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Newell v. Hanks

March 12, 2002

MICHAEL A. NEWELL, PETITIONER-APPELLANT,
v.
CRAIG HANKS, RESPONDENT-APPELLEE.



Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. No. TH 97-127-C-M/F--Larry J. McKinney, Chief Judge.

Before Flaum, Chief Judge, and Bauer and Evans, Circuit Judges.

The opinion of the court was delivered by: Flaum, Chief Judge.

Argued February 14, 2002

On April 24, 1997, Michael Newell filed a petition for writ of habeas corpus under 28 U.S.C. sec. 2254. The district court dismissed the petition as untimely, or alternatively for lack of merit, and Newell appeals. We vacate the judgment and remand the case for further proceedings.

I. Background

In 1990 Newell was convicted in the Superior Court of Knox County, Indiana, of dealing cocaine, Ind. Code sec. 35-48-4-1, and was sentenced to 30 years' imprisonment. The evidence at trial had showed that an individual named Fred Wells, driving one of Newell's vehicles, met police officer Richard McGee and confidential informant Brad Foote at a Quickstop gas station in Vincennes, Indiana, where he sold McGee a bag of cocaine for $950. McGee testified that when he asked whether the substance was "Newell's stuff," Wells replied, "Yea, I just came from there."

The sale had been preceded by the following telephone conversation between Newell ("Mike") and Foote ("Brad"), recorded and corroborated at trial by police officer Dennis Holt:

MIKE: Hello.

BRAD: Mike?

MIKE: Yes.

BRAD: Hey, how's it going?

MIKE: Okay.

BRAD: I'm sorry to take so long, but I'm back with you.

MIKE: Uh huh.

BRAD: So, can ah . . . can you take off and meet me at the, ah, out by the Executive or something?

MIKE: What about the place . . . ah, being Bobe's?

BRAD: Well, we can go over there, but like I said I'm here right now.

MIKE: Well, he doesn't want to go there, he wants to go to Bobe's.

[MIKE]: Yeah, and . . . ah, are you going to be by yourself, you know, he's kind of paranoid, ...


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