McBride v. Warden

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

KENNETH MCBRIDE,

Petitioner,

v. CAUSE NO.: 3:19-CV-50-RLM-MGG

WARDEN,

Respondent.

OPINION AND ORDER

Kenneth McBride, a prisoner without a lawyer, filed a habeas corpus

petition challenging his 2012 convictions in Marion County for criminal

confinement and robbery. For the reasons stated below, the court denies his

petition.

I. BACKGROUND

In deciding the petition, the court must presume the facts set forth by the

state courts are correct. 28 U.S.C. § 2254(e)(1). It’s Mr. McBride’s burden to rebut

this presumption with clear and convincing evidence. Id. The Indiana Court of

Appeals set forth the facts underlying Mr. McBride’s convictions as follows:

On March 7, 2012, around 4:30 p.m., Officer Ryan Irwin of

the Indianapolis Metropolitan Police Department (IMPD) responded

to the dispatch of a robbery in progress at the Oriental Market

(Market), a grocery store on Lafayette Road owned by Bay Le Zhu

(Zhu) and her husband. Officer Irwin arrived within one minute and

found that the employees, two of whom had obvious injuries, and

Zhu’s six-year-old son Brian were locked inside the Market. Irwin

also found a twelve gauge shotgun lying on the ground next to the

market.

It was later established that Zhu, Brian, Zhu’s nephew Yixiu

Chen (Yixiu), Kia Wong (Wong) and his wife, Cai Nong Chen (Cai),

were all at the market when McBride and two other men, each armed

and wearing dark clothing, gloves, and masks, entered the Market

through a back door and locked the door behind them. The men

confined everyone in the kitchen, striking several of the victims with

their guns and binding their hands and legs with duct tape. After

the men demanded money, Zhu gave them $1200 that she had in

her pocket and was escorted out of the kitchen to the cash register,

where they took additional money. When Van Duong, a regular

customer, came by, he noticed that the door was locked even though

the lights were on and the “open” sign was displayed. Suspicious,

Duong peered through the Market window and observed masked

men but none of the store employees. When he looked again, he saw

Zhu taking money from the register, and she gave him a sign to call

for help.

McBride and the other men escaped in Wong’s vehicle, taking

with them Wong’s cell phone, Yixius’s cell phone and many of his

keys including his house and the Market keys, Zhu’s purse and

keys, the $1200 that Zhu had on her, and the money from the cash

register. Duong got a good look at McBride and provided the license

plate number of the getaway vehicle to the 911 dispatcher. He also

reported that the vehicle had traveled south on Lafayette Road.

Officers located the vehicle after a citizen reported seeing someone

flee from the vehicle.

At around 5:00 p.m., McBride and his co-defendant, Adrian

Jackson, were apprehended. They were found crouched down

between a wood deck area and a garage, wearing dark clothing and

shoes matching those worn by the robbers. Around and under the

deck where McBride and Jackson were apprehended, the officers

recovered several pieces of dark clothing, including a stocking cap

mask, three dark gloves, the distinctive jacket worn by one of the

men during the robbery with a Bic lighter in it that matched

McBride’s DNA, multiple cell phones, a set of keys, and a small

purse, all of which were items taken from the victims during the

robbery. Additionally, a piece of foreign currency and a rifle with

Jackson’s DNA were recovered. Officers also found $622 on McBride

and $1106 on Jackson.

Jackson and McBride were arrested and taken to the police

station and Zhu, Cai, Wong, and Duong were brought over for a

show-up identification. All but Wong identified either one or both

men as the robbers with seventy to one hundred percent certainty.

Duong positively identified both men, stating that Jackson was the

driver and McBride was the front seat passenger in the getaway

vehicle.

On March 9, 2012, the State charged McBride with Counts I

and II, class B felony criminal confinement, Counts III, IV, and V,

class B felony robbery, and Counts VI, VII, VIII, class C felony

battery. On March 13, 2012, McBride was appointed a public

defender. On that day he also made a pro se request for a speedy

trial, but on May 10, 2012, his counsel requested a continuance,

which the trial court granted. McBride was unhappy about his

appointed counsel’s decision to request a continuance despite his

speedy trial request and proceeded to file motions and briefs pro se.

