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Allen v. Buss

March 11, 2009

HOWARD A. ALLEN, JR., PETITIONER-APPELLANT,
v.
EDWIN G. BUSS, SUPERINTENDENT, RESPONDENT-APPELLEE.



Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 01 C 1658-John Daniel Tinder, Judge.

The opinion of the court was delivered by: Williams, Circuit Judge.

ARGUED JULY 25, 2008

Before FLAUM, ROVNER, and WILLIAMS, Circuit Judges.

In 1988, consistent with a jury's verdict and sentencing recommendation, the Marion Superior Court in Indiana sentenced Howard A. Allen, Jr. to death by lethal injection for the murder and robbery of Ernestine Griffin. Since then, Allen has been asking the Indiana state courts to consider his claim that he is mentally retarded and therefore should not be executed. First, he sought relief when Indiana banned the execution of mentally retarded persons in 1994, but the Indiana courts held that the new statute did not apply retroactively to Allen. Instead, the state trial court, without holding a hearing, considered his mental retardation as a mitigating factor and found it did not outweigh the aggravating circumstance of his crime. In 2002, after the Supreme Court issued its opinion in Atkins v. Virginia, 536 U.S. 304 (2002), which categorically banned the execution of the mentally retarded, Allen again sought relief from his execution. But the Indiana Supreme Court determined that because Allen had already litigated his claim that he was mentally retarded as a mitigating circumstance, he would not be allowed to relitigate his Atkins claim. We think this decision is contrary to the Supreme Court's holding in Atkins, which recognized that there is a difference between using mental retardation as a mitigating factor and categorically excluding mentally retarded persons from the death penalty altogether. Because Allen has presented evidence that he is mentally retarded, we vacate the district court's denial of Allen's habeas petition and remand the case to the district court for an evidentiary hearing to address whether Allen is mentally retarded under Indiana law.

In light of our standard of review on habeas claims, we reject Allen's remaining two arguments. Allen maintains, pursuant to the Supreme Court's opinion in Eddings v. Oklahoma, 455 U.S. 104 (1982), that he should have received a new penalty phase hearing before a jury and that the sentencing court ignored some of his mitigating evidence. Because Allen did not raise the first argument in the Indiana courts, we find that he procedurally defaulted this claim, which precludes us from reaching its merits. As to his claim regarding mitigating evidence, the sentencing court's order does not make clear that it ignored Allen's evidence rather than choosing to give it little weight so we are constrained by the Indiana Supreme Court's finding that the trial court considered the evidence, which is not objectively unreasonable. Allen also claims that his statements were taken in violation of Miranda v. Arizona, 384 U.S. 436 (1966), and were improperly admitted at trial. However, he fails to establish that the state court's adjudication of his Miranda claims resulted in a decision that was contrary to, or an unreasonable application of, Supreme Court precedent, or based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(1) & (2). For these reasons, we affirm the judgment of the district court on Allen's Eddings and Miranda claims.

I. BACKGROUND

Because Allen has raised three distinct issues, we set forth here a brief summary of the facts and discuss in greater detail the facts applicable to each issue below. In 1988, a jury convicted Allen of the murder, felony murder, and robbery of Ernestine Griffin. The State of Indiana sought the death penalty based on the circumstances of the crime (intentional killing during a robbery). The trial court followed the jury's recommendation and sentenced Allen to death.

Allen appealed, but before the Indiana Supreme Court considered his appeal, it remanded the case to the trial court and directed it to issue a written sentencing order. In the same order, it stated that the trial court should consider Allen's evidence of mental retardation as a mitigating factor. In 1996, the trial court, without holding a hearing, considered Allen's evidence and concluded in a written sentencing order that "the possibility of the mitigating circumstance of [Allen's] mental retardation" did not outweigh the aggravating circumstance of his crime. In that order, the court also considered and ruled out other mitigating circumstances, such as Allen's age and criminal history.

The Indiana Supreme Court then ordered supplemental briefing and considered Allen's appeal in full. It affirmed Allen's conviction and sentence. Allen v. State, 686 N.E.2d 760 (Ind. 1997) ("Allen I"). The Indiana Supreme Court considered no less than seventeen issues but the following holdings are the only relevant ones: (1) Allen's statements to the police at the time of his interrogation were made voluntarily; (2) Allen was not entitled to the benefit of Indiana's amended law prohibiting the execution of the mentally retarded; and (3) the trial court's sentencing order properly considered and weighed the evidence in favor of and against imposing the death penalty and reflected no constitutional or statutory error. Allen then sought post-conviction relief on a number of issues not relevant to this appeal. The Indiana Supreme Court denied his claims. Allen v. State, 749 N.E.2d 1158 (Ind. 2001) ("Allen II").

In March 2002, Allen filed a petition for habeas relief in federal district court. While that petition was pending, the United States Supreme Court issued its opinion in Atkins v. Virginia, 536 U.S. 304 (2002), which held that "death is not a suitable punishment for a mentally retarded criminal," and categorically banned the execution of mentally retarded persons. 536 U.S. at 321.

Allen then moved the Indiana Supreme Court for permission to file a successive petition for post-conviction relief. In that motion, Allen claimed that his execution was prohibited by Atkins. The court held that because Allen had already litigated that claim, he would not be allowed to relitigate it. Allen v. State, No. 49S00-0303-SD-122, 2003 Ind. LEXIS 581 (Ind. July 15, 2003) (unpublished order) ("Allen III"). Justice Boehm dissented, contending that the issue was, in fact, not litigated and that Allen should be permitted to litigate it.

On September 19, 2006, the district court denied Allen's habeas petition without a hearing and entered judgment against him. The district court concluded that Supreme Court case law did not entitle Allen to habeas relief. It also denied Allen's motion to alter or amend judgment on May 30, 2007.

II. ANALYSIS

A. Standard of Review

We review de novo the district court's denial of a habeas petition. Arredondo v. Huibregtse, 542 F.3d 1155, 1167 (7th Cir. 2008). Pursuant to the Antiterrorism and Effective Death Penalty Act (AEDPA), we may grant habeas relief only if: (1) the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court," 28 U.S.C. § 2254(d)(1), or (2) "the decision . . . was based on an unreasonable determination of the facts in light of the evidence presented in the state proceeding." 28 U.S.C. § 2254(d)(2).

A decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). A decision represents an "unreasonable application" of clearly established federal law "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. Factual issues determined by ...


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