Opinion
No. 2:05cv0179 AS.
December 7, 2005
MEMORANDUM OPINION AND ORDER
On or about May 10, 2005, pro se petitioner, Keith E. Miller, an inmate at the Indiana State Prison in Michigan City, Indiana (ISP), filed a petition seeking relief under 28 U.S.C. § 2254. The Response filed on behalf of the respondent by the Attorney General of Indiana on October 11, 2005, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). The petitioner filed a Traverse on October 27, 2005, which this Court has carefully examined.
The petitioner is serving a sentence imposed in Indianapolis, Indiana a convicted felon serving a sentence imposed by a court in the State of Indiana in 1998. In fact, he is serving two concurrent 50-year sentences imposed in Marion County, Indiana for dealing in cocaine. For ease of reference, this court notes and cites an unpublished decision of the Court of Appeals of Indiana entered February 2, 2005 which is attached hereto and incorporated here in as Appendix "A". Mr. Miller did not file a petition for transfer to the Indiana Supreme Court from the Indiana Court of Appeals decision affirming his conviction. The petitioner is entitled to whatever benefits he is entitled to under Houston v. Lack, 487 U.S. 266 (1988).
Mr. Miller's claim is that his trial counsel was ineffective for failing to challenge the state's failure to prove that the scale used to weigh the cocaine had been calibrated correctly both before and after the cocaine was weighed. On direct appeal he claimed that the state did not establish a proper chain of custody to support the admission of the cocaine into evidence. The appellate court found that the state had established a proper chain of custody, and that the trial court did not commit err in admitting the cocaine. In his petition for post-conviction relief he claimed that he was denied effective assistance of trial counsel and appellate counsel. The state appellate court found that he had not been denied effective assistance of trial or appellate counsel.
To the extent that Mr. Miller is arguing his trial counsel was ineffective, his claim is without merit. Ineffective assistance of counsel claims are analyzed pursuant to Strickland v. Washington, 466 U.S. 668 (1984). To prevail on this claim, Mr. Miller must demonstrate that his trial counsel's performance was deficient, and that absent that deficiency there is a reasonable probability of a different outcome. In other words, that Mr. Miller was prejudiced by the deficiency. The Indiana Court of Appeals used this standard in determining that Mr. Miller's trial counsel was not ineffective.
The Indiana Court of Appeals held that Mr. Miller's trial counsel was not ineffective because Mr. Miller was not prejudiced by his trial counsel's failure to object to the state not introducing evidence regarding the accuracy of the scale used to measure the cocaine because that court found that the state could have met its foundational burden of showing the accuracy of the scale in several ways. Mr. Miller has not established that there is a reasonable probability that the outcome of the trial would have been different if this trial counsel had objected. Like the state appellate court stated, the state could have had another qualified supervisor testify, or could have moved for a continuance until the witness who weighed the cocaine returned from vacation. Accordingly, his claim of ineffective assistance of counsel is denied.
Mr. Miller appears to also argue that the cocaine was erroneously admitted by the trial court because the state failed to establish a foundation with respect to the scale's accuracy. In his traverse, Mr. Miller argues that his claim is cognizable for federal review because he is alleging a due process violation. He says his state petition for post-conviction relief was wrongly denied on procedural grounds that improperly shifted the burden of proof from the state to him. The respondent argues that the trial court's decision to admit the cocaine is a question of admissibility of evidence, therefore not cognizable for federal review because it is a question of state law.
In Estelle v. McGuire the Court held ". . . it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 68 (1991). Accordingly, Mr. Miller's claim that the cocaine was erroneously admitted only states a claim if that admission violated his federal constitutional rights. Mr. Miller argues that because the state failed to establish the accuracy of the scale used to weigh the cocaine, the cocaine should not have been admitted at trial. On direct appeal, the Indiana Court of Appeals held that the stated established a chain of custody regarding the cocaine, and that it was therefore properly admitted at trial.