McBride claimed that because his appointed counsel sought a

continuance against his will and was not doing what he asked her

to do, she had violated his constitutional right to counsel as well as

the rules of professional conduct.

On July 31, 2012, a waiver of counsel hearing was held,

during which McBride asked the trial court if he could proceed as

co-counsel. This request was denied because the trial court stated

he was attempting to take the lead in his own defense, thus placing

his counsel at risk. McBride then petitioned the trial court to

proceed pro se.

At a later hearing on August 16, 2012, the trial court

questioned McBride about his knowledge of the requirements for pro

se litigants and advised McBride of the responsibilities, dangers, and

disadvantages that he might face by proceeding pro se. The trial

court also told McBride he was responsible for objections and that

objections are the manner in which he could preserve issues for

appeal. The trial court specifically told McBride that if objections are

not made during trial, that particular issue would be waived on

appeal. During the advisement of rights hearing, the trial court was

not convinced that McBride would be prepared to proceed pro se and

expressed this concern to McBride several times. McBride

acknowledged the fact that he needed counsel but refused to allow

his appointed counsel to represent him because according to him,

his rights had been violated by the appointed counsel.

Having been informed of no specific instance of how McBride’s

rights had been violated by his counsel, the trial court told McBride

that if he felt he needed counsel, he would have to accept his

appointed counsel because there was no evidence that the appointed

counsel had done anything wrong, and McBride did not have the

right to counsel of his choice.

The trial court also verified that McBride had the educational

background and mental capacity to defend himself and that no one

had made either promises or threats to coerce him into waiving his

right to counsel. After the trial court read the advisement of rights,

McBride still insisted on representing himself and signed a written

advisement form stating that he had thoroughly reviewed all the

dangers and disadvantages of self-representation and had full

knowledge of them. Although the trial court granted McBride’s

request to proceed pro se, it also appointed McBride with “standby

counsel” that could answer questions about trial procedure.

A jury trial was held from September 17–19, 2012. On

September 19, 2012, the State dismissed Count VIII, and the jury

found McBride guilty on Counts I through VII. During McBride’s

sentencing hearing on October 5, 2012, the trial court merged Count

I into II, Count VI into Count III, and Count VII into Count IV and

sentenced McBride to six years of incarceration on Count II and

eight years each on Counts III, IV, and V, with each sentence to run

consecutively, for a total aggregate sentence of thirty years.

McBride v. State, 992 N.E.2d 912, 914-16 (Ind. Ct. App. 2013) (footnotes

omitted).

On direct appeal, Mr. McBride was represented by counsel and raised the

following claims: (1) the trial court erred when it let him proceed pro se because

his waiver of counsel wasn’t knowing, voluntary, and intelligent; (2) the trial

court committed fundamental error when it admitted evidence obtained through

an improper show-up identification procedure; (3) the trial court abused its

discretion in imposing consecutive sentences; and (4) his sentence was

inappropriately long under Indiana Appellate Rule 7(B). Id. at 916-920. The

Indiana Court of Appeals rejected these arguments. The court concluded that

Mr. McBride made a knowing and intelligent waiver of his right to counsel; that

he waived any objection to the show-up identification and that the identification

procedure didn’t amount to a fundamental error; and that the trial court didn’t

abuse its discretion in imposing the sentence. Id. at 921. The court affirmed Mr.

McBride’s convictions and sentence in all respects. Id. Mr. McBride filed a

petition to transfer to the Indiana Supreme Court, raising one claim: that the

trial court committed reversible error when it permitted him to proceed pro se.

The Indiana Supreme Court denied transfer. McBride v. State, 999 N.E.2d 417

(Ind. 2013).

Mr. McBride then filed a state post-conviction petition. (ECF 12-8.) The

evidentiary hearing was rescheduled several times due to Mr. McBride’s requests

to amend the petition and for continuances of the hearing. A hearing was finally

held on December 6, 2016, but the docket reflects that Mr. McBride didn’t

appear. The petition was denied, and Mr. McBride didn’t pursue an appeal.

