IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

PHILLIP WHITE, )

)

Petitioner, )

)

vs. ) CAUSE NO. 3:13-CV-004

)

SUPERINTENDENT, )

)

Respondent. )

OPINION AND ORDER

This matter is before the Court on the Petition under 28

U.S.C. Paragraph 2254 for Writ of Habeas Corpus filed by Phillip

White, a pro se prisoner, on January 2, 2013. For the reasons set

forth below, the petition (DE #1) is DENIED and White is DENIED a

certificate of appealability. 

BACKGROUND

Phillip White is challenging his conviction and 55 year

sentence for murder by the Delaware Circuit Court on July 17, 2006,

under cause number 18C05-0506-MR-2. White filed a direct appeal;

the Court of Appeals of Indiana affirmed in an unpublished opinion,

White v. State, 870 N.E.2d 1093 (table), 18A02-0607-CR-604 (Ind.

Ct. App. 2007) (DE 9-5); and the Indiana Supreme Court denied

transfer. White filed a petition for post-conviction relief which

was denied; the Court of Appeals of Indiana affirmed in White v.
State, 971 N.E.2d 203 (Ind. Ct. App. 2012) (DE #9-11); and the

Indiana Supreme Court denied transfer. 

In this habeas corpus petition, White argues that he “was

denied the right to the effective assistance of appellate counsel

in violation of the Fifth, Sixth, and Fourteenth Amendments when

appellate counsel failed to argue his conviction for felony murder

violates the Proportionality Clause of the Indiana Constitution

because involuntary manslaughter has identical elements but carries

a lesser penalty.” (DE #1 at 4.)

DISCUSSION

White raised this claim during his post-conviction proceedings

and it was denied on the merits. 

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). Under this deferential standard, a federal

habeas court must “attend closely” to the decisions of state courts

and “give them full effect when their findings and judgments are

consistent with federal law.” Williams v. Taylor, 529 U.S. 362, 383

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(2000). A state court decision is contrary to federal law if the

state court arrives at a conclusion opposite to that reached by the

U.S. Supreme Court or reaches an opposite result in a case

involving facts materially indistinguishable from relevant U.S.

Supreme Court precedent. Bell v. Cone, 535 U.S. 685, 694 (2002). To

warrant relief, a state court’s decision must be more than

incorrect or erroneous; it must be “objectively” unreasonable.

Wiggins v. Smith, 539 U.S. 510, 520 (2003). This is a difficult

standard to meet, and “[a] state court’s determination that a claim

lacks merit precludes federal habeas relief so long as fairminded

jurists could disagree on the correctness of the state court’s

decision.” Harrington v. Richter, 562 U.S. __, __; 131 S. Ct. 770,

786 (2011).

Under Strickland v. Washington, [counsel] cannot be

found to be constitutionally ineffective unless (1) his

performance was deficient, meaning it fell below an

objective standard of reasonableness informed by

prevailing professional norms and (2) his deficient

performance [was] prejudic[al], meaning that there is a

reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would

have been different. In evaluating an attorney’s

performance, courts must defer to any strategic decision

the lawyer made that falls within the wide range of

reasonable professional assistance, even if that strategy

was ultimately unsuccessful. And because of AEDPA an

extra layer of deference enters the picture: we will

defer to the Indiana appellate court’s determination [of]

effective assistance of counsel unless that determination

is contrary to, or an unreasonable application of,

clearly established Supreme Court precedent, or was based

on an unreasonable determination of the facts. An

application of Supreme Court precedent is reasonable –

even if wrong in our view – so long as fairminded jurists

could disagree over its correctness. The combination of

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Strickland and Section 2254(d) requires deference upon

deference from federal courts reviewing the

constitutionality of state criminal convictions. 

Shaw v. Wilson, 721 F.3d 908, 914 (7th Cir. 2013) (quotation marks

and citations omitted).

Appellate lawyers are not required to present every

nonfrivolous claim on behalf of their clients – such a

requirement would serve to bury strong arguments in weak

ones – but they are expected to select the most promising

issues for review. For this reason, if [counsel]

abandoned a nonfrivolous claim that was both obvious and

clearly stronger than the claim that he actually

presented, his performance was deficient, unless his

choice had a strategic justification. This standard is

difficult to meet because the comparative strength of two

claims is usually debatable. But Smith [v. Robbins, 528

U.S. 259, 288 (2000)] confirms that the theory is

available. We evaluate [counsel]’s performance from the

perspective of a reasonable attorney at the time of [the]

appeal, taking care to avoid the distorting effects of

hindsight.

Shaw, 721 F.3d at 915 (quotation marks, brackets, and citations

omitted).

In affirming the denial of post-conviction relief, the Court

of Appeals of Indiana found that the Proportionality Clause

argument that White argues should have been raised was meritless.

Had his appellate counsel raised this argument under the

guise of Poling [v. State, 853 N.E.2d 1270 (Ind. Ct. App.

2006)], this court would have soundly rejected it. On

these facts, felony murder and involuntary manslaughter

are different crimes with different statutory elements

and, thus, the different sentences for these crimes

presents no constitutional issue under the

Proportionality Clause. Accordingly, White cannot

demonstrate that this issue was either significant and

obvious from the face of the record or clearly stronger

than the issues his appellate counsel did raise. 

White v. State, 971 N.E.2d 203, 209 (Ind. Ct. App. 2012). 

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White argues that this was clearly erroneous because “[t]he

post-conviction court and the Indiana Court of Appeals rendered

erroneous decisions based on an erroneous interpretation of the

current statute on felony murder.” (DE 14-1 at 9-10.) 

But it is only noncompliance with federal law that

renders a State’s criminal judgment susceptible to

collateral attack in the federal courts. The habeas

statute unambiguously provides that a federal court may

issue the writ to a state prisoner “only on the ground

that he is in custody in violation of the Constitution or

laws or treaties of the United States.” 28 U.S.C. §

2254(a). And we have repeatedly held that “‘federal

habeas corpus relief does not lie for errors of state

law.’” Estelle v. McGuire, 502 U.S. 62, 67 (1991)

(quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)).

“[I]t is not the province of a federal habeas court to

reexamine state-court determinations on state-law

questions.” 502 U.S., at 67–68, 112 S. Ct. 475.

Wilson v. Corcoran, 131 S.Ct. 13, 16 (2011). Thus, even if White is

correct that the Indiana courts have incorrectly applied Indiana

law, that is not a basis for habeas corpus relief. Thus, this Court

must accept that the Proportionality Clause argument that White is

asserting would have been wholly meritless if it had been raised on

direct appeal. As such, it was not an unreasonable determination to

have found that it was neither obvious nor clearly stronger than

the issues raised on appeal, no matter how weak they might have

been.

Certificate of Appealability

Pursuant to Rule 11 of the Rules Governing Section 2254 Cases,

the court must consider whether to grant a certificate of

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appealability. To obtain a certificate of appealability under 28

U.S.C. § 2253(c), the petitioner must make a substantial showing of

the denial of a constitutional right by establishing “that

reasonable jurists could debate whether (or, for that matter, agree

that) the petition should have been resolved in a different manner

or that the issues presented were adequate to deserve encouragement

to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Here, White has not made such a showing and will be denied a

certificate of appealability. 

CONCLUSION

For the reasons set forth above, the habeas corpus petition

(DE #1) is DENIED and White is DENIED a certificate of

appealability. 

DATED: March 19, 2015 /s/RUDY LOZANO, Judge

United State District Court

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