JANE MAGNUS-STINSON, District Judge.
Petitioner Glenn Patrick Bradford was convicted by a jury of murder and arson in 1993 in Indiana state court. He is currently serving an eighty-year sentence for those crimes. He maintains that several constitutional violations during his state court proceedings entitle him to federal habeas relief. He also contends that he has made a showing of actual innocence, which allows him to pursue constitutional claims that are otherwise procedurally defaulted.
For the reasons that follow, Mr. Bradford has failed to demonstrate that he is entitled to habeas relief. Accordingly, Mr. Bradford's amended petition for a writ of habeas corpus is
On June 17, 1993, Mr. Bradford was convicted by a jury of murder and arson. His convictions were upheld by the Indiana Supreme Court. See Bradford v. State, 675 N.E.2d 296 (Ind. 1996) ("Bradford I"). Mr. Bradford sought post-conviction relief in state court, the denial of which was affirmed by the Indiana Court of Appeals in Bradford v. State, 988 N.E.2d 1192 (Ind. App. 2013) ("Bradford II").
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 Daniels v. Knight, 476 F.3d 426, 434 (7th Cir. 2007). Mr. Bradford maintains that certain factual findings of the state courts were incorrect. The Court will discuss those disputes as necessary below. For the purposes of this Background section, however, the Court sets forth the factual and procedural background as summarized by the Indiana Court of Appeals in Bradford II:
Bradford II, 988 N.E.2d at 1195-98.
Following the denial of post-conviction relief in Bradford II, Mr. Bradford filed a petitioner to transfer with the Indiana Supreme Court, which was denied on November 21, 2013. Mr. Bradford then filed a petition for a writ of habeas corpus, and shortly thereafter an amended petition, with this Court.
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). "Under the current regime governing federal habeas corpus for state prison inmates, the inmate must show, so far as bears on this case, that the state court which convicted him unreasonably applied a federal doctrine declared by the United States Supreme Court." Redmond v. Kingston, 240 F.3d 590 (7th Cir. 2001) (citing 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362 (2000); Morgan v. Krenke, 232 F.3d 562 (7th Cir. 2000)). 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 state-court 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). "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)).
In addition to the foregoing substantive standard, "federal courts will not review a habeas petition unless the prisoner has fairly presented his claims `throughout at least one complete round of state-court review, whether on direct appeal of his conviction or in post-conviction proceedings.'" Johnson v. Foster, 786 F.3d 501, 504 (7th Cir. 2015) (quoting Richardson v. Lemke, 745 F.3d 258, 268 (7th Cir. 2014), and citing 28 U.S.C. § 2254(b)(1)); see also Anderson v. Benik, 471 F.3d 811, 814-15 (7th Cir. 2006) ("To avoid procedural default, a habeas petitioner must fully and fairly present his federal claims to the state courts.") (internal quotation marks and citation omitted); Thomas v. McCaughtry, 201 F.3d 995, 999 (7th Cir. 2000) ("A state prisoner ... may obtain federal habeas review of his claim only if he has exhausted his state remedies and avoided procedurally defaulting his claim.").
Insofar as pertinent here, procedural default "occurs when a claim could have been but was not presented to the state court and cannot, at the time that the federal court reviews the habeas petition, be presented to the state court." Resnover v. Pearson, 965 F.2d 1453, 1458 (7th Cir. 1992). A federal claim is not fairly presented unless the petitioner "put[s] forward operative facts and controlling legal principles." Simpson v. Battaglia, 458 F.3d 585, 594 (7th Cir. 2006) (citation and quotation marks omitted). "A federal court may excuse a procedural default if the habeas petitioner establishes that (1) there was good cause for the default and consequent prejudice, or (2) a fundamental miscarriage of justice would result if the defaulted claim is not heard." Johnson, 786 F.3d at 505.
Mr. Bradford raises numerous claims in his amended petition for a writ of habeas corpus. As to some of these claims, the parties dispute whether various procedural hurdles preclude this Court from addressing the claims on their merits. Mr. Bradford maintains that none of the procedural hurdles prevent the Court from reaching the merits of his claims because he has established his actual innocence, which serves to overcome any procedural hurdles his claims face. The Court will first discuss Mr. Bradford's assertion of actual innocence before addressing each of his claims for habeas relief in turn.
Mr. Bradford argues that he is actually innocent of the crimes of which he was convicted. To prove his innocence he primarily relies on two expert reports—one of which was presented to the post-conviction court and the other of which is presented for the first time to this Court. This evidence is used to prove that the fire in question began before Mr. Bradford arrived at Ms. Lohr's house.
The undisputed evidence shows that Mr. Bradford was photographed two blocks from Ms. Lohr's house by a bank camera at 6:34:04 a.m. Mr. Bradford reported the fire at 6:35:09 a.m., and firefighters extinguished the fire by 6:43 a.m. Accordingly, if the fire burned for nine minutes or longer, Mr. Bradford could not have set the fire. Mr. Bradford maintains that his experts indisputably show that the fire burned significantly longer than nine minutes.
"The Supreme Court has not recognized a petitioner's right to habeas relief based on a stand-alone claim of actual innocence." Gladney v. Pollard, 799 F.3d 889, 895 (7th Cir. 2015); see McQuiggin v. Perkins, 133 S.Ct. 1924, 1931 (2013); Herrera v. Collins, 506 U.S. 390, 404-05 (1993). Instead, "actual innocence may be used as a `gateway' to excuse procedural defaults that would otherwise bar a federal court from reaching the merits of the underlying claims." Gladney, 799 F.3d at 895. Thus, habeas relief cannot be granted—even if the petitioner has made an adequate showing of actual innocence—unless the petitioner "show[s] an independent constitutional violation." Id.
Mr. Bradford recognizes that there is no stand-alone claim of actual innocence in that he does not seek relief on this basis alone. He instead attempts to make the requisite showing of actual innocence to excuse procedural defaults that would bar the Court from hearing certain of his claims. The respondent maintains that the evidence on which Mr. Bradford relies is insufficient to demonstrate that he is actually innocent and thus the claims in question are procedurally defaulted.
The Court need not decide whether Mr. Bradford has submitted sufficient evidence to establish actual innocence. This is because, at most, establishing as much would permit the Court to address claims that Mr. Bradford has otherwise procedurally defaulted. See id. Instead of wrestling with the complex question of whether Mr. Bradford's evidence is sufficient to demonstrate actual innocence, judicial efficiency and prudence suggest that the Court should address the allegedly defaulted claim on their merits, given the Court's ultimate conclusion that those claims lack merit. See Brown v. Watters, 599 F.3d 602, 610 (7th Cir. 2010) (holding that because the procedurally defaulted claims lacked merit, the Court could bypass a "difficult" actual innocence claim and address the defaulted claims on the merits); see also Miller v. Mullin, 354 F.3d 1288, 1297 (10th Cir. 2004) (declining to address whether certain claims were procedurally defaulted because, "[i]n the interest of judicial economy, . . . the case may be more easily and succinctly affirmed on the merits"). Accordingly, the Court will address Mr. Bradford's claims for relief below by assuming, without deciding, that he has made the requisite showing of actual innocence such that procedurally defaulted claims may be addressed on the merits.
