UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

ANDRE MARSHALL, JR., )

)

Petitioner, )

) No. 3:15 CV 49

vs. )

)

SUPERINTENDENT, )

)

Respondent. )

OPINION AND ORDER

Andre Marshall, Jr., a pro se prisoner, filed an amended petition for writ of

habeas corpus challenging his conviction and 42-year sentence on April 24, 2013, under

cause number 45G02-1009-FB-00095. (DE # 3.) Respondent argues that the petition

should be denied because Marshall’s claims are procedurally defaulted. This court

agrees. For the reasons stated below, the amended petition is DENIED, the petitioner is

DENIED a certificate of appealability, and this case is DISMISSED.

I. FACTS

In deciding this habeas petition, the court must presume the facts set forth by the

state courts are correct. 28 U.S.C. § 2254(e)(1). It is Marshall’s burden to rebut this

presumption with clear and convincing evidence. Id. On direct appeal, the Indiana

Court of Appeals set forth the facts surrounding Marshall’s offenses as follows:

On July 24, 2010, Gregory Mason, Jr., was driving in Gary. While stopped

at an intersection, Mason waved Marshall, who was on foot, across the

street. Instead of crossing the street, Marshall approached the passenger

side of Mason’s car and lifted his shirt, revealing a gun. Marshall then got

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into Mason’s car and demanded money. Marshall threatened to kill

Mason and unsatisfied with the $30 Mason gave him, pointed the gun at

Mason and demanded that Mason take him to Mason’s house to get more

money. In an effort to protect his children, Mason drove to his aunt’s

house instead of his own house. While at Mason’s aunt’s house, Marshall

took Mason’s necklace, watch and wedding rink, hit him with the gun

several times, and threatened to kill him. Mason then offered to withdraw

money from an ATM, and drove to a nearby bank while Marshall pointed

the gun at him. Mason was able to withdraw $200 but an attempt to

withdraw another $200 was declined. While Mason drove to another

bank, Marshall again threatened to kill Mason and hit him with the gun.

Mason went to a walk-up ATM machine and twice tried to withdraw

more money. Mason then fled on foot and flagged down help. Marshall

was later apprehended in Indianapolis driving Mason’s car. Marshall was

eventually charged with Class B felony car jacking, Class felony

confinement, Class B felony robbery, two counts of Class C felony battery,

Class C felony intimidation, and Class D felony point a firearm. A jury

trial was conducted in August 2011. Marshall was acquitted of the car

jacking charge and found guilty of battery as a Class A misdemeanor, and

the jury was deadlocked on the remaining count. In November 2011, the

trial court entered a judgment of conviction on the battery charge, and

Marshall was sentenced to 320 days in jail on that charge.

On March 25, 2013, Marshall was retried on the confinement, robbery,

intimidation, and pointing a firearm charges. A jury found him guilty as

charged. (Ex. E).

The trial court entered judgment and sentenced Marshall to forty-two

years.

Marshall v. State, 45A03-1305-CR-191, slip op. 2-4 (Ind. Ct. App. Jan. 29, 2014); (DE # 9-

5.)

On direct appeal, Marshall raised four arguments: (1) whether the trial court

improperly permitted hearsay under the Indiana Rules of Evidence; (2) whether the

trial court erred in admitting evidence of Marshall’s prior bad conduct; (3) whether the

trial court failed to properly sentence him; and (4) whether the trial court erred in not

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merging the previous battery conviction with his robbery conviction in the second trial.

(DE ## 9-2; 9-3.) On January 29, 2014, the Indiana Court of Appeals affirmed his

conviction and sentence. (DE # 9-5.) Marshall then sought transfer to the Indiana

Supreme Court where he raised two arguments: (1) whether the Indiana Court of

Appeals failed to consider the proportionality of the sentence imposed; and (2) whether

the Indiana Court of Appeals failed to merge his convictions for battery and robbery.

(DE # 9-6.) The Indiana Supreme Court denied transfer on May 1, 2014. (DE # 9-2.)

On March 13, 2015, Marshall filed his amended federal habeas petition raising

two grounds for relief. First, Marshall claims that the trial court improperly admitted

hearsay in violation of the Sixth Amendment and the Confrontation Clause, and the

Indiana Constitution. Second, Marshall argues that the trial court improperly sentenced

him on both the battery and robbery convictions in violation of the Fifth Amendment

and the principles of double jeopardy. (DE # 5.)

II. LEGAL STANDARD

This petition is governed by the provisions of the Anti-Terrorism and Death

Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 336 (1997). AEDPA

allows a district court to issue a writ of habeas corpus on behalf of a person in custody

pursuant to a state court judgment “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). The court can grant an application for habeas relief if it meets the requirements

of 28 U.S.C. § 2254(d), which provides:

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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.

