Stephenson v. Buss

Filing 90

OPINION AND ORDER denying 19 Petition for Writ of Habeas Corpus, ***Civil Case Terminated. Signed by Judge Theresa L Springmann on 9/30/2014. (rmc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
JOHN M. STEPHENSON,

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Petitioner,
v.
MARK LEVENHAGEN,
Respondent.

CAUSE NO. 3:07-CV-539-TS

DEATH PENALTY CASE

OPINION AND ORDER
This matter is before the Court on remand following the Mandate from the Seventh
Circuit Court of Appeals [ECF No. 70]. The Petitioner, John M. Stephenson, filed his First
Petition for Writ of Habeas Corpus [ECF No. 19] on February 4, 2008. The State filed its
Response [ECF No. 28] on August 8, 2008. On September 2, 2008, the Petitioner filed a Motion
for Summary Judgment [ECF No. 39]. The State filed a Response [ECF No. 44] on December 3,
2008, to which the Petitioner filed a Reply [ECF No. 45] on December 15, 2008. After a Hearing
on March 5, 2009 [ECF No. 49], the Court on July 1, 2009 filed an Opinion and Order [ECF No.
50] granting the Petitioner’s Motion for Summary Judgment, and conditionally granting the
Great Writ on Ground 1. The State appealed, and on January 24, 2011, the Seventh Circuit Court
of Appeals filed a Mandate [ECF No. 70] Reversing the judgment of this Court and Remanding
for consideration of the Petitioner’s remaining claims. The Petitioner filed a Traverse to and
Motion in Support of the Habeas Petition [ECF No. 81] on April 3, 2012, and the State filed a
Response [ECF No. 85] on July 6, 2012. The Petitioner filed a Sur-reply [ECF No. 86] in support
of his petition on September 7, 2012.

FACTUAL AND PROCEDURAL BACKGROUND
The Supreme Court of Indiana has published two opinions related to this case:
Stephenson v. State, 742 N.E. 2d 463 (Ind. 2001) (Stephenson I), and Stephenson v. State, 864
N.E. 2d 1022 (Ind. 2007) (Stephenson II). In addition, this Court issued a decision granting the
Petitioner’s motion for Summary Judgment and conditionally granting the Great Writ solely on
Ground 1, a claim of ineffective assistance of counsel arising from the failure of Petitioner’s trial
counsel to object to a stun belt being placed on the Petitioner throughout his trial and sentencing.
Stephenson v. Levenhagen, 2009 WL 1886081 (N.D. Ind., July 1, 2009), rev’d and remanded sub
nom. Stephenson v. Wilson, 619 F.3d 664 (7th Cir. 2010) (Stephenson III). The Court of Appeals
for the Seventh Circuit reversed this Court’s adjudication of Ground 1, holding that while it was
deficient performance not to object to the State’s use of a stun belt, the Petitioner was not
prejudiced at the guilt phase of his trial. Stephenson v. Wilson, 619 F.3d 664 (7th Cir. 2010)
(Stephenson IV). The Court of Appeals remanded the case to this Court with instructions to rule
on each of the Petitioner’s remaining claims. The Court of Appeals also instructed this Court to
decide whether the deficient performance of trial counsel prejudiced the Petitioner at his
sentencing hearing, at which he was sentenced to death. Id.
In its opinion denying the Petitioner’s direct appeal, the Indiana Supreme Court laid out
the facts and prior history of the case.
In the early evening on March 28, 1996, Defendant John Matthew Stephenson and his
friend, Dale Funk, drove around Warrick County. The two ended up at the residence of
Brian Mossberger, a friend of the Defendant and an acquaintance of Funk. While there,
Defendant and Funk shot off rounds of firearms with Defendant shooting his own SKS
assault rifle. Defendant and Funk left to go target shooting at a railroad crossing on Red
Brush Road located near Mossberger’s home. Afterwards, Defendant, who was still
accompanied by Funk, drove to the mobile home of Brandy Southward and her fiancé,
Troy Napier. According to Funk’s testimony, they both got out of the car and walked
around the mobile home. Defendant yelled for someone but after no one answered, Funk

