Alexander v. Warden

                  UNITED STATES DISTRICT COURT                           
                 NORTHERN DISTRICT OF INDIANA                            
                      SOUTH BEND DIVISION                                

JUSTIN ALEXANDER,                                                        

          Petitioner,                                                    

              v.                    Cause No. 3:24-CV-235-PPS-JEM        
                                                also in 3:24-CV-236      
                                                             3:24-CV-237 
WARDEN,                                                                  

          Respondent.                                                    

                      OPINION AND ORDER                                  
    Justin Alexander, a prisoner without a lawyer, filed three habeas corpus petitions 
under 28 U.S.C. § 2254 to challenge his convictions in three separate State criminal 
proceedings: there’s a burglary conviction after a trial; a robbery conviction also after a 
trial; and a third conviction after a plea of guilty for unlawful possession of a firearm, 
receipt of stolen automobile parts, and resisting arrest. All of the convictions were out of 
Allen County, and on September 25, 2013, the judge sentenced Alexander during a 
consolidated sentencing hearing. Alexander was found to be a habitual offender, and, 
consequently, his sentence turned out to be a whopper—102 years of incarceration.  
    On June 11, 2024, the Warden filed a motion to consolidate these three habeas 
cases.  The Warden made the point that the State courts considered the underlying 
convictions all at once at sentencing, on direct appeal, and on post-conviction appeal. 
Additionally, the Warden noted the substantial overlap in the claims asserted by 
Alexander in the three habeas cases. [DE 8]. Because handling all three habeas cases in 
one fell swoop made a lot of sense, I granted the Warden’s motion to consolidate [DE 
10], and I will therefore discuss the claims in all the habeas cases in this opinion. 

    In considering the petition, I must presume the facts set forth by the state courts 
are correct unless they are rebutted with clear and convincing evidence. 28 U.S.C. § 
2254(e)(1). Let’s start with the burglary conviction. Here’s how the Court of Appeals of 
Indiana summarized the facts of that conviction:                          
    On December 31, 2012, Barbara Nagy and her family left their house to 
    attend a New Year’s Eve party. They locked all of the house’s doors and 
    ensured  that  the  windows  were  closed  but  left  at  least  one  window 
    unlocked. When they returned home at 6:00 p.m. the next day, the front 
    door was unlocked. A screen had been removed from the kitchen window 
    and was on the ground outside. Someone had stolen their televisions, 
    computers, game consoles, and a handgun. An officer was dispatched to 
    the scene, and he found a palm print on a coffee table. A fingerprint 
    examiner subsequently matched the palm print to Alexander. In addition, 
    Alexander was later arrested after a vehicle chase as discussed below, and 
    he had Nagy’s gun at the time of the arrest. The Nagys did not know  
    Alexander and had not given him or anyone else permission to enter their 
    home in their absence.                                               

    The State charged Alexander with Class B felony burglary. Later, the State 
    amended  the  charging  information  to  add  an  habitual  offender 
    enhancement. The burglary charge was tried to a jury, and the jury found 
    Alexander guilty. The habitual offender enhancement was tried to the 
    bench, and the judge determined that Alexander was an habitual offender.  

Alexander v. State, 13 N.E.3d 557 (Ind. Ct. App. 2014); [DE 11-13 at 2-5]. 
    As for the robbery conviction, these are the facts as found by the Court of 
Appeals of Indiana:                                                       
    At  five  in  the  morning  on  January  7,  2013,  fifty-nine-year-old  Wanda 
    Boehme stopped at a convenience store on her way to work. She noticed 
    that a man, later identified as Alexander, watched her check out at the 
    cashier’s stand and transact business at the store’s lottery machine before 
    he walked outside. Boehme returned to her car, and Alexander followed 
    her to her employer's parking lot. When she parked, she saw Alexander 
    park his car in a nearby alley.                                      

    Boehme  waited  for  a  while  before  getting  out  of  her  car  because  the 
    situation “didn’t feel good.” When she did, Alexander approached her with 
    a handgun. Boehme swung her purse at him, but he backed her up against 
    her car and demanded money. She gave him her cash. When Alexander    
    demanded more, Boehme pressed the alarm button on her key fob, and the 
    car alarm activated. Alexander told her to turn it off. Boehme refused, 
    saying “shoot me, go ahead and shoot me they know who you are.”      
    Alexander left and was apprehended several days later during a vehicle 
    chase as discussed below. After his arrest, an officer transported him to the 
    hospital for treatment. Alexander complained of being pepper sprayed 
    during the arrest, saying “I know I been robbing and stuff but there’s no 
    cause for this.”                                                     

    The State charged Alexander with Class B felony robbery. Later, the State 
    amended  the  charging  information  to  add  an  habitual  offender 
    enhancement. The robbery charge was tried to a jury, and the jury found 
    Alexander guilty. The habitual offender enhancement was tried to the 
    bench, and the judge determined that Alexander was an habitual offender.  
Id.                                                                       
    And finally, here’s how the Indiana Court of Appeals laid out the facts from 
the unlawful possession of a firearm and stolen car case:                 
    On January 11, 2013, Officer Stephanie Souther was on patrol when she saw 
    a Toyota Camry that had been reported as stolen and as being involved in 
    an armed robbery. She and other officers attempted to stop the Camry, but 
    its driver, later identified as Alexander, refused to stop. Alexander lost 
    control of the car during the subsequent chase and crashed into a house's 
    front porch.                                                         

    As Souther and other officers approached the car, Alexander crouched 
    down and disappeared from view for a few seconds. Souther believed he 
    was looking for a weapon. Next, he tried to get out of the car, but damage 
    from the crash prevented it. Alexander then tried to put the car into reverse 
    and back up, even though Souther was standing right behind the car. The 
    car was stuck, and officers took Alexander into custody. They searched the 
    Camry and found Nagy’s gun between the front passenger seat and the  
    door.                                                                
    The State charged Alexander with unlawful possession of a firearm by a 
    serious violent felon, a Class B felony; receiving stolen auto parts, a Class C 
    felony; and two counts of resisting law enforcement, one as a Class D felony 
    (fleeing in a vehicle)  and one as a Class  A misdemeanor (refusing to 
    cooperate  at  the  crash  site).  Later,  the  State  amended  the  charging 
    information to add an habitual offender enhancement. Alexander pleaded 
    guilty  to  all  charges  except  the  habitual  offender  enhancement.  The 
    enhancement was tried to the bench, and the court determined that he was 
    an habitual offender.                                                

