UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

JOEL L. ROWLEY, )

)

Petitioner, )

) CAUSE NO. 2:15-CV-343

vs. )

)

SUPERINTENDENT, )

)

Respondent. )

OPINION AND ORDER

This matter is before the Court on the 28 U.S.C. § 2254 Habeas

Corpus Petition by a Person in State Custody, filed by Joel L.

Rowley, a pro se prisoner, on September 22, 2015. For the reasons

set forth below, the Court DENIES habeas corpus relief; DENIES a

certificate of appealability pursuant to Section 2254 Habeas Corpus

Rule 11; DENIES leave to appeal in forma pauperis pursuant to 28

U.S.C. § 1915(a)(3); and DIRECTS the clerk to enter judgment in

favor of the Respondent and against the Petitioner.

BACKGROUND

Joel L. Rowley, a pro se prisoner, filed a habeas corpus

petition challenging his conviction and 75 year sentence for murder

by the Marion County Superior Court on January 19, 2011, under

cause number 49G02-1003-MR-17433. ECF 3 at 1. In deciding this

habeas petition, a court must presume the facts set forth by the
state courts are correct. 28 U.S.C. § 2254(e)(1). It is Rowley’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 Rowley’s offense as follows:

In the early morning hours of March 5, 2010, Rowley

and some of his acquaintances were in involved in a bar

fight in Indianapolis. Rowley left the altercation and

went to his van, but instead of entering his van he went

back into the fray and shot Leon Pepper in the back.

Rowley then walked to his van and drove away. Pepper died

before emergency personnel could arrive.

Rowley turned himself in to authorities later that

day, and the State charged him with murder on March 8.

Following the presentation of evidence at his ensuing

jury trial, Rowley tendered the following jury

instruction on self-defense:

A. A person is justified in using

reasonable force against another person to

protect himself or a third person from what he

reasonably believes to be the imminent use of

unlawful force. However, a person is justified

in using deadly force only if he reasonably

believes that that force is necessary to

prevent serious bodily injury to himself or a

third person or the commission of a forcible

felony. No person in this State shall be

placed in legal jeopardy of any kind

whatsoever for protecting himself, his family

or a third person by reasonable means

necessary. 

B. Notwithstanding the above a person is

not justified in using force if: 1. the person

is committing or is escaping after the

commission of a crime [;] 

2. the person provokes unlawful action by

another person with intent to cause bodily

injury to the other person; or

3. the person has entered into combat

with another person or is the initial

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aggressor unless the person withdraws from the

encounter and communicates to the other person

the intent to do so and the other person

nevertheless continues or threatens to

continue unlawful action[.] 

The State has the burden of disproving this

defense beyond a reasonable doubt.

Appellant’s App. at 170. The trial court accepted

Rowley’s tendered instruction as the court’s final

instruction number four. Id. at 156. The jury found

Rowley guilty as charged and the trial court entered its

judgment of conviction and sentence accordingly. 

Rowley v. State, Cause No. 49A04-1102-CR-34 (Ind. Ct. App. August

26, 2011); ECF 8-3.

After his direct and post-conviction appeals concluded, Rowley

filed this federal habeas petition challenging his conviction and

sentence. Rowley argues that: (1) trial counsel was ineffective

because he did not offer a self-defense jury instruction that

highlighted the defendant’s perspective; (2) trial counsel was

ineffective for failing to interview Officer Hannon; (3) trial

counsel was ineffective for failing to advise Rowley to turn in the

gun that was used in the shooting to police; (4) appellate counsel

was ineffective for failing to challenge the trial court’s

exclusion of the victim’s reputation for carrying a gun; (5) the

post-conviction court violated his due process rights by not ruling

on one of his claims; (6) the Indiana Court of Appeals violated his

due process rights by issuing conflicting opinions; and (7) the

Indiana Court of Appeals violated Rowley’s due process rights when

it determined that Officer Hannon was credible. ECF 3 at 3-5.

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DISCUSSION

A. Standard

“Federal habeas review . . . exists as a guard against extreme

malfunctions in the state criminal justice systems, not a

substitute for ordinary error correction through appeal.” Woods v.

