WILLIAM T. LAWRENCE, District Judge.
Petitioner Roland O. Ward is serving a 58-year sentence for his 2011 Monroe County, Indiana convictions for child molesting, sexual misconduct with a minor, escape, child seduction, dissemination of matter harmful to minors, and neglect of a dependent. He brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons that follow, Mr. Ward's petition for a writ of habeas corpus is
District court review of a habeas petition presumes all factual findings of the state court to be correct, absent clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1); Daniels v. Knight, 476 F.3d 426, 434 (7th Cir. 2007). On direct and post-conviction appeal, the Indiana Court of Appeals summarized the relevant facts and procedural history:
Ward v. State, 30 N.E.3d 788, 2015 WL 1124607, *1-4 (Ind. Ct. App. 2015).
Mr. Ward utilized the Davis-Hatton procedure
Mr. Ward sought further review by the Indiana Supreme Court. The Indiana Supreme Court denied transfer on July 23, 2015.
On July 20, 2016, Mr. Ward filed this petition for a writ of habeas corpus.
A federal court may grant habeas relief only if the petitioner demonstrates that he is in custody "in violation of the Constitution or laws . . . of the United States." 28 U.S.C. § 2254(a). Mr. Ward's petition is governed by the provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997).
The Supreme Court has described AEDPA as "a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court" and has emphasized that courts must not "lightly conclude that a State's criminal justice system has experienced the `extreme malfunction' for which federal habeas relief is the remedy." Burt v. Titlow, 134 S.Ct. 10, 16 (2013) (quoting Harrington v. Richter, 562 U.S. 86 (2011)); see also Renico v. Lett, 559 U.S. 766, 773 (2010) ("AEDPA . . . imposes a highly deferential standard for evaluating state-court rulings, and demands that state court decisions be given the benefit of the doubt.") (internal quotation marks, citations, and footnote omitted).
Where a claim has been adjudicated on the merits in state court, habeas relief is available under the deferential AEDPA standard only if the state court's determination was (1) "contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States," or (2) "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); see Cullen v. Pinholster, 563 U.S. 170, 181 (2011). Thus, "under AEDPA, federal courts do not independently analyze the petitioner's claims; federal courts are limited to reviewing the relevant state court ruling on the claims." Rever v. Acevedo, 590 F.3d 533, 536 (7th Cir. 2010). "A statecourt decision involves an unreasonable application of this Court's clearly established precedents if the state court applies this Court's precedents to the facts in an objectively unreasonable manner." Brown v. Payton, 544 U.S. 131, 141 (2005) (internal citations omitted). "Under § 2254(d)(2), a decision involves an unreasonable determination of the facts if it rests upon factfinding that ignores the clear and convincing weight of the evidence." Goudy v. Basinger, 604 F.3d 394, 399-400 (7th Cir. 2010) (citing Ward v. Sternes, 334 F.3d 696 (7th Cir. 2003)). "The habeas applicant has the burden of proof to show that the application of federal law was unreasonable." Harding v. Sternes, 380 F.3d 1034, 1043 (7th Cir. 2004) (citing Woodford v. Visciotti, 537 U.S. 19, 25 (2002)).
Mr. Ward raises two grounds in his petition: (1) the jury instructions stating that "[i]t is implied that the defendant acted knowingly in his conduct" violated his Fifth, Sixth, and Fourteenth Amendment rights and was a structural due process error not susceptible to Indiana's fundamental error review; and (2) ineffective assistance of trial counsel.
Respondent argues that Mr. Ward's petition is untimely on the theory that the AEDPA oneyear limitation began to run when Mr. Ward's first direct appeal was dismissed at his request on May 24, 2012. Respondent otherwise argues that ground one relating to jury instructions is procedurally defaulted because it was rejected on adequate and independent state-law grounds. Respondent further argues that the Indiana Court of Appeals reasonably applied Strickland to conclude that Mr. Ward did not receive ineffective assistance of trial counsel.
In reply, Mr. Ward asserts his petition is timely because the one-year limitation period reset upon his second direct appeal. Mr. Ward further asserts that ground one was not rejected on adequate and independent state-law grounds because the Court of Appeals relied on Benefield v. State, 945 N.E.2d 791 (Ind. Ct. App. 2011), which relies on Strickland v. Washington, 466 U.S. 668 (1984), and is therefore predicated on federal law grounds. Mr. Ward further asserts the Court of Appeals applied a standard for ineffective assistance of counsel that was contrary to the Supreme Court's precedent in Strickland.