Id.                                                                       
    As noted above, the trial court held one sentencing hearing for all three 
cases. The judge ordered some sentences to run consecutive and some to run 
concurrent.  When all was said and done, Alexander received a total sentence of 
102 years. Alexander v. State, 13 N.E.3d 557 (Ind. Ct. App. 2014); [DE 11-13 at 2-5]. 
    In each of the petitions, Alexander asserts that he is entitled to habeas relief 
because the trial court erred by allowing the prosecution to amend the indictment to 
include a habitual offender enhancement and by imposing an excessive maximum 
sentence. In each of the petitions, he also asserts that he received ineffective assistance 
of trial counsel and appellate counsel because they did not object to the prosecution’s 
amendment of the indictment to include a habitual offender enhancement or to the use 
of only Class D felonies to support the habitual offender enhancement. With respect to 
the house burglary conviction, Alexander also makes a sufficiency of the evidence 
argument and claims that his trial counsel failed to investigate a partial palm print and 
failed to tender jury instructions on lesser-included offenses.           
    In the traverse, Alexander raises several claims that were not contained in his 
petitions, including a claim that trial counsel improperly advised him to plead guilty, 
failed to investigate an alibi defense, failed to properly advise him about the effect of his 
juvenile adjudications on his sentence, and failed to investigate an email address with 

which the house burglary victim corresponded. Raising additional claims in this 
manner was improper, and I decline to further consider these claims.1 See Rule 2(c)(1) of 
the Rules Governing Section 2254 Cases (“The petition must specify all the grounds for 
relief available to the petitioner.”); Jackson v. Duckworth, 112 F.3d 878, 880 (7th Cir. 1997) 
(“[A] traverse is not the proper pleading to raise additional grounds.”). 
                        Procedural Default                               

    Before considering the merits of a habeas petition, I must first determine whether 
the petition has been procedurally defaulted. The labyrinth of “procedural default” is 
where a lot of habeas cases go to die. The first trap for the unwary is if the petitioner 
fails to exhaust all available remedies in State court. 28 U.S.C. § 2254(b)(1)(A); Lewis v. 
Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). In other words, to get to the merits of a 

claim, a petitioner must fully and fairly present the federal claim to the State courts. 
Boyko v. Parke, 259 F.3d 781, 788 (7th Cir. 2001). Fair presentment requires “the petitioner 
to assert his federal claim through one complete round of state-court review, either on 
direct appeal of his conviction or in post-conviction proceedings.” Lewis, 390 F.3d at 


    1 Nevertheless, I will note that these claims are procedurally defaulted. I will also note the 
absence of any indication in the record that conducting an evidentiary hearing or otherwise expanding 
the record to support these claims would be appropriate. See Shoop v. Twyford, 596 U.S. 811, 819 (2022) (“If 
a prisoner ‘failed to develop the factual basis of a claim in State court proceedings,’ a federal court may 
admit new evidence, but only in two quite limited situations. Either the claim must rely on a ‘new’ and 
‘previously unavailable’ ‘rule of constitutional law’ made retroactively applicable by this Court, or it 
must rely on ‘a factual predicate that could not have been previously discovered through the exercise of 
due diligence.’”) (quoting 28 U.S.C. § 2254(e)(2)).                       
1025 (internal quotations and citations omitted). It is true that fair presentment “does 
not require a hypertechnical congruence between the claims made in the federal and 

state courts; it merely requires that the factual and legal substance remain the same.” 
Anderson v. Benik, 471 F.3d 811, 814–15 (7th Cir. 2006) (citing Boyko, 259 F.3d at 788). But 
fair presentment does mean the petitioner has to “raise the issue at each and every level 
in the state court system, including levels at which review is discretionary rather than 
mandatory.” Lewis, 390 F.3d at 1025-26. If he fails to do so, the claim is a goner. Id. at 
1026. See also Snow v. Pfister, 880 F.3d 857, 864 (7th Cir. 2018).        

    On direct appeal, Alexander presented to the Indiana Court of Appeals his 
sufficiency of the evidence claim relating to the burglary conviction and his claims that 
the trial court erred by allowing the prosecution to amend the indictment to include a 
habitual offender enhancement and by sentencing him to a maximum sentence. [DE 11-
5]; [DE 11-8]; [DE 11-11]. However, Alexander did not present the sufficiency of the 

evidence claim in his petition to transfer to the Indiana Supreme Court. [DE 11-14]; [DE 
11-16]; [DE 11-18]. Therefore, that claim is procedurally defaulted.      
    On post-conviction appeal, Alexander presented to the Indiana Court of Appeals 
his claims that trial counsel and appellate counsel failed to challenge the use of only 
Class D felonies to support the habitual offender enhancement and failed to challenge 

the amendment to the indictment and that trial counsel failed to investigate the partial 
palm print in the house burglary case. [DE 11-24]; [DE 11-27]; [DE 11-30]. In the 
petitions to transfer, he presented the ineffective assistance claims relating to the 
habitual offender enhancement, but he omitted the partial palm print claim, so the 
partial palm print claim is procedurally defaulted. [DE 11-33]; [DE 11-34]. Likewise, he 
did not present (at any level) his claim that trial counsel should have sought jury 

instructions for lesser-included offenses, so this claim is also procedurally defaulted.  
    In the traverse, Alexander vaguely asserts that, on January 2, 2024, he placed a 
corrected petition to transfer in the hands of correctional staff, implying that the State is 
responsible for its untimely filing with the Indiana Supreme Court. It appears that he 
made this assertion for the purpose of excusing procedural default. A habeas petitioner 
can overcome a procedural default by showing both cause for failing to abide by state 

procedural rules and a resulting prejudice from that failure. Wainwright v. Sykes, 433 
U.S. 72, 90 (1977); Wrinkles v. Buss, 537 F.3d 804, 812 (7th Cir. 2008). Cause sufficient to 
excuse procedural default is defined as “some objective factor external to the defense 
impeded [his] efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 
U.S. 478, 488 (1986).                                                     

