Pinkins, Darryl v. Buss, Edwin

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 23, 2007
Decided February 8, 2007
Before
Hon. JOEL M. FLAUM, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-4528
DARRYL PINKINS, Appeal from the United States District
Petitioner-Appellant, Court for the Northern District of
Indiana, South Bend Division.
v.
No. 3:05-CV-134 AS
EDWARD BUSS,
Respondent-Appellee. Allen Sharp,
Judge.
ORDER
Indiana inmate Darryl Pinkins is serving a 65-year sentence for his role in
the gang rape of M.W. After unsuccessfully pursuing a direct appeal and state
postconviction petition, he petitioned the district court for a writ of habeas corpus.
The district court denied relief, but this court granted a certificate of appealability
after concluding that Pinkins had “made a substantial showing of the denial of a
constitutional right to effective trial counsel.” Pinkins, though, procedurally
defaulted most of his theories of ineffective assistance, and he has failed to
demonstrate that the Indiana courts unreasonably applied clearly established
federal law in disposing of those he did not default. Thus we affirm the district
court’s denial of Pinkins’s petition.
No. 05-4528 Page 2
For our purposes, we accept as true the factual findings of the Indiana courts.
See 28 U.S.C. § 2254(e)(1). On December 7, 1989, at approximately 1:30 a.m., M.W.
was driving home from a friend’s house when her car was rear-ended at an
intersection in Hammond, Indiana. She exited her vehicle, as did the driver of the
other car, who approached M.W. and asked if she was all right. Before she could
answer, however, the other driver grabbed her arm. Two more men then grabbed
her from behind, dragged her to their car, and shoved her into the back seat. Before
being told, “Don’t look at us, bitch, or we’ll kill you,” she observed a total of five men
at the scene, and at some point she was given a pair of green coveralls and ordered
to cover her face. The vehicle then began moving while a man in the backseat
stripped her naked and raped her. The other four men also took turns raping her.
The assault continued for about two hours before her assailants stole the rings off
her fingers and returned her to her car.
It was five months after the attack that M.W. first identified Pinkins as the
driver of the vehicle that rear-ended her. During an interview shortly after the
assault, M.W. had told investigators that she knew by his voice that the fourth man
who raped her was the driver of the other car, but she could give only vague
physical descriptions of her attackers and refused to look at a photograph array.
On May 4, 1990, however, M.W. attended, on her own initiative, a pretrial hearing
in the case where Pinkins and at least one other man charged in connection with
the assault were present. M.W. saw Pinkins, who had been released pending trial,
enter the courtroom and immediately recognized him as the driver of the car that
struck her the night she was raped. After the hearing, she told a detective and the
deputy prosecutor that Pinkins was one of her attackers. She did not identify
anyone else at the pretrial hearing as an assailant.
Pinkins was tried in the Superior Court of Lake County, Indiana, on charges
of rape, criminal deviate conduct, and robbery. During the three-week jury trial the
state presented two pieces of direct evidence against Pinkins. First, M.W. testified
concerning the events of December 7, 1989, and identified Pinkins in court as the
driver of the vehicle that rear-ended her as well as the fourth man to rape her.
M.W. also testified that she previously had recognized Pinkins when she voluntarily
attended a pretrial hearing and that prior to that time she had not viewed a
physical lineup or photographs of any suspects in her case. Second, an inmate who
had been incarcerated with Pinkins testified that Pinkins told him that he and two
friends had raped a woman while covering her head with green coveralls and that
he was not concerned about DNA tests because he did not ejaculate inside of her.
The state also presented circumstantial evidence connecting Pinkins to the
attack. Of particular significance, evidence showed that the police had traced the
coveralls given to M.W. to cover her face to Pinkins’s employer and established that
Pinkins and two of his co-workers were issued new coveralls four days after the
No. 05-4528 Page 3
assault. Evidence also established that Pinkins had approached co-defendant Barry
Jackson and his attorney during a pretrial hearing and told the lawyer that he did
not understand why Jackson had been arrested because Jackson was not with
Pinkins and the other men on the night of the assault. In addition, employees of
two adult entertainment venues testified as to Pinkins’s physical description and
typical attire, explaining that they were familiar with Pinkins because he was a
frequent customer.
The state also presented forensic evidence derived from two types of
testing—DNA and serology. The state’s expert described the difference between
DNA and serology testing, explaining that DNA testing is more “specific,” meaning
that the number of potential contributors to the sample could be narrowed to a very
few people, but that serology testing is more “sensitive,” meaning that testing could
be performed on a smaller sample of genetic material. She also explained that DNA
testing will yield a result only if the sample contains a nucleated cell, such as
sperm, but serology testing will yield a result from samples that do not contain a
nucleated cell, such as samples containing seminal fluid or saliva. According to the
expert, DNA testing performed on bodily fluid samples collected from M.W’s
clothing and vagina immediately following the attack disclosed three separate
genetic codes. One code matched M.W.’s genetic code; the other two codes were not
a match for any of the five suspects. Serology testing of the same samples, however,
revealed that blood serums with properties matching those of Pinkins’s blood type
were present in some of the samples.
