DOC#: 13135 Black Male
Marion County Superior Court
Judge Patricia J. Gifford
Prosecutor: Thomas J. Young,
Marcus Emery (Stephen Goldsmith)
Defense: Merle B. Rose, William
Date of Murder: January 16, 1978
Victim(s): Allen Streett W/M/40
(No relationship to Daniels)
Method of Murder: shooting with
Summary: Defendant and 2 other
men drove around residential neighborhoods in Indianapolis stopping
and robbing persons shoveling snow in front of their homes. At the
residence of Allen Streett,
Daniels and another man confronted Streett and
his 15 year old son, who were shoveling snow at 9:30 p.m. Two men
came up from behind and said, "Don't move and no one will get hurt."
The 15 year old turned and saw Daniels waving a gun at him. Daniels
ordererd Allen Streett and his son to hand over their wallets. When
Allen Streett responded that he did not have his wallet with him,
Daniels shot and killed him. The 15 year old handed over his wallet
to the other intruder, who then fled with Daniels.
Three other residents at other locations were
victimized that same night in a similar fashion. In all, six
eyewitnesses identified Daniels at trial. In addition, accomplice
Kevin Edmonds testified for the State, also implicating Daniels.
Robbery (A Felony)(4 counts), Attempted Robbery (A Felony)
Sentencing: September 14, 1979 (Death
Aggravating Circumstances: b(1)
Mitigating Circumstances: lack
of education, below normal IQ, slow learner
Daniels v. State, 453 N.E.2d 160 (Ind.
September 9, 1983)
Conviction Affirmed 5-0; DP Affirmed 3-2
Hunter Opinion; Givan, Pivarnik concur; Debruler, Prentice dissent.
Daniels v. Indiana, 109 S. Ct. 3182 (1989).
(Judgment Vacated and remanded for consideration of Gathers
Daniels v. State, 561 N.E.2d 487 (Ind.
(Appeal after Remand, DP Affirmed 4-1) Dickson Opinion; Shepard, Givan,
Pivarnik concur; Debruler dissents.
Daniels v. State, 528 N.E.2d 775 (Ind. 1988)
(Appeal of PCR denial by Special Judge Thomas A. Alsip)
DP Affirmed 5-0
Debruler Opinion; Shepard, Givan, Pivarnik, Dickson concur.
PCR Petition filed 11-16-92, 03-15-93.
06-26-95 Hearing held; Special Judge James R. Detamore grants Motion
for Summary Judgment, enforcing plea agreement for a term of years,
and resentences Daniels to 20 years, 60 years, 20 years, 20 years, 50
State v. Daniels, 680 N.E.2d 829 (Ind. May
(State's appeal of granting of partial summary judgment by Special
Judge James Detamore on 2nd PCR - PCR Court directed to enter judgment
for State on Plea Agreement issue; remanded on remaining issues).
Reversed 5-0; Boehm Opinion; Shepard, Dickson, Sullivan, Selby concur.
On remand, 2nd PCR denied on remaining issues on
State v. Daniels, 741 N.E.2d 1177 (Ind.
January 12, 2001)
(Appeal of 2nd PCR denial by Special Judge James Detamore)
Conviction Affirmed 5-0; DP Affirmed 5-0.
Shepard Opinion; Dickson and Sullivan concur; Boehm and Rucker dissent
as to death penalty.
09-26-00 Petition for Writ of Habeas Corpus filed
in U.S. District Court, Southern District of Indiana.
Michael W. Daniels v. Robert A. Farley, Superintendent (IP
Judge Larry J. McKinney
For Defendant: Judith G. Menadue, Elkhart, Mark A. Earnest,
For State: Wayne E. Uhl, Deputy Attorney General (Freeman-Wilson)
03-18-94 Entry directing dismissal until state remedies exhausted.
05-01-01 Notice of Intent to Amend pro-se Petition for Writ of Habeas
02-01-02 Amended Petition for Writ of Habeas Corpus filed in U.S.
District Court, Southern District
04-07-05 Amended Petition for Writ of Habeas Corpus denied.
