John W. Kimbrough v. Ron Neal ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 18-3145 & 18-3153
JOHN W. KIMBROUGH,
Petitioner-Appellee/
Cross-Appellant,
v.
RON NEAL,
Respondent-Appellant/
Cross-Appellee.
____________________
Appeals from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:16-cv-1729 — William T. Lawrence, Judge.
____________________
ARGUED SEPTEMBER 10, 2019 — DECIDED OCTOBER 24, 2019
____________________
Before WOOD, Chief Judge, and KANNE and BRENNAN,
Circuit Judges.
BRENNAN, Circuit Judge. John Kimbrough was convicted in
Indiana state court of molesting two young girls on multiple
occasions. The trial court sentenced Kimbrough to 80 years in
prison, which was ultimately affirmed on appeal. Kimbrough
sought post-conviction relief based on ineffective assistance
2 Nos. 18-3145 & 18-3153
of appellate counsel. Specifically, Kimbrough cited his attor-
ney’s failure to object to his 80-year sentence under Indiana
Appellate Rule 7(B), which allows an appellate court to revise
an inappropriate sentence.
The Indiana Court of Appeals rejected Kimbrough’s inef-
fective assistance claim, concluding as a matter of state law
that he was not entitled to relief. The district court disagreed
and granted Kimbrough’s petition for a writ of habeas corpus.
Because a federal court considering a habeas petition under
28 U.S.C. § 2254(d) cannot disagree with a state court’s reso-
lution of a state law issue, we reverse.
I. BACKGROUND
Kimbrough dated the mother of a five-year-old daughter,
a seven-year-old daughter, and a son with cerebral palsy.
Eventually, the daughters revealed Kimbrough had molested
them for nearly two years. The State of Indiana charged
Kimbrough with four counts of child molestation. The jury
found Kimbrough guilty on all counts. Kimbrough was sen-
tenced to 40 years on each count. Counts I and II were ordered
to be served concurrently. Counts III and IV were also or-
dered to be served concurrently but consecutive to Counts I
and II, for a total of 80 years. When imposing the sentence, the
state judge considered the nature of Kimbrough’s conduct, his
lack of criminal history, and Kimbrough’s abuse of a position
of trust.
On direct appeal, Kimbrough argued the evidence was
insufficient to sustain his conviction, the trial court’s jury in-
structions were erroneous, and the trial court abused its dis-
cretion in imposing the 80-year sentence. Notably,
Kimbrough’s appellate counsel never challenged his sentence
Nos. 18-3145 & 18-3153 3
under Indiana Appellate Rule 7(B), which allows the court to
“revise a sentence [if] the Court finds that the sentence is in-
appropriate in light of the nature of the offense and the char-
acter of the offender.” IND. APP. R. 7(B). Although the Indiana
Court of Appeals rejected some of his arguments, a split panel
did sua sponte reduce his sentence to 40 years under Rule
7(B).1 Kimbrough v. State, 2012 WL 983147, at *5 (Ind. Ct. App.
Mar. 21, 2012) (“Kimbrough I”). The Indiana Supreme Court
vacated Kimbrough I, holding Rule 7(B) should not have been
invoked sua sponte. Kimbrough v. State, 979 N.E.2d 625, 629–
30 (Ind. 2012) (“Kimbrough II”).
Kimbrough then sought post-conviction relief in the
Indiana trial court, arguing his appellate counsel was ineffec-
tive for failing to challenge the 80-year sentence under Rule
7(B). The trial court denied his request, as did the Indiana
Court of Appeals, which concluded, “if the [Kimbrough I] ma-
jority had engaged in a full Rule 7(B) analysis with the benefit
of argument and analysis from the State, it would not have
found Kimbrough’s sentence inappropriate.” Kimbrough v.
State, 2016 WL 112394, at *5 (Ind. Ct. App. Jan. 11, 2016)
(“Kimbrough III”). In Kimbrough III, the court stated further:
“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 dif-
ferent.” Id. Because Kimbrough was not entitled to relief
1 While the majority presumably rested its decision on Rule 7(B), it did
not expressly cite that rule and reviewed the case for an abuse of discre-
tion. The dissent considered the case as if it was decided under that rule,
concluding that a Rule 7(B) argument should be rejected because
Kimbrough was not entitled to a revision of his sentence given the nature
of his crimes and his failure to assert the rule.
4 Nos. 18-3145 & 18-3153
under Rule 7(B), he failed to establish prejudice. Kimbrough
then petitioned for transfer to the Indiana Supreme Court. His
petition was denied.
As a last resort, Kimbrough sought a writ of habeas corpus
from the district court, arguing his appellate counsel was in-
effective under Strickland v. Washington, 466 U.S. 668 (1984),
for failing to challenge his sentence as inappropriate under
Indiana Rule 7(B). To establish ineffective assistance of coun-
sel under Strickland, a petitioner must show: (1) counsel ren-
dered deficient performance that (2) prejudiced the petitioner.
466 U.S. at 687. Granting Kimbrough’s petition, the district
court found that the court in Kimbrough III unreasonably ap-
plied Strickland when it concluded Kimbrough was not preju-
diced by counsel’s performance. The district court compared
the opposite conclusions in Kimbrough I and Kimbrough III and
held that “[b]ecause two panels of the Indiana Court of
Appeals utilized their discretion to reach opposite conclu-
sions,” Kimbrough necessarily had a reasonable probability
of success on a Rule 7(B) argument and had satisfied
Strickland’s prejudice prong. The state appealed.
