Akard v. Warden et al

Filing 21

OPINION AND ORDER: DENIES the habeas corpus petition 1 ; DENIES the motion for discovery 18 ; DECLINES to issue a certificate of appealability pursuant to Section 2254 Habeas Corpus Rule 11; and DIRECTS the clerk to enter judgment in favor of the Respondent and against the Petitioner. Signed by Judge Rudy Lozano on 2/22/2018. (Copy mailed to pro se party)(lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
JEFFREY E. AKARD,
Petitioner,
v.

CAUSE NO.: 2:17-CV-123

WARDEN,
Respondent.
OPINION & ORDER
Jeffrey E. Akard, a prisoner without a lawyer, filed a habeas
corpus petition to challenge his convictions for rape, criminal
deviate conduct, criminal confinement, and battery under cause
number 79C02-810-FA-36. ECF 1. Following a jury trial, on February
11, 2009, the Tippecanoe Superior Court issued a sentence of
ninety-three years of incarceration, which the Indiana Supreme
Court later increased to ninety-four years.

For the reasons set

forth below, the Court:
(1)

DENIES the habeas corpus petition ECF 1;

(2)

DENIES the motion for discovery ECF 18;

(3)

DECLINES

to

issue

a

certificate

of

appealability

pursuant to Section 2254 Habeas Corpus Rule 11; and
(4)

DIRECTS the clerk to enter judgment in favor of the
Respondent and against the Petitioner.

BACKGROUND
In deciding this habeas petition, the Court must presume the
facts set forth by the State courts are correct unless they are
rebutted

with

clear

and

convincing

evidence.

28

U.S.C.

§

2254(e)(1). The Court of Appeals of Indiana summarized the evidence
presented at trial:1
In the early hours of September 9, 2006, A.A. was in
Lafayette, Indiana, and met Akard as he was walking
down the street. Because he was purportedly drunk,
Akard asked A.A. to walk him home so that he would not
be charged with public intoxication, and A.A. obliged.
After a fifteen minute walk, the two arrived at Akard’s
house at approximately 2:15 a.m., and A.A. went into
the house so that she could use the bathroom. Once
inside, Akard used a key to lock the deadbolt. The two
then sat down on the couch and started a conversation,
which included A.A. telling Akard that she was
currently homeless and without any money. The topic
eventually turned to Akard offering A.A. $150 for a
‘head job.’ A.A. agreed and proceeded to perform an
act of oral sex on Akard. During the act, Akard grabbed
A.A.’s head and forced her onto him to the point A.A.
was choking and had ‘snot coming out of [her] nose.’
Akard continued to force A.A.’s head back and forth
until he lifted her up and told her that ‘today was
the day [she] was gonna die.’
A.A. repeatedly begged Akard to let her leave, but
Akard ordered her to the bathroom and proceeded to cut
A.A.’s t-shirt and bra in order to remove them. Akard
then ordered A.A. to remove her pants and go into the
bedroom. Despite A.A.’s repeated pleas to leave, Akard
told her that she could not leave. Once in the bedroom,
Akard said that he had ‘a toy’ for A.A., reached under
the bed, and then used a taser gun on A.A.’s back and

1

Akard disputes the facts as set forth by the State courts, citing
medical evidence and photographs. However, this evidence, discussed more
fully below, does not rise to the level of clear and convincing evidence.

2

heart area approximately five times. When A.A. began
to scream, Akard reached under the bed for his handgun
and held it to A.A.’s head.
A.A. then sat on the bed while Akard handcuffed her
arms behind her back. Akard then forced A.A. to take
some pills with Mountain Dew. During the process, A.A.
spilled some of the Mountain Dew, causing Akard to
become upset and hit A.A. in the head.
Akard then ordered A.A. back to the bathroom where
Akard undressed and they both entered the shower. While
in the shower, Akard made A.A. kneel so that he could
urinate in her mouth. A.A. spit out the urine, which
upset Akard. Akard then hit A.A., knocking her
unconscious.
When she awoke, she was lying face down on Akard’s bed
and now had zip ties restraining her ankles. As A.A.
faded in and out of consciousness, Akard raped her
vaginally and anally a total of four to five times. To
prevent A.A. from screaming, Akard placed a golf ball
in A.A.’s toothless mouth and then used a sock as a
gag. While A.A. was bound, Akard used sex toys on both
of them. At one point, A.A. woke up and noticed
stockings on her legs that were not hers. During
another instance of consciousness, A.A. realized that
she had a metal, link chain tied around her and tied
to the door, so that the chain would rattle every time
she moved.
At another point when A.A. was only bound in handcuffs,
Akard called out to A.A. from the living room, telling
her to come to that room. Akard then showed A.A. ‘a
lot’ of pictures of child pornography on his laptop.
During this display, Akard said that he had ‘done
plenty’ of children.
When A.A. finally woke the next day, she was in the
bed and the chain was still around her. Pretending not
to remember what happened, she commented to Akard, ‘we
must have had some really kinky sex last night[.]’
A.A. then indicated that she needed to leave
immediately because she had to pick up her children.
Akard responded, ‘Are we okay?’ A.A. indicated
affirmatively. Akard then told A.A. that she had to