On January 7, 2005, outgoing Indiana Governor
Joseph Kernan commuted the death sentence of Michael Daniels, the
longest serving prisoner on Indiana Death Row. Daniels was sentenced
to death on September 14, 1979. Governor Kernan showed less than
courage in granting the clemency, without notice to the Indiana
Attorney General, in his last days in office after being defeated in
his bid for reelection. As reasons for the clemency, Governor Kernan
basically stated that Daniels was "almost" retarded, "almost" entered
into a plea agreement for a lesser sentence, and the case was "almost"
reversed on appeal. Also the case was very old.
476 F.3d 426
Stanley Knight, Superintendent, Respondent-appellee
United States Court of Appeals, Seventh Circuit.
Argued November 2, 2006
Decided February 5, 2007
Before BAUER, RIPPLE, and MANION, Circuit Judges.
MANION, Circuit Judge.
Daniels was convicted of robbery and murder in
Indiana state court following a 1978 crime
spree in an Indianapolis residential neighborhood. After exhausting
his state court remedies, Daniels filed a
petition for habeas relief in federal court under 28 U.S.C. § 2254,
claiming he received ineffective assistance of trial counsel. The
district court denied Daniels' petition.
Daniels appeals, and we affirm.
Daniels' trial for murder, the State of
Indiana presented evidence that on the
evening of January 16, 1978, Daniels and two
other men committed a series hold-up robberies and shootings in an
Indianapolis residential neighborhood. Daniels
and his associates approached people at four separate residences while
the residents were either shoveling snow or getting out of their cars.
During the course of the robberies, Daniels
beat one of his victims and shot two others, one fatally. Each of
Daniels' six surviving victims and one of
Daniels' cohorts testified against him at his
jury trial in Indiana state court.
Daniels was convicted of four counts of
robbery, one count of attempted robbery, and one count of felony
murder. He was sentenced to four consecutive twenty-year terms of
imprisonment and one fifty-year term. Daniels
also was sentenced to death for his felony murder conviction.
Over the last twenty-seven years,
Daniels has filed a series of appeals and post-conviction
petitions in the Indiana and federal courts.
First, the Supreme Court of Indiana affirmed
Daniels' conviction and sentence on direct
appeal. Daniels v. State (Daniels
I), 453 N.E.2d 160 (1983). Daniels then
sought collateral review via a petition for post-conviction relief,
which the Supreme Court of Indiana ultimately
denied. Daniels v. State (Daniels
II), 528 N.E.2d 775 (1988). In his first petition for post-conviction
relief, Daniels claimed, among other things,
that he received ineffective assistance of trial counsel. The United
States Supreme Court granted Daniels'
petition for a writ of certiorari, vacated the Supreme Court of
Indiana's judgment in
Daniels II, and remanded the case to the Supreme Court of
Indiana for further consideration in light of
the Court's then recent decision in South Carolina v. Gathers,
490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989).
Daniels v. Indiana,
491 U.S. 902, 109 S.Ct. 3182, 105 L.Ed.2d 691 (1989). On remand, the
Supreme Court of Indiana held that neither
Gathers nor Booth v. Maryland, 482 U.S. 496, 107 S.Ct.
2529, 96 L.Ed.2d 440 (1987), were retroactive.
Daniels v. State, 561 N.E.2d 487, 489-91 (Ind.1990). On
November 22, 1993, Daniels filed a second
petition for post-conviction relief, which the Supreme Court of
Indiana ultimately denied.
Daniels v. State (Daniels
III), 741 N.E.2d 1177, 1191 (Ind.2001). The Supreme Court of
Indiana held that Daniels
had waived all of his ineffective assistance of counsel claims, with
the exception of the claim Daniels raised in
his first petition for post-conviction relief; in his first petition
for post-conviction relief, Daniels claimed
that his trial counsel was ineffective because he failed to confront
one of the government's eyewitnesses, Timothy Streett, with evidence
that Streett had been hypnotized during one of his identification
sessions with police. Id. at 1181-88. Nonetheless, the Supreme
Court of Indiana reviewed on their merits
each of Daniels' ineffective assistance
claims prior to denying his second petition. Id.
Following the Supreme Court of
Indiana's denial of his second petition for post-conviction
relief, Daniels filed a petition for habeas
relief pursuant to 28 U.S.C. § 2254 in federal court.
Daniels v. McBride, No. IP 01-550-C-Y/K (S.D.Ind.
