*1 $10,000, aries for claims in excess of (f) provides may RINER, 1395oo the Board Petitioner-Appellant, § (on determine its own motion or at the request provider) of the that it is without OWENS, Superintendent, Norman G. authority ques- to decide the constitutional Reformatory, Indiana State dispute.
tion involved in the The fact that Respondent-Appellee. the statute allows the Board to decide question whether a beyond constitutional is No. 83-1627. authority
its logically interpreted cannot be Appeals, United States Court of dispensing require- to mandate the Circuit. Seventh questions ment that constitutional raised by disputes properly before the Board must Argued Dec. 1984. presented conjunction be to the Board Decided June Indeed, dispute. requir- with the financial ing presentation ques- of constitutional “manifestly
tions to the Board is reason-
able, Secretary since it assures the
opportunity prior litigation to constitutional ascertain, example, particu- are neither invalid for
lar claims involved
other reasons nor allowable under other
provisions Salfi, Act.” [Medicare] at 2465. Because clearly requires pre-
the Medicare Act disputes including any
sentation of all Board, questions
all constitutional requirement
we hold that the that the con- question presented is
stitutional non- Eldridge, 424 U.S. at
waivable. Cf. at 899. constitutional Homewood’s deprivation property
claim for without process alleged
due on the of law is based
bad acts of the “unknown federal officials agents” and is also based on the Secre- Coffey, Judge, dissenting filed tary’s alleged “issuing regulations [of] opinion. provide hearing which do not for a suspension case of a for fraud or willful
misrepresentation, denying it at least a ...
post-suspension hearing suspension on the
issue, failing and ... to reach a final reso- regarding report].”
lution its cost [second
A of the record discloses that the review
plaintiff has failed to these claims plaintiff
to the Board. Because the has not jurisdictional
satisfied the non-waivable ele- (f)(1) presentation
ment of 1395oo of its — filing Secretary claim to the before courts—it the Federal is barred 405(h). judicial
from section review
Ill district court dismiss-
The decision of the complaint subject for lack of matter
jurisdiction is Affirmed. *2 Eisenberg, B. So. 111.Univ. Asso-
Howard Law, Carbondale, 111., Professor of ciate petitioner-appellant. Gen., Steiner, In- Deputy Atty.
David L. Ind., respondent-appellee. dianapolis, CUDAHY, COFFEY and Before FLAUM, Judges. Circuit FLAUM, Judge. appeals Riner
Petitioner Jack of his for a district court’s denial challenges corpus. Riner writ of habeas degree for first murder his conviction ground he was denied the that witnesses confront and cross-examine of Indiana contends against him. The state right to raise the con- that he waived his of his issue on as a result frontation the issue at trial or on failure to raise courts. For the direct the state below, reasons set forth we reverse corpus. denial of the writ of habeas I. petitioner’s conviction for first de- imprison- life
gree murder and sentence of
transpired
ment arose from the events
morning
August
hours of
early
1970, during
the course of a
Belleville, Indi-
Trading Post near
Gibson’s
morning, Edward Gibson and
ana. On that
Gibson, the co-owners
his brother Harold
trading post, drove to their store
homes,
hearing
in their
upon
an alarm
burglar
connected to the store’s
which was
positioned
themselves
alarm.
brothers
of the store. As Harold
opposite
ends
store,
walking toward the
he was
started
pro-
leg.
He testified that he
shot
fleeing figure going
to shoot at a
ceeded
fence. When Harold went to
over a
store,
found his brother
front
holding
gun
yelling
that he
Edward
Upon seeing a man or
shot.
had also been
neighboring yard,
running
boy
across
person.
shots at the
fired a few
Harold
figure running across the
saw a
Harold
car,
road,
drove across the
got back into his
road,
glimpse of the
caught another
April
behind a house. Harold was
pro
man
filed
unable, however,
identify
persons
present petition
se the
for a writ of habeas
morning.
that he had seen
Edward
in the United States District Court
shooting.
as a result of the
later died
for the Southern District of Indiana.
