Opinion
No. 3:01cv0610 AS.
February 20, 2002
MEMORANDUM AND ORDER
On August 27, 2001, pro se petitioner, Charles Phelps, an inmate at the Miami Correctional Facility (MCF) in Bunker Hill, Indiana, filed a petition seeking relief under 28 U.S.C. § 2254. The Response filed on behalf of the respondent by the Attorney General of Indiana on December 19, 2001, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). The petitioner filed a Traverse on February 6, 2002, which is in excellent legal form and much appreciated by this Court. This Court also has before it the state court record in five volumes, plus a supplemental volume, filed on or about December 19, 2001.
The petitioner is a convicted felon serving a sentence imposed by a court in the State of Indiana. A good starting place is the published decision of the Court of Appeals of Indiana in Phelps v. State, 743 N.E.2d 762 (Ind. 2001), a majority opinion by Judge Baidik, and a dissenting opinion by Chief Judge Sharpnack. Although those published opinions do not rely on the concept of effective assistance of counsel as enunciated in Lockhart v. Fretwell, 506 U.S. 364 (1993), and Strickland v. Washington, 466 U.S. 668 (1984), they certainly do reflect the constitutional values embedded in the Sixth Amendment, as reflected in those Supreme Court decisions. It is also apparent that there is no serious disagreement between these two able judges on the Court of Appeals of Indiana with reference to the facts, but a disagreement about interpretation.
In general, the presumption of correctness under 28 U.S.C. § 2254(e)(1) remains applicable. It is also of some considerable moment that the Supreme Court of Indiana denied transfer on June 20, 2001, and this petition was filed on or about September 13, 2001. Disagreements about state law come within the ambit of Estelle v. McGuire, 502 U.S. 62 (1991). See also Williams v. Taylor, 529 U.S. 362 (2000). The evidence in this case is certainly sufficient under Jackson v. Virginia, 443 U.S. 307 (1979), and that standard has been reflected in the enactment of the Anti-Terrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2244(d)(1).
Generally, the applicability of the habitual offender statute in Indiana, Indiana Code 35-50-2-8, is a matter of state law. However, it can have constitutional implications. See Moore v. Parke, 148 F.3d 705 (7th Cir. 1998). See also Higgason v. Clark, 984 F.2d 203 (7th Cir.), cert. denied, 508 U.S. 972 (1993). Compare Collins v. Duckworth, 559 F. Supp. 441 (N.D.Ind. 1983). It is the burden of the petitioner to overcome the presumption of constitutionality of state judicial proceedings. See Cuppett v. Duckworth, 8 F.3d 1132 (7th Cir. 1993), cert. denied, 510 U.S. 1180. Of some historical importance is a decision of the Court of Appeals in a case emanating from this Court more than two decades ago. See Williams v. Duckworth, 738 F.2d 828 (7th Cir. 1984), cert. denied, 469 U.S. 1229 (1985), a case in which Judges Swygert and Pell disagreed with regard to the application of constitutional values to proceedings in Indiana under the relevant statute here. With all deference, the Court does not conceive here that the majority opinion there, authored by Judge Swygert, supports the position of the petitioner here.
This Court does not sit to retry this state criminal proceeding, and especially it does not sit to re-examine questions of state law. See Estelle. However, this case does present close questions which may well be appropriate for appellate review, which this Court will readily grant. For the present state of things, the petition is considered and DENIED. IT IS SO ORDERED.