Apr. 7, 2005). Daniels' § 2254 petition
raised multiple claims, including ineffective assistance of trial
counsel, the state withholding or destroying evidence, and ineffective
assistance of appellate counsel. On January 7, 2005, while
Daniels' § 2254 petition was pending before
the district court, then-Indiana Governor
Joseph E. Kernan commuted Daniels' sentence
of death to life imprisonment without the possibility of parole. Three
months later, the district court denied Daniels'
§ 2254 petition. In denying Daniels' petition,
the district court did not address the Supreme Court of
Indiana's finding that
Daniels had waived all but one of his ineffective assistance of
counsel claims, but instead denied each of Daniels'
claims on the merits. The district court subsequently granted
Daniels' motion for a certificate of
appealability. Daniels appeals only the
district court's denial of his claims based on alleged ineffective
assistance of counsel during the guilt phase of his trial.
On appeal, Daniels
reiterates a laundry list of grounds for his claims of ineffective
assistance of counsel during the guilt phase of his trial. His
allegations break down into two categories: (1) his counsel's failure
to introduce evidence that someone other than
Daniels (specifically, Paul Rowley) committed the robberies;
and (2) his counsel's failure to confront Streett regarding his
identification after being hypnotized. The Supreme Court of
Indiana held that Daniels
waived all of his ineffective assistance claims, except for his claim
that his counsel failed to confront Streett, because
Daniels failed to raise those claims in his first post-conviction
appeal. The district court did not address the waiver issue, but, as a
threshold matter, we must determine whether Daniels
procedurally defaulted any of the claims he raises in this appeal.
"Out of respect for finality, comity, and the
orderly administration of justice, a federal court will not entertain
a procedurally defaulted constitutional claim in a petition for habeas
corpus absent a showing of cause and prejudice to excuse the default1
." Dretke v. Haley, 541 U.S. 386, 388, 124 S.Ct. 1847, 158 L.Ed.2d
659 (2004). Quoting the United States Supreme Court, the Supreme Court
of Indiana reiterated this point, stating:
The States possess primary authority for defining
and enforcing the criminal law. In criminal trials they also hold the
initial responsibility of vindicating constitutional rights. Federal
intrusions into state criminal trials frustrate both the States'
sovereign power to punish offenders and their good-faith attempts to
honor constitutional rights.
Woods v. State, 701 N.E.2d 1208, 1217
(Ind.1998) (quoting Engle v. Isaac, 456 U.S. 107, 128, 102 S.Ct.
1558, 71 L.Ed.2d 783 (1982) (citation omitted)). The Supreme Court of
Indiana further explained:
Hence as a matter of procedural fairness a finding
of waiver by an Indiana court must be
predicated on a meaningful opportunity to litigate the claim.
Alternatively, if an ineffectiveness claim found to be waived in our
courts is nonetheless addressed on the merits in federal court, this
State will have foregone the opportunity to correct the possible error
before federal review of our judicial process. One goal of our
postconviction rules is to minimize the level of federal
constitutional error before federal review of the conviction: "[O]ne
of the functions of our post conviction remedy rules is to preserve
what sanctity remains to this [S]tate's disposition of a criminal
charge by allowing a convicted criminal defendant ample opportunity to
present claims for relief in the courts of this state before resort
must be had to the federal courts." Langley v. State, 256 Ind.
199, 267 N.E.2d 538, 541 (1971).
Id. at 1217-18.
In Daniels III, the
Supreme Court of Indiana addressed how the
waiver doctrine impacted Daniels' ineffective
assistance of trial counsel claims. In addition to his unsuccessful
direct appeals of his sentence, Daniels had
filed two sets of post-conviction petitions. Regarding the ineffective
assistance of trial counsel claims Daniels
presented in a second post-conviction petition, the Supreme Court of
[A]ll of these matters were known or knowable both
at trial and at the time of Daniels' first
post-conviction proceeding. Therefore, the post-conviction court
correctly held that Daniels' new claims of
trial counsel ineffectiveness were barred by res judicata and
waiver. As this Court observed in our last opinion in this case, "the
Indiana Rules of Procedure for Post-Conviction
Remedies require that all grounds for relief available to a petitioner
under the post-conviction rules must be raised in the original
petition." State v. Daniels, 680 N.E.2d
829, 835 n. 10 (Ind.1997) (citing Ind. Post-Conviction R. 1(8)).
