UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

LANDON T. HARBERT, )

)

Petitioner, )

)

v. ) CAUSE NO. 4:14-CV-31-TLS

)

SUPERINTENDENT, )

)

Respondent. )

OPINION AND ORDER

Landon T. Harbert, a pro se prisoner, filed an amended habeas petition pursuant to 28

U.S.C. § 2254 challenging a state criminal proceeding. (Amended Petition, ECF No. 4.) The

Court is obligated to review the Petition and dismiss it if “it plainly appears from the petition and

any attached exhibits that the petitioner is not entitled to relief.” RULE 4 OF THE RULES

GOVERNING SECTION 2254 CASES.

According to the Petition and attachments, Harbert has been charged with armed robbery,

theft, and conspiracy in Tippecanoe County. (Amended Petition at 1.) He has not yet been

convicted. (Id. at 2–3.) His first trial ended in a mistrial (which was requested by his counsel)

after a police officer provided testimony that violated a motion in limine. (Id. at 7, 22–23.) A

second trial was held, but the jury was unable to reach a verdict. (Id. at 4.) Harbert has an

upcoming trial date of August 4, 2014, for his third trial. (Id. at 3.) He moved in the trial court to

dismiss the charges on double jeopardy grounds, but the court denied his motion. (Id. at 29.) He

also filed, pro se, a motion requesting leave to pursue an interlocutory appeal of that decision,

but his request was denied. (Id. at 37.)

In May 2014, Harbert sought federal habeas relief, and later amended his petition. In his

Amended Petition he asserts two claims: a due process claim based on alleged unfairness in the
state proceedings, and a claim that his upcoming retrial is barred by the Double Jeopardy Clause.

(Amended Petition at 3, 11–15.)

 Harbert’s petition is governed by the provisions of the Anti-Terrorism and Effective

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 incarcerated

pursuant to a state court judgment “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 stringent requirements of 28 U.S.C. § 2254(d), set

forth as follows:

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.

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 (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). A federal court may grant habeas relief under the “unreasonable application”

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clause if the state court identifies the correct legal principle from U.S. Supreme Court precedent

but unreasonably applies that principle to the facts of the petitioner’s case. Wiggins v. Smith, 539

U.S. 510, 520 (2003). To warrant relief, a state court’s decision must be more than incorrect or

erroneous; it must be “objectively” unreasonable. Id. 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, —U.S.—, 131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S.

652, 664 (2004)). Instead, to obtain relief, a petitioner must show the state court’s ruling was “so

lacking in justification that there was an error well understood and comprehended in existing law

beyond any possibility for fairminded disagreement.” Id. at 786–87.

Before considering the merits of a habeas petition, the 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). As the U.S. Court of Appeals for the Seventh

Circuit has explained:

Inherent in the habeas petitioner’s obligation to exhaust his state court remedies

before seeking relief in habeas corpus, see 28 U.S.C. § 2254(b)(1)(A), is the duty to

fairly present his federal claims to the state courts. . . . Fair presentment in turn

requires the petitioner to assert his federal claim through one complete round of

state-court review, either on direct appeal of his conviction or in post-conviction

proceedings. This means that the petitioner must raise the issue at each and every

level in the state court system, including levels at which review is discretionary

rather than mandatory.

Lewis, 390 F.3d at 1025–26 (internal citations and quotation marks omitted). 

Here, it is apparent that Harbert has not yet exhausted his state court remedies. Indeed, he

has not yet been convicted. “Ordinarily the attempt of a state prisoner to obtain federal habeas

corpus relief in advance of his state criminal trial [is] completely hopeless.” United States ex rel.

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Stevens v. Cir. Ct. of Milwaukee Cnty., 675 F.2d 946, 947 (7th Cir. 1982). In Younger v. Harris,

401 U.S. 37 (1971), the Supreme Court held that equity and federalism concerns require the

federal courts to abstain from enjoining or interfering in state criminal prosecutions. See also

FreeEats.com, Inc. v. Indiana, 502 F.3d 590, 595 (7th Cir. 2007) (Younger abstention “requires

federal courts to abstain from taking jurisdiction over federal constitutional claims that involve

or call into question ongoing state proceedings.”). The Supreme Court has carved out a narrow

exception to this rule in the case of double jeopardy challenges. Justices of Boston Municipal Ct.

v. Lydon, 466 U.S. 294, 302–03 (1984). The Court reasoned that double jeopardy rights “cannot

be fully vindicated on appeal following final judgment, since in part the Double Jeopardy Clause

protects ‘against being twice put to trial for the same offense.’” Id. at 303. Accordingly, a federal

habeas court has jurisdiction to entertain a colorable double jeopardy claim in advance of trial,

notwithstanding the holding in Younger. Id.