Donald, 575 U.S. __, __; 135 S.Ct. 1372, 1376 (2015) (quotation

marks and citation omitted). 

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). 

[This] standard is intentionally difficult to meet. We

have explained that clearly established Federal law for

purposes of §2254(d)(1) includes only the holdings, as

opposed to the dicta, of this Court’s decisions. And an

unreasonable application of those holdings must be

objectively unreasonable, not merely wrong; even clear

error will not suffice. To satisfy this high bar, a

habeas petitioner is required to show that the state

court’s ruling on the claim being presented in federal

court was so lacking in justification that there was an

error well understood and comprehended in existing law

beyond any possibility for fairminded disagreement.

Woods, 135 S.Ct. at 1376 (quotation marks and citations omitted).

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B. Procedural Default

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). To avoid procedural

default, a habeas petitioner must fully and fairly present his

federal claims to the state courts. Boyko v. Parke, 259 F.3d 781,

788 (7th Cir. 2001). “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.” Id.

(quoting Rodriguez v. Scillia , 193 F.3d 913, 916 (7th Cir. 1999)).

In the interests of federal-state comity, both the operative facts

and controlling law must be put before the state courts. Ellsworth

v. Levenhagen, 248 F.3d 634, 639 (7th Cir. 2001) (citing Wilson v.

Briley, 243 F.3d 325, 327 (7th Cir. 2001); Boyko, 259 F.3d at

788).

The Respondent is correct that in Rowley’s direct appeal

transfer petition, he raised only the issue of whether the trial

court erred in instructing the jury. ECF 8-6. It is also true that

in Rowley’s post-conviction transfer petition, he focused almost

exclusively on violations of Indiana law. ECF 8-11. “[T]he task of

the habeas court . . . 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 that

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issue on a federal basis.” Ellsworth v. Levenhagen, 248 F.3d 634,

639 (7th Cir. 2001) (quotation marks and internal citations

omitted). Fair presentment “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.” Anderson v. Brevik, 471 F.3d 811, 814– 15 (citing Boyko, 259

F.3d at 788). There are four (4) factors to consider in determining

whether a federal claim was fairly presented 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.” Id. at 815. 

Upon review of the petitions for transfer, it is clear that

Rowley only passingly mentioned various constitutional provisions.

He did not cite to any federal cases, and only one of the state

cases he cited involved a federal constitutional claim. Moreover,

in his post-conviction petition to transfer, the only pattern of

facts that were alleged to be within the mainstream of

constitutional litigation were his claims of ineffective assistance

of counsel. There is no indication that he pursued the due process

claims in state court that he is pursuing here. Thus, it is clear

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that Rowley’s due process claims in grounds 5, 6 and 7 of his

habeas petition are procedurally defaulted. 

 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). Here, Rowley does not even attempt to argue

cause or prejudice. A habeas petitioner can also overcome a

procedural default by establishing that the court’s refusal to

consider a defaulted claim would result in a fundamental

miscarriage of justice. House v. Bell, 547 U.S. 518, 536 (2006). To

meet this 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). Rowley does not argue that any such fundamental

miscarriage of justice would occur.

Because Rowley cannot show cause for his failure to fairly

present these claims in one complete round of state review, or that

any fundamental miscarriage of justice would occur if the claims

are not addressed, these claims are procedurally defaulted and that

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default is not excused. Nevertheless, 28 U.S.C. §2254(b)(2) allows

a court to deny a petition on the merits even if the petitioner

failed to exhaust he State court remedies. This Court chooses to do

so here and will address each of his seven claims below.

C. Merits of Rowley’s Petition

I. Ground One

Rowley contends that he received ineffective assistance of

counsel based on trial counsel’s tendered self defense jury

instruction. Rowley claims his trial counsel should have tendered

one that highlighted the requirement that when evaluating a self

defense claim the evidence should be viewed from the standpoint of

the defendant. At the post-conviction hearing, trial counsel

testified

The theory of defense was that the victim was adverse to

Mr. Rowley and his friends and that he was getting up, he

reached for his pants [during a fight] and [Rowley]

believe he was pulling a gun out and so he shot him in

the back to defend the other person [Rowley] believed he

was about to shoot.