[T]he issue of the effectiveness of
Daniels' trial and appellate counsel was
extensively litigated and appealed in his post-conviction proceeding
nine years ago. Daniels v. State [Daniels
II], 528 N.E.2d 775 (1988). The issues raised by
Daniels in this appeal were on the face of the record from the
time of his trial. Accordingly, consideration of additional issues
bearing on trial or appellate counsel's ineffectiveness that were
available at that time is precluded. Id. [citations omitted]
We must mean what we say in our rules, that a
defendant is entitled to one post-conviction hearing and one post-conviction
opportunity to raise the issue of ineffectiveness of trial counsel in
the absence of newly discovered evidence. . . .
Although the evidence related to Rowley might have
helped Daniels' defense, none of these lines
of inquiry except for Timothy Streett's identification were addressed
either at trial or as examples of ineffective trial assistance at the
first post-conviction proceeding. . . .
In sum, we reaffirm the sound and long-established
principle that considerations of finality preclude re-litigation of
previously available contentions in successive post-conviction
Daniels III, 741
N.E.2d at 1184-85 (citing Baum v. State, 533 N.E.2d 1200, 1201
(Ind. 1989) and Resnover v. State, 547 N.E.2d 814, 816
(Ind.1989) (emphasis added)).
Daniels argues, however,
that the Supreme Court of Indiana's decision
in Daniels III does not require a
finding of procedural default, because we cannot reasonably discern
whether that court based its holding upon the principle of res
judicata or the principle of waiver. This distinction is important
because an application of res judicata is not an adequate bar to
federal review, but a finding of waiver is a procedural default
prohibiting federal review. See Moore v. Bryant, 295 F.3d 771,
775-77 (7th Cir.2002) (finding federal review not prohibited by state
court's application of only res judicata to bar claim). As we have
noted previously, "a state court's invocation of res judicata `simply
means that the state courts have already resolved the matter and want
nothing more to do with it.'" Id. at 776 n. 1 (quoting
Porter v. Gramley, 112 F.3d 1308, 1316 (7th Cir.1997)). A finding
of waiver, on the other hand, "must be predicated on a meaningful
opportunity to litigate the claim" and a finding that the litigant
elected not to pursue the claim when presented with the opportunity to
do so. See Woods, 701 N.E.2d at 1217-18.
Contrary to Daniels'
argument, it is clear from Daniels III
that the Supreme Court of Indiana was relying
on the principle of waiver. In its opinion in
Daniels III, the Supreme Court of Indiana
stated that its holding was based on waiver and articulated the
rationale for its finding when it stated that "[a]though evidence
related to Rowley might have helped Daniels'
defense, none of these lines of inquiry except for Timothy Streett's
identification were addressed either at trial or as examples of
ineffective trial assistance at the first post-conviction proceeding."
Daniels III, 741 N.E.2d at 1185. The
basis for its waiver holding is most clearly expressed in its
conclusion that "we reaffirm the sound and long-established principle
that considerations of finality preclude re-litigation of previously
available contentions in successive post-conviction proceedings."
Id. The Daniels III court also
clarified its understanding of the distinction between res judicata
and waiver when it stated:
[W]e adhere to the view that claims of ineffective
assistance of counsel, if litigated at the initial post-conviction
proceeding, are barred by the doctrine of res judicata in
successive petitions of post-conviction relief, and any acts or
omissions of the trial counsel that were available in the first post-conviction
proceeding but not raised are waived in a successive petition.
This doctrine controls the disposition of this case.
Daniels III, 741
N.E.2d at 1187 (emphasis added). We thus find that the Supreme Court
of Indiana relied upon the doctrine of waiver
to bar by procedural default all of Daniels'
ineffective assistance of counsel claims, except his claim related to
Daniels also contends that
even were the Supreme Court of Indiana's
holding in Daniels III based on waiver,
he should not be procedurally defaulted from raising his claims
because the Indiana rules regarding waiver
were not "firmly established and regularly followed" at the time he
filed his first petition for post-conviction relief in 1984. See
Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d
935 (1991) ("[O]nly a `firmly established and regularly followed state
practice' may be interposed by a State to prevent subsequent review by
this Court of a federal constitutional claim." (quoting James v.