3

take a shower before she left, which she did but
purposely did not use soap.
Immediately after leaving Akard’s apartment on the
afternoon of September 9, 2006, A.A. ran to a
neighboring house to obtain assistance. After A.A.
told the neighbor that she was held against her will
for nineteen hours and displayed her wounds, the
neighbor called 9–1–1. After police responded and
initially interviewed A.A., she was taken to the
hospital where samples were collected for a rape kit
analysis and pictures of A.A.’s wounds were taken.
The police obtained a search warrant for Akard’s
apartment based on A.A.’s statement and executed it
early on the morning of September 10, 2006. When the
officers breached the door, Akard was sitting on his
couch, viewing pornography on his computer while
masturbating. Items recovered from the apartment
search included a set of keys on a key chain including
a handcuff key, zip ties, a woman’s Old Navy shirt
that had been cut as well as a bra, a pair of handcuffs,
a metal link chain, two golf balls and ‘fairly
stretchable’ socks, a stun gun, bottles of Tylenol,
Tylenol PM, Doxycycline, Alprazolam and Hydrocodone,
A.A.’s
identification
card
and
cell
phone,
a
collection of sex toys, a BB gun, an air rifle, a
handgun, purple and orange rope that was tied to the
bed frame, blue stockings, and a laptop containing
approximately 2900 pornographic pictures.
Akard v. State, 924 N.E.2d 202, 205-06 (Ind. Ct. App. 2010); ECF
14-6 at 2-5.
Akard argues that he is entitled to habeas corpus relief,
alleging that he was denied effective assistance of counsel when
trial counsel: (1) failed to obtain medical records and failed to
call medical witnesses at trial; (2) failed to object to child
pornography evidence; (3) failed to impeach the victim on crossexamination,

which

also

violated

4

his

Sixth

Amendment

right

confront his accuser; (4) failed to discuss a guilty plea; and (5)
failed to challenge the sentence. He also asserts that he is
actually innocent.

PROCEDURAL DEFAULT
Before considering the merits of a habeas petition, the Court
must

ensure

that

the

petitioner

has

exhausted

all

available

remedies in state court. 28 U.S.C. § 2254(b)(1)(A); Lewis v.
Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). To avoid procedural
default, a habeas petitioner must fully and fairly present his
federal claims to the state courts. Boyko v. Parke, 259 F.3d 781,
788

(7th

Cir.

hypertechnical

2001).

Fair

congruence

presentment
between

the

“does

not

claims

require

made

in

a

the

federal and state courts; it merely requires that the factual and
legal substance remain the same.” Anderson v. Brevik, 471 F.3d
811, 814–15 (7th Cir. 2006) (citing Boyko, 259 F.3d at 788). It
does, however, require “the petitioner to assert his federal claim
through one complete round of state-court review, either on direct
appeal

of

Lewis,

390

his

conviction

F.3d

at

1025

or

in

post-conviction

(internal

quotations

proceedings.”
and

citations

omitted). “This means that the 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. “A
habeas petitioner who has exhausted his state court remedies

5

without properly asserting his federal claim at each level of state
court review has procedurally defaulted that claim.” Id.
Akard presented his ineffective assistance claims to the
Court of Appeals of Indiana (ECF 14-15 at 9-22) but abandoned the
claims relating to impeachment, a guilty plea, and sentencing when
he petitioned for transfer to the Indiana Supreme Court. ECF 1420. Akard argues that he presented these claims to the Indiana
Supreme Court because that court had access to the Court of Appeals
of Indiana filings. However, the petition to transfer contains no
reference to these claims and provided the Indiana Supreme Court
with no indication that Akard wanted that court to consider them.
Because he did not fully and fairly present these claims through
one full round of state court review, they are procedurally
defaulted.
By contrast, Akard does refer his ineffective assistance
claims regarding medical evidence and child pornography evidence
in his petition to transfer to the Indiana Supreme Court.2 ECF 1415 at 14-19; ECF 14-20 at 9, 13. Respondent argues that Akard did
not fairly present these claims to the Indiana Supreme Court
because they are nested within another claim. Claims nested within
a claim must “be either (1) framed so it could stand on its own,

2 Akard listed two questions in the “Questions Presented on Transfer”
section of his petition to the Indiana Supreme Court on appeal during his
post-conviction proceedings, but he raises neither of them before this Court.
ECF 20-14 at 3.