(PCR Tr. at 9.) Trial counsel offered his self defense jury

instruction to emphasize the “defense of another.” (Id. at 8-9.) He

attempted to highlight the subjective components during closing

argument. Id. at 11.

Under the Sixth Amendment, a criminal defendant is entitled to

“effective assistance of counsel—that is, representation that does

not fall below an objective standard of reasonableness in light of

prevailing professional norms.” Bobby v. Van Hook, 558 U.S. 4, 16

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(2009). To prevail on such a claim, the petitioner must show that

counsel’s performance was deficient and that the deficient

performance prejudiced him. Strickland v. Washington, 466 U.S. 668

(1984). The test for prejudice is whether there was a reasonable

probability that “but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id. at 694. A

reasonable probability is a probability “sufficient to undermine

confidence in the outcome.” Id. at 693. In assessing prejudice

under Strickland “[t]he likelihood of a different result must be

substantial, not just conceivable.” Harrington v. Richter, 562 U.S.

86, 112 (2011). Where it is expedient to do so, a court may resolve

an ineffective assistance claim solely on the prejudice prong; in

other words, where the petitioner cannot establish prejudice, there

is no need to consider in detail whether counsel’s performance was

constitutionally deficient. See Strickland, 466 U.S. at 697; Watson

v. Anglin, 560 F.3d 687, 689-90 (7th Cir. 2009). 

On habeas review, [the] inquiry is now whether the state court

unreasonably applied Strickland . . . .” McNary v. Lemke, 708 F.3d

905, 914 (7th Cir. 2013). In addition, “because the Strickland

standard is a general standard, a state court has even more

latitude to reasonably determine that a defendant has not satisfied

that standard.” Id. (citing Youngblood v. Alvarado, 541 U.S. 652,

664 (2004)). This creates a “doubly deferential” standard of review

here. Id. “Given this high standard, even ‘egregious’ failures of

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counsel do not always warrant relief.” McNary, 708 F.3d at 914.

The Indiana Court of Appeals cited the Strickland standard

and, upon examining the record, found that

Here, the self defense instruction . . . essentially

tracks the pertinent language of the self defense

statute. Ind. Code § 35-41-3-2 (2006). In Washington v.

State, 997 N.E.2d 342, 349 (Ind. 2013), the Supreme Court

emphasized the holding that the “self-defense statute

requires both a subjective belief that force was

necessary to prevent serious bodily injury and that a

reasonable person under the circumstances would have such

an actual belief.” Therefore, self defense comprises both

a subjective and objective component. In considering

“standpoint of the defendant” language, the Supreme Court

has emphasized that “the jury should examine

circumstances as they appeared to the defendant. But,

while the defendant’s own account is critically relevant,

the stand is still the reasonableness of the defendant.”

Id. “Focusing on the ‘standpoint of the defendant’ means

at least two things: (1) the trier of fact must consider

the circumstances as they appeared to the defendant,

rather than to the victim or anyone else; and (2) the

defendant’s own account, although not required to be

believed, is critically relevant testimony.” Id. at 350.

***

Further, the instruction that was given did instruct the

jury that the standard to be used was what Rowley

reasonably believed at the time of the infliction of

injury. The post-conviction noted that the tendered

instruction was nearly identical to the instruction of

the trial court intended to give, but did not because

Rowley’s was better and more appropriate. This was so

because Rowley’s instruction added more language

regarding the protection of third persons, which was at

the heard of Rowley’s defense.

Rowley’s trial counsel testified that he believed that

during closing argument he did highlight the “standpoint

of the defendant.” The record reflects that trial counsel

argued to the jury that Rowley acted reasonably and was

justified in shooting the victim because he believed the

victim was going to shoot his friend. Therefore, trial

counsel did effectively inform the jury that the proper

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perspective from which to evaluate the evidence was the

defendant’s viewpoint. Rowley’s counsel correctly argued

the law to the jury. See id. at 348-49. Rowley has not

met his burden of establishing that he was denied

effective assistance of counsel.