Kentucky, 466 U.S. 341, 348-51, 104 S.Ct. 1830, 80 L.Ed.2d 346
(1984))). Specifically, Daniels argues that
the Supreme Court of Indiana did not settle
uncertainties regarding its waiver doctrine until its decision in
Woods v. State, 701 N.E.2d 1208 (Ind.1998).
Daniels, however, reads Woods too broadly. The unsettled
issue in Woods was whether a defendant must raise ineffective
assistance of counsel claims on direct appeal, or whether a defendant
can raise them for the first time in a petition for post-conviction
relief. Woods, 701 N.E.2d at 1213-15. The Woods court
concluded that "ineffective assistance may be raised on direct appeal,
but if it is not, it is available in post-conviction proceedings."
Id. at 1216. The Woods holding had nothing to do with the
issue here, which is whether Daniels waived
his ineffective assistance of counsel claims raised for the first time
in a second petition for post-conviction relief after electing not to
raise those claims in his first petition for post-conviction relief.
The answer to that question is found in Rule 1(8) of the
Indiana Rule of Procedure for Post-Conviction
Remedies, entitled "Waiver or failure to assert claims," and the case
law interpreting it, which predate Daniels'
first petition for post-conviction relief. Ind. Post-Conviction R.
1(8) ("All grounds for relief available to a petitioner under this
rule must be raised in his original petition."); see, e.g., Jewell
v. State, 272 Ind. 317, 397 N.E.2d 946, 947 (1979) (finding waiver
for failure to assert claims available in first petition for post-conviction
relief); Lamb v. State, 263 Ind. 137, 325 N.E.2d 180, 184
(1975) ("[I]nasmuch as the petition was an attempt to raise an issue
available to the defendant under his first petition but not therein
raised, and there was no error in summarily dismissing the petition.").
Further, even though the two cases cited by the
Daniels III court to support its waiver holding, Baum v.
State, 533 N.E.2d 1200 (Ind.1989), and Resnover v. State,
547 N.E.2d 814 (Ind. 1989), were not decided prior to the date on
which Daniels filed his first petition for
post-conviction relief, those cases represent only two of the more
recent decisions in the Supreme Court of Indiana's
long-established line of authority interpreting Rule 1(8). See
Resnover, 547 N.E.2d at 816 (discussing the Supreme Court of
Indiana's history of post-conviction petition
waiver decisions). We thus find that the waiver rule applied by the
Daniels III court was "firmly established
and regularly followed" at the time Daniels
filed his first petition for post-conviction relief. Accordingly, we
hold that all of Daniels' ineffective
assistance of counsel claims, except his claim related to Streett's
identification which was raised in his first petition for post-conviction
relief, are barred by procedural default based on the Supreme Court of
Indiana's finding of waiver in
In his sole non-procedurally defaulted claim,
Daniels argues that the district court erred
in denying his § 2254 habeas petition because his trial counsel's
failure to raise the issue of Timothy Streett's identification after
he was hypnotized was so woefully inadequate and prejudicial that it
requires a new trial. Timothy Streett was the then-fifteen-year-old
son of Daniels' murder victim, Allen Streett.
Timothy Streett witnessed Daniels shoot his
father in the family's driveway after his father informed
Daniels that he could not give him his wallet
because he was not carrying it. The Supreme Court of
Indiana previously rejected Daniels'
claims regarding Streett's identification when
Daniels raised them in his first petition for post-conviction
relief. Daniels II, 528 N.E.2d at
779-80; see also Daniels III, 741 N.E.2d
at 1182 n. 5 (discussing holding of Daniels
II). In his first petition for post-conviction relief, and in his
§ 2254 petition, Daniels alleged that his
trial counsel provided ineffective assistance in violation of the
Sixth Amendment by failing to challenge Streett's identification
testimony based on the fact that Streett underwent hypnosis during an
identification session with police. Daniels
further alleges that this error was compounded by his trial counsel's
failure to inform the jury that Streett had been hypnotized, had only
identified Daniels after hypnosis, and had
made a "possible" identification of another man while hypnotized. We
review the district court's denial of habeas relief de novo.