II. DISCUSSION
The “pivotal question” here is whether the court in
Kimbrough III unreasonably applied Strickland. See Harrington
v. Richter, 562 U.S. 86, 101 (2011). Because the Indiana Court
of Appeals addressed whether Kimbrough has established
prejudice, we must decide whether that state court’s decision
“was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States.” Antiterrorism and
Effective Death Penalty Act (“AEDPA”), 28 U.S.C.
§ 2254(d)(1). When a case falls under § 2254(d)(1), we review
Nos. 18-3145 & 18-3153 5
the state court decision de novo to determine the legal ques-
tion of whether the decision is contrary to clearly established
federal law. See Denny v. Gudmanson, 252 F.3d 896, 900 (7th
Cir. 2001); see also Morris v. Bartow, 832 F.3d 705, 709 (7th Cir.
2016) (“We review de novo the district court’s treatment of le-
gal issues, and we review findings of fact for clear error.”). We
consider the “last reasoned opinion on the claim,” here the
decision of the Indiana Court of Appeals in Kimbrough III. See,
e.g., Woolley v. Rednour, 702 F.3d 411, 421 (7th Cir. 2012). As
the last reasoned opinion on the claim, Kimbrough III is enti-
tled to AEDPA deference.
Because Strickland requires Kimbrough to show a reason-
able probability that he would have obtained relief if his
counsel had raised a Rule 7(B) argument, the Rule 7(B) in-
quiry underlies the Strickland analysis. Kimbrough must
show the Indiana Court of Appeals decision was “so lacking
in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fair-
minded disagreement.” Harrington, 562 U.S. at 103. This is a
“difficult” and “highly deferential” standard. Id. at 105.
Kimbrough argues the state court’s decision in Kimbrough
III unreasonably applied federal law. But the Indiana Court of
Appeals decision 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.” Kimbrough III,
2016 WL 112394, at *4–5. For federal habeas relief here under
§ 2254(d)(1), the state court’s decision must be an unreasona-
ble application of federal law—not a state court’s resolution
of a state law issue. See, e.g., Bradshaw v. Richey, 546 U.S. 74, 76
6 Nos. 18-3145 & 18-3153
(2005) (“We have repeatedly held that a state court’s interpre-
tation of state law … binds a federal court sitting in habeas
corpus.”); Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“To-
day, we reemphasize that it is not the province of a federal
habeas court to reexamine state-court determinations on
state-law questions.”); Miller v. Zatecky, 820 F.3d 275, 277 (7th
Cir. 2016) (“A federal court cannot disagree with a state
court’s resolution of an issue of state law.”).
This case is nearly identical to Miller v. Zatecky, which
Kimbrough asks this court to overrule. In this case and Miller,
the petitioner raised a Strickland claim due to appellate coun-
sel’s failure to raise an Indiana Rule 7(B) argument. In each
case, the Indiana Court of Appeals rejected the claim because
the petitioner failed to establish that his sentence was inap-
propriate under Rule 7(B) and would have been reduced if
appellate counsel had raised the Rule 7(B) issue on direct ap-
peal. Compare Miller v. State, 2013 WL 1210524, at *6 (Ind. Ct.
App. Mar. 26, 2013), with Kimbrough III, 2016 WL 112394, at *5.
Neither case was based on federal law. Like Miller, Kimbrough
III “rests on a conclusion that, as a matter of state law, it would
have been futile to contest the sentence’s length on appeal, be-
cause a 120-year sentence [here, an 80-year sentence] is not
‘inappropriate in light of the nature of the offense and the
character of the offender.’” Miller v. Zatecky, 820 F.3d at 277.
The Indiana Court of Appeals’ conclusion that appellate re-
view 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.” Id. Miller controls, and Kimbrough has
not provided a compelling reason to overrule it.
Kimbrough argues Miller cannot coexist with Shaw v.
Wilson, 721 F.3d 908 (7th Cir. 2013), and Jones v. Zatecky,
Nos. 18-3145 & 18-3153 7
917 F.3d 578 (7th Cir. 2019). In those cases, this court granted
habeas relief based on the attorneys’ failure to object to un-
timely amendments to their charges under Indiana law. We
were concerned with Indiana attorneys ignoring the clear text
of the Indiana statute and allowing prosecutors to make
untimely amendments. Jones, 917 F.3d at 580. That is not the
situation here. Neither Shaw nor Jones reviewed a state law
determination of the post-conviction court. See Shaw, 721 F.3d
at 918 (“[W]e are not resolving any issue of state law.”); Jones,
917 F.3d at 583 (“Jones’s case does not require us to resolve
any question of state law.”). Indeed, Shaw and Jones confirm
we are bound by the state court’s resolution of a state law
question. See Shaw, 721 F.3d at 914; Jones, 917 F.3d at 581–83.
We find no conflict between these cases and decline to over-
rule Miller.
Kimbrough has not shown the Indiana Court of Appeals
unreasonably applied federal law. Under the AEDPA’s defer-
ential standard, the court’s decision in Kimbrough III was not
“so lacking in justification that there was an error well under-
stood and comprehended in existing law beyond any possi-
bility for fairminded disagreement.” Harrington, 562 U.S. at
103.
III. CONCLUSION
We REVERSE the district court’s grant of Kimbrough’s peti-
tion for a writ of habeas corpus.2
2 Case No. 18-3153, Kimbrough’s cross-appeal, challenges whether the
district 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. Because Kimbrough is not entitled to habeas relief, we decline
to address his cross-appeal.