State v. Rowley, Case No. 49A05-1408-PC-413 (Ind. Ct. App. April

20, 2015); ECF 8-9.

Based on the record, the state court’s resolution of this

claim was not objectively unreasonable. 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). “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. 86, 101 (2011) (quotation marks

omitted). Here, Rowley has not met this burden.

Rowley’s argument is essentially that there is a reasonable

probability he would have been acquitted of murder if the jury had

been instructed differently. However, the State court’s

determination that the self defense instruction given was

sufficient was not objectively unreasonable. Indeed, though his

counsel did not tender the instructions highlighting his subjective

belief as he now requests, the tendered instruction was a complete

and accurate statement of Indiana law. See Washington, 997 N.E.2d

at 349. Moreover, the video evidence of the killing makes it

unlikely that the self-defense theory would be accepted by the

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jury, no matter what form the jury instructions were in. See State

Ex. 3.

This Court cannot make a probabilistic determination that a

reasonable jury would reach a different result if it was provided

with additional jury instructions focusing on Rowley’s subjective

belief. Reasonable jurists could disagree as to whether (or to what

extent) different variations of the self-defense instruction

impacted the decision making process of the jury. But fairminded

disagreement is not a basis for habeas corpus relief. Indeed,

fairminded disagreement precludes habeas corpus relief. Id.

Therefore the habeas corpus petition must be denied.

ii. Ground Two

Rowley asserts that his trial counsel was ineffective for

failing to interview Officer Derrick Hannon regarding how

intoxicated Rowley was just before he gave a statement to police.

ECF 3 at 3, 4. Rowley claims that if his counsel would have spoken

with Officer Hannon, he would have realized that Rowley was

intoxicated at the time he gave his initial statement to police.

The argument goes, then, that trial counsel could have moved to

suppress that statement. Id.

Under the Sixth Amendment, counsel has “a duty to make

reasonable investigations or to make a reasonable decision that

makes particular investigations unnecessary.” Strickland, 466 U.S.

at 690-91. The decision whether to investigate must be assessed for

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reasonableness based on the circumstances, “applying a heavy

measure of deference to counsel’s judgments.” Id. at 691. To

establish prejudice in connection with counsel’s failure to

investigate, the petitioner must make a “comprehensive showing” of

what further investigation would have revealed. United States v.

Zillges, 978 F.2d 369, 373 (7th Cir. 1992). The Indiana Court of

Appeals cited the appropriate Strickland standard and, upon

examining the record, found that

Rowley’s testimony did not establish that he was so

intoxicated that he did not know what he was saying when

he was interviewed by police officers. In addition, his

trial testimony did not indicate that he was claiming he

was intoxicated when speaking with police officers.

Therefore, Rowley has not established that a motion to

suppress his statement to police as involuntary due to

intoxication would have been granted if raised.

Consequently, Rowley has not established that trial

counsel’s failure to interview Officer Hannon and then

call him as a witness at trial prejudiced his defense. We

find no error here.

ECF 8-9, p. 14.

Here, the Indiana Court of Appeals rejected Rowley’s failure

to investigate claim, concluding that there was no apparent reason

for counsel to interview Officer Hannon. Id. Based on the record,

this determination was not unreasonable. Officer Hannon testified

at the post-conviction proceedings. After the shooting, Officer

Hannon, an acquaintance of Rowley’s, arranged to meet him at a bar.

(PCR Tr. 22-26.) When Hannon arrived at the bar, Rowley was sitting

at the bar finishing his drink. Id. at 27. Hannon testified, “[The

drink] may not have even been alcohol. But I assumed it was a mixed

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drink.” Id. After Rowley finished his drink, Hannon took him to the

police station. Id. at 28. Officer Hannon testified that, in his 17

years as a police officer, he had observed intoxicated individuals,

that he is a state certified breath test operation, and that, when

he and Rowley left the bar, Rowley did not appear to be intoxicated

“at all.” Id. Clearly, Officer Hannon’s testimony would not have

helped Rowley’s suppression argument at trial. Moreover, this Court

has independently reviewed Rowley’s interview with police officers

and finds nothing in it to suggest that Rowley was intoxicated at

the time. State Ex. 8. Rowley does not tell the officers that he is

intoxicated nor does he appear to be. Because the Indiana Court of

Appeals reasonably found that trial counsel’s failure to interview

Hannon was not prejudicial, this is not a basis for habeas relief.