As noted above, Harbert raises two claims in his Amended Petition: a due process claim

and a double jeopardy claim. His due process claim is premised on alleged misconduct by the

prosecutor during discovery, and mishandling of evidence and witnesses by the trial court.

(Amended Petition at 4, 11–12.) He also appears to argue that there is no physical evidence

linking him to the crime. (Id. at 12, 16–21.) Such claims do not present a cognizable basis for

this court to interfere with an ongoing state criminal proceeding in light of Younger. See Stevens,

675 F.2d at 947. Nevertheless, Harbert also advances a claim that his upcoming retrial violates

double jeopardy principles. If he presents a colorable double jeopardy violation, this court has

authority to entertain the petition notwithstanding Younger. See Lydon, 466 U.S. at 302–03; see

also Walck v. Edmondson, 472 F.3d 1227, 1234 (10th Cir. 2007) (“Younger abstention is

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unwarranted where a criminal accused presents a colorable claim that a forthcoming second state

trial will constitute a violation of her double jeopardy rights.”). 

The Double Jeopardy Clause of the Fifth Amendment provides that no person shall “be

subject for the same offence to be twice put in jeopardy of life or limb.” U.S. CONST. AMEND V.

“The Double Jeopardy Clause, however, does not offer a guarantee to the defendant that the

State will vindicate its societal interest in the enforcement of the criminal laws in one

proceeding.” Oregon v. Kennedy, 456 U.S. 667, 672 (1982). “If the law were otherwise, the

purpose of law to protect society from those guilty of crimes frequently would be frustrated by

denying courts power to put the defendant to trial again.” Id. (internal citation omitted).

Here, it is apparent from the Amended Petition and attachments that Harbert’s first trial

ended after his attorney moved for and was granted a mistrial. (Amended Petition at 7, 22.)

Double jeopardy does not preclude a retrial after a mistrial is declared at the request of the

defense. Kennedy, 456 U.S. at 679. There is a narrow exception for cases where the prosecutor

has intentionally “goaded” the defense into moving for a mistrial for the purpose of ending the

trial. Id.; United States v. Oseni, 996 F.2d 186, 188 (7th Cir. 1993). The intent of the prosecutor

is the determining standard, and even where the prosecutor engages in misconduct that might be

viewed as “harassment or overreaching,” a retrial is not barred “absent intent on part of the

prosecutor to subvert the protection afforded by the double jeopardy clause.” Kennedy, 456 U.S.

at 676. That is a difficult standard to meet. As the U.S. Court of Appeals for the Seventh Circuit

has explained:

The requirement of the intent is critical, and easily misunderstood. The fact that the

government blunders at trial and the blunder precipitates a successful motion for a

mistrial does not bar a retrial. Yet the blunder will almost always be intentional—the

product of a deliberate action, not of a mere slip of the tongue. A prosecutor who in

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closing argument comments improperly on the defendant’s failure to have taken the

stand, thus precipitating a mistrial or a reversal on appeal, is no doubt speaking

deliberately, though his judgment may be fogged by the heat of combat. But unless

he is trying to abort the trial, his misconduct will not bar a retrial. It doesn’t even

matter that he knows he is acting improperly, provided that his aim is to get a

conviction. . . . .The only relevant intent is intent to terminate the trial, not intent to

prevail at this trial by impermissible means.

Oseni, 996 F.2d at 188 (internal citations omitted). 

Here, the record reflects that the defense moved for a mistrial after an exchange between

the prosecutor and one of the state’s witnesses, Lt. Troy Harris, during direct examination. (Id. at

22.) The prosecutor was inquiring about a vehicle the officer had recovered, and asked him if he

knew whom it belonged to. (Id.) The officer responded that it belonged to Harbert’s wife. (Id.)

The prosecutor then asked, “And did you acquire any information to verify that?” (Id.) The

officer responded: “The reason I knew or had suspicion that it belonged to Kristen Young is that

the defendant Malcolm Landon1

 had actually been arrested out of that vehicle—” (Id.) At that

point defense counsel objected. (Id.) Discussions ensued outside the presence of the jury, and the

trial court ultimately granted a mistrial. (Id. at 7, 22.)

Harbert appears to argue that the prosecutor engaged in misconduct by failing to properly

counsel this witness to avoid testimony about any prior arrests. (Id. at 22.) Even if this “blunder”

could be characterized as misconduct, it is not the type of intentional act by the prosecutor that

would preclude a retrial on double jeopardy grounds. See Kennedy, 456 U.S. at 674–75; Oseni,

996 F.2d at 188. Indeed, in the state proceedings, Harbert attributed the incident to intentional

conduct by Lt. Harris aimed at garnering a conviction by any means necessary. (Amended

1 It is unclear from the present record whether the officer misstated Harbert’s name or if he was perhaps

referring to an alias.