petition,
petitioner alleges
this
that:
fifteen-year-old,
Petitioner Jack
he was denied his
to confront witness-
Ronald, and their uncle
his older brother
*3
court, (2)
ines
state
the confrontation issue
charged
Evans were
with first de-
not raised at
trial or on direct
gree
killing,
murder as a result of the
petitioner’s
the
because
counsel had a con-
during
which occurred
the course of a felo-
flict of
representa-
interest due to his dual
charges against
ny. The
Ronald Riner
petitioner
(3)
tion of the
subsequently
peti-
dismissed. The
were
by respond-
state waived its waiver defense
represented by
tioner and Evans were
ing
petitioner’s
to merits of the
claim in
attorney
joint
same
at their
trial. Ronald
post-conviction
the state
proceeding. The
trial,
testified as a state’s witness at the
petitioner’s
district court denied the
re-
relating his version of the events on the
3,
10, 1970,
quest for relief on
morning August
March
1983. The
of
and recount-
district court held
petitioner
that he
that while the
conversation
had had with
remedies,
had exhausted
during
their confinement
in
his state court
awaiting
necessary
trial.
had failed to show the
cause and
prejudice to overcome waiver of the con-
during
At
of
the conclusion
trial
frontation claim his failure to raise it at
petitioner
which neither Evans nor the
tes-
appeal.
trial or on direct
tified,
petitioner
both the
and his uncle
impris-
were convicted and sentenced to life
appeal,
petitioner
On
asserts that his
Supreme
onment. The Indiana
af-
Court
right
to confront and cross-examine wit-
firmed the
conviction on direct
nesses
in
was denied
Indiana state court
State,
428,
appeal in Riner v.
258 Ind.
281
he has not waived his
(1972).
petitioner
N.E.2d 815
rep-
appeal.
address the confrontation issue on
appeal by
resented on this
the same attor-
ney
represented him
who had
and his uncle
II.
29, 1973,
at trial.
March
On
petition
filed his first
for a writ of habeas
Right
A. Waiver of
to Address Confron-
corpus pursuant
(1982)
to 28 U.S.C. 2254
Appeal
tation Issue on
in the United States District Court for the
2254(a),
According to 28 U.S.C. §
Northern District
petition
of Indiana. This
prisoner
corpus
a state
is entitled to habeas
3,
1,
April
was denied on
1974. On March
being
relief in a federal court
if he is
1976,
petition
post-
filed a
custody
“in
in
held
violation of the Consti
court,
in
raising
conviction relief
state
tution or laws or treaties of the United
the first time his claim that he had been
107, 119,
Isaac,
Engle
States.”
denied the
to confront and cross-ex-
1558, 1567,
(1982).
102 S.Ct.
(1984).1
courts,
in
prisoner
has observed
the state
may obtain
that a federal court’s decision whether to
federal
habeas
relief by showing
prisoner’s
a state
examine
constitutional
cause for and
actual
prisoner
Isaac,
Engle
claims when
has failed to
default.
456 U.S. at
applicable
procedural
1572;
state
abide
rules
S.Ct. at
Wainwright v. Sykes,
types
(1)
implicates
two
of concerns:
Con- 433 U.S.
federal for-
providing
(1977).
interest
gress’s
L.Ed.2d 594
In formulating the
prisoners’
state
of
vindication
for the
um
prejudice standard,
cause and
the Court
rights,
constitutional
give
the state’s in- has declined to
the term
pre-
“cause”
integrity
of
procedural
terest
its
cise content
of
because
the numerous rea-
finality
judgments.
rules and
of its
attorney’s
sons for an
failure
comply
— Ross,
U.S.-,
Reed v.
procedural
with a
rule and the limitless
(1984).
The courts
array
have
contexts
which a
principles
comity require
noted that
default
Ross,
could occur. Reed v.
*4
prisoner
state
his claims to the
2909. The Court has noted that
appropriate
seeking
state tribunal before
the terms “cause” and
prejudice”
“actual
court, thereby
relief in federal
giving the
rigid concepts,
are not
but rather take their
state court the first opportunity
meaning
to correct
principles
from
comity
and fi-
See,
a constitutional violation.
e.g.,
nality.
Isaac,
Engle
135,
United
v.