The jury found Pinkins guilty on all counts. He was sentenced to 40 years in
prison for rape and to a consecutive 25 years for criminal deviate conduct. In
addition, he was sentenced to 10 years for robbery to be served concurrently with
his other sentences. Pinkins filed a notice of appeal, but his direct appeal was
stayed for twelve years while he pursued a postconviction petition.
Pinkins’s postconviction petition was denied by the trial court after several
evidentiary hearings. He appealed that ruling to the state appellate court. In a
proceeding that consolidated his direct appeal and his appeal of the trial court’s
denial of postconviction relief, Pinkins set forth five issues for review, but only the
two issues arising from his postconviction petition are relevant here. First, he
argued that the trial court erred when it declined to vacate his conviction or grant
him a new trial based upon a new round of DNA testing performed in 2001. That
testing was performed using a more advanced testing procedure than was available
at the time of Pinkins’s trial but yielded results that were basically the same as the
1991 results. Second, he argued that his trial counsel was ineffective because
counsel allegedly slept through portions of the trial, failed to object to the evidence
that Pinkins frequented strip clubs, and failed to suppress M.W.’s in-court
No. 05-4528 Page 4
identification of Pinkins. The appellate court affirmed, concluding that no
reversible error occurred.
Pinkins petitioned the Indiana Supreme Court for transfer. In his supporting
brief he proposed five questions for review: whether the appellate court erred when
it concluded that Pinkins’s trial counsel was not ineffective for failing to object to
evidence that Pinkins frequented strip clubs; whether the appellate court erred
under state and federal law when it concluded that Pinkins’s trial counsel was not
ineffective for failing to object to M.W.’s identification of Pinkins as her assailant;
whether the appellate court’s determination that the 2001 DNA test results were
not favorable to Pinkins within the meaning of Indiana Code § 35-38-7-19 decided
an important question of law that should be decided by the state supreme court;
whether the appellate court erred when it held that the trial court did not commit
fundamental error under state law by admitting evidence that Pinkins frequented
strip clubs; and whether the appellate court erred when it held that prosecutors did
not commit misconduct by introducing the strip-club evidence. The Indiana
Supreme Court denied transfer.
Pinkins then filed his federal petition under 28 U.S.C. § 2254, raising three
claims for consideration by the district court. First, he claimed that he was denied
due process of law because the state presented false or misleading serology
evidence. Second, he claimed that he received ineffective assistance of appellate
counsel. Third, he claimed that he received ineffective assistance of trial counsel, in
that counsel allegedly slept during portions of the trial, failed to object to the
evidence that Pinkins frequented strip clubs, failed to object to M.W.’s identification
of Pinkins, failed to meaningfully challenge the state’s serology evidence, failed to
object to evidence concerning a dispute between a witness and Pinkins that
escalated into a threatening gesture, and failed to object to testimony from
Pinkins’s employer concerning his reputation for honesty and truthfulness. In a
very brief order, the district court denied Pinkins’s petition.
On appeal Pinkins has recast the content of his ineffective assistance of
counsel claim for a fourth time. He now contends that his trial counsel’s
performance was constitutionally deficient because he allegedly slept through
portions of the trial, failed to object to the evidence that Pinkins frequented strip
clubs, failed to challenge M.W.’s in-court identification of Pinkins, and failed to
meaningfully challenge the state’s serology evidence.
Federal-court review of Pinkins’s convictions is governed by the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under AEDPA, a
federal court cannot grant relief under § 2254 to a state prisoner whose federal
claims have been adjudicated on the merits by the state courts unless the decision
“was contrary to, or involved an unreasonable application of, clearly established
No. 05-4528 Page 5
Federal law, as determined by the Supreme Court of the United States,” 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); see Brown v. Payton,
544 U.S. 133, 141 (2005); Charlton v. Davis, 439 F.3d 369, 374 (7th Cir. 2006). We
look to the decision of the last state court to rule on the merits of the petitioner’s
claim: here, the opinion of the Court of Appeals of Indiana affirming the denial of
postconviction relief. See Garth v. Davis, 470 F.3d 702, 710 (7th Cir. 2006). The
district court’s order denying Pinkins’s petition under § 2254 is subject to de novo
review. See Charlton, 439 F.3d at 372.
Pinkins’s ineffective-assistance claim is governed by the principles
established in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a
defendant must show that his counsel’s performance fell below an objective
standard of reasonableness and that he was prejudiced as a result. Id. at 687-88.