Mr. Bradford argues that there was insufficient evidence for a reasonable jury to find him guilty of murder and arson beyond a reasonable doubt. The Court addresses first the respondent's contention that this claim is purely a question of state law that is not cognizable in a federal habeas proceeding before turning to the merits of Mr. Bradford's claim.
The respondent argues that Mr. Bradford's claim before the state courts was an incredible-dubiosity claim under state common law, which is not reviewable in a federal habeas proceeding. It is true that federal habeas courts lack jurisdiction to address purely state-law questions. See Lambert v. Davis, 449 F.3d 774, 778 (7th Cir. 2006); see also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States."). But Mr. Bradford's claim before this Court is not one of incredible dubiosity, it is instead clearly made pursuant to the Due Process Clause of the United States Constitution, [see
By asserting that Mr. Bradford's claim in state court was only one of incredible dubiosity under state law, the respondent suggests that Mr. Bradford's insufficiency-of-the-evidence claim under the Due Process Clause is procedurally defaulted because it was not raised in state court. But this is simply incorrect. In Mr. Bradford's brief before the Indiana Supreme Court, he clearly argued that the evidence presented at trial was generally insufficient to support his convictions. [See
Mr. Bradford's insufficiency-of-the-evidence claim is governed by the "rigorous" standard set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979): "evidence, viewed in the light most favorable to the State, is sufficient to support a conviction so long as any rational trier of fact could find the essential elements of the offense to have been proved beyond a reasonable doubt." Jones v. Butler, 778 F.3d 575, 581 (7th Cir. 2015); see Monroe v. Davis, 712 F.3d 1106, 1118-19 (7th Cir. 2013). Because the Court considers "this claim on collateral review rather than direct appeal, the [AEDPA] imposes an additional layer of defense onto this inquiry: [the Court] may grant relief on this claim only if the [state court] applied the Jackson standard unreasonably to the facts of [the petitioner's] case." Jones, 778 F.3d at 581-82. Therefore, "[f]ederal review of these claims . . . turns on whether the state court provided fair process and engaged in reasoned, good-faith decisionmaking when applying Jackson's `no rational trier of fact' test." Gomez v. Acevedo, 106 F.3d 192, 199 (7th Cir. 1999).
As stated above, this issue was raised by Mr. Bradford on direct appeal in Bradford I. He argued that the evidence was insufficient for two reasons: (1) there was no evidence placing Mr. Bradford at Ms. Lohr's house at the time she was killed; and (2) there was insufficient evidence to show that Mr. Bradford could have had the time to set the fire the following morning. See Bradford I, 675 N.E.2d at 298. The Indiana Supreme Court began by identifying a standard essentially the same as that set forth in Jackson. Id. It then went on to explain why neither of Mr. Bradford's arguments showed that this standard was met, reasoning as follows:
Bradford I, 675 N.E.2d at 298-30 (citations omitted).
Mr. Bradford argues that the Indiana Supreme Court's focus on the jury's resolution of contested facts amounts to a failure understand, and therefore confront, his argument at all. "Even if the jury believed all the State's evidence and theories," says Mr. Bradford, "it still would be impossible for [him] to have set the fire within the 65-second timeframe, rendering the evidence wholly insufficient to support a conviction for arson beyond a reasonable doubt." [
The respondent does not specifically address these four actions that Mr. Bradford contends are determinative. Instead, the respondent asserts only that a witness testified there was a police car at Ms. Lohr's house during the 11:06 p.m. to 12:10 p.m. window when Mr. Bradford's whereabouts were unaccounted for, and thus "[t]he jury was free to believe that [Mr. Bradford] completed some of the actions at that time." [
In his reply brief, Mr. Bradford emphasizes that the respondent did not address the Indiana Supreme Court's failure to address these additional hypothesized actions. He highlights that the first and fourth actions—perhaps implicitly recognizing that the second and third action could indeed have been completed during the 11:06 p.m. to 12:10 a.m. timeframe—alone demonstrate that Officer Minnis's testimony was insufficient to establish that Mr. Bradford could have set the fire. [See
The Court must begin its analysis by setting forth what evidence can be considered in addressing this claim. With respect to the fourth action—the killing of the dog—Mr. Bradford at times in his briefing relies on evidence that was first presented during his state court post-conviction proceeding. Most relevant is the evidence to which Mr. Bradford points showing that the dog was alive when the fire was set because it had a COHb level consistent with the inhalation of significant amounts of smoke. [See, e.g.,
"[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). Accordingly, the evidence that was adduced only at the post-conviction proceedings cannot be considered in determining whether the Indiana Supreme Court unreasonably applied Jackson. The Indiana Supreme Court addressed Mr. Bradford's challenge to the sufficiency of the evidence in Bradford I, and thus, like the jury, was not privy to evidence submitted during post-conviction proceedings. Because § 2254(d)(1) requires this Court to assess the reasonableness of the Indiana Supreme Court's decision, this Court cannot consider evidence that the Indiana Supreme Court itself could not consider. See Pinholster, 131 S. Ct. at 1398 ("Th[e] backward-looking language [of § 2254(d)(1)] requires an examination of the state-court decision at the time it was made.") (emphasis added). Accordingly, Mr. Bradford's reliance on the timing of the dog's death—which was only presented during the post-conviction proceedings
Mr. Bradford next relies on evidence regarding the use of Ms. Lohr's gasoline can to start the fire. His reliance on this evidence to argue that the retrieval of the gas can from the back patio and the relocking of the back door must be factored into 65-seconds timeframe is unavailing. There is no evidence—and Mr. Bradford points to none—demonstrating that the gas can necessarily had to be retrieved from outside on the morning the fire was set. This absence of evidence allowed the jury to consider whether Mr. Bradford retrieved it when the murder occurred. But more importantly, the absence of evidence on the point necessarily means that Mr. Bradford fails to demonstrate that no reasonable juror could have found that he had the opportunity to start the fire. Notably, Mr. Bradford implicitly cedes as much in his reply brief by addressing only the first and fourth actions (regarding the dog's death and the electrical breakers) he originally maintained must be factored into the 65-second timeframe. For these reasons, Mr. Bradford's reliance on the retrieval of the gasoline can fails to support his position that the Indiana Supreme Court unreasonably applied Jackson.
Lastly, Mr. Bradford relies on the evidence that the lights were on in Ms. Lohr's bedroom at 12:30 a.m., which means that he would have had to switch off the electrical breakers in the basement (which the parties do not dispute were switched off) during the 65-second timeframe in the morning when he set the fire. This is the case, says Mr. Bradford, because the undisputed evidence shows that Mr. Bradford had to have committed the murder between 11:06 p.m. and 12:10 a.m.