1257 tition, appeal stemming the state circuit court held that the issues from the defend- had the confrontation is- petitioner waived conflicting ants’ defenses because to do so raising appeal. not it on direct sue might cast doubt on the effectiveness or circuit court also concluded that if the con- propriety attorney’s representa- dual had on direct frontation issue been raised tion at trial. In several cases where a appeal, Supreme the Indiana would petitioner represented by has been differ- granted petitioner likely have a new attorneys ent at trial and appeal on trial based on a violation of the relief, where we have denied habeas Amendment to confront Sixth wit- we have hinted that the outcome of the Bruton, nesses under 391 United States may case have been different if the same 1620, 20 L.Ed.2d attorney represented (1968). Upon petitioner’s appeal of the cir- the trial and both on direct since the relief, post-conviction cuit court’s denial of attorney might same be reluctant to raise the Indiana Court concluded that might suggest issues his had waived his to raise ineffectiveness at trial. United States ex the confrontation issue DeRobertis, rel. Devine v. 754 F.2d post-conviction relief under the Indiana (7th Cir.1985); Lane, 766-68 Dently v. post-conviction relief statute2 not rais- (7th Cir.1983); F.2d 1175-78 United original ing the issue at the time of the Franzen, States ex rel. Williams v. State, appeal. or on direct trial Riner v. (7th Cir.1982). F.2d 950 n. 11 Since it 578, 581-82, 140, 143- 271 Ind. 394 N.E.2d professional- would be most difficult if not (1979). Since has there- *5 ly require lawyer awkward to a argue on to raise the confronta- fore waived appeal his own in ineffectiveness not rais- by failing tion issue in the Indiana courts relating repre- at trial issues to his dual ap- to raise the issue at trial or on direct sentation, ques- such as the confrontation peal, peti- must determine we whether here, presented tion conclude we that iden- prej- has shown cause for and actual tioner tity appellate of trial default, counsel can con- thereby permitting udice argument stitute sufficient cause to meet the us to overcome the waiver and to first petitioner’s prejudice examine the claim on the mer- element of the cause and stan- its. dard. petitioner claims that the confronta- showing In addition to cause for his tion issue was not raised at trial or on failure comply with state attorney direct the same because rules, petitioner must also show actual represented him at levels. hold both We prejudice as a of his failure suffered result representation that dual of co-defendants appeal. to raise an issue at trial or on direct representation at trial and of one or more Isaac, 129, 102 Engle v. at at 456 U.S. by attorney of these defendants that same 1572; at Wainwright Sykes, v. on direct can meet the cause ele- Although noting that it S.Ct. at 2506. prejudice the cause and ment of standard precisely the terms would not define circumstances. In a case under certain “prejudice,” the in “cause” and represented by an individual is
where Wainwright Sykes held that the evi appellate same counsel at both the trial and levels, presented dence at trial of the possibility there exists the attorney might raising guilt in case was so as to be inhibited from on substantial sentence, Remedy any proceeding peti- or in other 2. The Indiana Post-Conviction Relief relief, provide: may not be Rules tioner has taken to secure subsequent petition, the basis for a unless the grounds a All available to ground court finds a for relief asserted which original this rule must be raised in his under reason was not asserted or was for sufficient ground finally adjudicated petition. Any inadequately original petition. raised in the knowingly, merits or not so raised and the voluntarily Rules, Ann., Court Post-Conviction Re- Ind.Code lief, intelligently waived in the (Burns 1984). Rule proceeding or that resulted in the conviction pulling up building. several cars actual saw possibility of negate any got the car Ronald stated that he out of the admis- from resulting to someone, he and saw whom believed inculpatory statement. Wain- of his sion Evans, running the car and first toward wright Sykes, case, of Plainfield. Ron- then toward town In the we 2508. frightened and ald testified that he became whether must determine field. attorney’s fail- ran into a of his as a result prejudiced at trial issue raise the confrontation ure to to his based on his addition effect of that when the appeal, or on direct personal knowledge, Ronald testified to of Ronald’s testi- the admission failure was that he had had with his uncle conversation with Evans his conversation mony as to jail awaiting trial. Ronald testi- while jail. him that he fied that his uncle had told a lookout on the prosecution as instructed Jack to be Riner testified Ronald August 10 tried to morning of his while Evans joint trial brother witness at trading post. personal knowledge, open force the door of on his Based uncle. driving also testified that his uncle said he had been Ronald related that that he had been shot at someone his uncle and brother Ev- with around the fire. Evans also told early morning hours of had returned ans’s car east, he Ronald that as he was Ronald stated that August man fired at seat when confronted another who sleeping back had been him, got out and that Evans shot this man. Before and Evans stopped the car related Ronald testified as to that conversation to the trunk. Ronald walked back attorney plastic bag from the with the defendants’ ob- removed that Evans unspecified resembling jected to Jack Riner on object an as trunk that had grounds. The trial court sustained sticking pro- out of it and state a rifle butt of objection him. as to Riner and admitted if he would with ceeded to ask Jack subsequent testimony only as to lay down in the Ronald’s back Ronald stated he heard some and Evans.3 seat until back *6 him, try get transcript they following excerpt that were from the trial
3. The
prosecutor
building.