The Indiana Court of Appeals addressed this issue again in establishing that Mr. Miller's trial counsel was not ineffective. In its order of February 5, 2005, the court stated that pursuant to Indiana law when a defendant is charged with a drug offense that is determined by the weight of the substance involved, the state must prove that the scale used to weigh the substance was tested for accuracy before and after its use. Wattley v. State, 721 N.E.2d 353 (Ind.Ct.App. 1999). The court went on to say that evidence regarding a scale's accuracy is foundational evidence, not an element of the crime citing Guardian v. State, 743 N.E.2d 1251 (Ind.Ct.App. 2001). Accordingly, the state must only introduce evidence regarding the scale's accuracy if the defense objects that the state has not laid the proper foundation. In this case, Mr. Miller's trial counsel, as discussed above, did not object.
Mr. Miller argues that the Indiana Court of Appeals incorrectly concluded that the state could have met its burden of proof if the defense had objected. He alleges that because the court didn't address is claim that the state failed to produce sufficient evidence to prove that the cocaine weighed three grams or more, and that the weight is an essential element of the crime. He argues that because every element of the crime was not proven beyond a reasonable doubt, his constitutional due process rights were violated. Mr. Miller is mistaken.
The Indiana Court of Appeals applied Indiana law finding a scale's accuracy is foundational evidence, not an element of the crime. In this case, Mr. Miller's attorney objected to the chain of custody, but not the state's failure to establish foundational evidence regarding the accuracy of the scale. Because evidence regarding the accuracy of the scale was foundational, and not an element of the crime, the defense's failure to object waived the issue for appeal. Guardian v. State, 743 N.E.2d at 1255. Mr. Miller's federal constitutional rights were not violated by the state trial court's admission of the cocaine, nor was his trial counsel ineffective for failing to object to the state's failure to establish the accuracy of the scale.
For all of the reasons stated, the petition for writ of habeas corpus is DENIED.
SO ORDERED.
APPENDIX A
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SUSAN K. CARPENTER STEVE CARTER
Public Defender of Indiana Attorney General of Indiana
LINDA K. HUGHES JUSTIN F. ROEBEL Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana.
IN THE COURT OF APPEALS OF INDIANA.
KEITH E. MILLER, ) Appellant-Petitioner, ) ) vs. ) No. 49A05-0406-PC-339. ) STATE OF INDIANA, ) Appellee-Respondent. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable William E. Young, Judge Cause No. 49F20-9702-PC-027269 February 2, 2005 MEMORANDUM DECISION — NOT FOR PUBLICATIONROBB, Judge.
Keith Miller appeals the post-conviction court's denial of his petition for post-conviction relief. We affirm.
Issue
Miller raises one issue for our review, which we restate as whether the post-conviction court properly denied Miller's petition for post-conviction relief with regard to whether he was denied the effective assistance of trial counsel.
Facts and Procedural History
On February 18, 1997, Miller sold cocaine to a confidential informant ("CI"). The cocaine was sent to the Marion County Forensic Services Agency ("MCFSA"), where chemist Frank Palfi weighed it. Palfi drafted a report that indicated that the weight of the cocaine Miller sold to the CI was 6.8723 grams. Miller was arrested and charged with two counts of dealing in cocaine as Class A felonies and two counts of possession of cocaine as Class C felonies.
Indiana Code section 35-48-4-1 provides that a person who knowingly or intentionally delivers cocaine in an amount greater than three grams is guilty of a Class A felony, but if the amount of cocaine delivered is less than three grams then that person is only guilty of a Class B felony.