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returned to the car and Defendant proceeded toward the mobile home. A few moments
later, Funk observed Defendant walk out the front door carrying a splitting maul.
Defendant and Funk returned to Mossberger’s house. Shortly thereafter, a pick-up truck
briefly pulled into Mossberger’s driveway. John “Jay” Tyler was the driver of the truck
and his wife, Kathy Tyler, and friend Brandy Southard were the passengers. Mossberger
testified that Defendant said, “There goes Jay and I’ve got to catch him.” (R. at 24,669.)
Funk testified that Defendant said, “If you’re coming, come on.” (R. at 23,969.)
The evidence as to what happened next comes solely from Funk’s testimony at trial. Funk
testified that Defendant began chasing the Tyler truck through Warrick County rural
roads. The Tyler truck stopped at the intersection of Eble and Youngblood roads and
Defendant also stopped his car. The driver-side door of the truck opened slightly, and Jay
leaned out of the truck to look at Defendant. At that point, Defendant grabbed his SKS
assault rifle, exited the car, and began firing several shots at the Tyler truck. Defendant
got back into the car, drove around a corner, stopped his car and got out. Defendant
walked towards the Tyler truck and returned a few minutes later. Defendant threatened
Funk stating, “You breathe a word of this and I’ll kill you.” (R. at 23,980-80.)
Defendant and Funk then drove directly back to Mossberger’s house. Mossberger
testified that Defendant held a knife with “red smears” on the blade, by his (Defendant’s)
face and said, “Jay, Kathy, and Brandy are no more.” (R. at 24,674-75.) Mossberger also
testified that Defendant washed his knife in the kitchen sink and that Defendant
instructed him to “do something with the SKS; get rid of it; make it gone.” (R. at 24,678.)
Funk offered similar testimony, stating that he observed Defendant “hand[] the gun to
[Mossberger]; told him to get rid of it.” (R. at 23,982.) The next day, Mossberger buried
the SKS assault rifle and ammunition in the woods.
Early Friday morning, March 29, police officers discovered the Tyler truck. Inside the
truck, the police officers found victims John “Jay” Tyler, Kathy Tyler, and Brandy
Southard dead from gunshot and stab wounds. The police officers also discovered bullet
holes in the truck and found spent shell casings scattered across the width of Youngblood
Road. Forensic testing revealed that the fatal bullets matched those fired from the SKS
assault rifle belonging to Defendant. The spent shell casings matched the ammunition
discovered in Southard and Napier’s mobile home. Other testing revealed Funk’s shoe
prints were at the mobile home, directly below the broken window. Although the knife
used in the killings was not recovered, Defendant owned a similar knife that could have
caused the victims’ injuries. On that Friday night, Defendant contacted police about the
murders and gave a written statement indicating that Brandy Southard had received a
threat from one Jimmy Knight.
On Saturday, March 30, while at home, Defendant voluntarily gave a taped statement to
Officers Michael Hildebrand and Gary Gilbert and consented to a police search. In his
taped statement, Defendant admitted to having seen and talked to the victims on March
28th at around 9:30 or 10:00 p.m. at a local Circle S store. Defendant also stated that
afterwards, he went to Mossberger’s house and then went straight home.
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On Sunday, March 31, Mossberger retrieved the SKS assault rifle and ammunition,
placing the SKS in the house and the ammunition in his garage. Police officers arrived at
Mossberger’s house to question him, and he explained the events that occurred on the day
of the killings. Mossberger also showed the officers the SKS assault rifle, but not the
ammunition. The same day, Mossberger directed the officers to Funk’s apartment in
Hatfield. Police officers questioned both Mossberger and Funk and took Funk into
custody for further questioning at the Warrick County Security Center. Funk was released
on or about April 1. On April 3, 1996, Defendant surrendered himself to the Owensboro
Police Department.
The State charged Defendant with burglary, theft, and three counts of murder of each of
Jay Tyler, Kathy Tyler, and Brandy Southard. The State also sought the death penalty,
alleging as aggravating circumstances that Defendant intentionally discharged a firearm
from a vehicle, committed at least one of the murders by lying in wait, and committed
multiple murders.
The trial commenced on September 23, 1996. On May 8, 1997, after deliberating for
approximately three hours, the jury found Defendant guilty of burglary, theft, and all
three counts of murder. On May 19, 1997, the trial court conducted the penalty phase and
the jury recommended that the death penalty be imposed based upon the multiple murder
aggravator. The trial court held a sentencing hearing on June 16, 1997. The trial court
followed the jury’s recommendation and sentenced Defendant to death.
Stephenson I at 470–72 (Ind. 2001) (brackets in original, footnotes omitted). Stephenson then
sought and was denied a Writ of Certiorari to the United States Supreme Court. Stephenson v.
Indiana, 534 U.S. 1105 (2002).
Following the conclusion of his direct appeal, Stephenson, by appointed counsel, filed a
petition for postconviction relief. (App. to Br. of Pet’r-Appellant at 144–58, Stephenson v. State,
87S00-0106-PD-285). That petition was denied, and he appealed to the Supreme Court of
Indiana. In its opinion affirming that denial, the Indiana Supreme Court reviewed and analyzed
the ineffective assistance of counsel claim that is the subject of this Opinion. After his petition
for rehearing was denied by the Indiana Supreme Court, he sought and was denied a Writ of
Certiorari to the United States Supreme Court. Stephenson v. Indiana, 552 U.S. 1314 (2008)