Respondent argues that Mr. Ward's conviction became final when Mr. Ward dismissed his initial direct appeal to pursue post-conviction relief. Mr. Ward asserts otherwise.
In an attempt to "curb delays, to prevent `retrials' on federal habeas, and to give effect to state convictions to the extent possible under law," Congress, as part of AEDPA, revised several statutes governing federal habeas relief. Williams v. Taylor, 529 U.S. 362, 404 (2000). Along with triggering dates not applicable here, "[u]nder 28 U.S.C. § 2244(d)(1)(A), a state prisoner seeking federal habeas relief has just one year after his conviction becomes final in state court to file his federal petition." Gladney v. Pollard, 799 F.3d 889, 894 (7th Cir. 2015).
The Supreme Court held that "§2244(d)(1)(A), which marks finality as of `the conclusion of direct review or the expiration of the time for seeking such review,' consists of two prongs." Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). Each prong relates to distinct categories of petitioners. The "conclusion of direct review" prong refers to petitioners who appeal to the Supreme Court, whose judgment becomes final when the Supreme Court "affirms a conviction on the merits or denies a petition for certiorari." For other petitioners, judgment is final at the "expiration of the time for seeking such review" — when their time to seek review with the Supreme Court, or the state court, expires. Id.
"[A] a state court's reopening of direct review will reset the limitations period." Id. at 152 (citing Jimenez v. Quarterman, 555 U.S. 113, 121 (2009) ("where a state court grants a criminal defendant the right to file an out-of-time direct appeal during state collateral review, but before the defendant has first sought federal habeas relief, his judgment is not yet `final' for purposes of § 2244(d)(1)(A).")); see also Hertel v. Superintendent, No. 3:12-CV-742 JD, 2013 U.S. Dist. LEXIS 67602, at *15 (N.D. Ind. May 13, 2013) (noting that petitioner's "one-year limitation has not started running" where he had previously filed and dismissed a direct appeal for remand to the trial court for the purpose of pursuing a Davis/Hatton procedure, and the post-conviction proceedings were still pending).
Mr. Ward's conviction and sentence became final when the time to seek certiorari at the United States Supreme Court expired. 28 U.S.C. § 2244(d)(1)(A). Because the Indiana Supreme Court denied transfer on July 23, 2015, the time to seek certiorari expired on October 21, 2015. See Rule 13 of Rules of the Supreme Court of the United States. Any petition for a writ of habeas corpus, therefore, was due one year later, on October 21, 2016. Mr. Ward's petition, filed on July 20, 2016, is therefore timely.
Mr. Ward asserts that the jury instructions instructing that "[i]t is implied that the defendant acted knowingly in his conduct" violated his Fifth, Sixth, and Fourteenth Amendment rights and was a structural due process error that should have been reviewed under the federal plain error analysis of United States v. Olano, 507 U.S. 725, 732 (1993) and not Indiana's fundamental error review. Respondent argues that his claim is procedurally defaulted because it was rejected on adequate and independent state-law grounds. In reply, Mr. Ward asserts that ground one was not rejected on adequate and independent state-law grounds because the Court of Appeals relied on Benefield v. State, 945 N.E.2d 791 (Ind. Ct. App. 2011), which relies on Strickland v. Washington, 466 U.S. 668 (1984), and is therefore predicated on federal law grounds.
"A federal habeas court will not review a claim rejected by a state court if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Walker v. Martin, 562 U.S. 307, 315 (2011) (internal quotation marks and citations omitted). This doctrine is premised on the rule that federal courts have "no power to review a state law determination that is sufficient to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729 (1991). The state-law ground precluding review by a federal habeas court "may be a substantive rule dispositive of the case, or a procedural barrier to adjudication of the claim on the merits." Walker, 562 U.S. at 315. Therefore, "[e]rrors of state law in and of themselves are not cognizable on habeas review." Samuel v. Frank, 525 F.3d 566, 574 (7th Cir. 2008) (internal quotation marks and citations omitted). "[O]nly if a state court's errors have deprived the petitioner of a right under federal law can the federal court intervene." Id.
On the issue of the jury instructions, the Indiana Court of Appeals held:
Ward, 2015 WL 1124607 at *12-13.
Although the Court of Appeals rejected Mr. Ward's claim about the jury instructions based on Indiana's fundamental error analysis, it did so by comparison to its Strickland analysis of prejudice from Mr. Ward's claim of ineffective assistance of counsel. There is a dispute about whether the state court decision rested on an independent investigation of state law. In such circumstances, the Supreme Court has held that:
Coleman, 501 U.S. at 733 (1991) (internal citations omitted). Accordingly, the Court will presume that the Court of Appeals' decision on jury instructions rested in part on federal law, and thus habeas review of the claim is not precluded.
