ROBERT L. MILLER, JR., District Judge.
Petitioner Tommy Borders is serving an aggregate 45-year sentence for his 2010 convictions in Clay County, Indiana, for two counts of possession of methamphetamine, one count of maintaining a common nuisance, and one count of possession of paraphernalia. He brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons explained in this Entry, Mr. Borders's petition for a writ of habeas corpus must be
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 post-conviction relief, the Indiana Court of Appeals summarized the relevant facts and procedural history as follows:
The prosecutor stated:
The prosecutor later stated:
The prosecutor later stated:
Dkt. 16-12.
On appeal from the denial of post-conviction relief, Mr. Borders argued: 1) that he was denied effective assistance of appellate counsel because appellate counsel failed to raise the issue of prosecutorial misconduct on direct appeal; and 2) that he was deprived of a procedurally fair post-conviction hearing "under the Fourteenth Amendment" when his post-conviction counsel failed to challenge the effectiveness of his trial counsel with respect to trial counsel's alleged failure to object to prosecutorial misconduct. Dkt. 16-10.
On April 5, 2016, the Indiana Court of Appeals affirmed the trial court's denial of post-conviction relief. Dkt. 16-12. On transfer to the Indiana Supreme Court, Mr. Border presented one claim: that his due process rights under the Fourteenth Amendment were violated "when post-conviction counsel failed to follow through with an amendment he assured petitioner and the trial court he was going to do to assure that a record was made and present evidence that trial counsel was ineffective." Dkt. 16-13. The Indiana Supreme Court denied transfer on June 2, 2016. Dkt. 16-4.
Mr. Border filed a petition for writ of habeas corpus with this Court on March 31, 2017. Dkt. 2.
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. Borders'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, 571 U.S. 12, 19-20 (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).
Under AEDPA, the Court reviews the last state court decision to address the merits of a prisoner's claim. See Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018). 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 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). "Under § 2254(d)(2), a decision involves an unreasonable determination of the facts if it rests upon fact-finding 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. Borders raises six issues in his petition for a writ of habeas corpus: 1) the trial court erred in overruling his motion to suppress evidence seized pursuant to the search warrant; 2) the trial court erred in admitting evidence after a traffic stop; 3) the sentence imposed was unreasonable; 4) appellate counsel was ineffective for failing to raise the issue of prosecutorial misconduct; 5) the State improperly commented about Mr. Borders's right to remain silent; and 6) that Mr. Borders was denied due process under the Fourteenth Amendment when post-conviction counsel failed to raise a claim of ineffective assistance of trial counsel that trial counsel failed to object to the alleged prosecutorial misconduct. The respondent argues that claims two through five were never presented to the Indiana Supreme Court and are procedurally defaulted. In reply, Mr. Borders abandons his claims regarding issues one through five.
"Inherent in the habeas petitioner's obligation to exhaust his state court remedies before seeking relief in habeas corpus, see 28 U.S.C. § 2254(b)(1)(A), is the duty to fairly present his federal claims to the state courts." Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). To meet this requirement, a petitioner "must raise the issue at each and every level in the state court system, including levels at which review is discretionary rather than mandatory." Id. at 1025-26. In Indiana, that means presenting his arguments in a petition to transfer to the Indiana Supreme Court. Hough v. Anderson, 272 F.3d 878, 892 (7th Cir. 2001). 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). 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 habeas petitioner who has exhausted his state court remedies without properly asserting his federal claim at each level of state court review has procedurally defaulted that claim." Lewis v. Sternes, 390 F.3d at 1026.
The respondent argues that claims two through five are procedurally defaulted because they were never presented to the Indiana Supreme Court either on direct appeal or in post-conviction proceedings. The Court will discuss claims two through five
In his habeas petition, with respect to the issues raised on direct appeal, Mr. Borders argues the trial court abused its discretion when it admitted evidence obtained following a traffic stop (claim two) and that the sentence imposed was unreasonable (claim three).
On direct appeal to the Indiana Supreme Court, the only issue Mr. Borders presented on transfer was whether the search warrant of his home was supported by probable cause. Mr. Borders didn't argue to the Indiana Supreme Court that the trial court erred in admitting the traffic stop evidence
A habeas petitioner can overcome a procedural default by showing cause for failing to properly exhaust a claim in state court and a resulting prejudice. Wainwright v. Sykes, 433 U.S. 72, 90 (1977). Cause sufficient to excuse procedural default is defined as "some objective factor external to the defense" which prevented a petitioner from pursuing his constitutional claim in state court. Murray v. Carrier, 477 U.S. 478, 492 (1986). A habeas petitioner can also overcome a procedural default by establishing that the court's refusal to consider a defaulted claim would result in a fundamental miscarriage of justice. House v. Bell, 547 U.S. 518, 536, (2006); Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Mr. Borders states in his reply that he is dropping claims one through five, Dkt. 25, p. 9, so he didn't respond to the respondent's argument that Mr. Borders procedurally defaulted these claims.