6

were it presented in a different section of the post-conviction
petition or (2) supported by very substantial analysis throughout
the petition.” McDowell v. Lemke, 737 F.3d 476, 482 (7th Cir.
2013). Here, because Akard at least mentioned these two claims in
the petition to transfer, the Court will assume without deciding
that Akard fairly presented these claims to the Indiana Supreme
Court and will consider them on the merits.3
Akard

argues

that

Indiana

Rules

of

Appellate

Procedure

forced him to abandon some of his claims in the petition for
transfer due to page and word limits, which the Court construes as
a cause-and-prejudice argument. A habeas petitioner can overcome
a procedural default by showing both cause for failing to abide by
state procedural rules and a resulting prejudice from that failure.
Wainwright v. Sykes, 433 U.S. 72, 90 (1977); Wrinkles v. Buss, 537
F.3d 804, 812 (7th Cir. 2008), cert. denied, 129 S. Ct. 2382
(2009). 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 petition to transfer
filed with the Indiana Supreme Court may only contain either ten
pages

or

4,200

words.

Ind.

R.

3

App.

44.

Akard

suggests

that

Notably, federal courts have the discretion to consider claims for
habeas relief under certain circumstances even if such claims are
procedurally barred. 28 U.S.C. § 2254(b)(2).

7

presenting his ineffective assistance of counsel claims within
these constraints would have been impossible. However, Akard was
able to articulate these claims in just four pages in his petition
for post-conviction relief. PCR Appeal App. 17-21. Additionally,
the Indiana Appellate Rule 34 allows litigants to file motions for
leave to file petitions in excess of the page and word limits,
which

Akard

did

not

do.4

ECF

14-14.

In

sum,

Akard

has

not

demonstrated that the cause-and-prejudice exception applies to his
claims.
Akard also asserts a claim of actual innocence, but it is
unclear as to whether he asserts it as a freestanding claim or as
an excuse to procedural bar. Because actual innocence is not a
recognized

basis

for

habeas

relief,

the

Court

construes

the

assertion of actual innocence as an excuse to procedural bar. See
Herrera

v.

Collins,

Christianson,

855

506

F.3d

U.S.

757,

390,

764

404–05

(7th

Cir.

(1993);
2017).

Tabb
A

v.

habeas

petitioner can also overcome a procedural default by establishing
that a 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). To meet this exception, the petitioner must
establish that “a constitutional violation has resulted in the

4

Moreover, Akard expressly informed the Indiana Supreme Court that he
had access to the Indiana Rules of Appellate Procedure when he filed his
petition to transfer. ECF 14-20 at 6.

8

conviction of one who is actually innocent of the crime.” Schlup
v. Delo, 513 U.S. 298, 324 (1995). “[P]risoners asserting innocence
as a gateway to defaulted claims must establish that, in light of
new evidence, it is more likely than not that no reasonable juror
would have found petitioner guilty beyond a reasonable doubt.”
House v. Bell, 547 U.S. 518, 536–37 (2006). In this context, a
court may consider evidence only if it is reliable and was not
presented at trial. Gladney v. Pollard, 799 F.3d 889, 898 (7th
Cir. 2015).
As new evidence, Akard lists: (1) a photograph of a window
from the inside of his apartment bathroom; (2) medical reports
from

the

initial

medical

examination

of

the

victim

and

the

testimony of EMTs Phil Bushman and Cole Gilbert and Dr. Natalie
Schwartz related to those medical reports; and (3) photographs of
the victim’s elbow. The record shows that the medical reports from
the initial medical examination of the victim and the testimony of
Kathleen Smith, the nurse who examined the victim, were admitted
at trial. Trial Tr. 181-204. Though Bushman, Gilbert, and Dr.
Schwartz did not testify at trial, Akard does not argue that their
testimony would have added any exculpatory facts not included in
the medical reports. Additionally, photographs of both of the
victim’s elbows were also admitted at trial.

Id.

at 122-23.

Therefore, the medical evidence listed by Akard and the photograph
of the victim’s elbow do not constitute new evidence.

9

By contrast, the photograph of a window from the inside of
Akard’s bathroom does constitute new evidence. Akard argues that
such

a

photograph

would

have

shown

that

the

victim

had

an

opportunity to leave his apartment and that she was not confined.
The Court must consider whether this new evidence would have
affected the outcome at trial. Notably, an exterior photograph of
the bathroom window was admitted at trial, and Akard testified as
follows:
Trial Counsel: Defendant’s Exhibit D and tell the jury
what’s depicted in that photograph.
Akard: That’s the back side of the house where I live
and it’s the portion which would be my apartment.
Trial Counsel: Okay. And is there a window depicted
there?
Akard: Yes.
Trial Counsel: From that view. And from---that window
enters into where?
Akard: Into the bathroom.
Trial Counsel: Okay. So there’s a bathroom window and a
rear exit to your apartment.
Akard: Yes.
Trial Counsel: Okay. Move to offer Defendant’s Exhibit
D.
The Court: Any objection?
Prosecution: No.
The Court: Admitted.