    It is unclear which claims he intends as the focus of this assertion, but it cannot 
excuse procedural default with respect to any of his claims. The sufficiency of the 
evidence claim was raised on direct appeal, so proper exhaustion would have required 
Alexander to have presented this claim in the petition to transfer that he filed in 2014. 
Further, on post-conviction review, the Indiana Court of Appeals certified its opinion 

on September 26, 2023, and rejected petitions to transfer filed in November 2023, as 
untimely. [DE 11-23 at 8]; [DE 11-26 at 7]; [DE 11-29 at 7]. This sequence of events 
indicates that Alexander’s petition to transfer was due before September 26, 2023. It is 
thus unclear how the State’s alleged mishandling of a petition to transfer in January 
2024 could have caused procedural default.                                

    Additionally, I observe that Alexander did not present his claims that trial 
counsel should have sought jury instructions for lesser-included offenses to the Allen 
Superior Court on post-conviction review and that he proceeded pro se at that stage. 
[DE 12-2 at 7-19]. Consequently, I will consider whether I should excuse procedural 
default on this claim based on lack of post-conviction counsel.           
    As a general rule, “[n]egligence on the part of a prisoner’s postconviction 

attorney does not qualify as cause.” Maples v. Thomas, 565 U.S. 266, 280 (2012). In other 
words, because there is no constitutional right to an attorney in state post-conviction 
proceedings there can be no claim for ineffective assistance of counsel in those 
proceedings. Coleman v. Thompson, 501 U.S. 722, 752 (1991). However, “[i]nadequate 
assistance of counsel at initial-review collateral proceedings may establish cause for a 

prisoner’s procedural default of a claim of ineffective assistance at trial.” Martinez v. 
Ryan, 566 U.S. 1, 9 (2012). Oddly, this exception relating to “inadequate assistance of 
counsel” includes both when post-conviction counsel renders ineffective assistance as 
defined by Strickland and when a post-conviction petitioner proceeds without counsel. 
Id. at 9, 11-14.                                                          

    “[A] prisoner must also demonstrate that the underlying ineffective-assistance-
of-trial-counsel claim is a substantial one, which is to say that the prisoner must 
demonstrate that the claim has some merit.” Id. at 14. Significantly, trial counsel’s 
decision not to seek instructions on lesser-included defenses touches on a concept 
known as the “all-or-nothing” strategy. See Barnett v. Godinez, 61 F.3d 905, at *4 (7th Cir. 
1995) (“Presenting the jury with an all-or-nothing choice is generally a reasonable trial 

strategy because, although it involves a risk, it increases the chances of an acquittal.”).  
    It does not appear that trial counsel’s all-or-nothing strategy amounted to 
deficient performance based on my thorough review of the record. Trial counsel 
emphasized the absence of evidence on how Alexander “broke into” the victim’s house 
and argued, “We believe the breaking is the most important element here, and the State 
has not presented sufficient evidence as to whether or not [Alexander] broke into the 

home.” [DE 15-11 at 185]. As noted by trial counsel, the record reflects that the 
prosecution was unable to identify a manner or point of entry, see e.g., id. at 102-03 
(testimony of Officer Morales that he was unable to determine a point of entry), so it 
appears that trial counsel’s strategy was reasonably tailored to the charges and 
evidence. By contrast, the allegations that Alexander had unlawfully entered the 

residence and stole items had strong support in the form of the identification of 
Alexander’s partial palm print on a table located within the residence and the recovery 
of the burglary victim’s missing heirloom firearm from Alexander during his 
subsequent arrest. [Id. at 116-17, 149].                                  
    Moreover, the effectiveness of trial counsel’s strategy was demonstrated during 

deliberations when the jurors asked, “If [Alexander] did not physically open the 
door/window himself, if another person opened the door/window, would [Alexander] 
still be considered breaking and entering if he followed the person who opened the 
door/window?” [DE 15-11 at 193]. The jury deliberated for more than two hours. [Id. at 
191, 193]. Though the jury ultimately convicted Alexander of burglary, the record 
strongly suggests that trial counsel’s all-or-nothing strategy made their decision a more 

challenging one. As a result, I cannot find that this claim is substantial or that it should 
be excused under Martinez.                                                
    To summarize, due to unexcused procedural default, I will not further discuss 
the claims relating to sufficiency of the evidence or trial counsel’s failure to investigate 
the partial palm print or to tender jury instructions on lesser-included offenses. 
However, the properly exhausted claims must be considered on the merits. They 

include: 1) that the trial court erred by allowing the prosecution to amend the 
indictment to include a habitual offender enhancement; 2) relatedly, ineffective 
assistance of trial and appellate counsel for failing to object to the prosecution’s 
amendment of the indictment to include a habitual offender enhancement or to the use 
of Class D felonies to support the habitual offender enhancement; and 3) the trial court’s 

sentencing of Alexander to a maximum sentence without finding aggravating factors. 
I’ll take up each claim in turn below, combining my discussion of claims one and two.   
                        Standard of Review                               
    “Federal habeas review . . . exists as a guard against extreme malfunctions in the 
state criminal justice systems, not a substitute for ordinary error correction through 

appeal.” Woods v. Donald, 575 U.S. 312, 316 (2015). Here’s the governing statute:  
    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.                                         