open
questions that the state
tried to force
the
into the
He
relates
concerning
door,
doing
his conversa-
Ronald Riner
asked
and continued
so until he heard a
county jail:
building.
tion with Evans
went to look
car in front of the
He
County
you
in the Hendricks
toward the
Q:
were
and there was someone
After
time,
Jail,
any
any
you
have
conversa-
building
at
the other
did
and Jack
from
holl[e]red
Wayne
that,
Evans?
somebody
with a Mr.
tion
there
over there.
side
was
Yes,
shooting
sir.
they
A:
said that was when the
And
Approximately
Q:
when was this?
started.
days
Approximately 10
to 2 weeks after
A:
you,
specifically
Q:
tell
What did he
happened.
crime
this
Q:
happened?
that
take
did that conversation
And where
at,
just
shot back
A: He
said he was shot
he
place?
ground
fired
rounds from the
on
he
several
County
In one of the cells in Hendricks
A:
building.
stop
end
In order to
the west
Jail.
man,
east,
the back of
the
then he ran
from
present?
Q: And who was
building.
confront-
the
At which time he was
cell, Wayne
several men in the
A: There was
building by another
ed on the east end of the
man,
to one of the back cells.
and I went off
Q:
him,
began firing
at
he ran across the
say
you,
and what did
And what did
fell,
running to-
street and
the man started
you say to him?
him, fired several rounds at him.
ward
Objection,
as Jack
as far
Defense Counsel:
say,
Q:
he? You mean
You
concerned, Your Honor.
Riner is
fired?
Objection
as Jack Rin-
sustained as far
Court:
No,
man fired.
A:
sir. The other
only
as to
Evans. You
er. Admitted
may answer now.
got
that
killed
A: The man that I understand
hap-
explanation as to what
A: I ask for an
pened.
doing
firing
he fell. He
the
at the time
was
time I was told.
At which
him,
He said
he said.
fired several rounds
you?
Q: What did he tell
alternative,
got up but to
when he
he had no
Jack,
that,
over
him and
was
A: He told me
man,
than the man to shoot
shoot the
rather
building,
would watch
he ask Jack if he
prejudice
We hold that the admission of Ronald’s
resultant
petitioner
suffered
testimony
cannot be eradicated.
as to his conversation with Ev-
prejudice
peti-
the
ans resulted
actual
sum,
petitioner
we hold that the
petitioner
prejudiced
tioner.
was
be-
has shown both the cause and
preju
actual
testimony
cause the admission of this
was
necessary
dice elements
to overcome his
jury
the
evidence before the
waiver of the confrontation issue in the
aiding
involvement
abet-
state courts.
ting
burglary
the
and murder. For exam-
ple, Evans stated to Ronald that Jack had
Right
B.
Violation
to Confront and
thereby
served as a lookout for
Cross-Examine Witnesses under
the
providing support
charge
for the
that Jack
Sixth Amendment
had facilitated the
and murder.
peti-
Since we have concluded that the
damaging testimony,
In contrast
to this
preju-
tioner has met
cause and actual
personal
testimony
Ronald’s
as to the
standard,
proceed
dice
we will
to determine
transpiring
August
events
on the merits whether the
has
merely revealed that Jack had been asked
that
shown
his Sixth Amendment
him,
by his uncle to with
not that Jack
confront and cross-examine witnesses was
actively
had
aided and abetted his uncle
petitioner argues
violated. The
that this
ensuing
There
no
crimes.
direct
right was violated when a statement made
presented
evidence
at trial that Jack was
nontestifying co-defendant,
with
planning
even aware of what his uncle was
tried,
whom the
being jointly
testimony
to do. Even Harold Gibson’s
jury.
was revealed to the
persons fleeing
he had seen
two
States,
In Bruton v. United
following
shooting
did not
scene
estab-
(1968),
persons
lish that one of those
was Jack.
Court held that a defendant’s
Since Ronald himself testified that he had
joint
conviction in a
trial should be set aside
frightened
when the
become
be-
a co-defendant’s
inculpat-
when
confession
scene,
gan
fleeing
and had fled the
through
the defendant is revealed
persons
might
that Harold
had seen
Gibson
though
of a witness even
easily have been Ronald and his uncle.
trial court has instructed the
to dis-
Furthermore,
objection by
defense
regard
determining
the confession in
unspecified grounds
counsel on
to the ad-
guilt
Bruton,
defendant’s
or innocence. In
testimony regarding
mission of Ronald’s
postal inspector
joint
testified
trial
his conversation with Evans was insuffi- of two defendants that one of the defend-
cient to reduce or eliminate the substantial
orally
had confessed
ants
he and his
suffered as a
robbery.
co-defendant
committed a
Id.