10

Trial Counsel: Now, you’ve described a kind of locking
device that was on your front door. The door was leading
from your kitchen back entrance, what kind of locking
device, if any, was on that?
Akard: A very inadequate lock. It’s just one you just
flip with your finger. You can’t even use a key from the
outside. It takes no key.
Trial Counsel: Okay. At any time throughout the period
of time that you were with [the victim] did you ever
make a demand to leave?
Akard: No.
Trial Counsel: At any time did you ever hold her against
her will?
Akard: No.
Trial Counsel: Was there a significant amount of time
after the sexual encounter had been completed---was she
free to go and physically able to leave your apartment?
Akard: Yes.
Id. at 477-78.
Additionally,

the

victim

herself

admitted

that

it

was

possible that she could have left through a window:
Prosecution: Okay. Was there any way for you to get out
of the house without him unlocking the door?
Victim: No way---no way, unless I used the window.
Id. at 103-04.
Considering this testimony, the jury was already aware of the
possibility that the victim could have left the apartment through
a window. The Court has considered this new evidence as well as
the entirety of the prosecution’s case, including the victim’s

11

testimony, the medical evidence, and the results of the search
warrant. Based on the foregoing, this Court cannot conclude that
no

reasonable

juror

would

have

found

Akard

guilty

beyond

a

reasonable doubt even if the photograph described by Akard was
admitted into evidence. Akard thus cannot overcome procedural
default.

LEGAL STANDARDS
A.

Habeas Corpus

“Federal habeas review . . . exists as a guard against extreme
malfunctions

in

the

state

criminal

justice

systems,

not

a

substitute for ordinary error correction through appeal.” Woods v.
Donald, 135 S.Ct. 1372, 1376 (2015) (quotations and citation
omitted).
An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a
State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
[This] standard is intentionally difficult to meet. We
have explained that clearly established Federal law for
purposes of §2254(d)(1) includes only the holdings, as
opposed to the dicta, of this Court’s decisions. And an

12

unreasonable application of those holdings must be
objectively unreasonable, not merely wrong; even clear
error will not suffice. To satisfy this high bar, a
habeas petitioner is required to show that the state
court’s ruling on the claim being presented in federal
court was so lacking in justification that there was an
error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.
Woods, 135 S. Ct. at 1376 (quotation marks and citations omitted).
Criminal defendants are entitled to a fair trial but not a perfect
one. Rose v. Clark, 478 U.S. 570, 579 (1986). To warrant relief,
a state court’s decision must be more than incorrect or erroneous;
it must be objectively unreasonable. Wiggins v. Smith, 539 U.S.
510, 520 (2003). “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.”
Harrington v. Richter, 562 U.S. 86, 101 (2011) (quotation marks
omitted).
B.

Ineffective Assistance of Counsel

To prevail on an ineffective assistance of counsel claim in
the State courts, a petitioner must show that counsel’s performance
was deficient and that the deficient performance prejudiced him.
Strickland v. Washington, 466 U.S. 668 (1984). There is “a strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must
overcome

the

presumption

that,

under

the

circumstances,

the

challenged action might be considered sound trial strategy.” Id.

13

at 689. The test for prejudice is whether there was a reasonable
probability that “but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694.
A reasonable probability is a probability “sufficient to undermine
confidence in the outcome.” Id. at 693. In assessing prejudice
under Strickland “[t]he likelihood of a different result must be
substantial, not just conceivable.” Harrington v. Richter, 562
U.S. 86, 112 (2011). However, “[o]n habeas review, [the] inquiry
is now whether the state court unreasonably applied Strickland.”
McNary v. Lemke, 708 F.3d 905, 914 (7th Cir. 2013). “Given this
high standard, even ‘egregious’ failures of counsel do not always
warrant relief.” Id.