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(denying petition for writ of certiorari). He then initiated this habeas corpus proceeding.

STANDARD OF REVIEW
In a Habeas Corpus proceeding, “a determination of a factual issue made by a State court
shall be presumed to be correct” unless the petitioner is able to rebut that presumption “by clear
and convincing evidence.” 28 U.S.C. § 2254(e)(1). In evaluating a legal determination made by a
state court, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides that

when a habeas petitioner’s claim has been adjudicated on the merits in state-court
proceedings, a federal court may not grant relief 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). A state-court decision is contrary to this
Court’s clearly established precedents if it applies a rule that contradicts the governing
law set forth in our cases, or if it confronts a set of facts that is materially
indistinguishable from a decision of this Court but reaches a different result. 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. 133, 141 (2005) (citations omitted). Additionally,
[f]or purposes of 28 U.S.C. § 2254(d)(1), clearly established law as determined by this
Court refers to the holdings, as opposed to the dicta, of this Court’s decisions as of the
time of the relevant state-court decision. We look for the governing legal principle or
principles set forth by the Supreme Court at the time the state court renders its decision.
Yarborough v. Alvarado, 541 U.S. 652, 660–61(2004) (quotation marks and citations omitted).
Furthermore, the United States Supreme Court has made clear that it is not for this Court to
independently decide the merits of the Petitioner’s legal arguments. Specifically, the Supreme
Court noted the following:
As we have explained, a federal habeas court may not issue the writ simply because that
court concludes in its independent judgment that the state-court decision applied a
[United States] Supreme Court case incorrectly. Rather it is the habeas applicant’s burden

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to show that the state court applied [that case] to the facts of his case in an objectively
unreasonable manner.
Price v. Vincent, 538 U.S. 634, 641 (2003) (internal quotation marks, citations, and brackets
omitted).
ANALYSIS
A.

Ineffective Assistance of Counsel: Failure to Investigate and Present Potentially
Mitigating Evidence
As a ground for Habeas relief, the Petitioner alleges ineffective assistance of counsel due