The specific evidence regarding Ms. Lohr's bedroom lights came from the testimony of Ms. Lohr's next door neighbor, Christopher Jenkins, who was the State's witness. He testified that on the night in question he was at home watching television. At some point later he went upstairs to use the restroom, opened the door and saw that Ms. Lohr's bedroom lights were on. He went back to watching television, and testified as follows regarding the time he saw the lights on:
Trial Tr. at 2364.
The difficulty with Mr. Bradford's argument is that it presumes that because this evidence was undisputed, a reasonable jury would have to take it as true. But the Jackson standard requires the Court to ask whether "evidence, viewed in the light most favorable to the State, is sufficient to support a conviction so long as any rational trier of fact could find the essential elements of the offense to have been proved beyond a reasonable doubt." Jones, 778 F.3d at 581; see Willard v. Pearson, 823 F.2d 1141, 1150 (7th Cir. 1987) (holding that, in analyzing a Jackson claim, "[t]he federal habeas court must assume that the jury resolved all evidentiary conflicts and found all reasonable inferences in the state's favor"). This standard does not require the Court to take undisputed evidence as true when doing so favors the defendant's version of the case; it requires the Court to assess whether the evidence is sufficient to prove the elements of the offense. This is critical because the jury could have discredited Mr. Jenkins's testimony, or at least could have thought he was unsure of the precise time he saw the lights on, which would foreclose the need to account for the electrical breakers being switched off in the morning by Mr. Bradford during the 65-second timeframe in question (because, like the gas can, the breakers could have been switched off at the time of the murder when the burglary was staged).
For these reasons, the evidence on which Mr. Bradford relies does not establish that he is entitled to habeas relief on his insufficiency of the evidence claim. In reaching this conclusion, one aspect of the Indiana Supreme Court's opinion addressing this claim warrants further discussion—namely, the Indiana Supreme Court failed to confront any of the evidence on which Mr. Bradford currently relies to support his Jackson claim. While Mr. Bradford did not raise the evidence regarding the dog's death to support this claim before the Indiana Supreme Court (as discussed in note 3 above), he clearly raised the issues regarding the necessity of factoring in the gasoline can and the electrical breakers into the 65-second timeframe, [see
This failure made review of the reasonableness of the Indiana Supreme Court's application of Jackson difficult, but this difficulty does not ultimately undermine the deference the Court owes the Indiana Supreme Court under AEDPA. The Seventh Circuit has "interpreted Richter as instructing federal courts to consider what arguments `could have supported' a state court decision when the state court `gave some reasons for an outcome without necessarily displaying all of its reasoning.'" Kubsch v. Neal, 800 F.3d 783, 805 (7th Cir. 2015) (quoting Hanson v. Beth, 738 F.3d 158, 163-64 (7th Cir. 2013)); see Jardine v. Dittmann, 658 F.3d 772, 777 (7th Cir. 2011) ("This court must fill any gaps in the state court's discussion by asking what theories `could have supported' the state court's conclusion."). This is the analysis the Court has taken here: the Court discerned grounds that could have supported the Indiana Supreme Court's conclusion that Officer Minnis's testimony was sufficient despite the evidence regarding the bedroom lights and the electrical breakers—i.e., that the jury could have disregarded Mr. Jenkins's testimony—and concluded that this possibility could have reasonably justified the Indiana Supreme Court's conclusion.
The Court acknowledges that the law in this area is unsettled. See Kubsch, 800 F.3d at 806 (discussing the lack of clarity and noting that "AEDPA deference toward state court decisions that reach defensible results for bad or incomplete reasons is not necessarily settled law at this point"). But even under de novo review, the reasoning above would still preclude relief for Mr. Bradford on this claim. A reasonable jury could have credited Mr. Minnis's evidence as to the time necessary to set the fire and discredited Mr. Jenkins's testimony that would have required the switching off of the electrical breakers to be included in that timeframe.
Mr. Bradford maintains that he was deprived his Sixth Amendment right to be present at every stage of his trial when a hearing was held without him (although his counsel was present) regarding the jury's request to visit the crime scene during its deliberations. The respondent maintains that this claim is procedurally defaulted because Mr. Bradford failed to raise it in state court. As stated above, the Court assumes without deciding that Mr. Bradford has made the requisite showing of actual innocence such that his procedurally defaulted claims, including this one, may be addressed on the merits. See Brown, 599 F.3d at 610.
"A criminal defendant's right to be present at every stage of trial is rooted to a large extent in the Confrontation Clause of the Sixth Amendment, United States v. Gagnon, 470 U.S. 522, 526 (1985) (citing Illinois v. Allen, 397 U.S. 337, 338 (1970)), and is protected to some extent by the due process clause of the Fifth and (in state cases) the Fourteenth Amendment." United States v. Neff, 10 F.3d 1321, 1323 (7th Cir. 1993) (citing Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934)). "[A] judge's response to a note from the jury is one of th[e] stages [where a defendant has a right to be present]." United States v. Coffman, 94 F.3d 330, 335-36 (7th Cir. 1996) (citing Rogers v. United States, 422 U.S. 35, 39 (1975)). "But the infringement of this right does not entitle the defendant to a new trial if it is unlikely to have affected the jury's verdict." Id. at 336.
The Court agrees with the respondent that Mr. Bradford was not prejudiced by the fact that he was not present when the trial court considered, along with both parties' counsel, the jury's request during deliberations to make a second visit to the crime scene.
Mr. Bradford makes much of the fact that some jurors conducted unauthorized experiments during the second visit to the crime scene, and relies on this fact to establish prejudice. [See
Whether the jurors' alleged experiments violated Mr. Bradford's constitutional rights is an independent claim addressed below. But whether they did, and any prejudice it may have caused, was not a result of Mr. Bradford's absence at the hearing in question.
Mr. Bradford argues that his Sixth Amendment rights were violated because jurors relied on their own experiments at the crime scene to convict him. The Sixth Amendment guarantees that "the accused shall enjoy the right to a . . . trial, by an impartial jury . . . (and) be confronted with the witnesses against him." Parker v. Gladden, 385 U.S. 363, 364 (1966); see Turner v. Louisiana, 379 U.S. 466, 472-73 (1986). "The corollary of this [right] is that the jury, in reaching its verdict, has a duty to consider only that evidence which is presented in open court, and not that which comes from outside sources." United States v. Neff, 10 F.3d 1321, 1326 (7th Cir. 1993); see Parker, 385 U.S. at 364 ("[T]he evidence developed against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel.") (citation and quotation marks omitted). "Should a jury base its verdict in whole or in part on evidence derived from extraneous sources, then to the degree it has done so, the defendant will have effectively lost the rights of confrontation, cross-examination, and of assistance of counsel—in other words, the guarantee of trial by jury." Neff, 10 F.3d at 1326. A defendant's Sixth Amendment right may be violated if "the jury conducts experiments based on information obtained outside of the trial court." Kurina v. Thieret, 853 F.2d 1409, 1414 (7th Cir. 1988).
