Indiana Court Decisions – Sept. 10-Sept. 23, 2020

7th CircuitCourt of Appeals

Sept. 20

Civil Plenary — Habeas/Stay of Execution Denial

Christopher Andre Vialva v. T. J. Watson, Warden, United States Penitentiary, Terre Haute

20-2710

The first Black man scheduled to be executed since the resumption of lethal injection on federal death row lost his appeal for a stay Sept. 20 when the 7th Circuit Court of Appeals found he had almost no chance of relief arguing his claims of ineffective assistance of counsel and that the judge who condemned him was an alcoholic.

Christopher Andre Vialva was executed Sept. 24 at the United States Federal Penitentiary in Terre Haute. He was the seventh man executed at the federal prison since July, when the Department of Justice under President Donald Trump resumed lethal injections after a nearly two-decade hiatus.

Southern District of Indiana Chief Judge Jane Magnus-Stinson denied Vialva’s habeas corpus petition, and a panel of the 7th Circuit affirmed in a four-page per curium opinion.

Vialva was 19 when he and four younger teen accomplices in 1999 carjacked, robbed and killed an Iowa couple in Texas. He was convicted and sentenced to death in 2000 in Waco, Texas, by U.S. District Judge Walter S. Smith Jr.

Smith retired from the federal bench in 2016, leading the 5th Circuit Judicial Council to drop renewed investigations of sexual harassment and other claims against him that had resulted in a reprimand and a suspension from hearing new cases.

“The details of Vialva’s crimes do not matter for current purposes. Nor do the details of his current legal arguments. It is enough to identify the sort of contentions he presents,” the panel wrote in Christopher Andre Vialva v. T. J. Watson, 20-2710.

“He maintains that he received ineffective assistance of counsel at trial because his lawyer had a conflict of interest. (While representing Vialva, counsel also was seeking an appointment as an Assistant United States Attorney.) He also contends that counsel conducted an inadequate investigation of his mental state and thus did not represent him competently during sentencing. Vialva maintains that the district judge suffered from alcoholism and should not have been allowed to preside at trial or impose sentence. These contentions may or may not be substantively valid, but Vialva’s problem in seeking relief under §2241 is that issues of these kinds are commonly entertained and resolved under §2255.

“Indeed, Vialva’s contentions were entertained and resolved under §2255. See United States v. Bernard and Vialva, 762 F.3d 467 (5th Cir. 2014); United States v. Vialva, 904 F.3d 356 (5th Cir. 2018). The fact that Vialva lost does not entitle him to another collateral attack under §2241. Nor does the fact that the Fifth Circuit resolved his collateral attacks by denying his requests for certificates of appealability. He maintains that the Fifth Circuit did not give his arguments the consideration they deserved, but we do not sit in judgment on the decisions of our sister circuits. That power belongs to the Supreme Court, which denied Vialva’s petitions for certiorari. Vialva v. United States, 136 S. Ct. 1155 (2016); Vialva v. United States, 140 S. Ct. 860 (2020).”

The panel further rejected Vialva’s arguments under the Suspension Clause, noting the Supreme Court has held that it does not entitle anyone to successive collateral attacks on a criminal judgment.

“A person who seeks a stay pending appeal must establish a material probability of success on the merits. A better-than-negligible chance will not do. See Nken v. Holder, 556 U.S. 418, 434 (2009); Illinois Republican Party v. Pritzker, No. 20- 2175 (7th Cir. Sept. 3, 2020), slip op. 4–5. Vialva has not established even a better-than-negligible chance of prevailing in his quest for another round of collateral review,” the panel concluded in denying the stay of execution.

Sept. 22

Civil Plenary — Habeas/Stay of Execution

Bruce Webster v. T. Watson

19-2683

The 7th Circuit Court of Appeals has vacated the death sentence of a federal death row inmate convicted of murdering a teen girl. The condemned man has spent years claiming he is intellectually disabled, and the appellate court agreed, citing evidence withheld by the government during his trial.

Bruce Webster was one of five men involved in a marijuana ring and was indicted in 1994 for the kidnapping and murder of 16-year-old Lisa Rene. She was taken from an apartment near Dallas, repeatedly raped and found buried in a park in Pine Bluff, Arkansas. Webster convicted and placed on death row two years later.

