1453, 1458 (7th Cir. 1992). Bowley's failure to include this issue in his petition for transfer to the Indiana Supreme Court constitutes his first procedural default. See O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999) (holding that petitioners must invoke one complete round of a state's established appellate review process). His failure to present this claim separately as a specification of attorney error in Bowley II constitutes a second procedural default. Lemons v. O'Sullivan, 54 F.3d 357, 360 (7th Cir. 1995). Bowley has not shown cause for and prejudice from either procedural default. The failure to raise the issue in an appellate proceeding after the initial appeal of right cannot support an independent claim for ineffective assistance of counsel because there is no right to the assistance of an attorney in that proceeding. Wainwright v. Torna, 455 U.S. 586 (1982); Ross v. Moffitt, 417 U.S. 600, 610 (1974); Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000).
Conclusion
This court has reviewed the state record in light of the petitioner's claims and has given such consideration to those claims as the limited scope of its review in a habeas corpus proceeding warrants. For the reasons explained above, Bowley's petition for a writ of habeas corpus must be denied and this action dismissed with prejudice. Judgment consistent with this Entry shall now issue.
So ordered.