The respondent argues that, while the Supreme Court has clearly held that the Sixth Amendment requires evidence to be presented on the witness stand in open court, the Supreme Court has not held that the reenactment of a crime during a visit to a crime scene based on the evidence at trial is unconstitutional; therefore, relief under § 2254(d)(1) is unavailable because there is no clearly established federal law, as determined by the Supreme Court, that the state court unreasonably applied. Mr. Bradford replies that the facts of this case and the Supreme Court case announcing the prevailing federal law need not be identical for the legal principle announced to be clearly established law.
As stated above, a writ of habeas corpus may not be granted unless the state court's adjudication of the claim "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." 28 U.S.C. § 2254(d)(1). "AEDPA does not require state and federal courts to wait for some nearly identical factual pattern before a legal rule must be applied." Panetti v. Quarterman, 551 U.S. 930, 953 (2007) (citation and quotation marks omitted). "Nor does AEDPA prohibit a federal court from finding an application of a principle unreasonable when it involves a set of facts `different from those of the case in which the principle was announced.'" Id. (quoting Lockyer v. Andrade, 538 U.S. 63, 76 (2003)).
The Supreme Court's decision in Panetti makes clear that the respondent's position here is untenable. The respondent essentially argues that there must be a Supreme Court case involving the same facts serving as the basis for Mr. Bradford's claim here—the reenactment of a crime during a jury's visit to the crime scene—for the law to be clearly established. But even the respondent recognizes that the general Sixth Amendment principle—that "the evidence developed against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel," Parker, 385 U.S. at 364—is clearly established. See also Fletcher v. McKee, 355 Fed. Appx. 935, 937 (6th Cir. 2009) ("[U]nder clearly established federal law [as required by § 2254(d)(1)], jury exposure to extrinsic evidence or other extraneous influence violates a defendant's Sixth Amendment rights."). And AEDPA does not prohibit a habeas court from concluding that the state court unreasonably applied a general principle, such as this one, to a different set of facts. See Panetti, 551 U.S. at 953 ("[AEDPA] recognizes . . . that even a general standard may be applied in an unreasonable manner."); Winston v. Boatwright, 649 F.3d 618, 625 (7th Cir. 2011) ("[Under AEDPA], courts are not prohibited from finding an application of a legal principle unreasonable when it involves different facts from those of the case that announced the principle.").
Accordingly, Mr. Bradford has properly identified clearly established federal law as recognized by the Supreme Court that serves as the basis for his claim, and the Court will therefore turn to whether the state court unreasonably applied that law in adjudicating Mr. Bradford's Sixth Amendment claim.
The Indiana Supreme Court addressed Mr. Bradford's claim on the merits, reasoning as follows:
Following the trial, three jurors signed affidavits for the defense which stated:
Bradford I, 675 N.E.2d at 304.
Mr. Bradford argues that the jurors' activities during the crime scene visit amount to "an experiment that is not merely examining the evidence already presented, but recreating the scenario in order to develop their own evidence," which is "improper" because it "resulted in additional evidence supplementary to that introduced at trial." [
The Court cannot conclude that the Indiana Supreme Court unreasonably applied clearly established federal law. In reaching this decision, the Court is guided by other courts who have applied the legal principle at issue to analogous factual scenarios. The Seventh Circuit has held that "[j]urors must be given enough latitude in their deliberations to permit them to use common experience and illustrations in reaching their verdict." Kurina, 853 F.2d at 1414 (citation and quotation marks omitted). Applying this standard, the Seventh Circuit in Kurina concluded that it did not violate the defendant's Sixth Amendment rights for the jury to use a cardboard replica of a knife, which was the murder weapon, to test the defendant's testimony that a left handed person such as himself could not have committed the crime, since the victims were stabbed by a right-handed assailant. Id. The Court reasoned that a defendant's Sixth Amendment rights "may be interfered with when the jury conducts experiments based on information obtained outside of the trial court," but that "no such experiments took place here." Id.
The Indiana Supreme Court viewed the jurors' conduct as mere recreation of Officer Minnis's trial testimony as to how long it would have taken Mr. Bradford to start the fire. This is analogous to Kurina in that the jurors recreated an event about which there was evidence presented, even though they did not have every detail of information necessary to recreate the crime with perfect accuracy. Mr. Bradford is correct that that the jurors did not know precisely how much gasoline was poured, but neither did Officer Minnis. In this sense, the jurors were arguably adhering to the evidence adduced at trial—Officer Minnis's testimony—along with "common experience and illustrations." Id.; see also Bogle v. Galaza, 38 Fed. Appx. 437, 438 (9th Cir. 2002) (holding that "the jury's actions did not constitute an impermissible jury experiment or the consideration of extrinsic evidence, because a jury is permitted to examine all pieces of evidence carefully, . . . and to reenact the crime using the evidence before it"); United States v. Avery, 717 F.2d 1020, 1026 (6th Cir. 1983) (holding that "[e]ven assuming the jury did recreate the defendant's actions" to test if he could place certain materials in a crawl space in three minutes, this was permissible because the jury was not "exposed to any extraneous materials during deliberations" and jurors are permitted "to use common experiences and illustrations in reaching their verdict").
Notably, this is not a case where a single juror conducted experiments outside the presence of the other jury members when deliberations were not ongoing and then reported the results back once deliberations resumed. See Doan v. Brigano, 237 F.3d 722, 733 (6th Cir. 2001) ("[W]hat triggers concerns of a constitutional dimension[] is the fact that Juror A conducted an out-of-court experiment [put lipstick on her arm to simulate a bruise and evaluated whether such a "bruise" could be seen in a dimly lit room as a means to test the reliability of trial testimony] and reported her findings to the jury in the manner of an expert witness."), overruled on other grounds by Wiggins v. Smith, 539 U.S. 510 (2003); cf. Fletcher v. McKee, 355 Fed. Appx. 935, 939 (6th Cir. 2009) (agreeing with the district court's distinguishing of Doan and reasoning that the juror's reenactment in the jury room using a gun admitted into evidence and testimony regarding the firing of the gun did not create extrinsic evidence as it was part of the juror's private, internal deliberations). Here, the jury's visit to the crime scene was permitted by the trial judge with the agreement of both parties. Thus, any recreations done by the jurors at the crime scene were done in what was the equivalent of the jury room with all other jurors present.