The 7th Circuit granted the Terre Haute death row inmate’s 2241 petition in 2015 only after the court agreed to rehear the case en banc and only by a close 6-5 vote. The majority reversed the lower court, finding Webster should be allowed to present evidence supporting his argument that he has an intellectual disability.

The Southern Indiana District Court found that Webster met all three criteria to qualify as intellectually disabled, leaving him, therefore, ineligible for the death penalty. The government subsequently appealed.

Regarding Webster’s intellectual disability, the 7th Circuit concluded that it saw no clear error in the district court’s finding that Webster suffers from intellectual deficits. Specifically, it noted “every one of Webster’s nine I.Q. scores over 27 years falls below 75 — with many falling well below that number.”

“The district court found no evidence of malingering on any of these tests — before or after Webster’s murder of Lisa Rene,” the 7th Circuit wrote.

It likewise declined to disturb the district court’s finding that Webster exhibits adaptive deficits in one of the three adaptive domains — “all that is needed for the adaptive functioning analysis.”

“Having demonstrated substantial deficits in intellectual functioning and adaptive functioning (at the very least in the conceptual domain) as well as an onset of the deficiencies before the age of 18, Webster has carried his burden of proving that he is intellectually disabled and therefore constitutionally ineligible to remain under a death sentence,” the 7th Circuit wrote.

The 7th Circuit also concluded that there was no clear error in the district court’s determination that Webster’s trial counsel, Larry Moore, was duly diligent.

“The government begs to differ, insisting that Moore’s account — root and branch — is implausible. What most troubles the government is that Moore’s account of his own diligence has grown in clarity and detail despite the passage of substantial time — a result at odds with the workings of human memory, at least as the government would have it. But the district court heard and considered the government’s position and responded with findings that are plenty reasonable and reflect no clear error,” Circuit Judge Michael Scudder wrote for the 7th Circuit.

But because the district court’s findings — that Moore’s testimony was credible and supported by contemporaneous documentary evidence — are not “internally inconsistent or implausible,” the 7th Circuit concluded that it would not upset them.

The panel also addressed the “stream of frustration over Webster receiving relief in federal court in Indiana after years of proceedings that had seemed to reach finality in federal court in Texas.” It found that the government’s frustration was well received in one aspect, but not another.

“… (M)uch of the frustration seems aimed at registering disagreement with our 2015 en banc decision holding that Webster had made a sufficient showing to satisfy the safety valve in 28 U.S.C. § 2255(h)(1) to pursue the prospect of relief in the district court in Indianapolis. But now is not the time to relitigate our en banc decision,” the 7th Circuit wrote.

“Nor do we agree that the remand proceedings in the district court ‘all but swept away the nearly month-long trial and sentencing proceedings involving 50-plus sentencing witnesses and detailed jury findings on Webster’s intellectual functioning that took place in the Fort Worth trial court.’ Remember the reason for the remand: the government, in particular the Social Security Administration, failed to produce documents pre-dating the murder showing that Webster was mentally retarded. But even more, the evidence from the Texas proceeding was before the district court in Indiana. But so too was substantial other evidence developed by the parties on remand,” it wrote.

The 7th Circuit further noted that the record shows that the district court proceeded with great care on remand, praising the district court by stating that “There is no way to read the transcripts of the proceedings below and not walk away impressed with the care taken by Judge (William T.) Lawrence.”

“Our role is limited. Weighty though the obligation, the question before us is whether the evidence presented on remand leaves us with the definite and firm conviction that the district court’s findings reflect clear error. Having taken our own detailed look at all aspects of the proceedings on remand, we see no clear error anywhere,” it concluded.

The 7th Circuit therefore vacated Webster’s capital sentence in Bruce Webster v. T. Watson, 19-2683.

IndianaCourt of Appeals

Sept. 10

Miscellaneous — RFRA “Fix”/Nondiscrimination Ordinances

Indiana Family Institute Inc., et al. v. City of Carmel, et al.

19A-MI-2991

A lawsuit challenging Indiana’s controversial Religious Freedom Restoration Act will not proceed, for now, after the Indiana Court of Appeals declined to reverse summary judgment for four cities with nondiscrimination ordinances. The appellate panel found that the conservative organizations challenging the RFRA “fix” lacked standing to challenge the ordinances on free speech and religious exercise grounds.