iii. Ground Three

Rowley asserts that his trial counsel was ineffective when he

advised Rowley not to turn over the murder weapon until the

prosecutor requested it. ECF 3 at 4. The Indiana Court of Appeals

again using the appropriate Strickland standard and, upon examining

the record, found that:

Had counsel advised Rowley to surrender the gun, this

conduct would not have refuted the State’s contention

that Rowley’s conduct - leaving the scene of the murder

rather than staying and immediately turning the gun over

to police - constituted evidence of Rowley’s guilty

conscience, instead of the righteous defense of a friend.

If Rowley had surrendered the weapon to authorities after

consulting with his attorney, the State could have argued

that he fled the scene of the murder with the murder

weapon and only surrendered it upon the advice of

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counsel.

This would not have altered the outcome of the trial. The

State introduced a video tape showing Rowley shooting the

unarmed victim in the back. Rowley has not demonstrated

how trial counsel’s failure to advise him to turn the gun

over to police prior to trial would have produced a

different outcome at trial. We find no prejudice here.

ECF 8-9 at 14, 15.

The Indiana Court of Appeals’ decision was not unreasonable. 

Moreover, Rowley does not explain how it could have been possible

the outcome could have been different in the State court had he

turned the weapon over to the prosecution. Upon review, it was not

objectively unreasonable for the State court to have found that

Rowley had not demonstrated that his trial counsel’s actions

prejudiced his case. 

iv. Ground Four

Rowley claims his appellate counsel was ineffective for

failing to challenge a pretrial ruling excluding the victim’s

reputation for carrying a gun. Typically, proof of character of the

deceased is inadmissible. Phillips v. State, 550 N.E.2d 1290, 1297

(Ind. 1990). However, when a self-defense claim is raised,

“[e]vidence of specific bad acts by the victim is then admissible

to show that the victim had a violent character and that the

defendant had reason to fear the victim, but it is incumbent on the

defendant to make a foundational showing that he had knowledge of

those specific bad acts prior to the [crime] before such evidence

was admitted.” Id. 

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The Indiana Court of Appeals determined that appellate counsel

was not ineffective for failing to challenging the exclusion of the

victim’s reputation for carrying a gun on appeal. The court of

appeals first noted that appellate counsel was unable to do so

because the issue was not preserved for direct appellate review and

Rowley failed to argue or demonstrate that the exclusion of this

evidence would have constituted a fundamental error. ECF 8-9 at 18.

And, moreover, the court of appeals explained that Rowley did not

present any evidence at trial or at his post-conviction proceeding

that at the time of the murder he had any knowledge that the victim

had a reputation for carrying a gun or a reputation for violence.

Id. at 19. 

Although Rowley now claims his appellate counsel should have

raised this issue, he has not made any showing that the Indiana

Court of Appeals’ decision was unreasonable. Nor does this court

find the decision to be so. Indeed, Rowley had never met the victim

and did not know anything about him prior to the night of the

shooting. (Tr. p. 328). Thus, his appellate counsel would not have

succeeded on that argument, Phillips, 550 N.E.2d at 1297, and

counsel’s failure to raise a meritless claim on appeal is not

ineffective. Warren v. Baenen, 712 F.3d 1090, 1104 (7th Cir. 2013).

v. Ground Five

Rowley claims that the post-conviction court erred in not

ruling on one of the issues he raised in his post-conviction

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proceedings. On post-conviction, he argued that his trial counsel

was ineffective for failing to interview and call as a witness

Officer Hannon. The post-conviction court failed to rule on that

issue. That is inconsequential, however, because the Indiana Court

of Appeals did. ECF 8-9 at 6, 7. Therefore, it is irrelevant

whether the post-conviction trial judge failed to rule on that

issue. 

Moreover, this claim is not cognizable in these proceedings.