*7
testimony.
result of the admission of the
Although noting
substantial 1628. The Court reasoned that an instruc- testimony implicate petitioner in disregard able the trial court to such a tion crime, negative jury impact the effect on the of confession could not deflate the incriminating testimony jury powerfully and of such a the admission of the the the him, which time he shot twice at the man fell forward and he ran south on U.S.39. him. At 1260 Riner, 135-36, petitioner, Jack claims that 88 Id. at statement.
extrajudicial and his Sixth Amendment to confront concluded at 1627-28. S.Ct. against witnesses him was cross-examine a confession would unreliability of such the prosecution the elicited testi- violated when alleged compounded if the intolerably mony of a cell conversation between testify and thus become not accomplice did brother, Riner, petitioner’s the and Ronald Id. at subject to cross-examination. Evans, uncle, impli- petitioner’s the at 1628. in the murder of Edward cating Jack Riner Bruton, we have interpreting In Riner waived his Sixth Amend- Gibson. of a co-defendant’s admission held by failing claim to raise the issue ment a defendant violates confession out-of-court or on direct to the either at trial under right of confrontation petitioner’s Nevertheless, the Indiana Court. where the confession Amendment the Sixth majority holds that Riner has demonstrated proof of its government’s to the is vital to overcome sufficient cause implicates the defendant. directly case of his prevail on the merits this waiver 725 F.2d 1125- Key, States United I claim. dissent. The Amendment Sixth case, hold we (1984). In the of clearly reveals that the State record to confront and Riner’s that Jack ample more than evi- Indiana introduced him witnesses trial, cross-examine jail cell independent of the dence at testi admission of Ronald’s by the violated conversation, petitioner’s to establish conversation with Evans mony as to in the murder of Edward Gib- participation judge defense though the sustained even son, Accord- beyond a reasonable doubt. testimony to the as objection counsel’s I hold that Jack Riner has ingly, would Bruton, impact of the As Jack. prejudice neces- demonstrate the failed to incriminating testimony admission of of his Sixth sary overcome the waiver not be deflated jury could on the claim. Amendment disregard instruction trial court’s Jack, especially when the testimony as to I clearly evidence testimony was Jury the Grand of September as an aider and abettor implicating Jack Indiana, pe- County, indicted the Hendricks testimony as to Ev Ronald’s his uncle. uncle, titioner, Riner, and his Jack govern was vital ans’s statement in connec- degree first murder directly implicated Jack in ment’s case of Edward Gibson tion with case, In such a the admission murder. burglary of Gibson’s during attempted an not harm is prejudicial Belleville, Indiana. De- Trading Post California, Harrington less. Cf. 1970, following joint trial where cember 23 L.Ed.2d represented uncle were Riner and his Jack of Bruton is harmless (any violation counsel, re- by the same defense overwhelming is evi there error where guilty against each de- verdict of turned a guilt prej petitioner’s and the dence trial, Gibson, the vic- At Harold fendant. the co-defendants’ state impact of udicial Riner, brother; petition- tim’s insignificant). hold relatively We ments is brother; Hen- Virgil Ramp, the er’s testimony directly that the admission County Deputy Sheriff who arrested dricks right to confront violated the testimony rele- presented the *8 him cross-examine witnesses and Riner’s conviction. vant to Jack by Amendment. guaranteed the Sixth August testified that on Harold Gibson conclusion, the district court’s denial a.m., the 10, 1970, approximately 3:00 at for a writ of habeas Riner’s of Jack Trad- sounded at Gibson’s alarm corpus is reversed. Belleville, Indi- Post, general store in ing a operated and
ana, was co-owned that Gibson. Edward dissenting. Harold and his brother COFFEY, Judge, bed, ting “sleepy.” Harold arose from instructed his wife Ronald fell asleep and the Police, pro- to call the Indiana State and thing next he remembers Evans stopped immediately automobile, ceeded to the store where he side, exited the driver’s and began met his brother. As Harold to circle proceeded to the trunk of the car. Evans store, perimeter the outside he was plastic bag trunk, retrieved a and, leg ground. fell shot Ronald, according to it “looked like the up, peered When he looked he into the gun, sticking butt of a out of bag ... it “somebody trying go distance and saw to long gun____” was a Ronald further testi- backyard.” over the fence in the Accord- fied that Evans returned to the front of the Harold, attempted pursue to he to Riner, vehicle and asked Jack “if he would burglary suspect and: go with agreed “got him.” Jack out of According Ronald, I the car.” got
“when
almost to the
to
Evans
east end
building, my
Jack Riner “went off
brother was down on one
west from the car”
knee,
toward
holding
gun,
Trading
his
Gibson’s
and he hollowed
Post and he “laid
that,
back down in
stopped by
he had been hit.