Judge Robert Altice wrote for the unanimous appellate panel Sept. 10 in Indiana Family Institute Inc., et al. v. City of Carmel, et al., 19A-MI-2991. The case was filed and appealed by the Indiana Family Institute, Indiana Family Action and the American Family Association, all of which advocate for traditional marriage and other conservative principles.

Represented by noted conservative lawyer Jim Bopp of Terre Haute, the three organizations sued the cities after the Indiana General Assembly amended RFRA to include a provision prohibiting discrimination based on certain protected classes, including sexual orientation and gender identity, with exceptions for churches and other nonprofits.

The plaintiffs argued they did not fall within those exceptions, so the so-called RFRA fix “grotesquely” stripped them of their right to use RFRA as a defense to nondiscrimination ordinances in Bloomington, Carmel, Columbus and Indianapolis. The plaintiffs said they do not allow known same-sex couples to participate in their programming, so under the ordinances, they could not offer programming in the four defendant cities.

The three organizations prevailed on a standing argument back in 2016, when the Hamilton Superior Court denied a motion to dismiss under Trial Rule 12(B)(6). The Court of Appeals declined to review that decision.

The case was back in the trial court on motions for summary judgment and dismissal last October, and Judge Michael A. Casati subsequently granted summary judgment to the four cities, finding the plaintiffs lacked standing. He also declined to take judicial notice of magazine and newspaper articles about RFRA and a related letter signed by several law professors.

The plaintiffs appealed but fared no better in the Court of Appeals, which noted that according to the companies’ own evidence, no participant has ever actually been excluded from its programming.

“Moreover, the Companies cannot point to any exclusion policies that were in place and … there were no inquiries about the attendees’ religious beliefs or views on human sexuality prior to admission at the events. In fact, the Companies emphasized that all individuals are welcome to attend their programs, and only those who are disruptive or ‘actively advocate’ against the issues the Companies support are subject to exclusion,” Altice wrote. “The Companies do not require event attendees to share the same religious beliefs, and the Companies’ own designated evidence demonstrates that they have permitted ‘many gay people’ to attend their programs. In fact, the companies ‘want people who don’t agree’ with their religious views to attend their events and hear their pro-traditional-family message.”

What’s more, Altice said, the companies have not been subject to a discrimination complaint or investigation, nor have they been threatened with sanctions or penalties. They’ve also continued to hold programming in the defendant cities, and that programming has not been altered.

“In short,” the judge wrote, “the Companies remain free, without interference, to express their religious views on marriage and human sexuality as they always have.”

The appellate panel likewise rejected IFI, IFA and AFA’s argument of constitutional violations related to future events they might hold in the four cities. Altice called their plans for future events “wholly speculative and hypothetical.”

The panel also did not accept the plaintiff-appellants’ claim under the public standing doctrine, finding no public right at issue.

In a footnote, the panel declined to address the companies’ arguments regarding judicial notice.

“We need not address those arguments, inasmuch as the evidentiary rulings that the Companies challenge address the merits of their contentions, and the trial court’s decision to deny the Companies’ request to take judicial notice of that material has no bearing on the threshold question of standing,” Altice wrote.

Sept. 14

Civil Tort — Judicial Review/Athletic Trainer License Suspension

Molly Ann Melton v. Indiana Athletic Trainers Board, et al.

19A-CT-1972

An athletic trainer who lost her license after beginning a sexual relationship with a student-client lost her second bid at the Indiana Court of Appeals to reinstate her license.

After being hired by IU Health Paoli Hospital’s Rehab and Sports Medicine department in 2012, Molly Melton had a consensual sexual relationship with an 18-year-old patient who was a high school student. Her athletic trainer’s license was suspended for at least seven years by the Indiana Athletic Trainers Certification Board in 2014 after the relationship was reported.

The suspension was based on conduct that violated the standards of professional practice, according to the board, but Melton filed a complaint seeking judicial review of the board’s sanction. She asserted claims under 42 U.S.C. §1983 for alleged violations of her constitutional rights in the disciplinary process.

In her complaint, Melton named the board, the Indiana Professional Licensing Agency and the five members of the board at the time of the disciplinary decision in their official and individual capacities. The Marion Superior Court heard the judicial review petition first and, finding that Melton had been prejudiced by the agency action, reversed the sanctions order.

