John W. Kimbrough, Petitioner-Appellee/ Cross-Appellant,
Ron Neal, Respondent-Appellant/ Cross-Appellee.
September 10, 2019
Appeals from the United States District Court for the
Southern District of Indiana, Indianapolis Division. No.
l:16-cv-1729 - William T. Lawrence, Judge.
WOOD, Chief Judge, and Kanne and Brennan, Circuit Judges.
Brennan, Circuit Judge.
Kimbrough was convicted in Indiana state court of molesting
two young girls on multiple occasions. The trial court
sentenced Kimbrough to 80 years in prison, which was
ultimately affirmed on appeal. Kimbrough sought
post-conviction relief based on ineffective assistance of
appellate counsel. Specifically, Kimbrough cited his
attorney's failure to object to his 80-year sentence
under Indiana Appellate Rule 7(B), which allows an appellate
court to revise an inappropriate sentence.
Indiana Court of Appeals rejected Kimbrough's ineffective
assistance claim, concluding as a matter of state law that he
was not entitled to relief. The district court disagreed and
granted Kimbrough's petition for a writ of habeas corpus.
Because a federal court considering a habeas petition under
28 U.S.C. § 2254(d) cannot disagree with a state
court's resolution of a state law issue, we reverse.
dated the mother of a five-year-old daughter, a
seven-year-old daughter, and a son with cerebral palsy.
Eventually, the daughters revealed Kimbrough had molested
them for nearly two years. The State of Indiana charged
Kimbrough with four counts of child molestation. The jury
found Kimbrough guilty on all counts. Kimbrough was sentenced
to 40 years on each count. Counts I and II were ordered to be
served concurrently. Counts III and IV were also ordered to
be served concurrently but consecutive to Counts I and II,
for a total of 80 years. When imposing the sentence, the
state judge considered the nature of Kimbrough's conduct,
his lack of criminal history, and Kimbrough's abuse of a
position of trust.
direct appeal, Kimbrough argued the evidence was insufficient
to sustain his conviction, the trial court's jury
instructions were erroneous, and the trial court abused its
discretion in imposing the 80-year sentence. Notably,
Kimbrough's appellate counsel never challenged his
sentence under Indiana Appellate Rule 7(B), which allows the
court to "revise a sentence [if] the Court finds that
the sentence is inappropriate in light of the nature of the
offense and the character of the offender." Ind.App. R.
7(B). Although the Indiana Court of Appeals rejected some of
his arguments, a split panel did sua sponte reduce his
sentence to 40 years under Rule 7(B). Kimbrough v. State,
2012 WL 983147, at *5 (Ind.Ct.App. Mar. 21, 2012)
("Kimbrough I"). The Indiana Supreme Court
vacated Kimbrough I, holding Rule 7(B) should not
have been invoked sua sponte. Kimbrough v. State,
979 N.E.2d 625, 629-30 (Ind. 2012) ("Kimbrough
then sought post-conviction relief in the Indiana trial
court, arguing his appellate counsel was ineffective for
failing to challenge the 80-year sentence under Rule 7(B).
The trial court denied his request, as did the Indiana Court
of Appeals, which concluded, "if the [Kimbrough
I] majority had engaged in a full Rule 7(B) analysis
with the benefit of argument and analysis from the State, it
would not have found Kimbrough's sentence
inappropriate." Kimbrough v. State, 2016 WL
112394, at *5 (Ind.Ct.App. Jan. 11, 2016)
("Kimbrough III"). In Kimbrough
III, the court stated further: "Kimbrough has not
established that there is a reasonable probability that, if
appellate counsel had made a Rule 7(B) challenge, the result
of the proceeding would have been different."
Id. Because Kimbrough was not entitled to relief
under Rule 7(B), he failed to establish prejudice. Kimbrough
then petitioned for transfer to the Indiana Supreme Court.
His petition was denied.
last resort, Kimbrough sought a writ of habeas corpus from
the district court, arguing his appellate counsel was
ineffective under Strickland v. Washington, 466 U.S.
668 (1984), for failing to challenge his sentence as
inappropriate under Indiana Rule 7(B). To establish
ineffective assistance of counsel under Strickland,
a petitioner must show: (1) counsel rendered deficient
performance that (2) prejudiced the petitioner. 466 U.S. at
687. Granting Kimbrough's petition, the district court
found that the court in Kimbrough III unreasonably
applied Strickland when it concluded Kimbrough was
not prejudiced by counsel's performance. The district
court compared the opposite conclusions in Kimbrough
I and Kimbrough III and held that
"[b]ecause two panels of the Indiana Court of Appeals
utilized their discretion to reach opposite
conclusions," Kimbrough necessarily had a reasonable
probability of success on a Rule 7(B) argument and had
satisfied Strickland's prejudice prong. The
"pivotal question" here is whether the court in
Kimbrough III unreasonably applied Strickland.
See Harrington v. Richter, 562 U.S. 86, 101 (2011).
Because the Indiana Court of Appeals addressed whether
Kimbrough has established prejudice, we must decide whether
that state court's decision "was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States." Antiterrorism and Effective Death Penalty Act
("AEDPA"), 28 U.S.C. § 2254(d)(1). When a case
falls under § 2254(d)(1), we review the state court
decision de novo to determine the legal question of whether
the decision is contrary to clearly established federal law.
See Denny v. Gudmanson, 252 F.3d 896, 900 (7th Cir.
2001); see also Morris v. Bartow, 832 F.3d 705, 709
(7th Cir. 2016) ("We review de novo the
district court's treatment of legal issues, and we review
findings of fact for clear error."). We consider the
"last reasoned opinion on the claim," here the
decision of the Indiana Court of Appeals in Kimbrough
III. See, e.g., Woolley v. Rednour, 702 F.3d 411, 421
(7th Cir. 2012). As the last reasoned opinion on the claim,
Kimbrough III is entitled to AEDPA deference.
Strickland requires Kimbrough to show a reasonable
probability that he would have obtained relief if his counsel
had raised a Rule 7(B) argument, the Rule 7(B) inquiry
underlies the Strickland analysis. Kimbrough must
show the Indiana Court of Appeals decision was "so
lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility for fair-minded disagreement."