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Kimbrough v. Neal

United States Court of Appeals, Seventh Circuit

October 24, 2019

John W. Kimbrough, Petitioner-Appellee/ Cross-Appellant,
Ron Neal, Respondent-Appellant/ Cross-Appellee.

          Argued 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.

          Before WOOD, Chief Judge, and Kanne and Brennan, Circuit Judges.

          Brennan, Circuit Judge.

         John 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.

         The 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.

         I. Background

         Kimbrough 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.

         On 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).[1] 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 II").

         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.

         As a 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 state appealed.

         II. Discussion

         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.

         Because 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." Harring ...

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