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Wednesday, January 27, 2010

Ind. Decisions - 7th Circuit decides Corcoran appeal again today

In Joseph E. Corcoran v. Levenhagen (ND Ind., Sharp), a 15-page opinion, Judge Bauer writes:

Joseph Corcoran murdered four people, and an Indiana court sentenced him to death. The district court granted habeas relief on Corcoran’s Sixth Amendment claim. We reversed on the Sixth Amendment issue, Corcoran v. Buss, 551 F.3d 703 (7th Cir. 2008), but as the Supreme Court explained, we improperly omitted discussion of Corcoran’s other habeas challenges. Corcoran v. Levenhagen, No. 08-10495, 2009 WL 3347947, at *1 (U.S. Oct. 20, 2009). We include that discussion here, after a full and fresh look at the record. We find that all of Corcoran’s remaining habeas challenges are waived, and that three of them are frivolous, but that one of the challenges nevertheless entitles him to a new sentencing hearing. * * *

D. Incompetence To Be Executed

Finally, Corcoran claimed he should not be executed because he suffers from a mental illness. Indeed, the Constitution prohibits the execution of a prisoner who is insane. Ford v. Wainwright, 477 U.S. 399, 410 (1986); see also Panetti v. Quarterman, 551 U.S. 930 (2007). But Corcoran must raise the argument of his incompetence to be executed in Indiana’s state courts before he can do so here. 28 U.S.C. § 2254(b)(1). Indeed, Corcoran made no claim that Indiana lacks an effective process to comply with Ford v. Wainwright. To the contrary, Indiana permits additional post-conviction review on Ford claims “after the usual channels of appeal have been exhausted.” Baird v. State, 833 N.E.2d 28, 29 (Ind. 2005); see also Ind. Post- Conviction Rule 1(12) (allowing a successive habeas petition “if the petitioner establishes a reasonable probability that the petitioner is entitled to post-conviction relief”). Therefore, his Ford claim is unripe.

III. CONCLUSION

The habeas claims actually before this court are meritless, as we previously found in Corcoran, 551 F.3d 703. The claims Corcoran declined to pursue in this court are waived, and three of them are anyway meritless or unripe. But Corcoran’s challenge to the state trial court’s sentencing process has obvious merit, for the reasons discussed above. Therefore, we AFFIRM the district court’s conditional grant of Corcoran’s petition for a writ of habeas corpus, but we modify its order to grant the writ unless within 120 days the state court holds a new sentencing hearing in accordance with this opinion. [ILB - see discussion at pp. 5-9 under "A. Sentencing Process"]

Here is a list of earlier ILB entries on this case.

Posted by Marcia Oddi on January 27, 2010 12:12 PM
Posted to Ind. (7th Cir.) Decisions