To establish prejudice, a defendant must show that but for counsel’s errors there is
a reasonable probability that the result of the trial would have been different. Id.
at 694. Federal courts do not apply the principles of Strickland directly to a claim
of ineffective assistance that has been adjudicated by the state courts; instead, the
role of the federal courts is limited to analyzing whether the state courts reasonably
applied federal law in concluding that trial counsel was not constitutionally
ineffective. Conner v. McBride, 375 F.3d 643, 657 (7th Cir. 2004).
As an initial matter we must consider whether Pinkins procedurally
defaulted two of the theories underlying his claim of ineffective assistance of trial
counsel. The state argues that when Pinkins petitioned the Indiana Supreme Court
to accept transfer of the appellate court’s decision, he failed to present his theory
that counsel was ineffective because he slept during portions of the trial. The state
also contends that Pinkins never presented at all to the Indiana courts his theory
that counsel was ineffective for failing to challenge the serology evidence. We agree.
To preserve a federal claim for collateral review, a state prisoner must take
the claim through one complete round of review in the state courts, including a
petition for discretionary review in the state supreme court if available, and must
fairly present the federal nature of his claim to the state courts. O’Sullivan v.
Boerckel, 526 U.S. 838, 845-48 (1999). Fair presentation requires that “both the
operative facts and the controlling legal principles” be submitted to the state courts,
Hough v. Anderson, 272 F.3d 878, 892 (7th Cir. 2001); see Wilson v. Briley, 243 F.3d
325, 327 (7th Cir. 2001), so that the state courts have “a meaningful opportunity to
pass upon the substance of the claims,” Chambers v. McCaughtry, 264 F.3d 732,
737-38 (7th Cir. 2001). A state defendant who “fails to present his claims in a
petition for discretionary review to a state court of last resort” has not properly
presented his claims to the state courts. O’Sullivan, 526 U.S. at 848; see Hough,
No. 05-4528 Page 6
272 F.3d at 892. This failure results in a procedural default that precludes federal
review. Hough, 272 F.3d at 892; Wilson, 243 F.3d at 327.
In this case Pinkins did not present through one entire round of state review
his theories that counsel was ineffective for allegedly sleeping during trial and for
failing to meaningfully challenge the state’s serology evidence. The theory that
counsel slept through portions of the trial was never presented in his petition for
transfer, and the theory that trial counsel should have done a better job of
challenging the serology evidence was never presented at all. Pinkins maintains
that he alerted the Indiana Supreme Court to the facts of these two theories
because he included citations in his petition to transfer that referenced his brief to
the state appellate court and the response brief filed by the state in that court, but
those references concerned only his arguments that counsel was ineffective for
failing to object to the pre-trial identification procedure and for failing to object to
evidence concerning his frequenting strip clubs. Consequently, he did not fairly
present these theories to the Indiana courts. Pinkins also argues that a procedural
default may be set aside if caused by “attorney error that constitutes ineffective
assistance of counsel.” But Pinkins had no federal constitutional right to counsel in
pursuing his state postconviction petition and subsequent appeals, so any error by
counsel that led to a default of Pinkins’s theories in state court cannot constitute
cause to excuse default in the federal collateral proceedings. See Coleman v.
Thompson, 501 U.S. 722, 756-57 (1991). Accordingly, Pinkins failed to exhaust his
state-court remedies, resulting in procedural default of these theories.
As to the two theories that we may review, Pinkins first contends that trial
counsel was ineffective because he failed to object to what Pinkins characterizes as
“bad character” evidence. Pinkins identifies testimony from four state witnesses
that, he says, concerned his “proclivity to spend time at topless bars,” as well as
testimony that counsel elicited from him which, he says, portrayed him as a racist
and liar. According to Pinkins, this evidence prejudiced him by “painting him as
some sort of mad sex-fiend.”
A claim of ineffective assistance based on counsel’s failure to object is “tied to
the admissibility of the underlying evidence.” Hough, 272 F.3d at 898. Questions
concerning the admissibility of evidence are generally governed by state law.
Milone v. Camp, 22 F.3d 693, 702 (7th Cir. 1994). If evidence admitted without
objection was admissible, then a defendant’s argument fails both prongs of the
Strickland test. Hough, 272 F.3d at 898. A federal court will rarely find ineffective
assistance of counsel “based upon a trial attorney’s failure to make an objection that
would have been overruled under the then-prevailing law.” Lucas v. O’Dea, 179
F.3d 412, 420 (6th Cir. 1999).
No. 05-4528 Page 7
With respect to this theory, the Court of Appeals of Indiana determined that
any objection to the “bad character” evidence would have been overruled. The court
explained that the evidence would have been admitted over counsel’s objection
because it “did not amount to uncharged crimes or prior bad acts” that might have
rendered the evidence inadmissible. Pinkins v. Indiana, 799 N.E.2d 1079, 1095
(Ind. Ct. App. 2003). Pinkins does not challenge this determination.