28 U.S.C. § 2254(d).                                                      
    Congress has purposely made this a difficult standard to meet. To satisfy this 
exacting standard, petitioner is required to show that the state court’s ruling was “so 
lacking in justification” that there was an obvious error “beyond any possibility for fair 
minded disagreement.” Woods, 575 U.S. at 316. This means a state court’s decision must 
be more than incorrect or erroneous; it must be objectively unreasonable. Wiggins v. 
Smith, 539 U.S. 510, 520-21 (2003).                                       
          Claims Relating to the Habitual Offender Enhancement           
    Alexander argues that he is entitled to habeas relief because he received 
ineffective assistance of trial counsel and appellate counsel in connection with his 
habitual offender enhancement. He contends that counsel erred by not objecting to the 
prosecution’s amendment of the indictment to include a habitual offender enhancement 
or to the use of Class D felonies to support the habitual offender enhancement. To 
prevail on an ineffective assistance of counsel claim in the State courts, a petitioner must 
show that counsel’s performance was deficient and that the deficient performance 
prejudiced him. Strickland v. Washington, 466 U.S. 668 (1984). There is “a strong 
presumption that counsel’s conduct falls within the wide range of reasonable 
professional assistance; that is, the defendant must overcome the presumption that, 
under the circumstances, the challenged action might be considered sound trial 
strategy.” Id. at 689. “[S]trategic choices made after thorough investigation of law and 

facts relevant to plausible options are virtually unchallengeable; and strategic choices 
made after less than complete investigation are reasonable precisely to the extent that 
reasonable professional judgments support the limitations on investigation.” Id. at 690–
91.                                                                       
    The test for prejudice is whether there was a reasonable probability that “but for 
counsel’s unprofessional errors, the result of the proceeding would have been 

different.” Id. at 694. A reasonable probability is a probability “sufficient to undermine 
confidence in the outcome.” Id. In assessing prejudice under Strickland “[t]he likelihood 
of a different result must be substantial, not just conceivable.” Harrington v. Richter, 562 
U.S. 86, 112 (2011). However, “[o]n habeas review, [the] inquiry is now whether the 
state court unreasonably applied Strickland.” McNary v. Lemke, 708 F.3d 905, 914 (7th 

Cir. 2013). “Given this high standard, even ‘egregious’ failures of counsel do not always 
warrant relief.” Id.                                                      
    Alexander also argues that he is entitled to habeas relief because the trial court 
erred by allowing the prosecution to amend the indictment to include a habitual 
offender enhancement. While Alexander largely bases this argument on State statutory 

law, the argument could be construed as an argument that he did not receive adequate 
notice of the habitual offender enhancement because the timing of the amendment did 
not allow him sufficient time to prepare a trial defense. See Chambers v. Mississippi, 410 
U.S. 284, 294, (1973) (“The right of an accused in a criminal trial to due process is, in 
essence, the right to a fair opportunity to defend against the State’s accusations.”). This 
argument also has substantial overlap with Alexander’s ineffective assistance of counsel 

claims.                                                                   
    At the time of the offenses, Indiana law allowed prosecutors to charge 
individuals with a habitual offender enhancement “for any felony by alleging . . . that 
the person has accumulated two (2) prior unrelated felony convictions.” Ind. Code § 35-
50-2-8(a) (2005). In the July 2014 amendment of this statute, Indiana added a 
requirement that “at least one (1) of the prior unrelated felonies is not a Level 6 felony 

or a Class D felony.”2 Ind. Code § 35-50-2-8(b)(2), (c)(2) (2014). The July 2014 
amendment also imposed timeliness requirements on the prior unrelated felonies used 
to support the habitual offender enhancement under certain circumstances. Ind. Code § 
35-50-2-8(b), (c) (2014).                                                 
    At the time of the offenses, Indiana law allowed prosecutors to amend charges to 

add habitual offender enhancement charges as follows:                     
    An amendment of an indictment or information to include a habitual   
    offender charge . . .  must be made not later than ten (10) days after the 
    omnibus date. However, upon a showing of good cause, the court may   
    permit the filing of a habitual offender charge at any time before the 
    commencement of the trial.                                           

Ind. Code § 35-34-1-5(e) (2007).                                          

    2 Prior to 2014, Indiana law grouped felonies by severity of the offense in Classes A through D. 
Thereafter, Indiana law reclassified felonies by severity of the offense into Levels 1 through 6. Class D 
and Level 6 offenses are the lowest level felonies in each of their respective classification systems.  
    At the initial hearings in January and February 2013, the trial court set March 4, 
2013, as the omnibus date for the armed robbery and stolen vehicle cases and set March 

25, 2013, as the omnibus date for the burglary case. [DE 11-1 at 1]; [DE 11-2 at 2]; [DE 11-
3 at 3]. On April 18, 2013, the prosecution moved for leave to file habitual offender 
enhancement charges in all three cases. [DE 12-2 at 70-71]. In the motion, the 
prosecution acknowledged the untimely nature of the amendment but explained that 
the initially assigned prosecutor had been appointed to a magistrate judge position. [Id.] 
According to the motion, this substitution of counsel combined with personal and 

professional scheduling conflicts prevented the new prosecutor from reviewing 
Alexander’s cases sooner. [Id.]                                           
    On April 25, 2013, the trial court held a hearing on pending motions. [DE 12-2 at 
73-74]. The trial court took the motion to amend under advisement but granted trial 
counsel’s oral motion to continue the trial date. [Id.] On May 7, 2013, the prosecution 

filed a revised motion to amend to revise the list of prior unrelated felony conviction. 
[Id. at 75-76].                                                           
    The proposed revised amendment listed the following prior unrelated felony 
convictions:                                                              
 •  On August 11, 1999, the Allen Superior Court sentenced Alexander in Case No. 
    02D04-9905-DF-328 for committing the offense of receiving stolen automobile 
    parts, a Class D felony, on April 27, 1999;                          

 •  On June 10, 2004, the Allen Superior Court sentenced Alexander in Case No. 
    02D04-0401-FD-30 for committing the offense of residential entry, a Class D 
    felony, on January 15, 2004; and                                     
 •  On August 2, 2010, the Allen Superior Court sentenced Alexander in Case No. 
    02D04-1005-FD-501 for committing the offense of invasion of privacy, a Class D 
    felony, on May 23, 2010.                                             