In January 2017, Mr. McBride filed a “motion to correct sentence” in the

trial court. The motion was denied. He later sought and was granted leave to

pursue a belated appeal of the trial court’s order. On appeal, he raised one claim:

that the trial court erred in refusing to correct his sentence, because consecutive

sentences should not have been imposed under state law. McBride v. State, 111

N.E.3d 257 (Table), 2018 WL 4290642, at *2 (Ind. Ct. App. Sept. 5, 2018). The

Indiana Court of Appeals concluded that the claim was barred by res judicata:

Mr. McBride had already litigated the propriety of his consecutive sentences on

direct appeal. The court also found no merit to Mr. McBride’s argument, because

the trial court appropriately relied on several aggravating factors to impose

consecutive sentences, including the existence of multiple victims and the young

age of one of the victims. The court rejected Mr. McBride’s argument that his

sentence violated a state statutory cap for a “single episode of criminal conduct,”

because the cap didn’t apply to crimes of violence. The Indiana Supreme Court

denied transfer. McBride v. State, 119 N.E.3d 90 (Ind. 2018).

Mr. McBride then filed this federal petition raising the following three

claims: (1) his Sixth Amendment right to counsel was denied when the trial court

permitted him to proceed pro se; (2) his sentence violated the “14th and 5th

Amendment Due Process and Double Jeopardy Clause[s]”; and (3) he was

“denied due process and effective assistance of counsel by the admission of [the]

show-up line-up.” (ECF 1 at 3-4.)

II. ANALYSIS

Mr. McBride’s petition is governed by the provisions of the Anti-Terrorism

and Effective Death Penalty Act of 1996, which permits a court to grant habeas

relief to a person in custody pursuant to a state court judgment “on the ground

that he is in custody in violation of the Constitution or laws or treaties of the

United States.” 28 U.S.C. § 2254(a). The court can grant an application for

habeas relief if it meets the stringent requirements of 28 U.S.C. § 2254(d), set

forth as follows:

An application for a writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a State court shall

not be granted with respect to any claim that was adjudicated on

the merits in State court proceedings unless the adjudication of the

claim—

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the

United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

This standard is “difficult to meet” and “highly deferential.” Hoglund v. Neal, 959

F.3d 819, 832 (7th Cir. 2020) (quoting Cullen v. Pinholster, 563 U.S. 170, 181

(2011)). “It is not enough for a petitioner to show the state court’s application of

federal law was incorrect; rather, he must show the application was

unreasonable, which is a ‘substantially higher threshold.’” Hoglund v. Neal, 959

F.3d at 832 (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). In effect,

“[a] petitioner must show that the state court’s ruling on the claim being

presented in federal court was so lacking in justification that there was an error

well understood and comprehended in existing law beyond any possibility for

fair-minded disagreement.” Id. (quoting Harrington v. Richter, 562 U.S. 86, 103

(2011)).

Before considering the merits of a habeas petition, the court must ensure

that the petitioner has exhausted all available remedies in state court. 28 U.S.C.

§ 2254(b)(1)(A); Hoglund v. Neal, 959 F.3d at 832. The exhaustion requirement

flows from recognition that the state courts must be given the first opportunity

to address and correct violations of their prisoner’s federal rights. Davila v. Davis,

137 S. Ct. 2058, 2064 (2017); O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)).

For that opportunity to be meaningful, the petitioner must fairly present his

constitutional claim in one complete round of state review. Baldwin v. Reese, 541

U.S. 27, 30-31 (2004); O’Sullivan v. Boerckel, 526 U.S. at 845. This includes

seeking discretionary review in the state court of last resort. O’Sullivan v.

Boerckel, 526 U.S. at 848. The companion procedural default doctrine, also

rooted in comity concerns, precludes a federal court from reaching the merits of

a claim if the claim was presented to the state courts and was denied on the

basis of an adequate and independent state procedural ground, or if the claim

was not presented to the state courts and the time for doing so has passed.

Davila v. Davis, 137 S. Ct. 2058, 2064 (2017); Coleman v. Thompson, 501 U.S.

722, 735 (1991).