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Petition at 24–25.) The officer’s objectionable testimony was not even responsive to the

prosecutor’s question, and there is nothing before this court to plausibly suggest an intent by the

prosecutor to bring the trial to an end.

Harbert’s second trial ended in a hung jury. (Amended Petition at 9.) “[D]ouble jeopardy

does not preclude the government from retrying a defendant where a jury fails to reach a verdict

in the first trial.” United States v. Warren, 593 F.3d 540, 544 (7th Cir. 2010). Therefore, Harbert

has not alleged a claim that would permit this court’s interference with an ongoing state criminal

proceeding. His Amended Petition will be dismissed, but the dismissal will not preclude him

from seeking federal habeas relief at a later date, if he is convicted and properly exhausts his

claims in one complete round of state review. See 28 U.S.C. § 2254(b)(1)(A).

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 under 28 U.S.C. § 2253(c), the petitioner

must show “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) (internal quote marks and citation omitted). As is fully explained above, under Younger,

this court is not permitted to enjoin or otherwise interfere with an ongoing state criminal

proceeding. Harbert has not alleged the type of claim that would fall within the narrow exception

to the Younger doctrine. Nothing before the court suggests that jurists of reason could debate the

correctness of this ruling or find a reason to encourage Harbert to proceed further until the state

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process has concluded. Accordingly, the Court declines to issue Harbert a certificate of

appealability.

As a final matter, Harbert moves for the appointment of counsel [ECF No. 5]. Unlike a

criminal defendant, an indigent civil litigant does not have a right to counsel at public expense.

See Resendez v. Knight, 653 F.3d 445, 446 (7th Cir. 2011) (“It is . . . well established that a

criminal defendant enjoys [a] right to counsel through his first appeal . . . but that, once the direct

appeal has been decided, the right to counsel no longer applies.”); Jackson v. Cnty. of McLean,

953 F.2d 1070, 1073 (7th Cir. 1992) (indigent civil litigants have no constitutional or statutory

right to be represented by counsel in federal court). The court nevertheless has discretion to

appoint counsel if the circumstances warrant it. See 18 U.S.C. § 3006A(a)(2)(B); see also Pruitt

v. Mote, 503 F.3d 647, 654 (7th Cir. 2007); Winsett v. Washington, 130 F.3d 269, 281 (7th Cir.

1997). The court will abuse its discretion in declining to appoint counsel only “if, given the

difficulty of the case and the litigant’s ability, [the petitioner] could not obtain justice without an

attorney, he could not obtain a lawyer on his own, and he would have had a reasonable chance of

winning with a lawyer at his side.” Winsett, 130 F.3d at 281. The court must make a threshold

inquiry into whether the petitioner has made a reasonable attempt to obtain counsel on his own.

Id.; Pruitt, 503 F.3d at 654–55.

Here, Harbert states in general terms that he attempted to find counsel on his own, but he

does not provide any information about whom he contacted, where these attorneys are located,

when he contacted them, or what information he conveyed. It is unclear whether the attorneys he

contacted practice in this jurisdiction or accept cases in this subject area. The Court concludes

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that Harbert has not demonstrated compliance with the first prong of the Pruitt inquiry. This

alone warrants denial of the motion.

Even if the Court were to proceed further with the inquiry, Harbert has not demonstrated

that he “could not obtain justice without an attorney” in this case. Winslett, 130 F.3d at 281.

Harbert has ably represented himself in this case. His filings are neatly presented and contain

detailed factual recitations and cogent legal arguments in support of his position. In addition to

filing a detailed petition, he assembled and submitted dozens of pages of exhibits relevant to this

Court’s review. His filings were well-drafted; his case simply did not involve the type of facts

that would permit this Court to entertain a request for habeas relief in advance of trial. There is

no indication an attorney could have done any better in light of these facts. The Court also

considers that Harbert has been filing pro se documents in the state trial court, including a

request for leave to pursue an interlocutory appeal and a motion containing a detailed analysis of

the facts and applicable legal principles relevant to his double jeopardy argument. (Amended

Petition at 30–35.) Thus, even if Harbert satisfied the first prong of the inquiry, the Court would

not conclude that justice requires the appointment of counsel in this case. Accordingly, the

Motion will be denied. 

For these reasons, the Amended Petition [ECF No. 4] is DISMISSED WITHOUT

PREJUDICE pursuant to RULE 4 OF THE RULES GOVERNING SECTION 2254 CASES. The Court

DENIES the Petitioner a certificate of appealability. The Petitioner’s Motion for Appointment of

Counsel [ECF No. 5] is DENIED.

SO ORDERED on July 7, 2014.

 s/ Theresa L. Springmann 

THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT

FORT WAYNE DIVISION

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