[Id.]                                                                     
    On May 23, 2013, the trial court held another hearing. [DE 12-2 at 77]. According 
to the minutes, Alexander waived an initial hearing on the habitual offender 
enhancement charges and pled not guilty. [Id.] The trial court also reset the trial date for 
burglary and stolen vehicles cases to August 20, 2013, and reset the trial date for the 
armed robbery case to September 4, 2013. [Id.]; [DE 11-2 at 6].           
    On August 21, 2013, the trial court held a bench trial on the habitual offender 
charges in the burglary and stolen vehicle cases. [DE 15-18].3 In opening, trial counsel 
represented that he had previously objected to the habitual offender charge on the bases 
that the amendment was untimely and that the internal reassignment of the case with 
the prosecutor’s office did not constitute good cause to excuse the untimeliness. [Id. at 

198-200]. The prosecution argued that the trial continuance adequately remedied the 
untimely amendment. [Id.] The trial court reaffirmed its prior ruling allowing the 
amendment but noted the objection while observing that the State appellate courts 
would likely review the ruling on direct appeal. [Id.] The prosecution presented 
certified copies of criminal information and judgments to demonstrate that Alexander 

had committed prior unrelated felonies. [Id. at 201-203]. Trial counsel did not dispute 
that Alexander had committed these felonies but indicated the intent to rely solely on 

    3 The page number pincites to this document refer to the page numbers found in the bottom 
middle of the page.                                                       
the timeliness argument. [Id. at 203]. The prosecution also called witnesses to establish 
Alexander’s identity in connection with the prior unrelated felonies. [Id. at 204-215]. The 

trial court found Alexander guilty of the habitual offender charges. [Id. at 216-17]. 
    On September 4, 2013, the trial court held a bench trial on the habitual offender 
charges in the armed robbery case. [DE 15-2 at 140-50]. The parties reiterated their 
positions and arguments from the prior bench trial and also resubmitted the same 
evidence, and the trial court found Alexander guilty of the habitual offender charges. 
[Id.] The trial court noted that it had found good cause to excuse the untimeliness and 

no prejudice to the defendant in ruling that the prosecution could proceed on the 
amended charges. [Id.] It also noted trial counsel’s objection and observed that the State 
appellate court would review the ruling for abuse of discretion. [Id.]    
    On direct appeal, Alexander, through appellate counsel, argued that the trial 
court erred by allowing the prosecution to add a habitual offender enhancement in an 

untimely manner. [DE 11-5]; [DE 11-8]; [DE 11-11]. The Indiana Court of Appeals found 
that the record did not adequately demonstrate that Alexander had objected to the 
amendment during pretrial proceedings, noting the lack of written objections and 
hearing transcripts and the omission of any recorded objections in the minute entries. 
[DE 11-13 at 7-9]. The appellate court also acknowledged the references to “renewed” 

objections in the bench trial transcripts but found these references insufficient to 
establish that trial counsel had properly preserved the argument by making a pretrial 
objection. [Id.]                                                          
    The appellate court further found that the trial court would not have abused its 
discretion by allowing the amendment even if trial counsel had properly objected. [Id.] 

It reasoned that the purpose of the statutory provision governing the timeliness of 
habitual offender charges was to give defendants sufficient time to prepare a defense 
and that Alexander had nearly four months to prepare between the amendment and the 
first bench trial on the habitual offender charges. [Id.]                 
    On post-conviction review, Alexander argued that trial counsel failed to object to 
the addition of the habitual offender enhancement charge. The Indiana Court of 

Appeals found that Alexander had not adequately demonstrated prejudice, noting its 
conclusion on direct appeal that the timing of the habitual offender amendment did not 
deprive Alexander of a reasonably opportunity to defend himself. [DE 11-32 at 15-16].  
    Alexander also argued that appellate counsel failed to object to the addition of 
the habitual offender enhancement charge. The Indiana Court of Appeals rejected this 

argument on the basis that appellate counsel had raised such an objection on direct 
appeal and that Alexander had not demonstrated that appellate counsel’s argument 
amounted to deficient performance or prejudice. [Id. at 13].              
    Additionally, Alexander argued that appellate counsel and trial counsel failed to 
challenge the sufficiency of the evidence for the habitual offender verdict because the 

prior unrelated felonies consisted entirely of Class D felonies. The Indiana Court of 
Appeals rejected this argument on the basis that, at the time of the offenses, the 
statutory provision governing the timeliness of habitual offender charges allowed such 
prior unrelated felonies to support a habitual offender enhancement. [Id. at 15]. The 
appellate court declined to find that appellate counsel and trial counsel performed 
deficiently by failing to anticipate a change in the law. [Id.]           

    After reviewing the record, I cannot find that the State courts rendered 
unreasonable determinations on the claims relating to the habitual offender 
enhancement. To start, I observe that, at the bench trials, the trial court indicated its 
belief that the timeliness objection had been properly preserved for appeal. Though the 
State appellate court found otherwise, the trial court’s decision at the bench trials to 
deny the timeliness objection with the understanding that a prior objection had been 

made by trial counsel strongly suggests that the trial court would not have sustained a 
prior objection by trial counsel. The appellate briefs also demonstrate that appellate 
counsel challenged the timeliness on direct appeal, and this appellate challenge closely 
resembles Alexander’s arguments relating to the timeliness of the amendment on 
federal habeas review. The reasoning of the State appellate court also indicated that it 

would have upheld the trial court’s ruling even if it found that trial counsel had 
properly preserved the objection for appellate review. As a result, Alexander has not 
adequately demonstrated that he received ineffective assistance of counsel with respect 
to the timeliness of the amendment.                                       
    With respect to trial court error, Alexander primarily argues that the trial court 