Following the enactment of AEDPA, "the critical question on the merits of most habeas corpus petitions shifted . . . to a much narrower question: whether the decision of the state court keeping the petitioner in custody was `contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts. . . .'" Avila v. Richardson, 751 F.3d 534, 535 (7th Cir. 2014) (quoting 28 U.S.C. § 2254(d)).
Simonson v. Hepp, 549 F.3d 1101, 1105-06 (7th Cir. 2008). If either test is met as to a given claim, the federal habeas court reviews that claim "under the pre-AEDPA standard of 28 U.S.C. § 2243 and dispose[s] of the matter `as law and justice require,' which is essentially de novo review." Caffey v. Butler, 802 F.3d 884, 894 (7th Cir. 2015).
Mr. Ward contends that, pursuant to Chapman v. California, 386 U.S. 18, 20-21 (1967), which holds: "[The U.S. Supreme Court] cannot leave to the States the formulation of the authoritative laws, rules, and remedies designed to protect people from infractions by the States of federally guaranteed rights . . . it is [the U.S. Supreme Court's] responsibility to protect by fashioning the necessary rule," the Court of Appeals' decision was contrary to clearly established federal law because the Court of Appeals applied Indiana's fundamental error analysis instead of federal plain error analysis under Rule 52 of the Federal Rules of Criminal Procedures.
In Chapman, the Supreme Court held that federal law governs where there has been a federal constitutional error. 386 U.S. at 20-21. Chapman crafted a new federal standard of "harmless error" to be applied to federal constitutional errors, such as a defendant's Fifth Amendment right against self-incrimination, in a state court proceeding: "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Id. at 22-24. Subsequent to Chapman, Congress passed AEDPA, which provides that a writ of habeas corpus may not be granted unless the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law." 28 U.S.C. § 2254(d)(1). The Supreme Court later incorporated the "unreasonable application" language into the Chapman standard and held that habeas relief may not be granted "if the state court simply erred in concluding that the State's errors were harmless . . . rather, habeas relief is appropriate only if the [state appellate court] applied harmless-error review in an `objectively unreasonable' manner." Mitchell v. Esparza, 540 U.S. 12, 18 (2003).
While Chapman's harmless error analysis would be applicable to federal constitutional errors in a state court proceeding, Mr. Ward does not assert that the Court of Appeals' decision was contrary to Chapman and it is Mr. Ward's burden to do so, to the extent that is what he wishes to argue. See Harding, 380 F.3d at 1043. Thus, the Court need not conduct any analysis under Chapman.
Instead, Mr. Ward goes down a completely different path to argue that the Indiana Court of Appeals should have applied plain error analysis under Fed. R. Crim. P. 52(b). But the Federal Rules of Criminal Procedures only apply to
Thus, Mr. Ward has not shown that the Indiana Court of Appeals' decision on Mr. Ward's jury instructions was not "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." Their decision, moreover, was not based on an "unreasonable determination of the facts," nor does Mr. Ward raise this argument. Mr. Ward's arguments regarding the Court of Appeals' alleged unreasonable application of Strickland are discussed below.
Accordingly, Mr. Ward is not entitled to habeas relief on the ground of his jury instructions.
Mr. Ward argues that his trial counsel was ineffective for failing to (1) object to jury instructions; and (2) move to sever the escape charge. He asserts that the Indiana Court of Appeals' analysis was contrary to Strickland and that the Indiana Court of Appeals erroneously failed to analyze the prejudice from trial counsel's performance from a cumulative error perspective. Respondent argues that the Indiana Court of Appeals reasonably applied Strickland to conclude that Mr. Ward did not receive ineffective assistance of trial counsel.
Strickland v. Washington, 466 U.S. 668, 684 (1984), supplies the clearly established federal law, as determined by the Supreme Court of the United States, that governs a claim of ineffective assistance of counsel.
Hinton v. Alabama, 134 S.Ct. 1081, 1087-88 (2014) (parallel citations omitted). The Supreme Court framed the determinative question as "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686. This Court must give "double deference" to the state court's ruling on ineffective assistance of counsel claims because habeas review under AEDPA requires a habeas court to give the state court and the defense attorney the benefit of the doubt. Woods v. Donald, 135 S.Ct. 1372, 1376 (2015).