Given the foregoing, Mr. Bradford cannot establish that the Indiana Supreme Court's decision "involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." 28 U.S.C. § 2254(d)(1). A state court's decision does not constitute an "unreasonable application" of clearly established federal law merely because the decision is "erroneous[] or incorrect[]"; it "must also be unreasonable." Williams v. Taylor, 529 U.S. 362, 411 (2000). Thus, this Court's responsibility on habeas review is not to determine whether the Indiana Supreme Court's resolution of this claim was correct. The Court's focus is whether the resolution of the issue derived from an unreasonable application of federal law. Although not controlling, the foregoing cases show that many analogous situations have been deemed no violation of a defendant's Sixth Amendment rights. Like those cases, the Indiana Supreme Court concluded that the jury's conduct did not supplement the evidence presented at trial but were merely deliberations over the evidence presented—i.e., Officer Minnis's testimony.
Mr. Bradford argues that his trial counsel rendered ineffective assistance for three distinct reasons. The Court will begin by setting forth the standards governing such a claim, before addressing each of the three specific claims in turn.
A defendant has a right under the Sixth Amendment to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984). For a petitioner to establish that "counsel's assistance was so defective as to require reversal," he must make two showings: (1) that counsel rendered deficient performance that (2) prejudiced the petitioner. Id. With respect to the performance requirement, "[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting Strickland, 466 U.S. at 688). "[T]o establish prejudice, a `defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 534 (quoting Strickland, 466 U.S. at 694).
When the deferential AEDPA standard is applied to a Strickland claim, the following calculus emerges:
Harrington, 562 U.S. at 105.
The Indiana Court of Appeals rejected Mr. Bradford's ineffective assistance of trial counsel claims on the merits. See Bradford II, 988 N.E.2d at 1201. In doing so, it applied the well-known Strickland standard, and thus its decision is reviewed through the lens of AEDPA.
Mr. Bradford argues that his counsel provided ineffective assistance by failing to secure an adequate fire sciences expert to testify on his behalf at trial. The Indiana Court of Appeals addressed this claim in Bradford II as follows:
Bradford II, 988 N.E.2d at 1203-04.
In arguing that the Indiana Court of Appeals unreasonably applied Strickland, Mr. Bradford focuses on its resolution of whether his trial counsel rendered deficient performance in utilizing an expert that used a standard to measure the duration of the fire that the National Fire Protection Agency ("NFPA") had deemed unreliable. [See
The Court begins with the general principle that trial counsel has a duty "to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691. Mr. Bradford's trial counsel investigated whether a fire investigation expert would be beneficial and decided that one would; trial counsel hired Mr. Davie "well in advance of trial," Bradford II, 988 N.E.2d at 1203, and he testified at length during Mr. Bradford's trial. As set forth by the Indiana Court of Appeals (the factual predicates of which are unchallenged by Mr. Bradford), Mr. Davie was a well-qualified expert based on his past experience: he had a degree in chemistry, co-owned a fire investigated business, had analyzed over 1700 fire/explosion scenes to determine causes and origin, had testified for the State more than twenty times to help the State obtain convictions, had—according to one of the State's witnesses— a good reputation in the fire investigative community, and had never testified on behalf of a defendant until Mr. Bradford's trial, which likely garnered him a significant amount of credibility with the jury. Id. at 1203-04.
Mr. Bradford's challenge before this Court focuses not on these qualifications but on Mr. Davie's use of a technique to measure the duration of a fire that the NFPA deemed unreliable four months before trial. The Indiana Court of Appeals rejected Mr. Bradford's contention that trial counsel was "required to be as well informed in fire investigation science as the experts and as such rendered deficient performance by being unaware of this change and by continuing to use [Mr.] Davie's services." Id. at 1204. This application of Strickland's performance prong does not strike the Court as unreasonable. Trial counsel selected a qualified expert to testify as to the fire's duration, and there is no authority supporting Mr. Bradford's position that trial counsel must be as current on the relevant investigative techniques as the expert.
The lone authority on which Mr. Bradford relies is the Sixth Circuit's grant of habeas relief in Richey v. Bradshaw, 498 F.3d 344 (6th Cir. 2007). In Richey, the defendant's counsel retained an expert to investigate whether the State's arson theory was subject to attack, but otherwise "appeared unconcerned about the State's scientific evidence from the very beginning." Id. at 362. Specifically, counsel authorized the expert to begin working only two months before trial, failed to know what the expert was doing to test the State's evidence (trial counsel found out that the expert did not perform independent testing "until well after trial"), "failed to work with the expert to understand the basics of the science involved," and "failed to inquire about why [the] expert agreed with the State." Id. The Sixth Circuit concluded that counsel's performance "cannot be deemed effective where he hires an expert consultant and then either willfully or negligently keeps himself in the dark about what that expert is doing, and what the basis for the expert's opinion is." Id. at 362-63. The crucial factor, reasoned the Sixth Circuit, was "that [trial counsel] had a duty to know enough to make a reasoned determination about whether he should abandon a possible defense based on his expert's opinion," but failed to do so. Id. at 363.
Unlike in Richey, there is no evidence here that trial counsel was not imminently involved in the selection of Mr. Davie as an expert. He was selected "well before trial," and before the NFPA determined that the technique on which he utilized was "unreliable." Bradford II, 988 N.E.2d at 1203. Nor, as Mr. Bradford asserts, does Richey support his proposition that "Mr. Bradford's trial counsel had a duty to familiarize himself with NFPA 921 and investigate the current state of fire investigations in relation to Mr. Davie's opinions." [
While this some other court might conclude that such a requirement would be necessary "under prevailing professional norms," Wiggins, 539 U.S. at 521, this Court does not conclude that the Indiana Court of Appeals was unreasonable for reaching the contrary conclusion. "When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Harrington, 562 U.S. at 105. The Indiana Court of Appeals provided a reasonable argument that Mr. Bradford's counsel rendered adequate performance by selecting an expert who, at the time of selection, was well-qualified and utilizing techniques that appeared to be both acceptable and beneficial to Mr. Bradford's position in the case, and thus § 2254(d) prevents this Court from disturbing that conclusion. Accordingly, the Court need not assess Strickland's prejudice prong, and must deny Mr. Bradford relief on this claim.
Mr. Bradford argues that his trial counsel was ineffective for failing to impeach George Russell with a prior robbery conviction and a prior inconsistent statement. The Indiana Court of Appeals resolved this claim against Mr. Bradford, reasoning as follows:
Bradford II, 988 N.E.2d at 1201-02.