ANALYSIS
A. Failure to Introduce Medical Evidence
Akard

claims

unreasonable
investigate

that

the

determination
the

medical

State
that

reports

court

trial
and

made

an

counsel’s

failure

to

objectively
failure
call

to

medical

witnesses did not constitute deficient performance. At the postconviction relief stage, Akard argued that trial counsel failed to
obtain rape examination report and failed to call the medical
providers who saw the victim immediately after she left Akard’s
apartment, including EMTs Phil Bushman and Cole Gilbert and Dr.
Natalie Schwartz. ECF 14-15 at 14-17. He further argued that

14

calling these witnesses would have allowed him to prevail at trial.
Id.
On appeal at the post-conviction relief stage, Akard alleged
that his trial counsel had failed to investigate on numerous
occasions and failed to call several witnesses. ECF 14-15 at 922. However, the Court of Appeals of Indiana aggregated these
allegations into a single claim that trial counsel failed to
prepare for trial when it issued the opinion. ECF 14-18 at 22-25.
The appellate court found that trial counsel was not deficient in
preparing for trial, noting trial counsel’s attestation that he
had performed a thorough investigation and zealously defended the
case. Id. at 23. The appellate court further found that Akard
pointed to no evidence that would have changed the outcome of the
trial had trial counsel presented it. Id. at 25.
Review of the trial record reveals that the prosecution
presented several witnesses, including the victim and the police
officers who searched his apartment and computer equipment. Trial
Tr. 60-124, 204-61, 281-97, 327-41. Akard testified at trial, and
the defense also presented Akard’s friend as a witness, who
testified regarding his brief visit to Akard apartment on the night
of the incident. Id. at 378-88, 407-82.
The prosecution also presented Kathleen Smith, a nurse, who
testified regarding her medical examination of the victim. Id. at
181-93. During her testimony, the victim’s medical file, which

15

included Smith’s report as well as the reports prepared by Dr.
Schwartz and the EMTs, was admitted into evidence. Id. at 189;
Trial Ex. 42. Smith’s testimony, which suggests that the additional
medical testimony described by Akard, would have been cumulative,
is as follows:
Prosecution: And describe---we’ve already seen pictures
that were taken by the officers there at the emergency
room. Describe to us what you physically saw as far as
injuries.
Smith: As near as I can remember because it was two and
a half years ago, it looked like there was a scratch on
her right arm here. Also the scratches on her right
breast area. It looked like on her right wrist there was
a one centimeter, it’s just fairly small, in a
(inaudible) area that--The Court: ---excuse me. Why don’t you use this as a
pointer. I think it will be easier.
Smith: And this looked like a cir---a circular reddened
area. Down here also was a reddened area that was
circular and it was a three and a half centimeters above
her ankle. There was another half a centimeter reddened
over on this side. There were several areas on her back
which were kind of in the shape of oval rings and two
small areas, also, these were all reddened areas and
abrasion on her left elbow. And then she had two small
abrasions on her left eyebrow.
Prosecutor: Thank you. Did you find these injuries
consistent with the medical history she gave you that
brought her to the hospital?
Smith: Yes.
Prosecutor: Okay. Also I believe part of your
examination is you would also do a diagram of the genital
area.
Smith: Yes.

16

Prosecutor: And during your examination did you find any
injuries or trauma to this area?
Smith: There was no bruising or abrasions or redness to
all the areas. There were no lacerations noted. She did,
in her vaginal (inaudible) did have a whitish colored
discharge and because of her age and the fact that she
has had children, her hymen was not intact and not
visible. And there was some redness noted at the
posterior fourchette which is--Prosecutor: ---that was going to be my next question.
Where is the posterior fourchette?
Smith: This area right in here.
Prosecutor: And based on your training and experience,
is redness there, would that be consistent with nonconsensual?
Smith: It could be---the redness there could be from any
number of things and usually it’s caused by some kind of
rubbing.
Prosecutor: Okay. And the fact that you did not find any
lacerations or bruising in this area, do you find that
unusual or inconsistent given her history?
Smith: No, we don’t. If you think about this area of the
body on a female it’s a pliable, it’s a stretchable area
of the female anatomy and it’s also---it accommodates
child birth so it has to be, you know, pliable and
stretching and frequently we don’t find any trauma to
it.
Prosecutor: Even with cases of sexual assault?
Smith: Correct.
* * *
Trial Counsel: All right. I want to refer then to the
exhibit which is of the vaginal area. You made several
observations that you recorded on that page, did you
not?
Smith: Yes.

17

Trial Counsel: Okay. And under the (inaudible) you found
no bruising, abrasion, or redness, is that correct?
Smith: I just have to find the page, I’m sorry.
Trial Counsel: That’s all right.
Smith: Correct.
Trial Counsel: Okay. And the labia minora, no bruising,
abrasion, or redness.
Smith: Correct.
Trial Counsel: And on the posterior
bruising, abrasion, or redness.

fourchette,

no

Smith: The arrow going up means increased redness.
Trial Counsel: Okay. Saw some redness in that.
Smith: Right.
Trial Counsel: The urethra, no redness, no bruising, no
laceration, correct?
Smith: Correct.
Trial Counsel: And on the hymen, that was not visible.
Smith: Correct.
Trial Counsel: The vagina, whitish colored discharge,
were you able to determine what that was, what it
appeared to be?
Smith: No.
Trial Counsel: Okay. Was that collected as part of the
rape kit?
Smith: Yeah, it would have gone into the---when we did
the vaginal wash.
Trial Counsel: All right. Thank you. And on the cervix
it was reddened somewhat but no abrasion.