Mr. Borders's argument that the sentence imposed was unreasonable is not a basis for federal habeas corpus relief because it is a state law claim. Samuel v. Frank, 585 F.3d 566, 574 (7th Cir. 2008).
In his habeas petition, with respect to the issues raised on post-conviction, Mr. Borders argues that appellate counsel was ineffective for failing to raise the issue of prosecutorial misconduct (claim 4) and that the prosecutor improperly commented on his right to remain silent (claim 5).
On post-conviction review, the only issue Mr. Borders raised before the Indiana Supreme Court was whether he was denied due process under the Fourteenth Amendment when post-conviction counsel failed to raise a claim that trial counsel was ineffective for failing to object to alleged prosecutorial misconduct. Dkt. 29-1. In his post-conviction transfer petition, Mr. Borders didn't argue to the Indiana Supreme Court that appellate counsel was ineffective for failing to raise the issue of prosecutorial misconduct and that the prosecutor improperly commented on his right to remain silent. Because Mr. Borders didn't fairly present this claim to each and every level in the state court system, he failed to exhaust his state court remedies. At this juncture, this failure constitutes a procedural default. In his reply, Mr. Borders says he wants these grounds dropped and doesn't argue how he can overcome procedural default. As such, these grounds are procedurally defaulted and he isn't entitled to habeas relief on these grounds.
In ground one, Mr. Borders alleges that the trial court abused its discretion in overruling his motion to suppress and allowing evidence unlawfully obtained be admitted into evidence. Dkt. 2, p. 3. On direct appeal, Mr. Borders argued to the Indiana Court of Appeals that "the warrant authorizing the search of his home was not supported by probable cause and that the evidence discovered as a result of the search was inadmissible." Dkt. 16-5, p. 15; dkt. 16-8, p. 4. Because Mr. Borders is challenging the probable cause for the search warrant, the court interprets it as a claim alleging his rights were violated pursuant to the Fourth Amendment. The respondent argues that Mr. Borders's Fourth Amendment claim isn't available for federal habeas review because he received a fair and full hearing and federal habeas review is precluded by Stone v. Powell, 428 U.S. 465, 494 (1976). Dkt. 16, pp. 15-17. In his reply, Mr. Borders drops this claim, but even if he hadn't, the court couldn't address the merits.
The Indiana Court of Appeals held that there was sufficient evidence to issue the warrant: an affidavit that included officers' observations in which they detected a strong marijuana odors and other odors consistent with methamphetamine manufacturing was sufficient to support the warrant. Dkt. 16-8, p. 6. The affidavit also included evidence that officers detected marijuana odors coming from Mr. Borders during a traffic stop earlier that day, and another witness that stated she previously obtained methamphetamine from Mr. Borders. The court concluded this evidence was sufficient for the magistrate to conclude a search of Mr. Borders's home would reveal evidence of methamphetamine dealing and the search warrant was supported by sufficient probable cause. Id.
When "the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.'" Monroe v. Davis, 712 F.3d 1106, 1116 (7th Cir. 2016) (quoting Stone, 428 U.S. at 494). A full and fair hearing for purposes of Stone is "not to second-guess the state court on the merits of the petitioner's claim, but rather to assure ourselves that the state court heard the claim, looked to the right body of case law, and rendered an intellectually honest decision." Id.
Mr. Borders received multiple full and fair hearings on his Fourth Amendment claim. Mr. Borders filed a pretrial motion to suppress with the trial court. The trial court held a hearing on his motion and issued an order suppressing any statement Mr. Borders made during his custodial interrogation at the initial vehicle stop but denied the remainder of the motion. Mr. Borders also raised his Fourth Amendment claim on direct appeal to the Indiana Court of Appeals. That court reviewed Mr. Borders's claim, looked to Indiana law that cited clearly established Supreme Court precedent on Fourth Amendment claims, and rendered a thorough 9-page well-reasoned and intellectually honest decision.
Stone v. Powell therefore precludes habeas relief to Mr. Borders on his Fourth Amendment claim.
