A convicted child molester’s 80-year sentence has once again been reinstated after the 7th Circuit Court of Appeals overturned the grant of a habeas petition.
The appellate panel reversed John W. Kimbrough’s habeas relief Thursday in John W. Kimbrough v. Ron Neal, 18-3145, -3153.
Kimbrough was convicted of molesting his girlfriend’s 5- and 7-year old daughters over the course of two years and received a concurrent term of 80 years. Though a divided panel of the Indiana Court of Appeals sue sponte cut his sentence in half in 2012, the Indiana Supreme Court later reinstated the full 80 years.
Kimbrough then sought post-conviction relief in state court, arguing his appellate counsel was ineffective for failing to challenge his sentence under Indiana Appellate Rule 7(B), but this time the COA rejected his argument. Specifically, the state appellate panel said, “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.”
The Supreme Court denied transfer, so Kimbrough next filed for habeas relief in the Indianapolis division of the Indiana Southern District Court. There, he raised an ineffective assistance of counsel argument under Strickland v. Washington, and the federal court determined he had satisfied the prejudice prong.
In overturning that ruling, 7th Circuit Judge Michael Brennan noted the Indiana Court of Appeals’ denial of Kimbrough’s PCR petition was not based on federal law.
“It rests on the conclusion that, as a matter of state law, it would have been futile to contest the sentence’s length on appeal because the 80-year sentence is not ‘inappropriate in light of the nature of the offense and the character of the offender,’” Brennan wrote. “… For federal habeas relief here under (28 U.S.C. § 2254(d)(1)), the state court’s decision must be an unreasonable application of federal law — not a state court’s resolution of a state law issue.”
The 7th Circuit further declined Kimbrough’s request to overrule Miller v. Zatecky, 820 F.3d 275 (7th Cir. 2016), which Brennan called “nearly identical” to the instant case.
“The Indiana Court of Appeals’ conclusion that appellate review of Kimbrough’s sentence would not have helped him as a matter of state law is ‘the sort of decision § 2254 leaves to the state judiciary,’” the judge wrote, quoting Miller. “Miller controls, and Kimbrough has not provided a compelling reason to overrule it.”
In a footnote, Brennan wrote that on cross-appeal, Kimbrough challenged whether the federal court “properly granted habeas relief by issuing a conditional order requiring the State of Indiana to either release Kimbrough or grant him a new appeal.” But because he is not entitled to habeas relief, the appellate panel declined to address that argument.