May 24, 2016
from the United States District Court for the Southern
District of Indiana, Indianapolis Division. No.
l:13-cv-1476-JMS-TAB - Jane Magnus-Stinson, Judge.
WOOD, Chief Judge, and Easterbrook and Kanne, Circuit Judges.
Walker was convicted in an Indiana court of robbery,
adjudicated a habitual offender pursuant to Indiana Code
§ 35-50-2-8, and sentenced to 40 years in prison. Twenty
of those years were attributable to his habitual-offender
status. The version of the habitual-offender statute Indiana
had in place at the time applied if a defendant had been
convicted of two prior unrelated felonies, in a specific
sequence: the second felony had to have been committed after
the commission of and sentencing for the first, and the
present crime had to have been committed after the commission
and sentencing of the second earlier offense. At Walker's
trial, the state provided evidence of three prior felonies,
but it failed to offer evidence of the date when one of the
crimes was committed.
only claim Walker presses before us is ineffective assistance
of appellate counsel. He contends that his lawyer on direct
appeal should have challenged the sufficiency of the evidence
for the habitual-offender conviction, given the missing date.
Even assuming that counsel's performance fell below the
constitutional minimum, we conclude that Walker's
petition for a writ of habeas corpus was properly dismissed.
The state appellate court's conclusion that Walker's
Sixth Amendment right to counsel was not infringed meets the
generous standards that apply under 28 U.S.C. § 2254,
and so we affirm.
an Indiana jury convicted Walker of a robbery that took place
on November 29, 2005. Ind. Code § 35-42-5-1. He was also
charged with being a habitual offender. Ind. Code §
35-50-2-8 (2005). The version of the habitual-offender
statute in place in 2006 said, in relevant part: "the
state may seek to have a person sentenced as a habitual
offender for any felony by alleging, on a page separate from
the rest of the charging instrument, that the person has
accumulated two (2) prior unrelated felony convictions."
Id. It required proof of the two priors beyond a
reasonable doubt. Id. § 35-50-2-8(g). (The law
was amended in 2014 and 2015, but we cite the version that
applies to Walker's case.)
original charging document listed five prior felony
convictions: (1) a 1975 burglary, (2) a 1980 robbery, (3) a
1989 burglary, and (4) two 1995 cocaine-related convictions
for drug conduct that took place in 1994. The state later
filed an amended information that omitted the 1975 burglary.
At trial, the prosecutor presented evidence to the jury
including the docket and sentencing transcript from the 1980
robbery and the docket and abstract of judgment of the 1989
burglary. But for the 1989 burglary, neither the docket nor
abstract of judgment listed the date on which the crime was
committed. They indicated only the charging date (March 31,
1989) and the conviction date (June 30, 1989). The charging
information for that burglary did list the commission date,
but it was not presented to the jury. Walker later included
the information for the 1989 offense in his post-conviction
petition; it indicates a commission date of March 10, 1989.
direct appeal, Walker challenged the sufficiency of the
evidence supporting the robbery conviction and the
reasonableness of the 40-year sentence. The Indiana Court of
Appeals affirmed. Walker v. State (Walker J), 872
N.E.2d 704 (Ind.Ct.App. 2007). Walker then filed a state
post-conviction petition in which he argued that both his
trial and appellate counsel were ineffective for failing to
challenge the sufficiency of the evidence for the
habitual-offender conviction based on the missing commission
date. The first court to review the petition, an Indiana
superior court in LaPorte County, ruled that the 1995 drug
convictions were statutorily ineligible to serve as prior
felonies for habitual offender purposes but otherwise denied
court of appeals, adopting the superior court's finding
with respect to the 1995 convictions, considered only the
1980 and 1989 convictions in its post-conviction review.
Walker v. State (Walker IT), 988 N.E.2d 1181
(Ind.Ct.App. 2013). The court agreed with Walker that his
trial counsel performed deficiently for failing to
move for a directed verdict based on the absence of the 1989
commission date, but found that there was no prejudice.
Id. at 1188. Had counsel so moved, the appellate
court reasoned, the trial court would have reopened the case
and allowed the state to introduce the charging information.
Id. The court found that appellate counsel
did not perform deficiently because he had challenged the
habitual-offender conviction in his argument about the
reasonableness of the sentence. Id. at 1191.
Moreover, the court pointed out, Walker's appellate
counsel would have seen the presentence investigation report,
where "the only thing glaring from the record is that
Walker had committed crime after crime after crime during his
adult life." Id. The missing date for the 1989
burglary was "not significant and obvious."
federal habeas corpus petition, Walker challenged only the
effectiveness of the assistance of appellate counsel. The
district court, noting that the proceedings were governed by
the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), 28 U.S.C. § 2254(a), found that the state court
did not unreasonably apply clearly established federal law in
finding effective assistance of appellate counsel. It refused
to issue the writ and denied a certificate of appealability.
This court granted a certificate limited to the question of
whether appellate counsel was effective.
review the district court's denial of Walker's
section 2254 petition de novo, but with great
deference to the state courts' decisions. Coleman v.
Hardy, 690 F.3d 811, 814 (7th Cir. 2012). We look to the
last state court decision to rule on the merits of the claim,
McCarthy v. Pollard, 656 F.3d 478, 483 (7th Cir.
2011), to see if that ruling is "contrary to"
clearly established federal law, "involved an
unreasonable application of" clearly established federal
law, or "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)(1)-(2).
Walker argues only that the state court decision was an
unreasonable application of clearly established federal law.
argues that his appellate attorney, Don Pagos, performed
deficiently in failing to notice or challenge the absence of
the commission date for the 1989 crime. Indiana allows a
sufficiency challenge to a habitual-offender finding only on
direct appeal, he says, and so it was then or never. Had
Pagos raised the issue on appeal, Walker contends, the
Indiana Court of Appeals would necessarily have reversed the
habitual-offender finding. He then asserts that he could not
have been retried after such a reversal, because the sequence
of the prior felonies is an element of the habitual-offender
conviction that must be found by a jury, and therefore