Finally, in ground six, Mr. Borders argues that that a due process violation occurred when post-conviction counsel failed to raise the issue of ineffective assistance of trial counsel. By failing to raise the issue of ineffective assistance of trial counsel during post-conviction proceedings, Mr. Borders has has procedurally defaulted this claim at this juncture. The only way to overcome or excuse the procedural default of this claim is to show that post-conviction counsel was ineffective for failing to raise ineffective assistance of trial counsel during post-conviction.
Mr. Borders filed a pro se petition for post-conviction relief, then filed filed an amended petition in which he alleged that he received ineffective assistance of appellate counsel and asserted that "[a]ppellate counsel failed to raise . . . the issue of improper argument by the prosecuting attorney." During the evidentiary hearing on the petition, Mr. Borders's post-conviction counsel asked to amend the petition for post-conviction relief to allege that trial counsel was ineffective on the same grounds that appellate counsel was ineffective. The court granted leave to amend the petition, but post-conviction counsel later filed a notice informing the court that he would not be amending the petition for postconviction relief or requesting to present any further evidence.
The post-conviction court denied Mr. Borders's petition for post-conviction relief. On appeal to the Indiana Court of Appeals from the denial of his petition for post-conviction relief, Mr. Borders argued that his post-conviction counsel's failure to raise the issue of whether he was denied the effective assistance of trial court constituted a due process violation. The Indiana Court of Appeals denied his appeal. Dkt. 16-12. In its opinion, the Indiana Court of Appeals analyzed whether post-conviction counsel was ineffective not under the Strickland standard, but rather the standard for post-conviction counsel — which is whether post-conviction "`counsel appeared and represented the petitioner in a procedurally fair setting which resulted in a judgment of the court.'" Dkt. 16-12, p. 22. Based on this standard, the court determined that Mr. Borders's post-conviction counsel introduced and the post-conviction court admitted the trial record, the appellate briefs in the direct appeal, the rehearing petition, the transfer petition, and the opinion on direct appeal. Based on this, the post-conviction appellate court concluded that Mr. Borders was not deprived of a procedurally fair post-conviction proceeding. Id., p. 23.
In his petition to transfer to the Indiana Supreme Court, Mr. Borders argued that he was denied due process under the Fourteenth Amendment when his post-conviction counsel procedurally defaulted his ineffective of trial counsel claims because he didn't amend the petition for post-conviction relief to include the argument that trial court was ineffective for the same reason appellate counsel was. More specifically, that post-conviction counsel didn't amend the petition to raise the issue of improper argument by the prosecuting attorney when the prosecution vouched for the credibility of the investigator and the state's witnesses.
To overcome procedural default, Mr. Borders argues that his post-conviction counsel was ineffective for failing to amend his petition for post-conviction relief to raise claims of ineffective assistance of trial counsel.
A freestanding claim of ineffective assistance of post-conviction counsel is not a basis of relief. Because there is no constitutional right to an attorney in state post-conviction proceedings, the ineffectiveness of state post-conviction counsel isn't a ground for relief in a proceeding arising under section 2254. Coleman v. Thompson, 501 U.S. 722, 752 (1991). Thus, to the extent Mr. Borders's argues post-conviction counsel was ineffective, this is not a free-standing basis for relief. But a claim of ineffective assistance of post-conviction counsel can be used to excuse the procedural default of a claim of ineffective assistance of trial counsel.
Our court of appeals recently held that the doctrine of Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413 (2013) "applies to Indiana procedures governing ineffective assistance of trial counsel claims." Brown v. Brown, 847 F.3d 502, reh'g en banc denied, 869 F.3d 507 (7th Cir. 2017) (cert. denied). Stated another way, a petitioner may overcome procedural default of a claim of ineffective assistance of trial counsel by demonstrating ineffective assistance of post-conviction counsel for failing to raise a substantial claim of ineffective assistance of trial counsel. Mr. Borders argues that post-conviction counsel was ineffective for not raising the issue that trial counsel was ineffective for failing to object to statements made by the prosecutor's during closing argument. Dkt. 25, p. 12, citing Trial Transcript pages 803-807.
Instead of wrestling with the complex question of whether Mr. Borders can overcome procedural default, 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. Borders's procedurally defaulted claim and resolve it on the merits. See Brown v. Watters, 599 F.3d at 610.