After the defendants filed a motion for summary judgment asserting immunity defenses to the § 1983 claims, the trial court granted the board’s motion and dismissed Melton’s § 1983 claim. The Indiana Court of Appeals, however, reversed on due process grounds and remanded with instructions for the board to vacate its Feb. 3, 2014, sanctions order and hold a hearing on the administrative complaint against her that comports with due process.

Pursuant to the remand instructions, the board held an administrative hearing and in a March 2017 order again found that Melton’s conduct violated Indiana Code subsections 25-1-9-4(a)(5) and (11). It placed Melton on indefinite suspension for at least three years from the date of the order, prompting her to file a petition for judicial review.

The trial court subsequently found that the board’s decision was arbitrary and capricious and without substantial evidence, and that it had violated Melton’s constitutional rights. Her license status was subsequently changed to “expired.”

But in July 2019, the trial court entered summary judgment for all defendants on Melton’s §1983 claims and, finding no just reason for delay, entered final judgment on Melton’s complaint.

The Indiana Court of Appeals this time concluded the trial court properly granted summary judgment to the defendants on Melton’s § 1983 claims in Molly Ann Melton v. Indiana Athletic Trainers Board, et al.,19A-CT-1972.

Specifically, the appellate court found that “because IPLA and the Board are not amenable to a Section 1983 lawsuit, the Board Members in their individual capacities have absolute quasi-judicial immunity for their adjudicative actions, and although Melton requested injunctive relief, she did not request such relief from the Board members in their official capacities.”

“In keeping with our standard for reviewing agency actions that the facts are to be determined ‘but once[,]’ … we conclude Melton has failed to meet her burden of demonstrating the Board’s action was invalid pursuant to the provisions of Indiana Code section 4-21.5-5-14(d), as the Board’s decision is supported by substantial evidence and we will not substitute our judgment for that of the Board regarding the appropriate sanction for Melton’s professional misconduct,” Judge Margret Robb wrote for the appellate court.

The COA reversed the trial court’s judicial review order deciding otherwise and affirmed the board’s March 2017 decision.

Criminal — Reckless Homicide/Rochester School Bus Crash

Alyssa Leigh Shepherd v. State of Indiana

20A-CR-134

A Rochester woman convicted in a school bus crash that killed three children and seriously injured a fourth had her misdemeanor reckless driving conviction vacated Sept. 14 on double jeopardy grounds. However, her felony convictions will stand.

A Fulton County jury last year convicted Alyssa Shepherd of three counts of reckless homicide, as well as criminal recklessness and passing a school bus, causing injury. Shepherd was sentenced in December to four years in prison for the October 2018 crash that killed 6-year-old twin brothers Xzavier and Mason Ingle and their 9-year-old sister Alivia Stahl and seriously injured another child.

Shepherd, who was also sentenced to three years of house arrest and three years of probation, appealed her convictions in Alyssa Leigh Shepherd v. State of Indiana, 20A-CR-134.

In a brief to the appellate court, Bargersville attorney Stacy Uliana wrote on behalf of Shepherd that the state “failed to present sufficient evidence” that Shepherd acted recklessly as opposed to negligently. The brief stated that because Shepherd was not drinking, texting or otherwise distracted, her actions were “an error in judgement,” not reckless homicide.

The brief also asserted that the jury at Shepherd’s trial was not given proper instruction on the distinction between criminal recklessness and negligence, and that her convictions of criminal recklessness and passing a school bus causing injury violated Indiana’s double jeopardy statutes, meaning one of the two convictions must be vacated.

An appellate panel affirmed in part and declined to disturb the jury’s verdicts, first finding that in light of Beeman v. State, 232 Ind. 683, 690, 115 N.E.2d 919, 922 (1953), and the totality of the evidence, the jury reasonably concluded that Shepherd recognized that the vehicle before her in the road was a stopped school bus or that she was aware of conditions that would have disclosed that fact to any reasonable person.

“Despite that knowledge, Shepherd made a conscious and voluntary decision not to stop or decrease her speed and, instead, to drive ahead and ‘wait[] to get closer to the vehicle to determine what they were doing[.],” Judge Patricia Riley wrote for the appellate court. “… We conclude that the jury could have reasonably determined that a person who has decided to drive full highway speed toward a vehicle she knows is a stopped school bus has acted in conscious disregard of the harm that may result.”