18

Smith: Correct.
Trial Counsel: Okay.
lacerations noted.

And

the

perineum

no

bruising,

Smith: Correct.
Trial Counsel: Okay. Now you also did a rectal exam, did
you not?
Smith: We do a rectal smear, but we don’t---I mean we do
a visual rectal exam.
Trial Counsel: Okay.
Smith: But we do not do a physical exam.
Trial Counsel: Do you record what your observations are
with regard to the rectal exam?
Smith: Yes.
Trial Counsel: Okay. And apparently I’m not able to find
that exactly in your report. Could you tell me---find it
or if you recall, tell me what your observations were?
Smith: If I remember correctly, there was no tearing or
redness or anything. Usually if there is, we either take
a picture or it’s documented.
Trial Counsel: Okay. So is it fair to say that there was
nothing that appeared to you visually as being out of
the ordinary with regard to her anal cavity.
Smith: Correct.
* * *
Trial Counsel: Okay. Did you note
swelling about her face or head?

any

bruising

or

Smith: I think the only injury I noted was the abrasion
on the eyebrow.
Trial Counsel: And you listed that
centimeters, which is pretty small.

19

as

being

two

Smith: Yeah.
Trial Tr. 190-98.
After reviewing the trial record, the Court cannot find that
the appellate court’s determination regarding trial counsel’s
investigation and trial preparation was objectively unreasonable.
Akard argues that the medical reports and testimony of EMTs Bushman
and Gilbert and Dr. Schwartz would have revealed that the victim
had mobile wrists and ankles, no head trauma, or injuries to the
mouth,

genital

area,

or

rectal

area,

no

side

effects

from

medication, red and swollen stun gun marks,5 and drug-seeking
behavior. However, Kathleen Smith testified regarding the limited
nature of the victim’s injuries. Additionally, the medical reports
from Bushman, Gilbert, and Dr. Schwartz, which include the medical
information

detailed

in

Akard’s

argument,

were

admitted

into

evidence and were given to the jury during deliberations. Trial
Tr. 542. Though trial counsel did not call Bushman, Gilbert, or
Dr. Schwartz as witnesses, Akard has not shown that their testimony
would have produced any additional exculpatory value. Thus this
Court

cannot

find

that

the

appellate

court’s

determination

regarding trial counsel’s performance was unreasonable.

5

Akard does not contest that he used a stun gun on the victim and
asserts that evidence of red and swollen stun gun marks would have made his
version of the events more credible.

20

Moreover,

the

Court

has

also

considered

the

evidence

presented by the prosecution, including testimony from the victim
and police officers, the medical evidence regarding the victim’s
injuries, and the evidence found at Akard’s apartment. Based on
the evidence presented at trial, this Court cannot find that the
appellate court’s determination there is no reasonable possibility
that Bushman, Gilbert, or Dr. Schwartz’s testimony would have
changed the outcome of the trial was unreasonable. Therefore,
Akard’s claim that trial counsel failed to investigate medical
reports and failed to call medical witnesses is not a basis for
habeas relief.
B.

Failure to Object to Child Pornography Evidence
Akard

claims

that

the

State

court

made

an

objectively

unreasonable determination that trial counsel’s failure to object
to

child

pornography

evidence

did

not

constitute

ineffective

assistance of counsel. He argues that, with respect to the child
pornography evidence admitted at trial, trial counsel should have
filed a motion in limine, objection, or requested a curative
instruction. He further argues that the inflammatory evidence had
an undue influence on the jury.
At trial, the prosecution argued that Akard confined the
victim with the purpose of reenacting scenes from his collection
of child pornography. Detective Paul Huff testified as follows:

21

Prosecutor: Okay. Let me just get right to the heart of
it then. On the laptop some child pornography was found
on there.
Huff: That’s correct.
Prosecutor: And [the victim] had described some very
specific photographs that she saw when she was in the
defendant’s apartment.
Huff: Yes, she did.
Prosecutor: Are you aware of what or were you made aware
of what [the victim] says he---the defendant did to her
as far as the actual physical acts?
Huff: Yes, ma’am.
Prosecutor: Okay. And as part of your examination did
you look through the images on the defendant’s laptop
and find any images that corresponded to the acts that
were described by [the victim].
Huff: I found several images that were similar to what--Trial Counsel: ---Your Honor, I believe that question
can be answered yes or no.
The Court: Yes, you can answer that yes or no.
Huff: Yes.
Prosecutor: My next question is describe, based on what
you know [the victim] says was done to her, and you found
those
corresponding
ones,
just
describe
what
corresponded to what she described was done to her.
Trial Counsel: To which I’ll object, Your Honor, on the
basis of relevancy.
The Court: Overruled. You can answer.
Huff: As it pertains to the pictures of children I didn’t
spend much time on the adult pornography, but as far as
the children I found pictures of children that were
bound, tied to the bed, had ball gags in their mouth.

