Opinions Aug. 15, 2022

The following 7^th Circuit Court of Appeals opinions were posted after IL deadline on Friday:
Dewayne A. Dunn v. Ron Neal, Warden, Indiana State Prison
21-1169
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Philip P. Simon.
Civil. Affirms the Indiana Northern District Court’s grant of a writ of habeas corpus to Dewayne Dunn following his conviction for murder. Finds the district court, in assessing the merits of the pro se habeas petition, properly limited its consideration to only the facts as presented to the state court and did not conduct its own evidentiary hearing. Also finds the Court of Appeals of Indiana applied a rule contradicting U.S. Supreme Court precedent, leaving its decision unentitled to deference under the Antiterrorism and Effective Death Penalty Act. Judge Thomas Kirsch dissents with separate opinion.

United State of America v. James Rogers
21-2638
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Jane Magnus-Stinson.
Criminal. Affirms James Rogers’ convictions of two counts of being a felon in possession of a firearm in and his nearly six-year prison sentence. Finds no constructive amendment of Rogers’ indictment occurred. Also finds the district court properly identified the risk for duplicitous counts at trial but cured the problem with its final jury instructions. Finally, finds the district court used the correct base offense level when calculating Rogers’ guidelines range.

Monday opinions
Court of Appeals of Indiana
Greg Serbon and John Allen v. City of East Chicago, Indiana, City of East Chicago Common Council; Monica Gonzalez, Lenny Franciski, Terrence Hill, Stacy Winfield, Robert Garcia, Gilda Orange, Dwayne Rancifer, Jr., Emiliano Perez, and Kenneth Monroe, in their official capacities as City of East Chicago Common Council Members; Anthony Copeland, in his official capacity as City of East Chicago Mayor; City of East Chicago Police Department; and Hector Rosario, in his official capacity as City of East Chicago Chief of Police, State of Indiana
21A-PL-1046
Civil plenary. Reverses the Lake Superior Court’s ruling that plaintiffs Greg Serbon and John Allen did not have standing to bring a federal constitutional challenge to the city of East Chicago’s “welcoming ordinance” but did have standing to challenge the ordinance under Indiana law, and the determination that Sections 3, 6(a) and 6(c) of the ordinance violate state statute and the subsequent enjoining of those laws. Finds the plaintiffs do not have standing to challenge the ordinance. Remands with instructions to dismiss the complaint for lack of standing.

H.A. v. State of Indiana (mem. dec.)
22A-JV-586
Juvenile. Affirms H.A.’s wardship to the Indiana Department of Correction rather than a less restrictive setting. Finds the St. Joseph Probate Court didn’t abuse its discretion.

John W. Goudy v. State of Indiana (mem. dec.)
22A-CR-707
Criminal. Affirms John W. Goudy’s conviction of Class A misdemeanor contributing to the delinquency of a minor. Finds the Cass Superior Court did not abuse its discretion when it denied Goudy’s motion for a mistrial. Also finds the evidence is sufficient to support Goudy’s conviction.

Terry P. Bever v. State of Indiana (mem. dec.)
22A-CR-265
Criminal. Affirms Terry P. Bever’s conviction of Level 6 felony intimidation. Finds Bever acknowledged he communicated a threat to commit a forcible felony. Finds Bever does not argue that his conviction was based on constitutionally protected speech. Also finds the Cass Superior Court did not err in instructing the jury.

Clyde H. Brock v. State of Indiana (mem. dec)
21A-CR-2897
Criminal. Affirms and reverses in part Clyde H. Brock’s convictions of two counts of child molesting as a Level 1 felony, one count of child molesting as a Level 4 felony, one count of vicarious sexual gratification as a Level 4 felony, one count of child solicitation as a Level 5 felony and one count of child molesting as a Class C felony, and his sentence to an aggregate of 46 years. Finds Brock waived his claim of error in the admission of Rule 404(b) evidence by failing to object to the introduction of such evidence at trial, and waiver notwithstanding, any such error would have been harmless. Also finds the Allen Superior Court did not abuse its discretion when it allowed Patricia Fox’s skilled witness testimony about child abuse in general, and the state presented sufficient evidence to support Brock’s convictions. Finally, finds the trial court did not abuse its discretion in sentencing on Counts I, II, III, V and VI, and those sentences were not inappropriate, but it did err when it sentenced Brock to seven years for Count IV. Remands with instructions for the trial court to resentence Brock and Count IV.

Victor Allen Young v. State of Indiana (mem. dec.)
21A-CR-2552
Criminal. Affirms Victor Allen Young’s convictions of murder and Level 6 felony resisting law enforcement. Finds the Lake Superior Court did not abuse its discretion by denying Young’s requests for jury instructions on the lesser included offense of voluntary manslaughter and for self-defense.

Matthew Richardson v. State of Indiana (mem. dec.)
21A-PC-2461
Post-conviction. Affirms the denial of Matthew Richardson’s petition for post-conviction relief after he was convicted of murder and pointing a firearm. Finds the evidence does not support an inference that Richardson could have reasonably believed that shooting Josh Smith was necessary to prevent or terminate Smith’s unlawful entry of or attack on Richardson’s curtilage, and any error in the refusal of his instruction on defense of domicile did not impact his substantial rights. Also finds Richardson has not established fundamental error with regard to the admission of evidence. Finally, finds Richardson has not demonstrated ineffective assistance of trial counsel.

Lester M. Dillon v. State of Indiana (mem. dec.)
21A-CR-2244
Criminal. Affirms Lester Dillon’s convictions of three counts of Level 4 felony child molesting, and his 30-year aggregate sentence. Finds sufficient evidence to support Dillon’s convictions. Also finds his 30-year sentence is appropriate considering the nature of the offenses and his character.

Devon R. Radcliff v. State of Indiana (mem. dec.)
21A-PC-2112
Post-conviction. Affirms the denial of post-conviction relief for Devon R. Radcliff. Finds the post-conviction court’s denial of Radcliff’s petition for post-conviction relief was not clearly erroneous.

Edward Lee Smith v. State of Indiana (mem. dec.)
21A-CR-1716
Criminal. Affirms Edward Smith’s convictions of murder and Class A misdemeanor carrying a handgun without a license. Finds the Marion Superior Court did not abuse its discretion in admitting Ashley Boyd’s statements made to Officer Trimble through the bodycam footage or by allowing Kristie Leake-Hahn’s deposition testimony into evidence.