erred by finding good cause to excuse the untimely amendment under Ind. Code § 35-
34-1-5(e) (2007). However, this issue is a matter of State law, which I decline to consider 
as a basis for habeas relief. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (“[W]e have 
repeatedly held that federal habeas corpus relief does not lie for errors of state law.”). 
The salient question for purposes of habeas review is whether the timing of the 
amendment deprived Alexander of a reasonable opportunity to defend himself. The 

record reflects that it did not. The trial court continued the trials in all three cases 
allowing Alexander about four months after the amendment to prepare. And Alexander 
offers no explanation as to why nearly four months was insufficient to prepare a 
defense. At the bench trials, trial counsel did not contest Alexander’s guilt with respect 
to the habitual offender enhancement, and the record does not include any material 
basis for contesting Alexander’s guilt as to the habitual offender enhancement. As a 

result, I cannot find that the State courts unreasonably determined that the timing of the 
amendment did not deprive Alexander of a reasonable opportunity to defend against 
the habitual offender enhancement charge.                                 
    I also agree with the State courts’ decision that counsel did not err by declining to 
challenge the prior felonies used to support the habitual offender enhancement. The 

version of Ind. Code § 35-50-2-8 applicable to Alexander’s criminal cases did not 
prohibit the use of only Class D felonies to support a habitual offender enhancement. 
Though Indiana amended this statute in July 2014 to include such a prohibition, the 
Indiana courts have declined to apply this prohibition retroactively to those who 
committed or were convicted of offenses prior to the July 2014 amendment. Grundy v. 

State, 38 N.E.3d 675, 685 (Ind. Ct. App. 2015) (holding in the context of the July 2014 
amendment that “the law in effect when the crime was committed controls   
sentencing.”); see also Cox v. State, 38 N.E.3d 702, 704 (Ind. Ct. App. 2015) (declining to 
apply the doctrine of amelioration to the July 2014 amendment). The record contains no 
suggestion that counsel should have foreseen this change in the law, and, further, any 
argument by counsel that the then-prospective amendment should have applied to 

Alexander would have been futile. Therefore, the claims relating to the habitual 
offender enhancement are not a basis for habeas relief.                   
    The oppressive habitual offender law was employed in this case based on three 
Class D felonies, two of which were dated. If it was used the same way today, it would 
be unlawful. Let’s be honest about it: this was, to say the least, an aggressive use of the 
law. But unfortunately for Mr. Alexander, it was entirely lawful.         

                        Excessive Sentence                               
    Alexander also argues that he is entitled to habeas relief because the trial court 
did not find any aggravators regarding the nature of the offenses, because he is not the 
“one of the worst” and did not commit the “most heinous crimes,” because, at 
sentencing, the trial court told him, “I see nothing but to warehouse you,” and because 

he did not inflict any physical harm during the offenses. Additionally, Alexander 
vaguely references the Sixth Amendment in the petition, which I generously construe as 
tying in with the argument under Blakely v. Washington, 542 U.S. 296 (2004), set forth in 
his traverse. Notably, Alexander did not challenge his sentence on direct appeal on 
constitutional grounds, so any habeas claims relating to his sentence would be 

procedurally defaulted.                                                   
    Nevertheless, the essence of Alexander’s arguments is that his sentence is 
excessive, so I will consider whether Alexander received a constitutionally excessive 
sentence. “A federal court will not normally review a state sentencing determination 
[that] falls within the statutory limit.” Koo v. McBride, 124 F.3d 869, 875 (7th Cir. 1997). 
“However, we shall review a petitioner’s showing that the sentencing court lacked 

jurisdiction to impose this term or committed a constitutional error making the sentence 
fundamentally unfair.” Id. “A sentence violates the Constitution if it is extreme and 
grossly disproportionate to the crime.” Id. “However, [i]n non-capital felony 
convictions, a particular offense that falls within legislatively prescribed limits will not 
be considered disproportionate unless the sentencing judge has abused his discretion.” 
Henry v. Page, 223 F.3d 477, 482 (7th Cir. 2000); see also Gleason v. Welborn, 42 F.3d 1107, 

1112 (7th Cir. 1994); Moore v. Hulick, 2008 WL 268793, at *12–13 (C.D. Ill. 2008) Malone v. 
Farrey, 2006 WL 1937684, at *5 (E.D. Wis. 2006); Davilla v. Clark, 159 F. Supp. 2d 1081, 
1085–86 (N.D. Ill. 2001).                                                 
    Under Indiana law, the sentencing ranges for the crimes of Alexander’s 
convictions at the time he committed the crimes were as follows:          

   Nature of Offense      Offense Class       Sentencing Range           
Burglary of a Dwelling,  Class B felony    6-20 years with an            
Ind. Code § 35-43-2-1                      advisory sentence of 10       
(1999)                                     years, Ind. Code § 35-50-2-   
                                           5 (2005)                      
Armed Robbery, Ind. Code  Class B felony   6-20 years with an            
§ 35-42-5-1 (1984)                         advisory sentence of 10       
                                           years, Ind. Code § 35-50-2-   
                                           5 (2005)                      
Unlawful possession of  Class B felony     6-20 years with an            
firearm by serious violent                 advisory sentence of 10       
felon, Ind. Code § 35-47-4-                years, Ind. Code § 35-50-2-   
5 (2012)                                   5 (2005)                      
Receiving stolen     Class C felony        2-8 years with an advisory    
automobile parts, Ind.                     sentence of 4 years, Ind.     
Code § 35-43-4-2.5 (1991)                  Code § 35-50-2-6 (2005)       
Resisting Law        Class D felony        0.5-3 years with an           
Enforcement, Ind. Code §                   advisory sentence of 1.5      
35-44.1-3-1(b)(1) (2012)                   years, Ind. Code § 35-50-2-   
                                           7(a) (2012)                   
Resisting Law        Class A misdemeanor   0-1 years with no advisory    
Enforcement, Ind. Code §                   sentence, Ind. Code § 35-     
35-44.1-3-1(a)(1) (2012)                   50-3-2 (1977)                 
Habitual Offender Status,  Sentencing enhancement  10-30 years, Ind. Code § 
Ind. Code § 35-50-2-8                      35-50-2-8(h) (2005)           
(2005)                                                                   

    The applicable version of Ind. Code § 35-38-1-7.1 lists the following aggravating 
factors for sentencing determinations:                                    
    (1) The harm, injury, loss, or damage suffered by the victim of an offense 
    was:                                                                 

         (A) significant; and                                            

         (B) greater than the elements necessary to prove the commission of 
         the offense.                                                    

    (2) The person has a history of criminal or delinquent behavior.     