22

Pictures with children who had been basically tied up
and gagged.
Trial Counsel: We’re going to need a sidebar, Your Honor.
The Court: Okay.
* * *
The Court: We are in the sidebar room. Counsel.
Trial Counsel: I presume you’re going to make an offer
of this.
Prosecutor: Yes. Good anticipation, yes.
Trial Counsel: You need to make the offer before I can
object.
Prosecutor: Ok, okay. Judge, Detective Huff went through
thousands and thousands of images and found images of
children in exactly the same situations that [the
victim] described. These are---let me see how many, two,
four, six, eight, ten, twelve, fourteen, sixteen,
seventeen, eighteen, nineteen---twenty-one and this is
out of a sampling. There are many, many more similar
pictures and he just printed out a representative
sampling.
Trial Counsel: Can I have the numbers?
Prosecution: I did the whole envelope as one only to
keep them in an envelope.
Trial Counsel: And that is number…?
Prosecutor: One Five Four. And this is the picture we’ve
already introduced as---The Court: ---okay. I’ve examined the photos now.
Trial Counsel: Judge, the basis of my objection to
Exhibit One Fifty-One as a group.
Prosecutor: Four. One Five Four.

23

Trial Counsel: Oh I’m sorry, One Five Four is, number
one, the prejudicial value far outweighs any probative
value that these exhibits might have. My guess is, but
I don’t know, that there may be---there may have been
photographs of similar type of situations involving
adults which is far less prejudicial. I don’t think it
necessarily leads to the conclusion that it proves what
may or may not have been done to [the victim] based on
what photographs were contained on a computer and
there’s no indication that these photographs, in fact,
were viewed by [the victim]. So it may have been some
basic relevance, but in this case this is purely offered
to inflame the passions of the jury and I think unfairly
prejudices the defendant in this case.
The Court: Response.
Prosecution: [The victim] testified as to her sexual
practices that do not include in any way shape or form,
binding, gagging, being tied up, being handcuffed, and
that’s what is being shown in these pictures, which shows
it was the defendant’s idea to commit these types of
acts and therefore she would be less likely to agree to
these types of acts. With consent being an issue.
The Court:
prejudice.

Okay.

That’s

relevancy.

Now

address

the

Prosecution: Any time you have child pornography they’re
going to be horrific pictures that nobody wants to look
at, but they came from the defendant. The defendant is
the source of those pictures and he’s the one that
performed these acts upon [the victim] and so that’s his
choice in doing this.
The Court: Do you want to respond?
Trial Counsel: Yeah, it doesn’t necessarily follow that
if one possesses photographs of this nature that that’s
indicative of the sexual practices one may engage in or
to prove that any instance of some sexual escapade
occurred in a particular way.
The Court: I don’t meant to cut you off (inaudible).
Trial Counsel: Yeah, I’m done.

24

The Court: Again, does he deny that he did what she said
he did, in terms of binding her--Trial Counsel: ---there is no denial as to binding her.
The Court: Or anal, vaginal.
Trial Counsel: There is no denial as to vaginal sex.
The Court: Anal.
Trial Counsel: There is a denial as to anal sex.
The Court: I’m going to overrule the objection. My--the thing that is of---that links the children to the
adults is the shaving and that, you know, all of these
are pictures of people of shaved vaginal areas or no
vaginal hair and the fact that there was that preparation
and the fact that there is children’s clothing around
and possibly put on her suggests to me a role playing in
which she became a little girl, whether intentional or
not, I don’t know, but, again, the fact that he denies
doing some of the things she said he does this is
probative that those things occurred and so I think the
probative value to that extent would outweigh the
prejudicial value if the jury were to accept it. And I
think the jury----considering that there is a denial
that certain acts occurred that are suggested by these
pictures, the fact that she’s---this evidence that she
was prepared to resemble the people in the pictures makes
the---makes me conclude that the prejudice that might
exist otherwise does not outweigh the probative value.
* * *
The Court: The objection is overruled and Exhibit One
Fifty-Four is admitted.
Trial Tr. 330-35.
On appeal at the post-conviction relief stage, Akard claimed
that his trial counsel was ineffective for failing to prevent the
admission of the child pornography evidence at trial. ECF 14-15 at
12-14. The appellate court referred to the direct appeal decision