I
the car.” The
thing
next
[sic]
Ronald
telephone
telephone pole
booth and
remembers is that he:
there, on the east end and some man or
on,
“heard some
several
boy
running
neighbor’s
was
across the
pulling up
cars
building
at a
off my
yard. And I
fired few shots at him. I
right.
people
Some
hollering, shouting,
my
went over to
brother and asked him
I jumped
then
out of the car and looked
alright,
said, just
if he was
burned.”
back over
top
of the car and I saw
somebody that
looked like
Harold further
run-
testified that once he dis-
ning
39, coming
south on U.S.
shot,
towards
covered that his brother had been
he:
the car and then he turned east and went
boy running
“noticed a man or
across
toward Plainfield.”
40,
[Highway]
going south,
my
#
brother seen him at the same time.
Ronald Riner became scared and fled to a
nearby field where he remained hidden for
approximately
being
one hour before
ar-
40, got
When I seen him run across
I
#
rested
County
two Marion
sheriffs. Ac-
car,
up
got my
put
clip
a new
cording
Riner,
he informed the law en-
my gun, drove
got just
across
#
forcement officer “who was with me. And
glimpse of
a man
behind a house
the last time I had saw
them. And
[sic]
or beside the house.”
gave
description.”
them a
Ronald ex-
The Indiana State Police arrived a short
plained
Riner, my
that “Jack
brother and
time later and Harold informed them that
Wayne Evans, my uncle” were the ones
something
patch
“there was
in the weed
with him.
running,
carrying
gun,
that was
or in
Deputy
Ramp
sheriff
testified that on
line.” Harold
to his
returned
store
August
approximately
at
8:00
building,
and “tried to
into the
which
a.m.,
apprehended
Jack Riner “about
‘jimmied’
the doors was
and we couldn’t
one-half mile east of Belleville on U.S. 40.”
get in.” The law enforcement officers then
According
deputy
Ramp,
sheriff
placed the wounded Gibson brothers in an
Riner’s “trousers were all wet from the
transported
ambulance and
them to a near-
knee down and his clothes were all rum-
by hospital where Edward Gibson later
pled.
stop
That is how I come
him.
[sic]
gunshot
died as a result of his
wound.
The conditions
of his clothes and
[sic]
August
Ronald Riner testified that on
stuff.”
The record also reveals
he,
approximately
p.m.,
10:00
August
arrested on
uncle, Wayne
brother Jack
and their
approximately
p.m.,
10:30
on U.S.
joyriding
Indianapolis,
were
around
Belleville, Indiana.
Highway
east of
Ronald,
Indiana
Evans’ 1963 Pontiac.
seat,
lying
Following
presentation
down in
of the fore-
who was
the back
asked
Gibson,
get- going testimony
Evans to return home because he
of Harold
*9
Ramp
jury,
got
A. The man that I understand that
deputy sheriff
questioned
doing
firing
Ronald Riner
killed was
at the
prosecution
he had with
jail cell conversation
he fell. He
about a
time
fired several
Evans, some two weeks
Wayne
him,
his uncle
rounds at
he said. He said he
Attorney
The State’s
alternative,
after their arrest.
got up
had no
when he
Ronald,
say
you,
did he
“what
man,
asked
but to shoot the
rather than
point,
say to him?” At that
you
did
what
him.
the man to shoot
At which
counsel;
representing
who was
the defense
him,
time he shot twice at
the man
trial,
Wayne Evans at
Riner and
both Jack
and he
fell forward
ran south on
Riner
“[ojbjection,
an
as far as Jack
raised
U.S. 39.”
party
he was not a
is concerned” beéause
in
Ronald Riner further testified that
an-
sustained
the conversation. The court
conversation,
jail
other
cell
Jack Riner and
testimony
objection- and admitted the
Wayne
him
approached
and stated
Riner
“only
as to
Evans.” Ronald
“they
testify
that
I
didn’t think
should
testified that in the
cell conversa-
then
matter,
they
this
that
felt like that was
tion:
to,
me,
leading
turning
what it was
was
that,
[Wayne
me
him
“A.