The Court will address the two bases for impeachment raised by Mr. Bradford and discussed by the Indiana Court of Appeals in turn. First, the Indiana Court of Appeals concluded that trial counsel's failure to impeach Mr. Russell with his 1986 robbery conviction did not prejudice Mr. Bradford. Mr. Bradford argues that this was an unreasonable application of Strickland because the case against him was "entirely circumstantial and not overwhelming," so the use of a prior felony conviction to impeach Mr. Bradford—whose whereabouts otherwise went unimpeached and who directly contradicted Mr. Bradford's alibi—would likely have changed the outcome of the case. [
"[T]o establish prejudice, a `defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Wiggins, 539 U.S. at 521 (quoting Strickland, 466 U.S. at 694). The Indiana Court of Appeals determined that trial counsel's failure impeach Mr. Russell with his 1986 robbery conviction did not prejudice Mr. Bradford because, among other reasons, "Russell admitted under cross-examination that Bradford had arrested him in the past, and such an admission seems more damaging to Russell's credibility than an old conviction because the arrest provided a more personal motive for Russell to lie to harm Bradford." Bradford II, 988 N.E.2d at 1202. The Court finds this basis for decision constitutes a reasonable resolution of Mr. Bradford's claim on Strickland's prejudice prong. The evidence that Mr. Russell was previously arrested by Mr. Bradford not only overlaps with the unoffered evidence that Mr. Russell was previously convicted of robbery in that both convey that Mr. Russell has a history of criminal activity, but as the Indiana Court of Appeals reasoned, Mr. Russell's previous arrest by Ms. Bradford is even more damaging to Mr. Russell's credibility because it provides "a more personal motive" for Mr. Russell to offer false testimony at Mr. Bradford's trial. Id. Thus, given that similar—and more compelling— evidence was admitted at trial, it was reasonable for the Indiana Court of Appeals to conclude that Mr. Bradford's trial counsel's failure to impeach Mr. Russell with his prior robbery conviction did not prejudice Mr. Bradford.
Second, the Indiana Court of Appeals concluded that Mr. Bradford's trial counsel did not render deficient performance by allegedly failing to adequately impeach Mr. Russell with a prior inconsistent statement that he was "cruising around" that night. Mr. Bradford failed to specifically address what about the Indiana Court of Appeals resolution of this claim was unreasonable, [see
Perhaps more important, however, is the Indiana Court of Appeals recognition that "Russell's trial testimony and the officer's deposition testimony are not necessarily contradictory, because Russell testified at trial that he had driven to his brother's house earlier in the night." Id. A comparison of Mr. Russell's trial testimony and Officer DeYoung's deposition testimony bears this out. At trial, Mr. Russell testified that he drove to his brother's house "between 8:00 and 9:00" and remained there "[a]ll night." Trial Tr. at 1803. Officer DeYoung testified in his pre-trial deposition, in relevant part, as follows:
PCR Tr., Pet's Ex. 20 at 7. Thus, Mr. Russell's testimony reveals that he drove to his brother's house between 8:00 and 9:00 p.m., while Officer DeYoung testified that Mr. Russell said he was "cruising around" at some undetermined time that night. As the Indiana Court of Appeals reasoned, these statements are not "necessarily contradictory." Bradford II, 988 N.E.2d at 1202. Officer DeYoung could not testify as to the time Mr. Russell was "cruising around." It could have been before the 8:00 to 9:00 p.m. window, or it could have referred to during that window, and thus it does not "necessarily contradict" Mr. Russell's testimony. Moreover, to the extent Officer DeYoung's statement contradicts Mr. Russell's testimony that he was not "out driving" the evening of August 1, again, as recognized by the Indiana Court of Appeals, that statement is contradicted by Mr. Russell's own testimony that he went to his brother's house that night.
In sum, the Indiana Court of Appeals reasonably concluded that Mr. Russell's testimony and his statements to Officer DeYoung were not necessarily contradictory, and thus it was not deficient performance to fail to introduce Officer DeYoung's deposition testimony regarding Mr. Russell's statement into evidence. Given that Mr. Bradford's counsel had already created the inference for the jury that Mr. Russell's had previously testified contrary to his trial testimony, and that the actual impeachment value of Officer DeYoung's testimony was tenuous as it was not necessarily contradictory, it was reasonable for the Indiana Court of Appeals to conclude that Mr. Bradford's "counsel could have reasonably decided that using the officer's deposition testimony to further impeach Russell would belabor the point and distract the jury during a protracted trial." Bradford II, 988 N.E.2d at 1202. For these reasons, Mr. Bradford is not entitled to habeas relief on this ground.
Mr. Bradford's final ineffective assistance of trial counsel claim is predicated on his trial counsel's failure to object to Jury Instruction 14. The Indiana Court of Appeals set forth the basis for this claim and addressed it on the merits as follows:
In Bradford's trial, Final Instruction Fourteen provided:
Bradford II, 988 N.E.2d at 1204-05.
Mr. Bradford argues that the Indiana Court of Appeals improperly applied Strickland's prejudice prong. Instead of directly explaining what about the Indiana Court of Appeals' application of the prejudice prong was unreasonable, Mr. Bradford essentially repeats the prejudice arguments made before the state court regarding the impeachment of Mr. Davie and Ms. Bradford.
Mr. Bradford fails to demonstrate that the Indiana Court of Appeals unreasonably applied Strickland's prejudice analysis. First, as to the impeachment of Mr. Davie with his prior deposition testimony, the Indiana Court of Appeals observed that Mr. Bradford could not have been prejudiced because, even if the correct jury instruction were given pursuant to Modesitt, Mr. Davie's deposition testimony was under oath and thus was admissible under Modesitt. See Bradford II, 988 N.E.2d at 1205. In other words, Mr. Davie's deposition testimony was admissible under either the outdated or the correct jury instruction, and thus no prejudice could flow from the improper instruction. Mr. Bradford does nothing to dispute, or even acknowledge, the Indiana Court of Appeals' reasoning in this regard. Given this, there is nothing that would allow the Court to conclude that the Indiana Court of Appeals unreasonably applied Strickland in concluding that Mr. Bradford was not prejudiced by Jury Instruction 14.
Second, as to the impeachment of Ms. Bradford, the Indiana Court of Appeals concluded that Mr. Bradford was not prejudiced because he testified that he was acting crazy in the days after Ms. Lohr's death, and thus Officer Hildenbrant's testimony that Ms. Bradford had said that Mr. Bradford has been acting "crazy" was duplicative and thus not prejudicial. Mr. Bradford does not dispute this and, more importantly, the evidence bears it out. Mr. Bradford testified during trial as follows:
Trial Tr. at 3452-53. Because Mr. Bradford was given the opportunity to address his wife's testimony and corroborated a significant part of it, this Court concludes that it was not unreasonable for the Indiana Court of Appeals to conclude that he was not prejudiced by the fact that Ms. Bradford's testimony could have been improperly used as substantive evidence by the jury.
Although Officer Hildenbrant also testified that Ms. Bradford told him that she did not know whether Mr. Bradford committed the crimes, the Indiana Court of Appeals' conclusion that this was not prejudicial "[u]nder the circumstances of all of the evidence presented in the case," Bradford II, 988 N.E.2d at 1205, was not unreasonable. The Court's review of the evidence reveals that the primary crux of this case was whether Mr. Bradford had the opportunity to kill Ms. Lohr during the early portion of his night shift and the opportunity to set fire to her house the following morning. Both parties' briefing corroborates this view of the case. Given this, it was not unreasonable for the Indiana Court of Appeals to conclude that an improper jury instruction allowing certain evidence unrelated to the two critical questions of opportunity—a portion of which, in any event, was corroborated by Mr. Bradford and thus could have no additional prejudicial impact—to be considered as substantive evidence of guilt did not prejudice Mr. Bradford.