Mr. Borders argues trial counsel's failure to object to improper statements during closing by the prosecutor amounted to a violation of his equal protection under the Fourteenth Amendment. The requirement of due process, applicable to the states through the Fourteenth Amendment, demands fair legal procedure, including that "the jury's verdict be based on evidence received in open court, not from outside sources." Jordan v. Hepp, 831, F.3d. 837, 846 (7th Cir. 2016) (quoting Sheppard v. Maxwell, 384 U.S. 333, 351 (1966)).
Mr. Borders argues that the improperly prosecutor vouched for the credibility of the investigation and the state's witness. These are the part of the prosecutor's closing argument that Mr. Borders says was improper vouching that deprived him of a fair trial:
Tr. 803-07.
Tr. 833-35.
"The second thing the vigorous defense suggests is that Susie McDaniel was going to rush out to use meth as soon as she gave her statement. Did you hear her present any evidence of that? . . . Susie's been drug tested. She's been clean." Tr. 877. Dkt. 25, pp. 20-21.
Defense counsel did not object to these portions of the prosecutor's closing argument.
A prosecutor's personal assertion of a government witness's credibility is impermissible. Berger v. United States, 295 U.S. 78 (1935). Improper vouching occurs when a prosecutor expresses his personal opinion about the truthfulness of a witness or when he implies that facts not before the jury lend a witness credibility. See United States v. Renteria, 106 F.3d 765, 767 (7th Cir. 1997). Similarly, invoking the oath as a prosecutor to imply he would not present perjured testimony to the jury is improper. Id.
In Indiana, a prosecutor can't state his personal opinion regarding the credibility of a witness during trial, because statements of that sort amount to vouching for a witness. Thomas v. State, 965 N.E.2d 70, 77 (Ind. Ct. App. 2012). However, "a prosecutor may comment as to witness credibility if the assertions are based on reasons arising from the evidence presented at trial." Id. It is the fact-finder's role to determine the truthfulness of witnesses. Rose v. State, 846 N.E.2d 363, 369 (Ind. Ct. App. 2006).
The prosecutor's statements about law enforcement don't urge a conviction based anything other than objective evidence or the jury's independent assessment of the witnesses' credibility. In fact, the prosecutor stated that the jury had to determine whether law enforcement or the chemists gathered appropriate evidence that is persuasive to the jury. Tr. 805-06. The prosecutor didn't comment that he believed any of the witnesses were telling the truth or were credible or that the law enforcement officers or the chemist should be believed simply because they were doing their job. The prosecutor didn't assert his own credibility or that of the government to bolster the credibility of any witness.
The prosecutor said that it hadn't been shown that witness McDaniel was lying or that her testimony was any different than before. A prosecutor can argue that a witness has no reason to lie but can't express his personal opinion on the merits of the case, or the credibility of the witness. The prosecutor did not do that here. Rather, the prosecutor commented that there was no evidence that McDaniel provided prior inconsistent statements based on the evidence presented at trial, Rose v. State, 846 N.E.2d at 369, but didn't imply that the jury should believe McDaniel based on evidence that wasn't presented to it. See Berger, 295 U.S. at 88. The prosecutor simply stated there was no evidence McDaniel gave untruthful testimony. "Due process forbids a prosecutor to urge a jury to rely on evidence that is not in the record, whether that evidence is from newspaper accounts, the Internet, or the prosecutor's own mouth. It requires the jury to be left alone to do its own job, evaluating the evidence the trial judge admitted, and coming to its own independent conclusion (as opposed to one dictated by the prosecutor)." Jordan v. Hepp, 831 F.3d. at 847. The prosecutor came close to the line by discussing the impact of methamphetamine on the community, but didn't cross the line by, for example, urging the jury to send a message to the community meth dealers.
Because the prosecutor didn't make any improper remarks, there was no reason for defense counsel to object to these portions of his closing statement. Mr. Borders has failed to show that defense counsel gave deficient performance by failing to object because the alleged statement weren't improper. He is not entitled to any relief on this basis.
This court has carefully reviewed the state record in light of Mr. Borders's claims and has given such consideration to those claims as the limited scope of its review in a habeas corpus proceeding permits. Grounds one through five are procedurally defaulted. The court bypassed the difficult question of procedural default on claim six and determined that Mr. Borders isn't entitled to relief because there was no error in that the prosecutor didn't engage in any misconduct. Mr. Borders is not entitled to habeas relief, and his petition is therefore
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 Mr. Borders has failed to show that reasonable jurists would find "it debatable whether the petition states a valid claim of the denial of a constitutional right." Slack v. McDaniel, 529 U.S. 473, 484 (2000). The court therefore