told
Evans]
they
State’s evidence. That
wouldn’t like
Jack,
building,
was over to the
it, and didn’t think it was fair.” Based
if
he asked Jack
he would watch
upon
totality
presented
the evidence
of
him,
they
try
were
trial,
found Jack Riner and
get
building.
into the
He tried Wayne
guilty
Evans each
of the murder of
door,
open
to force
and continued
judge
and the trial
sen-
Edward Gibson
doing
until he heard a car in
so
imprisonment.
tenced each defendant to life
building. He went to
front of the
Jack Riner
a direct
filed
look and there was someone run-
Court,
Supreme
conviction to the Indiana
ning
building
toward
Jack
alia,
alleging,
improperly
inter
that he was
hollored
from the other side
[sic]
Morgan County
tried in the
Circuit Court
that,
somebody
there was
over
years
age
because he was
sixteen
they
there. And
said
was
trial,
at the time of
that Ronald Riner’s
when the
started.
incompetent,
and that the
Q.
you,
specifically
What did he
tell
prosecutor engaged
prejudicial
miscond
happened?
Ronald that
argue
uct.1 At no time did Jack Riner
at,
just
A. He
said he was shot
he shot
before the Indiana
Court that he
back he fired several rounds from
was denied his Sixth Amendment
ground
on the west end of the
confront
and cross-examine witnesses
man,
building.
stop
In order to
3, 1972,
May
him. On
the Indiana
east,
then he ran
from the back of Supreme Court affirmed
Riner’s con
building.
At which time he was
degree
viction for the first
murder of Ed
confronted on the east end of the
State,
ward Gibson. Riner v.
258 Ind.
man,
building by
began
another
(1972) (“Riner I”).
1263
for the first time that he had been denied
murder,
the scene of the
and had
his Sixth Amendment
to confront and
Wayne
heard
Evans ask for
against him
cross-examine witnesses
when
evidence,
itself,
assistance. Such
is
Ronald Riner testified about
Evans’
enough
to establish
as an ac-
conversation,
jail
implicating
cell
Jack Rin-
complice and subject to
prosecu-
criminal
er in
the murder
Edward Gibson. The
felony
tion for
murder.”
relief,
post-conviction
court denied
finding
majority
now reverses the district
that Riner had failed to raise the Sixth
ruling
court’s
and holds that Jack Riner
Amendment claim either at trial or on di- has demonstrated sufficient
prej-
cause and
rect
and had thus waived the issue.
udice to overcome the
prevail
waiver and
Supreme
The Indiana
Court affirmed the
on the merits of his Sixth Amendment
post-conviction
denial of Riner’s motion for
claim.
relief, ruling that:
post-conviction
process
relief
is not
“[t]he
II
appeal,
substitute for direct
but is a
The law is well-settled that “when pro-
process
raising
issues not known at
cedural default
litigation
bars state
of a
original
time of the
trial and
claim,
constitutional
prisoner may
state
or for some reason not available to the
not obtain federal habeas relief absent a
defendant at that time. Bradberry v.
showing of
prejudice.”
cause and actual
State,
(1977)
530,
266 Ind.
364 N.E.2d
Isaac,
Engle
456 U.S.
102 S.Ct.
1183, 1188. Additional review of [Ronald
1558, 1572,
(1982).