At his jury trial, attorney Jack Crawford represented Miller. Palfi did not testify at Miller's trial, apparently because he was on vacation; instead, Palfi's deputy supervisor, Dirk Shaw, testified. Shaw testified that he knew Palfi, and had helped to train Palfi when he first started working at the MCFSA. Shaw described the procedures that a chemist at the MCFSA was supposed to follow, and testified that Palfi followed those procedures. The State established that Shaw was a valid custodian of the MCFSA's records. The State then attempted to introduce into evidence Palfi's report and the cocaine that had been recovered from the CI. Crawford objected to the introduction of this evidence, arguing that the State had failed to establish a proper chain of custody. The trial court overruled this objection, and Palfi's report and the cocaine were entered into evidence. Crawford did not raise an objection to the State's failure to introduce evidence regarding the accuracy of the scale Palfi used to weigh the cocaine recovered from the CI. The jury ultimately found Miller guilty of dealing in cocaine as a Class A felony and possession of cocaine as a Class B felony. The trial court merged Miller's conviction for possession of cocaine into his conviction for dealing cocaine, and sentenced him to fifty years.
On direct appeal, Miller argued that the State did not establish a proper chain of custody to support the admission of the cocaine into evidence. We concluded that the State had established a proper chain of custody, and that the trial court did not err in admitting the cocaine into evidence. Miller v. State, No. 49A02-9906-CR-403, slip op. at 5 (Ind.Ct.App. May 4, 2000).
On January 31, 2001, Miller filed a petition for post-conviction relief. Miller amended this petition on October 30, 2003. In his petition, Miller argued that he was entitled to post-conviction relief because he was denied the effective assistance of both trial and appellate counsel. On February 25, 2004, the post-conviction court held an evidentiary hearing at which Miller presented no witnesses but did introduce exhibits. In an order dated May 5, 2004, the post-conviction court held that Miller had not been denied the effective assistance of either trial or appellate counsel, and denied Miller's petition for post-conviction relief. This appeal ensued.
Discussion and Decision
Miller argues that the post-conviction court erred in denying his petition for post-conviction relief because he was denied the effective assistance of trial counsel. We disagree.
Miller does not raise an argument regarding the trial court's conclusion that he was not denied the effective assistance of appellate counsel. Therefore, we do not address this issue.
I. Standard of Review
"Post-conviction proceedings do not afford a petitioner with an opportunity for a `super-appeal.'" Seeley v. State, 782 N.E.2d 1052, 1057 (Ind.Ct.App. 2003), trans. denied. Post-conviction proceedings provide the petitioner with an opportunity to raise issues which were not known to him or her at the time of the original trial or were not available upon direct appeal. Id. at 1057-58. The petitioner must establish his or her grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). Because Miller was denied post-conviction relief, he appeals from a negative judgment. Therefore, Miller "must convince the court that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court." Sims v. State, 771 N.E.2d 734, 737 (Ind.Ct.App. 2002), trans. denied. When reviewing the denial of a petition for post-conviction relief, we do not weigh the evidence or judge the credibility of the witnesses. Lowery v. State, 640 N.E.2d 1031, 1037 (Ind. 1994), cert. denied, 516 U.S. 992, 116 S.Ct. 525, 133 L.Ed.2d 432 (1995). We will only conclude that a post-conviction court's decision is contrary to the law where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion. Thompson v. State, 796 N.E.2d 834, 838 (Ind.Ct.App. 2004), trans. denied.
II. Ineffective Assistance of Trial Counsel
Miller contends that his trial counsel was ineffective because he did not object to the State's failure to introduce foundational evidence regarding the accuracy of the scale used to establish the weight of the cocaine recovered from the CI. Miller believes that because the State did not establish the accuracy of the scale, there was insufficient evidence to support his conviction for dealing cocaine as a Class A felony, and therefore, his conviction should be reduced to a Class B felony and his sentence amended accordingly.We review ineffective assistance of trial counsel claims under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Bahm v. State, 789 N.E.2d 50, 57 (Ind.Ct.App. 2003), trans. denied. A petitioner must first demonstrate that his or her counsel's performance was deficient because it fell below an objective standard of reasonableness and denied the petitioner the right to counsel guaranteed by the Sixth Amendment to the United States Constitution. Id. at 57-58. "Second, the petitioner must demonstrate that he was prejudiced by his counsel's deficient performance." Id. at 58. To demonstrate prejudice, a petitioner must show a reasonable probability that the result of his or her trial would have been different if his or her counsel had not made the alleged errors. Id. "A probability is reasonable if our confidence in the outcome has been undermined." Id. If we may easily dismiss an ineffective assistance of trial counsel claim based upon the prejudice prong, we may do so without addressing whether counsel's performance was deficient. Id.