The appellate panel further found that the Fulton Superior Court did not abuse its discretion in rejecting Shepherd’s proposed instruction on what evidence will not support a charge of reckless homicide.

“Here, Shepherd does not detail for us what evidence she argues supports the portions of her proffered instruction regarding inadvertence, lack of attention, forgetfulness, or thoughtfulness. Even if there were evidence to support Shepherd’s defense theory that the collision resulted from an error of judgment on her part, she did not offer a separate instruction limited just to that wording. Given the lack of evidence to support the giving of Shepherd’s proposed instruction, we find no abuse of the trial court’s discretion in declining to give it,” the panel concluded.

However, the appellate panel vacated Shepherd’s Class A misdemeanor reckless driving conviction and left standing her Level 6 felony criminal recklessness conviction due to double jeopardy concerns.

“On appeal, the State acknowledges its concession and reiterates that ‘both convictions are based on the same act of recklessly driving past the stopped school bus and injuring [M.L.], and both were established by the same evidence.’ Had the State’s concessions been based completely on its understanding that Shepherd’s dual convictions violated (Richardson v. State’s, 717 N.E.2d 32 (Ind. 1999)) ‘same evidence’ test, we would conclude those concessions were no longer valid because, as a new rule of criminal procedure, (Wadle v. State, — N.E.3d —, 2020 WL 4782698, (Ind. Aug. 18, 2020)) was potentially applicable to this case,” Riley wrote. “… However, since the State’s concessions were also based upon common law double jeopardy principles, we will honor them.”

As to Shepherd’s suspended driver’s license, the appellate court remanded with instructions to the trial court to issue a new sentencing order expressly indicating that her license suspensions are to be served concurrently, finding that it cannot be discerned from the record before it whether the trial court impermissibly imposed consecutive suspensions of Shepherd’s driving privileges.

Sept. 15

Criminal — Probation/Community Service

James T. Knight v. State of Indiana

20A-CR-268

A northern Indiana lawyer who pleaded guilty to battering his wife has been relieved of a community service condition imposed on his probation.

In October 2017, Logansport attorney James T. Knight was charged with Level 5 felony domestic battery, two counts of Level 5 felony criminal confinement and Class A misdemeanor domestic battery involving an incident with his wife. The first count was elevated to a Level 5 felony based on Knight’s 2014 conviction for domestic battery against his wife, for which the Indiana Supreme Court publicly reprimanded him in In re Knight, 42 N.E.3d (Mem.) (Ind. June 5, 2015).

In the current case, Knight entered into a plea agreement in which he agreed to plead guilty to the misdemeanor battery count in exchange for the state’s dismissal of the remaining four counts. Specifically, Knight admitted to touching his wife in a rude, insolent or angry manner when he grabbed her and dragged her by her leg, resulting in her bodily injury.

A senior judge presiding over the combined guilty plea and sentencing hearing imposed probation conditions that did not include community service. Knight was sentenced then in accordance with the plea agreement to one year in the Carroll County Jail, all suspended.

But shortly thereafter, the regular presiding judge on its own motion set a new hearing to modify the probation, adding two new conditions, including a condition that required Knight to perform 600 hours of community service during his probationary period and to report his hours to probation on a monthly basis.

Knight appealed, arguing the Carroll Circuit Court did not have authority to add the community service condition because the condition was “punitive of nature” and not contained in the plea agreement. He also successfully moved for a stay of the community service condition, arguing the imposition of community service was an “onerous burden on Knight who must bill hours of work as a lawyer and maintain his legal practice and pay his staff.”

The Indiana Court of Appeals likewise reversed the trial court’s imposition of the new community service condition, but not without first finding that the trial court complied with the requirements of Indiana Code § 35-38-2-1.8(c) when it held a new probation hearing.

“However, at the time the trial court imposed this Community Service Condition, Knight had already completed his substance abuse counseling and had paid restitution, costs, and fees. Thus, per the terms of Knight’s plea agreement, his probation was nonreporting. Because the specific language of Knight’s plea agreement controls the general language, the trial court did not have authority under Knight’s plea agreement to impose the Community Service Condition,” Judge Rudolph Pyle III wrote for the appellate court.

Thus, upon finding that the imposition of the community service condition was beyond the trial court’s discretion, the appellate court reversed in James T. Knight v. State of Indiana, 20A-CR-268.•