                              * * *                                      

    (6) The person has recently violated the conditions of any probation, 
    parole, pardon, community corrections placement, or pretrial release 
    granted to the person.                                               

Ind. Code § 35-38-1-7.1 (2005).                                           
    At sentencing, Alisia Peggins testified that Alexander placed her family and her 
neighbors in danger and destroyed a portion of her home when he crashed the stolen 
vehicle. [DE 15-3 at 14-15]. Officer Souther testified that, after Alexander had crashed 
the stolen vehicle, she saw Alexander duck out of view for five to ten seconds. [Id. at 15-
19]. At this time, she believed that Alexander was searching for the gun, and a gun was 
recovered from the stolen vehicle soon thereafter. [Id.] She further testified that 
Alexander placed the stolen vehicle in reverse and pressed the accelerator pedal with 

Officer Souther in the vehicle’s path but that the stolen vehicle did not move because it 
was stuck. [Id.] According to Officer Souther, if Alexander had located the gun or if the 
vehicle had moved, she or Alexander may have died as a result. [Id.] Two other officers 
involved in the arrest submitted similar written statements. [Id. at 20-21]. 
    After recounting Alexander’s convictions, the trial court stated as follows: 
    Trial Court: Your attorney has asked that I consider mitigating      
    circumstances beginning with your plea of guilty in [the stolen vehicle 
    case]. That is a mitigating circumstance and I accept that mitigating 
    circumstance. That you did in fact plead guilty in [the stolen vehicle case] 
    to Counts 1 through 4 and went to a bench trial on [the habitual offender 
    enhancement]. Your attorney has asked that I consider your substance 
    abuse as a mitigating circumstance supported by the presentence      
    investigation report and supported by your comments here today as well. 
    I’m not sure if the mitigating circumstance of being a substance abuser 
    relates to the crime that you were convicted of and whether or not your 
    substance abuse was driving the crimes . . .                         

    Alexander: . . . Your Honor . . .                                    

    Trial Court: . . . That you were convicted of but you’ve indicated that that 
    is the case and I’ll find it to be a mitigator but I don’t give it a tremendous 
    amount of weight based on your multiple attempts at treatment. Your  
    attorney has asked that I consider your employment as a mitigating   
    circumstance. I refuse to find that as a mitigator. You should be working, 
    Mr. Alexander. You’re a strapping young man capable of employment    
    and you should be employed. You have expressed remorse in court as a 
    mitigating circumstance and I will accept that but as I indicated with the 
    substance abuse, I don’t weight that terribly heavy. Much of your remorse 
    is self-directed and that’s understandable considering the position that 
    you find yourself in. But you have apologized and I believe Ms. Peggins 
    accepted the apology, the homeowner lady. You apologized to the officer 
    so you have expressed an expression of remorse.                      
I do find aggravating circumstances, Mr. Alexander. From 1995 to 2013, 
you have an astonishing criminal record. Six adjudications as a juvenile. 
Seventeen misdemeanor convictions. Eight prior felony convictions. You 
have been given the benefit of juvenile probation, Wood Youth Center, the 
education track program with the juvenile courts. As an adult, you were 
given the benefit of community service and jail, short jail sentences and 
then longer jail sentences. Multiple attempts at treatment throughout the 
course of your life, both in and out of the Department of Correction. I 
noted specifically Brown and Associates and Addictive Behaviors. You’ve 
been in the Department of Correction. You have been on parole. You have 
been on home detention and I believe you were in the reentry court   
program. And in fact were on parole when these offenses were         
committed.                                                           

You’ve just committed one violent offense after another, Mr. Alexander. 
As a juvenile, resisting law enforcement, conversion, three counts of 
sexual battery, minor consuming, residential entry. As an adult, criminal 
conversion, minor consuming, false informing a couple of times, more 
resisting, criminal trespass, receiving stolen property, another resisting, 
public intoxication, possession of marijuana, resisting law enforcement, 
operating while intoxicated, robbery, battery, criminal trespass, residential 
entry, possession of marijuana, another possession of marijuana, resisting 
law enforcement, criminal trespass, invasion of privacy, criminal mischief, 
battery, invasion of privacy, possession of marijuana and the instant 
offenses . . . that bring you to court today.                        

Alexander: May I say one thing, your honor?                          

Trial Court:  Go ahead.                                              

Alexander: (unintelligible words) Now it doesn’t really get deep into the, 
I’m saying, the details of all my cases. No one really beyond the bold face 
(unintelligible word) the charge to find out why the situation took place 
but as you sat there and you read, if you realize you just read a lot of 
resisting law enforcement. These are really because I was just trying not to 
go to jail. I might’ve had a court date I missed. I might’ve [resisted], you 
know what I’m saying, by not trying to be handcuffed or anything. I don’t 
think really I was being violent.                                    