For these reasons, Mr. Bradford is not entitled to habeas relief on this claim.
An ineffective assistance of appellate counsel claim is governed by similar legal standards as those set forth above regarding Mr. Bradford's ineffective assistance of trial counsel claim. However, there are additional requirements for an ineffective assistance of appellate counsel claim. The Court will set forth these additional requirements before addressing Mr. Bradford's two ineffective assistance of appellate counsel claims.
"Appellate lawyers are not required to present every nonfrivolous claim on behalf of their clients—such a requirement would serve to bury strong arguments in weak ones—but they are expected to `select[] the most promising issues for review.'" Shaw v. Wilson, 721 F.3d 908, 915 (7th Cir. 2013) (quoting Jones v. Barnes, 463 U.S. 745, 752-53 (1983)). "For this reason, if [the petitioner's appellate counsel] abandoned a nonfrivolous claim that was both `obvious' and `clearly stronger' than the claim that he actually presented, his performance was deficient, unless his choice had a strategic justification." Id.; see Sanders v. Cotton, 398 F.3d 572, 585 (7th Cir. 2005). "This standard is difficult to meet because the comparative strength of two claims is usually debateable." Shaw, 721 F.3d at 915. Appellate counsel's performance is assessed "from the perspective of a reasonable attorney at the time of [the] appeal, taking care to avoid the distorting effects of hindsight." Id. (citation and quotation marks omitted); see also Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).
Mr. Bradford argues that his appellate counsel rendered ineffective assistance by failing to appeal the issue of whether Firefighters Baugh and Owen were improperly permitted to give opinion testimony regarding the duration of the fire.
In denying Mr. Bradford's ineffective assistance of appellate counsel claim, the Indiana Court of Appeals reasoned as follows:
Bradford II, 988 N.E.2d at 1206.
Mr. Bradford argues that Indiana Court of Appeals' rejection of his claim was improper, but fails to address the necessary components of an ineffective assistance of counsel claim to be entitled to relief. First, he argues that the claim was obvious from the record because trial counsel strenuously objected to the firefighters' testimony. [See
Mr. Bradford argues that his appellate counsel rendered ineffective assistance by failing to raise a claim regarding the two jurors who allegedly made false statements during voir dire by stating that they had never been charged with a crime when they actually had. The respondent argues that this claim is procedurally defaulted because Mr. Bradford failed to adequately raise it in state court. Mr. Bradford does not directly address the alleged procedural default regarding this claim, but he generally relies on his purported showing of actual innocence to excuse any procedural defaults in this case. As discussed above, in the circumstances of this case the Court finds it most prudent to bypass the actual innocence exception to procedurally defaulted claims and resolve Mr. Bradford's allegedly defaulted claims on the merits. See Brown, 599 F.3d at 610.
A successful challenge to the jurors' allegedly false testimony requires the petitioner to "show that a juror failed to answer honestly a material question on voir dire, and, . . . that a correct response would have provided a valid basis for a challenge for cause." Arreola v. Coudry, 533 F.3d 601, 607 (7th Cir. 2008) (citation and quotation marks omitted). The result of a trial will not be overturned "because of a juror's mistaken, though honest response to a question." McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 555 (1984); see also State v. Dye, 784 N.E.2d 469, 473 (Ind. 2003) (applying the McDonough standard).
The respondent points the Court to affidavits by the two jurors' in question, both of which state that they believed they truthfully answered "no" to the question of whether they had been charged with the commission of a crime even though they had been arrested for drunk driving because they completed the DADS program, which removes it from their record. See Supp. R. at 399, 402. Mr. Bradford does not address this evidence, and thus the undisputed record shows that the jurors' answers were honest, even if they may have been mistaken, which precludes relief on this claim. See McDonough, 464 U.S. at 555.
More importantly, even if the resolution of the underlying claim were questionable, Mr. Bradford failed to explain why this claim was "obvious" and "clearly stronger" than the claim his appellate counsel raised. Shaw, 721 F.3d at 915. Accordingly, he failed to carry his burden that appellate counsel rendered deficient performance and is not entitled to habeas relief on this claim.
Mr. Bradford contends that the State used false evidence to impeach his expert Mr. Davie and elicited false testimony from Agent Johnson in violation of his due process rights. The Supreme Court has "made clear that deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with rudimentary demands of justice." Giglio v. United States, 405 U.S. 150, 153 (1972); see Napue v. Illinois, 360 U.S. 264, 269 (1959); see also Bland v. Hardy, 672 F.3d 445, 447 (7th Cir. 2012) ("Napue and Giglio hold that a prosecutor may not offer testimony that the prosecutor knows to be false."). "A new trial is required if the false testimony could . . . in any reasonable likelihood have affected the judgment of the jury." Giglio, 405 U.S. at 153.
The respondent contends that Mr. Bradford's prosecutorial misconduct claims are procedurally defaulted. As with Mr. Bradford's other claims that the respondent maintains are procedurally defaulted, the Court finds it prudent to not resolve the issue of procedural default and instead proceed directly to the merits of Mr. Bradford's claims. See Brown, 599 F.3d at 610. Given that the Indiana Court of Appeals also alternatively addressed these claims on the merits, the Court's review remains subject to AEDPA. The Court will address each of the alleged uses of false evidence in turn.
The State engaged in the following exchange at trial with Mr. Bradford's expert, Mr. Davie:
Trial Tr. at 3230.
Mr. Bradford maintains that the State elicited false evidence by creating the impression that Mr. Davie had stated that the fire's duration could have been only seven minutes, while Mr. Davie actually stated in his deposition that the fire could have started only seven minutes before Mr. Bradford called it in. The Indiana Court of Appeals did not address whether the State had indeed introduced a false impression of the evidence, but instead reasoned that to the extent it was, Mr. Bradford was not prejudiced: "Bradford's trial counsel rehabilitated Davie on redirect by allowing him to reiterate his opinion that the fire's duration was at least fifteen minutes, so the prosecution's use of Davie's deposition to allegedly mislead him on cross-examination into apparently agreeing that the fire was of much shorter duration did not place Bradford in grave peril." Bradford II, 988 N.E.2d at 1201 n.3.
The Indiana Court of Appeals reasonably determined that any false impression created by the State's questioning of Mr. Davie did not prejudice him because his testimony was clarified during redirect examination. Mr. Davie testified as follows during redirect:
Trial Tr. at 3254-55.