In claim one, Mr. McBride asserts that his Sixth Amendment right to

counsel was denied when the trial court permitted him to proceed pro se. The

Indiana Court of Appeals rejected this argument on direct appeal, concluding

that Mr. McBride made a “knowing, voluntary, and intelligent waiver of his right

to counsel.” McBride v. State, 992 N.E.3d at 921. Mr. McBride hasn’t established

that this decision was contrary to or unreasonable application of Supreme Court

precedent.

The Sixth Amendment affords criminal defendants the right to counsel,

but a defendant also has a qualified right to self-representation if he so chooses.

Faretta v. California, 422 U.S. 806, 835 (1975). “This is true despite the fact that

it is generally foolish for a person defending serious criminal charges to proceed

without counsel.” Tatum v. Foster, 847 F.3d 459, 461 (7th Cir. 2017). The

Supreme Court has held that trial judges should advise defendants of the

dangers of self-representation before they can make a knowing, voluntary, and

intelligent waiver of counsel. Faretta v. California, 422 U.S. at 835. A waiver’s

validity is “case specific,” Jean-Paul v. Douma, 809 F.3d 354, 359 (7th Cir. 2015),

and depends on the particular facts of the case, the background of the defendant,

his experience, and his actions. Iowa v. Tovar, 541 U.S. 77, 81 (2004). Trial

judges are “entitled—indeed encouraged—to warn defendants of the risks that

attend self-representation.” Tatum v. Foster, 847 F.3d at 461. “In the end,

however, Faretta requires them to honor the defendant’s wishes, assuming that

the defendant is generally competent.” Id. It is the defendant’s burden to prove

that he did not competently and intelligently waive his right to the assistance of

counsel. Iowa v. Tovar, 541 U.S. at 92.

In rejecting this claim on direct appeal, the Indiana Court of Appeals

recognized Mr. McBride’s Sixth Amendment right to proceed without counsel,

and applied state case law consistent with Faretta and Tovar in determining that

his waiver of counsel was knowing and voluntary.1 McBride v. State, 992 N.E.2d

at 916-18. The record amply supports the court’s determination.

There is nothing in the record to suggest, nor does Mr. McBride argue, that

he suffers from a mental impairment or was otherwise incompetent to make the

decision to proceed without counsel. Instead, he argues that he didn’t knowingly

and voluntarily waive his right to counsel because the trial court forced him to

proceed pro se, but the record contradicts this argument. The trial court held

two hearings on Mr. McBride’s request to represent himself. The first was

1 A state court needn’t cite to or even be aware of applicable Supreme Court case law “so long as

neither the reasoning nor the result of the state-court decision contradicts” Supreme Court precedent.

Early v. Packer, 537 U.S. 3, 8 (2002).

conducted by a judge pro tempore,2 who explored whether Mr. McBride wanted

to proceed on his own, because he persisted in filing pro se motions and briefs

even though he was represented by public defender Jennifer Harrison. It’s

apparent that no formal decision was made at that hearing whether Mr. McBride

would be allowed to represent himself, as both Mr. McBride and Ms. Harrison

appeared for a second hearing before the presiding judge on August 16, 2012,

during which the judge conducted a thorough inquiry into Mr. McBride’s request

to proceed without counsel. The court repeatedly warned Mr. McBride about the

dangers of proceeding without counsel and emphasized the responsibilities he

would have at trial if he elected to represent himself. The court told Mr. McBride

more than once that, based on the court’s own experiences with Ms. Harrison,

she was an effective and competent attorney. The court stated that it saw no

conflicts or errors in Ms. Harrison’s representation to date, and instructed Mr.

McBride that he was not entitled to the court-appointed attorney of his choosing.

The court further advised Mr. McBride that his choices were to retain an

attorney of his choosing, remain represented by Ms. Harrison as court-appointed

counsel, or proceed on his own. Mr. McBride was clear that if those were the

choices, he preferred to represent himself. He answered a series of questions

from the court indicating that he understood the dangers of proceeding on his

own and the responsibilities he had if the case proceeded to trial. He affirmed

2 A judge pro tempore is a temporary judge appointed by the circuit court to perform certain

limited functions, including conducting preliminary hearings in criminal matters. See IND. CODE §§ 33-38-

11-1, 33-38-11-2.

that he was waiving his right to counsel freely and voluntarily. The court granted

Mr. McBride’s request to proceed pro se, but also appointed Ms. Harrison as

standby counsel to assist him during the trial. On the day of the trial, Mr.