Trial Court: Well, the State of Indiana disagrees with you, Mr. Alexander, 
because resisting law enforcement is a violent offense.              
    You are an articulate, intelligent young man. You have a sister that had to 
    testify against you and identify you as the individual. I can’t imagine what 
    she went through having to point at you across the room during that trial 
    and she’s here today to testify on your behalf and to support you and I 
    admire that, ma’am. I know that you love your brother and this has got to 
    be a difficult thing for you. I know it was difficult for you to testify at trial 
    and I know that it’s difficult for you today. You’ve got large dark circles 
    under your eyes that indicate that you’ve had some stress with this. Ms. 
    Peggins testified in State’s Exhibits 1 through 4, crashing into her home. 
    The officer who testified at your trial and has testified here today. I’m at a 
    loss, Mr. Alexander. In reviewing your PSI again last night and going 
    through all of the opportunities that have been afforded to you      
    throughout the course of your life beginning when you were a juvenile 
    and that you just continue to do what you want to do and it’s clear to me 
    unfortunately Mr. Alexander that you fall into that category of offender 
    that we just have to warehouse because if you’re not in custody you’re out 
    committing crime. You’re robbing, you’re burglarizing, you’re taking 
    people’s property, you’re taking their vehicles. I had the same thought 
    that the State had when you took this woman’s car, what would’ve     
    happened had there been children in that car and what would you have 
    done.                                                                

    Alexander: Again for the record, we’re going off of theories.        

    Trial Counsel: Justin. Justin.                                       

    Trial Court: It doesn’t matter. It doesn’t matter, Mr. Fisher, you’re fine.  

[Id. at 34-39].                                                           
    The trial court sentenced him to the maximum term of years on each count. [Id. at 
39-41]. It ordered the sentences to run consecutively (with exceptions for two of the 
three habitual offender enhancements) for an aggregate sentence of 102 years. [Id.]  
    On direct appeal, the Indiana Court of Appeals declined to find that the trial 
court abused its discretion by affording little weight to proffered mitigating factors of 
Alexander’s employment, his guilty plea in the stolen vehicle case, his history of 
substance abuse, and his expression of remorse. [DE 11-13 at 10-11]. The appellate court 
observed that the trial court had considered these mitigating factors and had adequately 
explained their limited impact on his sentencing decision. [Id.]          

    On direct appeal, Alexander also asked that the Indiana Court of Appeals to 
revise his sentence because it was inappropriate in light of the nature of his offenses and 
his character. [Id. at 11-15]. The appellate court noted that Alexander’s conduct in the 
stolen vehicle case had placed the lives of police officers, motorists, and neighborhood 
residents in danger during his efforts to evade the police. [Id.] In assessing Alexander’s 
character, the appellate court considered Alexander’s extensive criminal history 

throughout his adult life and the fact that he committed crimes charged in three 
separate criminal cases within a short span of two weeks. [Id.] The appellate court 
concluded that Alexander, who had reached 34 years of age by sentencing, had 
demonstrated “an absolute unwillingness to lead a law-abiding life, regardless of who 
may be endangered by his misconduct.” [Id. at 14].                        

    After reviewing the record, I cannot find that the State courts made an excessive 
sentencing determination. Alexander does not dispute that his aggregate sentence fell 
within the statutory range, albeit at the maximum end of that range. As a result, he has 
no viable claim under Blakely v. Washington, 542 U.S. 296, 301 (2004), which stands for 
the proposition that “any fact that increases the penalty for a crime beyond the 

prescribed statutory maximum must be submitted to a jury, and proved beyond a 
reasonable doubt.” Further, the applicable sentencing statute does not require trial 
courts to find an aggravating circumstance relating to the nature of the offense to 
impose a maximum sentence. That said, Alexander’s contention that he caused no harm 
to individuals or property beyond what was charged is flatly contradicted by the 
testimony of Ms. Peggins and Officer Souther.                             

    It was permissible for the trial court to place great weight on Alexander’s 
criminal history and his unsuccessful efforts at rehabilitation. The criminal history 
reflects that Alexander has now committed dozens of crimes throughout his teenage 
and adult life without any sign of rehabilitation, and he was 34 years old at the time of 
sentencing. Though the trial court’s reference to “warehousing” Alexander was 
unfortunate and harsh, it is clear from its full context that the reference is an 

understandable comment on Alexander’s outsized capacity for recidivism rather than 
an improper political statement as Alexander suggests.                    
    Alexander also maintains that he should not have received a maximum sentence 
because he is not “the worst of the worst” as he did not physically harm anybody. This 
argument is misplaced. If Alexander had caused physical harm to others, it would have 

likely resulted in the prosecution charging him with additional or higher-level felonies 
and exposed him to even longer terms of incarceration, including life without 
possibility of parole, and, in the most extreme cases, the death penalty. See e.g., Ind. 
Code § 35-50-2-3 (2007) (45-65 years, life without possibility of parole, or death sentence 
for murder); Ind Code § 35-50-2-4 (2005) (20-50 years for Class A offense). The existence 

of these higher felony levels with substantially harsher punishments demonstrate that 
Alexander was neither charged nor sentenced as a criminal who was among “the worst 
of the worst.” And Alexander makes no compelling argument that, with his criminal 
history, he is not among “the worst of the worst” when properly compared with those 
charged with a similar quantity of similar low-level offenses.            

    In sum, reasonable minds might disagree over whether a 102-year sentence was 
justified given all of the circumstances in this case.  But it cannot be said that such a 
sentence amounts to an abuse of discretion. Therefore, the claim that Alexander 
received an excessive sentence is not a basis for habeas relief.          
                     Certificate of Appealability                        
    Pursuant to Section 2254 Habeas Corpus Rule 11, the court must grant or deny a 

certificate of appealability. To obtain a certificate of appealability under 28 U.S.C. § 
2253(c), the petitioner must make a substantial showing of the denial of a constitutional 
right by establishing “that a reasonable jurist 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). For the reasons explained in this order, there is no 
basis for encouraging Alexander to proceed further.                       
    For these reasons, the Court DENIES the amended habeas corpus petitions in 
3:24-cv-235, 3:24-cv-236, and 2:24-cv-237; DENIES a certificate of appealability pursuant 
to Section 2254 Habeas Corpus Rule 11; and DIRECTS the Clerk to enter judgment in 

favor of the Respondent and against the Petitioner in all three cases.    
    SO ORDERED.                                                          
ENTERED: February 14, 2025.                                          

                             /s/ Philip P. Simon                    
                             PHILIP P. SIMON, JUDGE                 
                             UNITED STATES DISTRICT COURT