Goodman v. Bertrand, 467 F.3d 1022, 1026 (7th Cir.2006).
Our review of this claim is governed by the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). 28
U.S.C. § 2254(d); see also Lambert v. McBride, 365 F.3d 557,
561 (7th Cir.2004). Under the AEDPA, if a state court adjudicated a
constitutional claim on the merits, then a federal court may grant
habeas relief only if the state court decision was contrary to, or
involved an unreasonable application of, Supreme Court precedent or if
the state court 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); see also Williams v. Taylor, 529 U.S. 362,
376-77, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (discussing the AEDPA).
Daniels bears the burden of proving that the
Supreme Court of Indiana's application of
federal law was unreasonable. Harding v. Sternes, 380 F.3d
1034, 1043 (7th Cir.2004). As this court has stated previously, the "unreasonable
application" prong of § 2254(d) "is a difficult standard to meet."
Jackson v. Frank, 348 F.3d 658, 662 (7th Cir.2003).
The Supreme Court set forth the framework for
assessing Sixth Amendment ineffective assistance of counsel claims in
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984); see also Goodman v. Bertrand, 467 F.3d 1022, 1027
(7th Cir.2006) (applying Strickland). The Strickland
framework was clearly established by the time the
Indiana trial court denied Daniels'
first post-conviction appeal on February 21, 1985. See Williams,
529 U.S. at 391, 120 S.Ct. 1495 ("It is past question that the rule
set forth in Strickland qualifies as `clearly established
Federal law, as determined by the Supreme Court of the United States.'"
(citation omitted in original)); see also United States v. Payne,
741 F.2d 887, 890-95 (7th Cir.1984) (applying the Strickland
framework to case briefed and argued before this court prior to the
Supreme Court issuing its Strickland decision). The Supreme
Court framed the determinative question as "whether counsel's conduct
so undermined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just result."
Strickland, 466 U.S. at 686, 104 S.Ct. 2052. Under Strickland,
Daniels must prove two elements: (1) that his
trial counsel's performance fell below "an objective standard of
reasonableness," id. at 688, 104 S.Ct. 2052; and (2) "that
there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different," id. at 694, 104 S.Ct. 2052. For the first element,
this court's review of the attorney's performance is "highly
deferential" and "reflects a strong presumption that counsel's conduct
falls within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial
strategy." Id. at 689, 104 S.Ct. 2052. For the second element,
the defendant must show that "counsel's errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable." Id. at 687, 104 S.Ct. 2052.
Daniels' failure to establish either element of the
Strickland framework will result in denial of his claim.
Rastafari v. Anderson, 278 F.3d 673, 688 (7th Cir.2001). Finally,
"a state-court holding is not contrary to clearly established federal
law" even if it fails to cite Supreme Court precedent, "as long as `neither
the reasoning nor the result of the state-court decision contradicts
them.'" Harrison v. McBride, 428 F.3d 652, 666 (7th Cir.2005) (quoting
Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263
As an initial matter, we note that
Daniels failed to show any evidence that the
various recitations of evidence and factual findings by the
Indiana state courts were incorrect, so we
presume those courts' findings of fact to be correct. See Foster v.
Schomig, 223 F.3d 626, 631 (7th Cir.2000) (applying 28 U.S.C. §
2254(e)(1)) ("Findings of fact made by the state courts are presumed
to be correct and this presumption may be rebutted only by clear and
convincing evidence."). Next, we look to the Supreme Court of
Indiana's analyses in
Daniels II and Daniels III
to determine whether they were contrary to Strickland. In
addressing Daniels' claim regarding Streett's
identification after being hypnotized, the
Daniels II court specifically cited Strickland as
the basis for its analysis and quoted its framework.
Daniels II, 528 N.E.2d at 779. Applying
Strickland, the Daniels II
court found that Streett had an independent basis for his
identification of Daniels, which was
untainted by the hypnosis session. Id. That independent basis
rendered harmless Daniels' trial counsel's
failure to raise Streett's identification after being hypnotized.
Id. The Daniels II court also
noted that Daniels' trial counsel testified
that they believed that the key to the case was the testimony of Kevin
Edmonds, one of the participants in the crime who identified
Daniels as the triggerman. Id.