McBride represented to the court that he was prepared to proceed, and he was

an active participant in the trial proceedings. Among other things, he raised

issues about the state’s discovery production, carefully parsed through the jury

instructions, gave an opening statement, cross-examined witnesses, including

conducting a detailed questioning of the state’s DNA expert, objected to the

admission of evidence, and made a lengthy closing argument pointing out

inconsistencies in the witnesses’ accounts. Mr. McBride also argued for leniency

at sentencing. In imposing the sentence, the court commented to Mr. McBride

that he appeared to be a “very smart individual.”3

Some of Mr. McBride’s answers to the court’s questions during the waiver-

of-counsel hearing appear equivocal, but not for any confusion or

misunderstanding by Mr. McBride. Rather, it appears he was trying to “hedge

his bets” by both demanding a different court-appointed attorney and asking to

proceed pro se. At one point, he requested that he be permitted to proceed as

“co-counsel” with Ms. Harrison, but the court rightly rejected this suggestion as

untenable. Indiana doesn’t allow such “hybrid” representation. See McNair v.

State, 147 N.E.3d 1053 (Ind. Ct. App. 2020) (“[T]he law is clear that once counsel

3 The record reflects that Mr. McBride had some familiarity with the criminal justice system

before the trial in this case: he had prior convictions for felony battery and resisting law enforcement as

well as a juvenile record.

is appointed, a defendant speaks to the trial court through counsel and the trial

court is not required to respond to a defendant’s request or objection.”).

Our court of appeals has recognized that “[a] knowing and intelligent

waiver” under Faretta “need not be explicit.” United States v. Thomas, 833 F.3d

785, 792 (7th Cir. 2016). “[S]o long as the district court has given a defendant

sufficient opportunity to retain the assistance of appointed counsel, defendant’s

actions which have the effect of depriving himself of appointed counsel will

establish a knowing and intentional choice.” Id. (citation omitted). Mr. McBride’s

representations to the court as well as his actions—namely, his continued filing

of pro se documents despite admonishments by the court that he must speak

through his counsel—evidenced that he did not want Ms. Harrison’s assistance.

After questioning him, the court found him “clear thinking,” albeit “pretty

hardheaded.” The court gave him the opportunity to keep Ms. Harrison as his

counsel, retain counsel of his choosing, or proceed on his own, and fully advised

him of the dangers of proceeding without counsel. Mr. McBride made it clear

that he wouldn’t proceed further with Ms. Harrison as his counsel and that,

given those choices, he was electing to represent himself.

Mr. McBride says the court should have given him a different court-

appointed attorney when he became dissatisfied with Ms. Harrison, but as the

Indiana Court of Appeals observed, he had no general Sixth Amendment right to

free representation by the attorney of his choosing. See United States v.

Gonzalez-Lopez, 548 U.S. 140, 151 (2006); Wheat v. United States, 486 U.S. 153,

159 (1988). Nothing in the record suggests that Ms. Harrison was unqualified or

had a conflict that prohibited her continued representation. Rather, Mr.

McBride’s arguments before the trial court were premised on the fact that Ms.

Harrison requested a continuance of the trial date, even though Mr. McBride

wanted a speedy trial.4 As the trial court explained to him, this was a complex

case involving multiple charges and victims. The case had only been pending for

a few months at that point, and Ms. Harrison had an ethical obligation to ensure

that she was adequately prepared to proceed to trial. Mr. McBride

simultaneously complained to the court that Ms. Harrison had not yet conducted

depositions and a “photo line-up” with each victim, but as the trial court

explained, such actions would take time to complete. The record suggests that

Ms. Harrison did actually depose some of the witnesses before Mr. McBride

terminated her representation.