Although Mr. Bradford argues that his was not allowed during redirect to clarify or correct the misconception created by the State, [see
The State called Agent Donald Johnson, a Special Agent with the United States Treasury Department's Bureau of Alcohol, Tobacco, and Firearms, to testify regarding the fire, and his testimony was contrary to Mr. Davie's in several respects. During his redirect examination, the State elicited the following testimony from Agent Johnson:
Trial Tr. at 3836. Mr. Bradford attempted to demonstrate that Agent Johnson's testimony was false during post-conviction proceedings by introducing a newspaper article, which stated that Agent Johnson was reimbursed "$727.46 for travel and meal expenses." PCR Tr., Ex. 27 at 2. The Indiana Court of Appeals reasoned that, "in light of all of the evidence presented at trial, we cannot say that the jury's verdict was affected by the State's failure to tell the jury that it paid or intended to pay Johnson's travel and meal expenses." Bradford II, 988 N.E.2d at 1201 n.3.
Mr. Bradford argues that the Indiana Court of Appeals improperly denied this claim because whether the parties' respective fire experts were being paid for their testimony (his expert, Mr. Davie, was) was repeatedly emphasized by the State during closing arguments. In other words, Mr. Bradford maintains that the State attempted to convince the jury that Mr. Davie testified as he did because he was getting paid, while the State's fire experts were not, and Agent Johnson's allegedly false testimony that he was not getting paid or receiving private expenses bolstered the State's argument. [See
The Court does not conclude that the Indiana Court of Appeals unreasonably determined that Mr. Bradford was not prejudiced by Mr. Johnson's allegedly false testimony.
Accordingly, it was not unreasonable for the Indiana Court of Appeals to conclude that the jury's verdict was not affected by Agent Johnson's allegedly false testimony, and thus Mr. Bradford is not entitled to relief on this claim.
Mr. Bradford argues that, even if one error was not sufficiently prejudicial to warrant habeas relief, the errors taken together entitle him to relief. "Trial errors which in isolation are harmless might, when aggregated, alter the course of a trial so as to violate a petitioner's right to due process of law." Alvarez v. Boyd, 225 F.3d 820, 824 (7th Cir. 2000). "To prevent the synergistic effect of these errors from escaping review, courts attempt to determine whether the whole is greater than the sum of its parts." Id. "To demonstrate cumulative error, [the petitioner] must show that (1) at least two errors were committed during the trial, and (2) these errors denied [the petitioner] a fundamentally fair trial." United States v. Adams, 628 F.3d 407, 419 (7th Cir. 2010). "As to the second prong . . ., the Constitution entitles the petitioner to a fair trial, not a perfect one." Alvarez, 225 F.3d at 824. Therefore, relief is warranted only if the Court is "firmly convinced that but for the errors, the outcome of the trial probably would have been different." Id.; see United States v. Allen, 269 F.3d 842, 847 (7th Cir. 2001).
As to the first prong, the Court identified several errors during trial. Certain of these errors were assumed because it was more efficient to dispose of certain claims by concluding that any error did not prejudice Mr. Bradford, or because the Court assumed without deciding that certain claims were not procedurally defaulted. Nevertheless, the Court will consider those errors for the purposes of its cumulative error analysis. For the errors identified below, the Court already evaluated their prejudicial effect in detail above and incorporates by reference that analysis here. Thus, for the purposes of this analysis, the Court will only summarize the prejudicial effect of those errors here.
The Court identified the following errors:
Analysis of whether the foregoing errors denied Mr. Bradford a fundamentally fair trial "requires an examination of the entire record, paying particular attention to the nature and number of alleged errors committed; their interrelationship, if any, and their combined effect; how the trial court dealt with the errors, including the efficacy of any remedial measures; and the strength of the prosecution's case." Alvarez, 225 F.3d at 825. The Court has conducted this analysis and cannot conclude that the combined effect of the errors denied Mr. Bradford a fundamentally fair trial. The foremost reason is simply that none of the individual errors had a significant prejudicial effect. Relatedly, there is little, if any, interrelationship between the errors, and thus the prejudicial effect of the individual errors do not amplify each other such that their sum is greater than their individual parts.
The State's case against Mr. Bradford was circumstantial, but it was not so weak that the foregoing errors—which had little prejudicial effect—can be said to have denied Mr. Bradford a fundamentally fair trial. As discussed above, the Court's review of the evidence reveals that the most critical and highly disputed aspects of this case were whether Mr. Bradford had the opportunity to kill Ms. Lohr during the early portion of his night shift and the opportunity to set fire to her house the following morning. The errors identified, individually or in combination, had only a limited potential effect on the jury's evaluation of these key questions, given the mountain of evidence presented by both parties regarding them.
As stated above, "the Constitution entitles the petitioner to a fair trial, not a perfect one." Id. at 824. While his trial may not have been perfect, the Court is not "firmly convinced that but for the errors, the outcome of the trial probably would have been different." Id.
For these reasons, Mr. Bradford is not entitled to relief on this claim.
It is the "jury's prerogative" to weigh the evidence presented in a case, and "[i]n this case, the verdict reveals that the jury decided to believe the prosecution's witnesses [and evidence] over the testimony of [the defendant's]." Taylor, 448 F.3d at 951. Following the jury's decision, Mr. Bradford challenged his convictions in state court but these challenges failed, and thus a presumption of constitutional regularity attaches to his convictions. See Farmer v. Litscher, 303 F.3d 840, 845 (7th Cir. 2002) (citing Parke v. Raley, 506 U.S. 20, 29-30 (1992)). As the foregoing discussion demonstrates, he failed to carry his burden in this Court "of overcoming this presumption." Id.
This Court has carefully reviewed the state record in light of Mr. Bradford's claims and has given such consideration to those claims as the limited scope of its review in a habeas corpus proceeding permits. The claims which were properly preserved in the Indiana state courts do not warrant relief in light of the deferential standard required by the AEDPA. See Harrington, 562 U.S. at 101 ("A state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision.") (citation and quotation marks omitted). And those that the Court reviewed de novo were also insufficient to warrant habeas relief. Mr. Bradford's amended petition for writ of habeas corpus is therefore
Judgment consistent with this Entry shall now issue.
Rule 11(a) of the Rules Governing § 2254 Cases requires the district courts to "issue or deny a certificate of appealability when it enters a final order adverse to the applicant," and "[i]f the court issues a certificate, the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2)." Pursuant to § 2253(c)(2), a certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." Such a showing includes demonstrating "that reasonable jurists could debate whether . . . 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) (citation and quotation marks omitted).
The court concludes that the following claims' resolution could be debated by reasonable jurists or that they are adequate to deserve encouragement to proceed further, and therefore, this Entry shall constitute a certificate of appealability as to the following:
The Court
Mr. Bradford further argues that, had the Indiana Supreme Court set forth the elements, it would have "recognized that the State's case against Mr. Bradford was entirely circumstantial." [