Daniels' trial counsel also testified that,
compared to Edmonds' testimony, they did not believe Streett's
testimony was of great importance. Id. They further testified
that when Streett was being questioned on the witness stand, he was on
the verge of breaking down and any further attempts to discredit his
identification would appear to be an attack on the son of the murder
victim. Based on that testimony, the Daniels
II court rejected Daniels' claim,
Clearly a decision was made to concentrate on
discrediting Edmonds rather than Timothy Streett in order to avoid
alienating the jury with extensive cross-examination of the victim's
fifteen-year old son. The propriety of this decision will not be
questioned based on hindsight, even if the strategy were poor, it does
not rise to the level of ineffective assistance.
Id. The Daniels
III court reiterated its earlier holding by stating that "[w]e
denied relief because Streett had an independent basis for his in-court
identification that was untainted by the hypnosis" and because "Streett
was only one of several eyewitnesses who testified to the various
crimes charged." Daniels III, 741 N.E.2d
at 1182 n. 5.
The district court, in considering
Daniels' § 2254 petition, began by addressing
the Strickland framework's first element: whether
Daniels received ineffective assistance of
trial counsel "in the context of the case as a whole, viewed at the
time of the conduct, and [with] a strong presumption that the
defendant received effective assistance." Hardamon v. United States,
319 F.3d 943, 948 (7th Cir.2003). We begin our analysis there as well.
"There are countless ways to provide effective assistance in any given
case." Strickland, 466 U.S. at 689, 104 S.Ct. 2052. It is "all
too easy for a court, examining counsel's defense after it has proved
unsuccessful, to conclude that a particular act or omission of counsel
was unreasonable." Id. Thus, "only a clear error in applying
Strickland's standard would support a writ of habeas corpus."
Holman v. Gilmore, 126 F.3d 876, 882 (7th Cir.1997). Here,
Daniels' trial counsel made a tactical
decision to subject one of Daniels' cohorts
to more intensive cross-examination, while going easier on the
traumatized son of the murder victim. Because Streett had an
independent, non-tainted basis for his in-court identification, we
find the conduct of Daniels' trial counsel
conduct fell within the wide range of reasonable professional
assistance. Accordingly, Daniels cannot
satisfy Strickland's first element. We further agree with the
district court that Daniels was not
prejudiced by the representation he received at trial and he cannot
satisfy Strickland's second element because any error regarding
raising Streett's identification after being hypnotized was harmless.
We therefore hold that the Supreme Court of Indiana
did not unreasonably apply the Strickland framework to bar
Daniels' petition for post-conviction relief
claim related to Streett's identification, and we affirm the district
court's denial of Daniels' § 2254 petition.
The Supreme Court of Indiana
held in Daniels III that
Daniels waived all of his ineffective
assistance of counsel claims, except his claim regarding Streett's
identification after being hypnotized, because
Daniels failed to raise those claims in his first petition for
post-conviction relief. Daniels thus was
barred by procedural default from raising those waived claims in his §
2254 petition, and the district court should not have considered the
merits of those claims. We affirm the district court's denial of
Daniels' sole remaining ineffective
assistance of counsel claim; the district court correctly held that
the Supreme Court of Indiana properly applied
the Strickland framework to deny Daniels'
claim regarding Streett's identification after being hypnotized. The
district court's denial of Daniels' § 2254
petition is AFFIRMED.
The Supreme Court recognized two exceptions to this
rule: "when habeas applicant can demonstrate that the alleged
constitutional error has resulted in the conviction of one who is
actually innocent of the underlying offense or, in the capital
sentencing context, of the aggravating circumstances rendering the
inmate eligible for the death penalty."Dretke, 541 U.S. at 388,
124 S.Ct. 1847. Daniels, however, does not
argue for or meet either exception. First, he does not attempt to
demonstrate that his counsel's alleged errors resulted in the
conviction of one who is actually innocent of the underlying offense.
(Appellant's Opening Br. at 46 ("Appellant simply asks the Court to
recognize the obvious proposition that Appellant received woefully
inadequate counsel and give him the opportunity for the fair trial he
never received.").) Second, his original capital sentence was commuted
to life imprisonment without the possibility of parole.
Michael W. Daniels