Although Rowley included the words “due process,” in order to open

the habeas door, his claim is premised on alleged errors committed

by the state court on post-conviction review. Federal habeas relief

is not available for errors occurring in the state post-conviction

proceedings, since such errors do not implicate the legality of the

petitioner’s confinement. See Pennsylvania v. Finley, 481 U.S. 551,

557 (1987); see Jones v. Butler, 778 F.3d 575, 586 (7th Cir. 2015)

(holding that post-conviction court’s denial of evidentiary hearing

was simply a challenge to state law post-conviction procedures and

not cognizable on habeas review); Jackson v. Duckworth, 112 F.3d

878 (7th Cir. 1997). Rowley may not “transform a state-law issue

into a federal one merely by asserting a violation of due process.”

Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996). Because

Rowley’s claim does not present an independent basis for

overturning his conviction, it is not a basis for habeas relief.

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vi. Ground Six

Rowley claims that he has been denied due process because the

Indiana Court of Appeals issued an opinion an direct appeal that

conflicts with their opinion on his post-conviction appeal

regarding the self-defense instruction. Again, this type of claim

is not cognizable in habeas proceedings. Rowley may not “transform

a state-law issue into a federal one merely by asserting a

violation of due process.” Id. 

Moreover, though, these opinions do not conflict with one

another. On direct appeal, the issue was whether the tendered selfdefense jury instruction was adequate. The court of appeals found

that any error in the tendered self-defense instruction was invited

by Rowley, and thus not subject to appellate review. ECF 8-3 at 3.

On post-conviction, the issue was whether trial counsel was

ineffective for tendering the instruction. The court of appeals

found that counsel was not ineffective because the instruction was

appropriate. ECF 8-9 at 8-10. Clearly, the issue was different on

direct appeal than it was on appeal from the denial of postconviction relief. Thus, the appellate court opinions were not in

conflict with one another. 

vii. Ground Seven

Rowley asserts that the Indiana Court of Appeals erred when it

ruled on his ineffective assistance of counsel for failing to

interview and call as a witness Officer Hannon. Rowley argues that

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because the post-conviction trial court failed to rule on this

issue, the court of appeals should have remanded it back to the

trial court instead of ruling on it. This, Rowley claims, is a due

process violation.

As he did earlier, Rowley raises a claim that he labels “due

process,” which is premised on alleged errors committed by the

state court on post-conviction review. Again, this type of claim is

not cognizable here. Federal habeas relief is not available for

errors occurring in the state post-conviction proceedings. See

Finley, 481 U.S. 557; see Jones, 778 F.3d at 586; Jackson, 112 F.3d

878. “[S]tate court evidentiary rulings rarely will serve as

grounds for granting a writ of habeas corpus.” Lilly v. Gilmore,

988 F.2d 783, 789 (7th Cir. 1993)(citations omitted). “Unless it is

shown that ‘a specific constitutional right has been violated, a

federal court can issue a writ of habeas corpus only when a state

evidentiary ruling violates the defendant’s right to a

fundamentally fair trial’ under the Due Process Clause.” Id. Here,

Rowley does not identify or cite to any specific constitutional

right that he believes has been violated due to the court of

appeals’ consideration of the evidence. 

C. Certificate of Appealability

Pursuant to Section 2254 Habeas Corpus Rule 11, the Court must

grant or deny a certificate of appealability. To obtain a

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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. McDonnell, 529 U.S. 473, 484 (2000). For the

reasons explained in this opinion for denying habeas corpus relief,

there is no basis for encouraging Rowley to proceed further. Thus,

a certificate of appealability must be denied. For the same

reasons, he may not appeal in forma pauperis because an appeal

could not be taken in good faith.

CONCLUSION

For the reasons set forth above, the Court DENIES habeas

corpus relief; DENIES a certificate of appealability pursuant to

Section 2254 Habeas Corpus Rule 11; DENIES leave to appeal in forma

pauperis pursuant to 28 U.S.C. § 1915(a)(3); and DIRECTS the clerk

to enter judgment in favor of the Respondent and against the

Petitioner.

DATED: August 30, 2017 /s/RUDY LOZANO, Judge 

United States District Court

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