Whether AEDPA deference applies to each prong depends on whether the state court addressed each prong. If it decides the issue only on one prong, the other is reviewed de novo. See Woolley v. Rednour, 702 F.3d 411, 422 (7th Cir. 2012) ("Because [the state court] did not reach Strickland's ineffectiveness prong, [this Court] . . . review[s] the issue de novo."); see Porter v. McCollum, 558 U.S. 30, 38 (2009); Rompilla v. Beard, 545 U.S. 374, 390 (2005).
"It is essential to evaluate the entire course of the defense, because the question is not whether the lawyer's work was error-free, or the best possible approach, or even an average one, but whether the defendant had the `counsel' of which the sixth amendment speaks." Williams v. Lemmon, 557 F.3d 534, 538 (7th Cir. 2009). Nevertheless, a "single error may suffice if that error is sufficiently egregious and prejudicial." Id. (internal citations and quotation marks omitted).
In deciding the issue of ineffective assistance of counsel, the Indiana Court of Appeals recited the Strickland standard. Ward, 2015 WL 1124607 at *5. The Court of Appeals explained that the Court "assess[es] counsel's performance based on facts that are known at the time and not through hindsight." Id. at *6 (internal citations omitted). "Evidence of isolated poor strategy, inexperience, or bad tactics will not support an ineffective assistance claim; instead, we evaluate counsel's performance as a whole." Id. "[C]ounsel's performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption." Id.
As to Mr. Ward's claim that his counsel was ineffective for failing to object to the jury instructions, Mr. Ward and Respondent both agree that the Indiana Court of Appeals did not offer any rationale based on the performance prong of Strickland. With respect to the prejudice prong of Strickland, the Indiana Court of Appeals held:
Ward, 2015 WL 1124607 at *8.
This assessment is compatible with the prejudice prong of the federal Strickland standard. And because of this reasonable application of the controlling federal standard, "[u]nder AEDPA . . . it cannot be disturbed." Hardy v. Cross, 132 S.Ct. 490, 495 (2011).
Mr. Ward asserts that because his trial counsel failed to move to sever the escape charge, Mr. Ward was subjected to "flight is a sign of guilt" prejudice. As to this claim, Mr. Ward and Respondent both agree that the Indiana Court of Appeals did not offer any rationale based on the performance prong of Strickland. With respect to the prejudice prong of Strickland, the Indiana Court of Appeals held:
Ward, 2015 WL 1124607 at *11-12.
The Indiana Court of Appeals' use of a "preponderance of the evidence" standard for determining prejudice was contrary to clearly established Supreme Court case law. The Supreme Court has explained that, under Strickland, the standard for prejudice is whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.
Thus, because the Indiana Court of Appeals did not offer a rationale on the performance prong of Strickland, and its holding on the prejudice prong was contrary to Strickland, the Court reviews de novo Mr. Ward's claim of ineffective assistance of counsel for failing to sever the escape charge. See Caffey, 802 F.3d at 894; Woolley, 702 F.3d at 422.
Mr. Ward argues that his trial counsel, Ms. Culotta, was ineffective for failing to sever the escape charge. He argues that there is ample evidence that Ms. Culotta's performance fell below an objective standard of reasonableness: (1) Ms. Culotta admitted in her post-conviction testimony that she wanted the escape charge separated from the sex crime charges, but failed to take action until the morning of trial to file a motion to dismiss the escape charge as an attempt to exclude it; (2) Ms. Culotta's motion to dismiss was not only untimely but also improper; and (3) Ms. Culotta should have not waited until the last moment and should have correctly filed a motion to sever through a motion in limine or a motion claiming misjoinder. Mr. Ward further argues that, but for trial counsel's ineffectiveness, and without the "flight is a guilty conscious" prejudice, he might not have been convicted on the more serious sex crime charges. He also asserts there is a reasonable probability the outcome of the escape charge, if not the sex crimes too, would have been different if the escape charge had been severed.
As an initial matter, Mr. Ward has failed to show that the Court would have granted a motion to sever. Two or more offenses may be joined in the same information when the offenses: (1) are of the same or similar character, even if not part of a single scheme or plan; or (2) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan. Ind. Code § 35-34-1-9(a). However, if two or more offenses have been joined for trial in the same information solely because they are of the same or similar character, the defendant shall have a right to sever the offenses. Ind. Code § 35-34-1-11(a). Where it is not a matter of right, the court, upon motion by the defendant or the prosecutor, has the discretion to sever if it is:
Id.