25

and found that Akard was precluded from reasserting his evidentiary
claim as an ineffective assistance of counsel claim. ECF 14-18 at
10-11. On direct appeal, the Indiana Court of Appeals affirmed the
trial court’s ruling on the objection to the child pornography
evidence, noting that the evidence was probative of Akard’s plans
for the victim. ECF 14-6 at 6-7.
After reviewing the record, the Court cannot find that the
appellate court’s determination regarding trial counsel’s failure
to

prevent

objectively
strongly

the

admission

of

unreasonable.

objected

prosecution’s

to

offer

To

this
of

child
start,

pornography
trial

evidence

evidence

and

evidence

counsel,

after

in

fact,

anticipating

requesting

a

was

the

sidebar

conference. Significantly, there is nothing to suggest that the
trial court would have ruled differently if the objection was
presented as a motion in limine or a request for a curative
instruction. Moreover, even if trial counsel did not object, the
State courts ultimately found the evidence to be admissible. On
habeas review, federal courts may “not second-guess the state
court’s

determination

that

the

testimony

was

admissible,

and

therefore the failure to object cannot be considered deficient.”
Sennholz v. Strahota, 2018 WL 672268, at *3 (7th Cir. 2018).
Likewise, “counsel cannot be considered ineffective for failing to
make an objection to the introduction of evidence that was properly
admitted.” United States v. Neeley, 189 F.3d 670, 684 (7th Cir.

26

1999). Because trial counsel objected to the child pornography
evidence and because the State courts found the evidence to be
admissible, Akard’s claim that trial counsel failed to object to
child pornography evidence is not a basis for habeas relief.

MOTION FOR DISCOVERY
Akard moves for discovery under Habeas Corpus Rule 6, which
states, “A party shall be entitled to invoke the processes of
discovery available under the Federal Rules of Civil Procedure if,
and to the extent that, the judge in the exercise of his discretion
and for good cause shown grants leave to do so, but not otherwise.”
“A habeas petitioner, unlike the usual civil litigant in federal
court, is not entitled to discovery as a matter of ordinary
course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997).
Akard requests the rape kit results and a sexual assault nurse
report taken after the victim reported a rape against another
individual, two pornographic images from his laptop computer, a
transcript of the victim’s 911 call, and documentation of the size
of his genitals, each for the purpose of discrediting the victim’s
testimony. However, these materials are not relevant to any of his
properly exhausted claims nor did Akard list these materials as

27

new evidence for his actual innocence claim.6 These requests are
denied.
Akard also requests the photographs taken by police officers
of his apartment and of the victim. These photographs may relate
to his claim of actual innocence, but they are not necessary for
this

Court

to

resolve

this

claim.

Finally,

Akard

requests

depositions from Dr. Natalie Schwartz, EMT Phil Bushman, EMT Cole
Gilbert, and the jurors from his trial. Though such testimony may
be relevant to Akard’s ineffective assistance claims, this Court
is required to assess this claim based on “the record that was
before [the] state court.” Cullen v. Pinholster, 563 U.S. 170, 185
(2011). Thus, even if this additional testimony was obtained, this
Court could not grant habeas relief based on that testimony.
Therefore, this request is denied.

CERTIFICATE OF APPEALIBILITY
Pursuant to Section 2254 Habeas Corpus Rule 11, the Court
must grant or deny a certificate of appealability. To obtain a
certificate

of

appealability

under

28

U.S.C.

§

2253(c),

the

petitioner must make a substantial showing of the denial of a
constitutional right by establishing “that reasonable jurists

6

Moreover, even if Akard had listed these items as new evidence, these
items as described would not have convinced this court that no reasonable
juror could have found him guilty beyond a reasonable doubt.

28

could debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues
presented

were

adequate

to

deserve

encouragement

to

proceed

further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). For the
reasons explained in this opinion for denying habeas corpus relief,
there is no basis for encouraging Akard to proceed further. For
the same reasons, he may not appeal in forma pauperis because an
appeal could not be taken in good faith.

CONCLUSION
For the reasons set forth above, the Court:
(1)

DENIES the habeas corpus petition ECF 1;

(2)

DENIES the motion for discovery ECF 18;

(3)

DECLINES

to

issue

a

certificate

of

appealability

pursuant to Section 2254 Habeas Corpus Rule 11; and
(4)

DIRECTS the clerk to enter judgment in favor of the
Respondent and against the Petitioner.

DATE: February 22, 2018

/s/RUDY LOZANO, Judge
UNITED STATES DISTRICT COURT

29