Pinkins next contends that trial counsel was ineffective because he failed to
object to M.W.’s in-court identification. He says that M.W.’s encounter with him at
the pretrial hearing five months after she was attacked constituted an overly
suggestive out-of-court identification that “irreparably tainted” her in-court
identification. Given that “M.W.’s identification of Pinkins as one of her attackers
was crucial for the state’s case,” Pinkins insists, “the trial judge should have been
asked to rule on its admissibility.”
Unlike Pinkins’s theory that counsel was ineffective for failing to object to the
“bad character” evidence, Pinkins’s theory that the trial court wrongfully allowed
into evidence M.W.’s in-court identification presents a federal question because it
implicates due process. A state prisoner is entitled to collateral relief if, in
answering the federal question, the state court unreasonably applied clearly
established federal law. Williams v. Taylor, 529 U.S. 362, 367 (2000); Badelle v.
Correll, 452 F.3d 648, 654 (7th Cir. 2006). An unreasonable application of federal
law “occurs when the state court correctly identifies the governing legal rule but
applies it unreasonably to the facts” of a petitioner’s case. Badelle, 452 F.3d at 654.
An unreasonable application of governing federal law is not merely an erroneous
decision, but must be so erroneous as to be objectively unreasonable. Id.A petitioner claiming that an in-court identification violated due process
must demonstrate that an unduly suggestive out-of-court procedure tainted the
in-court identification. Gregory-Bey v. Hanks, 332 F.3d 1036, 1045 (7th Cir. 2003).
Once that burden is met, “the court must then determine, under the ‘totality of the
circumstances,’ whether the identification was sufficiently reliable to prevent
misidentification.” Id. Reliability is based on factors that include the opportunity
of the witness to view the criminal at the time of the crime, the witness’s degree of
attention, the accuracy of her prior description of the criminal, the level of certainty
demonstrated at the confrontation, and the time between the crime and the
confrontation. Neil v. Biggers, 409 U.S. 188, 199-200 (1972); Gregory-Bey, 332 F.3d
at 1045.
In this case, the Indiana appellate court held that M.W.’s in-court
identification of Pinkins was not tainted because M.W.’s identification of Pinkins at
the pretrial hearing provided an adequate, independent basis for her in-court
identification that was not unduly suggestive or conducive to irreparable mistaken
No. 05-4528 Page 8
identification. Citing Logan v. State, 729 N.E.2d 125, 131 (Ind. 2000), the court
explained:
When determining the existence of an independent basis, the following
circumstances should be considered:
The amount of time the witness was in the presence of the
perpetrator and the amount of attention the witness had focused on
him, the distance between the two and the lighting conditions at the
time, the witness’s capacity for observation and opportunity to perceive
particular characteristics of the perpetrator, the lapse of time between
the crime and the subsequent identification.
The court then determined that:
Here, the evidence revealed, and the post-conviction court found that:
At the time she was abducted, M.W. saw [Pinkins] for
approximately five seconds at close range during their struggle. She
then watched [Pinkins] get into the passenger side of her car as she
was being dragged back to her assailant’s car. Moreover, M.W.
observed [Pinkins] under the light of the bright beam headlights of the
car he had been driving, in an area illuminated by streetlights, and a
nearby traffic light.
M.W. had also identified Pinkins as one of the perpetrators five
months after the attack in a situation that was not unduly suggestive
or conducive to irreparable mistaken identification. Therefore, this
prior identification demonstrates that M.W. had an independent basis
to recognize Pinkins as one of her attackers . . . . As a result, an
objection to the in-court identification would not have been sustained,
and Pinkins’s trial counsel was not ineffective for failing to object.
Pinkins, 799 N.E.2d at 1095. This analysis correctly identifies the governing legal
rule even though no federal case is mentioned directly. See Early v. Packer, 537
U.S. 3, 8 (2002). Moreover, it is not objectively unreasonable.
Pinkins’s argument only briefly addresses the state appellate court’s
analysis. He contends that in reaching its decision the appellate court failed to
consider evidence that shortly after the attack, but before the pretrial hearing,
M.W. had been asked to view photographs of the suspects. This argument is
without merit, however, because M.W. refused to look at the photographs,
rendering them wholly irrelevant to her later in-court identification. The
No. 05-4528 Page 9
remainder of Pinkins’s brief merely rehashes arguments he presented to the
Indiana courts; he makes no effort to explain how the state appellate court’s
analysis might be objectively unreasonable.
For the foregoing reasons, we AFFIRM the district court’s judgment denying
Pinkins’s petition for habeas corpus.