In summary, the record shows that Mr. McBride made the choice to

proceed pro se with his “eyes open.” Faretta v. California, 422 U.S. at 835. His

decision to represent himself on serious criminal charges might have been

unwise, but Faretta protects his right to make that choice. Id.; see also United

States v. Thomas, 833 F.3d at 793 (defendant’s decision to proceed without

counsel was knowing and voluntary, where two hearing were held on defendant’s

request, he was adequately advised of the dangers of proceeding without counsel,

and he had a basic understanding of the charges and potential penalties). The

4 The record doesn’t show any undue delay in the proceedings. It reflects that Mr. McBride

appeared for an initial hearing on March 9, 2012, and Ms. Harrison was appointed on March 13. The trial

was originally scheduled for May 22. On May 10, counsel requested a continuance of the trial date. The

trial was rescheduled for July 23. In early July, the state requested a continuance, to which Ms. Harrison

didn’t object. The trial was then rescheduled for September 17, and it proceeded on that date.

Indiana Court of Appeals’ resolution of this claim was not contrary to or an

unreasonable application of Supreme Court precedent. Accordingly, the claim is

denied.

In claim two, Mr. McBride asserts that his sentence violated the “14th and

5th Amendment Due Process and Double Jeopardy Clause[s].” (ECF 1 at 3.) The

respondent argues that this claim is procedurally defaulted. (ECF 12 at 8.) To

properly exhaust a claim under 28 U.S.C. § 2254(b)(1)(A), a habeas petitioner

must “present both the operative facts and the legal principles that control each

claim” at each level of state review. Stevens v. McBride, 489 F.3d 883, 894 (7th

Cir. 2007). This includes alerting the state court to the “federal nature” of the

claim. Baldwin v. Reese, 541 U.S. 27, 33 (2004). Mr. McBride didn’t do that for

this claim. Instead, his challenges to his sentence rested on state law. He cannot

assert a federal claim in this federal proceeding that he didn’t exhaust in state

court. Nor can he reassert his state-law challenges to his sentence, because

errors of state law don’t provide a basis for granting federal habeas relief. 28

U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Mr. McBride

filed a traverse in support of his petition, but didn’t respond to the state’s

procedural default argument or provide grounds for excusing his default. (See

ECF 21.) Therefore, the court can’t consider this claim on the merits.

In claim three, Mr. McBride asserts that he was “denied due process and

effective assistance of counsel by the admission of [the] show-up line-up.” (ECF

1 at 4.) The respondent argues that this claim is also procedurally defaulted. Mr.

McBride raised the show-up claim on direct appeal before the Indiana Court of

Appeals, but he didn’t include the claim in his petition to transfer. He didn’t raise

any ineffective assistance of counsel claim on direct appeal or on appeal of the

denial of his motion to correct his sentence. Because he didn’t assert these

claims in his state appeals and the time for doing so has passed, they, too, are

procedurally defaulted. Mr. McBride doesn’t acknowledge his default or provide

any grounds for excusing it, so the court can’t consider this claim on the merits,

either.

Rule 11 of the Rules Governing Section 2254 Cases requires a court to

either issue or deny a certificate of appealability whenever it enters a final order

adverse to the petitioner. To obtain a certificate of appealability, the petitioner

must make a substantial showing of the denial of a constitutional right by

establishing “that reasonable jurists could debate whether (or, for that matter,

agree that) the petition should have been resolved in a different manner or that

the issues presented were adequate to deserve encouragement to proceed

further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks

and citation omitted). For the reasons fully explained above, Mr. McBride’s

claims are not cognizable in this proceeding, procedurally defaulted, or otherwise

without merit under governing standards. The court finds no basis to conclude

that reasonable jurists would debate the outcome of the petition or find a reason

to encourage Mr. McBride to proceed further. Accordingly, the court declines to

issue him a certificate of appealability.

III. CONCLUSION

For the reasons set forth above, the petition (ECF 1) is DENIED, and the

petitioner is DENIED a certificate of appealability. The clerk is DIRECTED to

enter judgment for the respondent.

SO ORDERED on August 19, 2020

s/ Robert L. Miller, Jr.

JUDGE

UNITED STATES DISTRICT COURT