Because the escape charge was not joined solely because of "same or similar character" but because it was "based . . . on a series of acts connected together or constituting parts of a single scheme or plan," severance was not a matter of right. The trial court had the discretion to sever. Indeed, Ms. Culotta testified in her deposition for the post-conviction hearing that she considered but did not file a motion to sever the escape charge because she did not believe the judge would grant her motion to sever. Ward v. State, Cause No. 53A01-1308-PC-330 (hereinafter "PCR"), Hearing on August 21, 2013, Ex. 7 at 14.
Moreover, Mr. Ward's argument that inclusion of the escape charge improperly subjected him to a "flight is guilty conscious" prejudice is unavailing. In Indiana, "flight and related conduct may be considered by a jury in determining a defendant's guilt." Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001) (citing Johnson v. State, 284 N.E.2d 517, 519 (Ind. 1972). "[E]vidence of flight may, under appropriate circumstances, be relevant, admissible, and a proper subject for counsel's closing argument." Id. (internal citations omitted). Thus, even if Ms. Culotta had properly submitted and won a motion to sever the escape charge, evidence of Mr. Ward's flight could still have been brought in as evidence and argued in the prosecutor's closing argument. Although Mr. Ward has argued that Ms. Culotta should have filed a possible motion in limine or an objection to prevent the prosecutor from arguing conscience of guilt, the post-conviction court noted that "[f]or the same reasoning [as in Dill], even if Ms. Culotta had filed a motion in limine this Court finds that it would not have been required to grant the motion or sustain the objection, which would be required to find ineffective assistance of counsel." PCR, Appellant's Appendix at 159 n. 6.
Even had the escape charge been severed and excluded and a motion in limine filed and granted to exclude arguments regarding "flight is guilty conscious," as detailed in the Indiana Court of Appeals' opinion, there was substantial evidence against Mr. Ward on the sex crime charges (Ward, 2015 WL 1124607 at *12). Thus, Mr. Ward has failed to show that, but for Ms. Culotta's performance, there was a reasonable probability that the jury would have reached a different decision as to the sex crime charges.
With regard to whether severance would have changed the result of the escape charge, Mr. Ward has likewise failed to show that the jury would have decided differently if the escape charge had been severed. At the end of the prosecutor's case, Ms. Culotta moved for judgment of acquittal as to the escape charge, arguing that because Mr. Ward paused briefly while running and looked over his shoulder before continuing to run off, the police officers allowed him to leave and he was no longer detained. See State v. Ward, Case No. 53C02-1001-FA-00059 (hereinafter "Crim."), Trial Tr. 791:11-93:3. The State disagreed, noting that Sergeant Swain and Detective Karr testified that they yelled stop to Mr. Ward a number of times and never gave him permission to leave. The trial court agreed that judgment at acquittal was not proper, finding "there was sufficient testimony from the officer about the defendant — asking him to sit down a number of times, keeping him around in case something was discovered, sufficiently to submit the case — the charge to the jury." Id. at 795:3-8. The Indiana Court of Appeals also agreed (when deciding the issue of the sufficiency of the evidence for the escape charge, an issue not raised in this petition):
Ward, 2015 WL 1124607 at *14.
Indeed, during the trial, Detective Karr testified that Mr. Ward was told about fifteen times that he was not free to go and needed to stay put with him. Crim. Tr. at 582:13-22. Detective Karr further testified that Mr. Ward was a suspect, was actually listed in the search warrant because of the need to get his DNA in the form of a buccal swab, so Mr. Ward needed to remain on the premises. Id. at 583:13-84:6. At one point, Sergeant Swain brought to Mr. Ward and Detective Karr a black bag that had a video camera with tape covering the on indication light. Id. at 594:20-95:8; 625:3-22. Mr. Ward then went to the kitchen, went to the backdoor, and started running across the backyard towards his barn. Id. at 595:9-19; 625:3-22. Detective Karr never told Mr. Ward that he could go, and hadn't gotten the DNA swab. Id. at 595:20-96:1. Sergeant Swain also never told Mr. Ward he could leave the house or be released from Detective Karr's detention. Id. at 626:6-11. When Mr. Ward started running, Sergeant Swain called out to him to stop. Id. at 626:12-24. Both Detective Karr and Sergeant Swain gave chase, but gave up because it was dark and muddy. Id. at 596:11-25; 620:22-21:7; 626:25-627:5. Thus, there was substantial evidence to support the jury's conviction of Mr. Ward on the escape charge.