We have previously held that when, as here, a defendant is charged with a drug offense that is determined by the weight of the substance involved, the State must prove that the scale used to weigh the substance was tested for accuracy before and after its use. Wattley v. State, 721 N.E.2d 353, 355-56 (Ind.Ct.App. 1999). "Once the State introduces such evidence, the burden to disprove the accuracy of the scale then shifts to the defendant." Guadian v. State, 743 N.E.2d 1251, 1253 (Ind.Ct.App. 2001), trans. denied. Miller points out that in Wattley, we held that "[b]ecause no evidence as to the accuracy of the scale used to weigh the cocaine was admitted into evidence, . . . the State failed to produce sufficient evidence to prove that the cocaine weighed three grams or more." 721 N.E.2d at 356. In that case, we ultimately remanded "with instructions to reduce Wattley's conviction from a Class A to a Class B felony, and to amend Wattley's sentence accordingly." Id.
However, we have also stated that evidence regarding a scale's accuracy is foundational evidence and not an element of the crime. Guadian, 743 N.E.2d at 1255. In Guadian, we concluded that because evidence of a scale's accuracy is not an element of the crime, the State must only introduce foundational evidence regarding this issue if the defense first objects that the State has not laid the proper foundation. Id. at 1254. If the defense does object to the lack of a proper foundation, then the State would have the opportunity to introduce evidence to supply the requisite foundation. Id.
Here, Miller's counsel did not object to the State's failure to introduce evidence regarding the accuracy of the scale used to weigh the cocaine recovered from the CI. Miller contends that the State would not have been able to introduce the necessary evidence to show the accuracy of the scale because the only person who could have established the proper foundation was Palfi, the chemist who tested and weighed the cocaine recovered from the CI, and he was not available to testify. According to Miller, because the State could not establish the accuracy of the scale, the evidence of the weight of the cocaine would have been inadmissible, and, therefore, his trial counsel's failure to object prejudiced him.
However, the State contends that there are several ways in which it could have met its foundational burden to show the accuracy of the scale despite Palfi's absence. First, Palfi's deputy supervisor, Shaw, could have testified to departmental procedures, and Palfi's training and his tendency to adhere to regulations. Next, the State could have requested a continuance until Palfi was available to testify. Third, the State could have had another chemist from the MCFSA re-weigh the cocaine for the benefit of the trial court.
Miller has not shown that he was prejudiced by his trial counsel's failure to object to the State not introducing evidence regarding the accuracy of the scale used to measure the recovered cocaine. We agree with the State that it could have met its foundational burden of showing the accuracy of the scale even though Palfi was unable to testify. We believe that Shaw, Palfi's supervisor, was qualified to testify, and that his testimony could have established the requisite foundation. Furthermore, we also believe that the trial court would have granted the State a continuance until Palfi was available to testify, or until the State was able to have another chemist weigh the recovered cocaine. We therefore conclude that Miller was not denied the effective assistance of trial counsel.
Conclusion
Miller was not denied the effective assistance of trial counsel because the State could have met its foundational burden of showing the accuracy of the scale used to weigh the cocaine recovered from the confidential informant. Therefore, the post-conviction court properly denied Miller's petition for post-conviction relief. The post-conviction court's order denying Miller's petition for post-conviction relief is therefore affirmed.
Affirmed.
RILEY, J., and CRONE, J., concur.