Before considering the merits of a habeas petition, a federal court must ensure

that the petitioner has exhausted all available remedies in state court. 28 U.S.C. §

2254(b)(1)(A); Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). The exhaustion

requirement is premised on concerns of comity; the state courts must be given the first

opportunity to address and correct violations of their prisoner’s federal rights.

O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Perruquet v. Briley, 390 F.3d 505, 514 (7th

Cir. 2004). For that opportunity to be meaningful, the petitioner must fairly present his

constitutional claims in one complete round of state review. Baldwin v. Reese, 541 U.S.

27, 30-31 (2004); Boerckel, 526 U.S. at 845.

The companion procedural default doctrine, also rooted in comity concerns,

precludes a federal court from reaching the merits of a habeas petition when either: (1)

the claim was presented to the state courts and was denied on the basis of an adequate

and independent state procedural ground; or (2) the claim was not presented to the

state courts and it is clear those courts would now find the claim procedurally barred

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under state law. Coleman v. Thompson, 501 U.S. 722, 735 (1991); Perruquet, 390 F.3d at

514. When a habeas petitioner fails to fairly present his claim to the state courts and the

opportunity to raise that claim has now passed, the claim is procedurally defaulted.

Boerckel, 526 U.S. at 853-54.

III. DISCUSSION

Respondent argues that both claims in Marshall’s amended petition are

procedurally defaulted. This court agrees.

Marshall’s first claim that the trial court improperly admitted hearsay in

violation of the Sixth Amendment and the Confrontation Clause, and the Indiana

Constitution is procedurally defaulted. On direct appeal to the Indiana Court of

Appeals, he only challenged the trial court’s decision under the Indiana Rules of

Evidence. (DE # 9-3 at 3.) He did not argue that the trial court improperly admitted

hearsay in violation of the Indiana or U.S. Constitution. (DE ## 9-3; 9-6.) Further,

Marshall completely failed to challenge the trial court’s hearsay ruling before the

Indiana Supreme Court. (DE # 9-6.) Thus, the state court records reveal that Marshall

did not raise this claim in one complete round of review before the State courts.

Marshall’s second claim - that the trial court improperly sentenced him on both

battery and robbery convictions in violation of the Fifth Amendment and the principles

of double jeopardy - is also procedurally defaulted. On direct appeal to the Indiana

Court of Appeals, Marshall did not challenge his battery and robbery convictions on

federal double jeopardy grounds. (DE # 9-3 at 4, 16.) Marshall concedes that point.

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(DE # 12 at 3.) On direct appeal, he argued only that the battery for which he was

convicted at the first trial was an element of the subsequent robbery conviction and,

therefore, the trial court should have merged the two offenses and vacated the battery

conviction. Marshall’s direct appeal did not fairly present the current Fifth Amendment

and double jeopardy claims he brings in his amended petition.

Fair presentment requires the petitioner to give the state courts a

meaningful opportunity to pass upon the substance of the claims later

presented in federal court. In the interests of federal-state comity, both the

operative facts and controlling law must be put before the state courts.

Fair presentment, however, does not require a hypertechnical congruence

between the claims made in the federal and state courts; it merely requires

that the factual and legal substance remain the same.

That being said, the state courts must be apprised of the constitutional

nature of the claim. If the facts presented do not evoke a familiar

constitutional constraint, there is no reason to believe the state courts had

a fair opportunity to consider the federal claim. Id. We will consider four

factors when determining whether a petitioner has fairly presented his

federal claim to the state courts: 1) whether the petitioner relied on federal

cases that engage in a constitutional analysis; 2) whether the petitioner

relied on state cases which apply a constitutional analysis to similar facts;

3) whether the petitioner framed the claim in terms so particular as to call

to mind a specific constitutional right; and 4) whether the petitioner

alleged a pattern of facts that is well within the mainstream of

constitutional litigation.

Anderson v. Benik, 471 F.3d 811, 814-15 (7th Cir. 2006) (quotation marks and citations

omitted). “The bottom line is that the task of the habeas court in adjudicating any issue

of fair presentment is assessing, in concrete, practical terms, whether the state court was

sufficiently alerted to the federal constitutional nature of the issue to permit it to resolve

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that issue on a federal basis.” Ellsworth v. Levenhagen, 248 F.3d 634, 639 (7th Cir. 2001)

(quotation marks and citations omitted).

Applying Anderson’s four-part test, it is clear that Marshall’s direct appeal did

not fairly present a double jeopardy claim to the State court. First, the records in his

direct appeal reveal that Marshall did not cite to or rely on any federal case law.