Mr. Ward's sole argument is that "the jury likely paid little attention to the thin evidence the State offered in support of the minor escape charge after finding Ward guilty of nine, much more serious charges." Dkt. No. 2 at 23. However, "[it is] the almost invariable assumption of the law that jurors follow their instructions. We presume that jurors, conscious of the gravity of their task, attend closely the particular language of the trial court's instructions in a criminal case and strive to understand, make sense of, and follow the instructions given them." United States v. Olano, 507 U.S. 725, 740 (1993) (internal quotation marks and citations omitted). Without more, Mr. Ward has failed to show a reasonable probability that the result of the escape charge, and thus the proceeding, would have been different.
Because the Court has found that Mr. Ward has failed to show a reasonable probability that the result of the proceeding would have been different, the Court does not need to decide whether Ms. Culotta's performance fell below objective standards.
Accordingly, Mr. Ward is not entitled to habeas relief on this ground.
Finally, Mr. Ward argues briefly that the Court of Appeals failed to analyze the prejudice against Mr. Ward from a cumulative perspective, see Sussman v. Jenkins, 636 F.3d 329, 360 (7th Cir. 2011) (the court must consider the cumulative impact of all of the trial counsel's errors), and not just in isolation, and that there is a reasonable probability that the verdict in Mr. Ward's trial would have been different if the jury was not subjected to the cumulative effect of trial counsel's failure to object to the directed verdict on the element of "knowing" and for failing to sever the escape charge. Respondent does not address Mr. Ward's arguments.
The Indiana Court of Appeals addressed each alleged error by trial counsel in isolation. See Ward, 2015 WL 1124607 at *5-12. Additionally, the Indiana Court of Appeals failed to discuss the errors' cumulative effect. See id. The Indiana Court of Appeals' failure to do so was contrary to or an unreasonable application of Strickland. See, e.g., Harris v. Thompson, 698 F.3d 609, 648 (7th Cir. 2012) ("The question is whether counsel's entire performance . . . prejudiced [the petitioner]. By analyzing each deficiency in isolation, the [state] appellate court clearly misapplied the Strickland prejudice prong," and therefore concluded that the state "appellate court's prejudice determination was unreasonable insofar as it failed to apply the correct framework."); see also Sussman v. Jenkins, 636 F.3d 329, 360-61 (7th Cir. 2011) ("Here . . . we are not faced with a single error by counsel and, therefore, must consider the cumulative impact of this error when combined with counsel's [other identified error]."); Goodman v. Bertrand, 467 F.3d 1022, 1030 (7th Cir. 2006) ("[The Court] must assess the totality of the omitted evidence under Strickland rather than the individual errors.") (internal quotation marks and citations omitted).
As detailed above, the evidence against Mr. Ward on both the sex crime charges and the escape charge was overwhelming. With respect to the sex crimes, Mr. Ward's defense at trial was that the sex crimes did not happen and K.M.J. and K.H. fabricated their testimony. Ward, 2015 WL 1124607, *8. His defense was not that the conduct was a mistake, that it was an accident, or that he did not know what he was doing. Thus, the error with respect to the jury instruction was minor. Indeed, given that the jury found Mr. Ward guilty of providing alcohol and pornography to coerce two underage individuals to submit to a variety of sex acts over the period of several years, it is very difficult to comprehend how Mr. Ward could have done so accidentally and unknowingly. With respect to the escape charge, Mr. Ward's defense was that he was "not in detention" — not that he didn't run. Severance of the escape charge would not have reasonably changed the outcome given the strong evidence that Mr. Ward ran away when he was to remain in the custody of the police. Looking to the cumulative effect of the error from the jury instruction and Ms. Culotta's failure to sever the escape charge, Mr. Ward has not shown there is a reasonable probability that the verdicts would have been different. Thus, Mr. Ward is also not entitled to habeas relief on this ground.
This Court has carefully reviewed the state record in light of Mr. Ward's claims and has given such consideration to those claims as the limited scope of its review in a habeas corpus proceeding permits.
Having applied the appropriate standard of review, and having considered the pleadings and the record, Mr. Ward's petition for writ of habeas corpus must be
Judgment consistent with this Entry shall now issue.
Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing § 2254 proceedings, and 28 U.S.C. § 2253(c), the Court finds that the petitioner has failed to show (1) that reasonable jurists would find this court's "assessment of the constitutional claims debatable or wrong," or (2) that reasonable jurists would find "it debatable whether the petition states a valid claim of the denial of a constitutional right" and "whether [this court] was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court therefore