the killer but as a lookout. Even without this implicate petitioner it is clear that Evans did not as place Ronald Rider merely could killer but as a lookout. Even [sic] resulted in clear that abetted testimony it is without this *11 death. Gibson’s Edward place petitioner could Rider Ronald [sic] murder, of the scene presented to According to the evidence petitioner’s ask for Wayne Evans heard gun Wayne Evans retrieved a jury, evidence, itself, is Such assistance. of his automobile and then from the trunk an ac- Riner, as enough asking to establish him “if he approached Jack prosecu- agreed criminal subject go to him.” Jack Riner complice and would with and Jack “got out of the car.” Evans felony murder.” tion for car,” off Riner then “went west judge that district court agree I with the approxi- Trading Post. At toward Gibson’s to demonstrate that has failed Jack Riner burglary alarm at mately 3:00 a.m. Amendment raise the Sixth his failure to sounded, Trading causing Post Gibson’s direct trial or on claim either at proceed rise from bed and Harold Gibson to of case. view actually prejudiced his arrival, immediately Upon the store. his conclusion, the issue of I not reach this do leg, in the fell to the Harold was shot same attor- by the representation whether up he saw “some- ground, and as looked direct trial and on ney at criminal go fence in the trying to over the body to overcome “cause” constitutes sufficient backyard.” Harold hobbled toward waiver. More- of default man and observed “some wounded brother Riner’s over, merits of I not reach the do neighbor’s boy across the or ... violated cell conversation jail claim that the brother, Ha- yard.” he reached his Once States, of Bruton v. United principles boy running or across rold “noticed a man enforcement south.” law # Amend- (1968), of his Sixth depriving Riner scene, apprehended arrived on the officers cross-examine confront and ment Riner, questioned him as to him. witnesses crime. Ron- in the who else was involved that Jack Riner was The record reveals Riner, “Jack informed the officers that ald guilty of the first charged and found with Evans, Wayne my uncle” my brother At the Gibson. degree murder of Edward approximately him. At 8:00 were with Ann. prosecution, Ind.Code time of Riner’s a.m., deputy Ramp sheriff arrested Jack 1956) (Burns provided that Belleville, 10-3401 Indi- Riner mile east of § one-half perpetration of or ... Similarly, at Highway ana “[w]hoever burglary perpetrate a.m., a ... ... attempt to enforce- approximately 10:30 the law Evans, being, guilty Wayne is of murder any kills human officers arrested who ment Moreover, traveling Highway Ind. degree____” east on U.S. in the first was also (Burns 1956) provided 40. Ann. 9-102 Code or abet “[e]very person who shall aid foregoing establishes that evidence may felony ... in the commission of a gun from Wayne Evans retrieved a after indictment, affidavit, tried charged by or car, Riner left of the he and Jack the trunk if he in the same manner as and convicted proceeded toward Gibson’s Ronald and majority as- principal____” The were a Post, attempted Trading the scene of the prejudiced serts that “[t]he of felony burglary and the murder Edward [Wayne the admission of Evans’ because Riner, “if question to Evans’ Gibson. only testimony was the evidence
jail him,” clearly cell] evidences with would involve- jury before that Jack aid and abet Evans’ intent abetting aiding and Indeed, ment in fact that Jack burglary. armed my independent re- From agreed accompany and murder.” freely Riner record, I am convinced that the view of the to assist Riner’s intent evidences possible than suffi- ex- presented with more is no other burglary, as there evidence, armed Ev- accompanying planation cient before introduction this Trading Post. It is for conversation, find, beyond rea- ans to Gibson’s cell attempted following the doubt, very reason that aided and that Jack Riner sonable of Edward burglary and the murder Gib- son, the law KEITH, Ronald Riner informed en- M.D., al., Louis G. et officers, my
forcement “Jack broth- Plaintiffs-Appellees, uncle,” my er and were the involved in the crime. ones DALEY, Attorney M. Richard State’s Furthermore, juror a reasonable would Cook, County Hartigan, Neil F. have considered the fact Jack Riner Attorney General the State of Illi willfully knowingly accompa- not Uhlig, Acting nois and Fred H. Director Trading nied Evans to Gibson’s *12 Health, Illinois, of Public State of De Post, that he the but also fled scene of the fendants, began. once the shooting crime Harold began testified that Gibson as he to search store, perimeter he was immedi- ately leg peered when he shot Coalition, Inc., III, Illinois Pro-Life distance, “somebody into he observed Intervening Defendant-Appellant. trying to over the fence the back- No. 84-2860. yard.” When Harold toward his hobbled brother, again wounded saw “some man United Appeals, States Court of boy running neighbor’s or ... across Seventh Circuit. yard.” Once he reached his brother on the building, other side “noticed a Argued April 1985. boy running man or across 40# Decided June south____” Though Harold was unable to person climbing identify fence and
running through yard neighbor’s or the
person running Highway south across U.S. nighttime existing due conditions morning, a.m. in 3:00 the law en- apprehended
forcement officers Jack Riner later, approximately
some five hours one-
half mile from the scene the crime. Rin- physical appearance
er’s revealed that he “on the run” been for some time. Rin-
er’s decision flee from the scene of the when
crime commenced and attempt to evade law enforcement offi- through
cers the farmlands of
rural Indiana is a further indication of his
participation attempted burglary. evidence,
view of this I am convinced that a find, juror beyond
reasonable could a rea- doubt,
sonable Riner aided and in the felony burglary
abetted that resulted murder of Edward Accord- Gibson. ingly, I would hold Evans’ Cudahy, Judge, opinion filed conversation, simply confirming cell Rin- concurring in result. participation felony burglary, er’s did not Jack Riner’s case. As a
result, Riner has failed to demonstrate the
prejudice necessary proce- to overcome the
dural default waiver
writ of habeas should denied.