(DE # 9-3 at 3, 16.) Second, his sole state case citation, Hudson v. State, 354 N.E.2d 164

(1976), did not apply a federal double jeopardy analysis to similar facts. Instead, it was

a case that dealt with principles of state law merger. Third, Marshall framed this issue

on appeal as one of merger, not double jeopardy. And, fourth, Marshall did not allege a

pattern of facts that resembled a mainstream double jeopardy claim. Thus, this court

finds that the state court was not sufficiently alerted to the federal constitutional nature

of his double jeopardy claim. Thus, this court cannot resolve it here.

Not only did Marshall fail to fairly present his double jeopardy claim to the State

courts but, in addition, the Indiana Court of Appeals decided the issue on an

independent and adequate state law ground. A federal habeas court will not review a

question of federal law if the state decision rested on an adequate and independent

state ground for dismissal. Sturgeon v. Chandler, 552 F.3d 604, 611 (7th Cir. 2009). The

court of appeals held that Marshall’s cursory argument failed to demonstrate that the

evidence supporting the battery conviction also supported an element of the robbery

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conviction. (DE # 9-5 at 9.) Thus, the court of appeals found that merger was not

implicated. Thus, this claim is procedurally defaulted.

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A habeas petitioner can overcome a procedural default by showing both cause

for failing to abide by state procedural rules and a resulting prejudice from that failure.

Wainwright v. Sykes, 433 U.S. 72, 90 (1977); Wrinkles v. Buss, 537 F.3d 804, 812 (7th Cir.

2008), cert. denied, 129 S. Ct. 2382 (2009). Cause sufficient to excuse procedural default is

defined as “some objective factor external to the defense” which prevented a petitioner

from pursuing his constitutional claim in state court. Murray v. Carrier, 477 U.S. 478, 492

(1986). Marshall filed a traverse in support of his petition, but does not allege any

grounds in his traverse for excusing this procedural default. At most, he seems to blame

his appellate attorney for failing to raise certain claims. (DE # 12 at 8.) In rare

circumstances, a petitioner can avoid the exhaustion requirement by pointing to his

appellate counsel’s ineffectiveness in failing to raise claims on direct appeal. However,

the exhaustion doctrine requires that the ineffective assistance claim be presented to the

state court as an independent claim before it may be used to establish cause for such a

procedural default. Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000). If the ineffective

assistance claim being used to excuse a procedural default was not itself properly raised

Dismissal on this procedural ground is likely immaterial, though, as this claim would fail on its 1

merits. The convictions of both misdemeanor battery and felony robbery would not violate the Fifth

Amendment’s double jeopardy clause because they are each composed of different elements. United

States v. Loniello, 610 F.3d 488, 491 (7th Cir. 2010).

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in state court, “the petitioner will be fully defaulted.” Dellinger v. Bowen, 301 F.3d 758,

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767 (7th Cir. 2002). Nothing in the record, or in Marshall’s representations, plausibly

suggest he has raised any such ineffective assistance claim in state court.

A habeas petitioner may also overcome a procedural default by establishing that

the court’s refusal to consider a defaulted claim on the merits would result in a

fundamental miscarriage of justice. House v. Bell, 547 U.S. 518, 536 (2006); Coleman, 501

U.S. at 750. Under this narrow exception, the petitioner must establish that “a

constitutional violation has resulted in the conviction of one who is actually innocent of

the crime.” Schlup v. Delo, 513 U.S. 298, 324 (1995). A petitioner who asserts actual

innocence “must demonstrate innocence; the burden is his, not the state’s . . . .” Buie v.

McAdory, 341 F.3d 623, 626-27 (7th Cir. 2003) (emphasis in original). Marshall does not

show any fundamental miscarriage of justice would occur, nor does the court find that

to be that case.

As a final matter, pursuant to Rule 11 of the Rules Governing Section 2254 Cases,

the court must either issue or deny a certificate of appealability in all cases where it

enters a final order adverse to the petitioner. To obtain a certificate of appealability, 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

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 The Seventh Circuit has observed that this requirement, whereby an ineffective assistance claim

used as cause to excuse a procedural default must itself have been exhausted, can result in a “tangled

web of defaults excused by causes that may themselves be defaulted and require a showing of cause and

prejudice---a result that has an attractive power for those who like difficult puzzles.” Lee v. Davis, 328

F.3d 896, 901 (7th Cir. 2003). 

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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) (internal quotation marks and citation omitted). For

the reasons fully explained above, Marshall’s claims are procedurally defaulted, and he

has not provided any meritorious basis for excusing his default. The court finds no

basis to conclude that jurists of reason could debate the outcome of the petition or find a

reason to encourage Marshall to proceed further. Accordingly, the court declines to

issue Marshall a certificate of appealability.

IV. CONCLUSION

For the reasons set forth above, the amended petition (DE # 3) is DENIED, the

petitioner is DENIED a certificate of appealability and this case is DISMISSED.

SO ORDERED

Date: December 29, 2016

s/ James T. Moody

JAMES T. MOODY, JUDGE

UNITED STATES DISTRICT COURT

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