to his trial counsel failing to sufficiently investigate and present potentially mitigating evidence
during the sentencing phase of his trial, which ended with a sentence of death. To prevail on his
ineffective assistance of counsel claim, the Petitioner must show the following two things: first,
that his counsel’s performance was deficient, and second, that he was prejudiced by his counsel’s
unprofessional errors. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient
performance is more than just an isolated mistake. To show deficient performance, the Petitioner
must establish “that counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the [Petitioner] by the Sixth Amendment.” Id. The measure of attorney
performance is reasonableness under prevailing professional norms. Id. at 688. When the alleged
ineffectiveness involves a decision not to pursue certain avenues of investigation, “a particular
decision not to investigate must be directly assessed for reasonableness in all the circumstances.”
Id. at 690–91. In determining whether trial counsel’s performance was deficient, the Court
“recognize[s] that counsel is strongly presumed to have rendered adequate assistance and made
all significant decisions in the exercise of reasonable professional judgment.” Id. at 690.
To establish prejudice, the Petitioner must show “that counsel’s errors were so serious as
to deprive the [Petitioner] of a fair trial, a trial whose result is reliable.” Id. at 687. This requires
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a showing “that there is 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 means
“a probability sufficient to undermine confidence in the outcome.” Id.
The Petitioner contends that his trial counsel’s failure to present mitigating evidence at
the sentencing phase of his trial was deficient performance. The Petitioner also contends that this
decision should not be viewed as a legitimate strategic decision, because the investigation into
potential mitigating evidence was so inadequate as to be unreasonable according to prevailing
professional norms. Furthermore, the Petitioner argues that, if not for this error, there is a
reasonable probability that the jury would have sentenced the Petitioner to life in prison rather
than death.
The Indiana Supreme Court adjudicated this claim on the merits, affirming the
postconviction court’s conclusion that, while the mitigating evidence “could have been more
thoroughly developed and investigated,” the Petitioner’s trial counsel was not deficient in
handling the sentencing phase of the Petitioner’s capital murder trial. Stephenson II, 864 N.E.2d
at 1045–46. That adjudication is entitled to deference under the AEDPA, which provides that a
state court’s adjudication of the merits of a habeas petitioner’s claim will not be disturbed unless
it “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). A decision is contrary to clearly established federal law “if it applies a rule that
contradicts the governing law set forth in [United States Supreme Court] cases, or if it confronts
a set of facts that is materially indistinguishable from a decision of [the United States Supreme
Court] but reaches a different result.” Brown v. Payton, 544 U.S. 133, 141 (2005). A state court
adjudication involves an unreasonable application of clearly established federal law “if the state

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court applies [the United States Supreme Court’s] precedents to the facts in an objectively
unreasonable manner.” Id. A state court’s adjudication of a claim on the merits may also be
disturbed if it involves an unreasonable determination of the facts. 28 U.S.C. §2254(d)(2).

1.

Factual and Procedural Background

a.

The Alleged Failure to Investigate and Failure to Present Mitigating Evidence
In preparing the defense’s strategy for the sentencing hearing, one of the Petitioner’s

attorneys was tasked with preparing for the sentencing phase of the trial. In addition, a mitigation
specialist was employed to help with the investigation into the Petitioner’s life. The Petitioner’s
counsel in charge of this investigation testified at the postconviction hearing that the mitigation
investigation began before the jury began to hear evidence, and most likely before voir dire
(though he admitted he could not remember the latter with certainty). (PC 418.)1 Counsel
testified that he traveled to Beaumont, Texas, and interviewed a number of people who had
known the Petitioner as a child. (PC 431.) In the course of this investigation, he learned that the
Petitioner had suffered from enuresis, or bed-wetting, at a young age, and that this was brought
on by psychological trauma. (Id.) He also learned about the Petitioner’s brushes with the law as a
young adult.
Counsel interviewed the Petitioner’s mother, Betty Ford Weeks, by phone. (PC 572.)
Weeks testified at the postconviction hearing that the Petitioner’s youthful brushes with the law
in Texas were discussed during the phone conversation. She testified that she told counsel about
an incident where the Petitioner, then 18 years old, had pled guilty in a Louisiana court to
burglary for breaking into a game room and stealing $43.00 from a game machine. (PC 563,
573.) She also testified that she told the Petitioner’s counsel about an incident where the

1
 Citations to the State postconviction hearing will be cited as “PC __” throughout the opinion.  

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Petitioner was test driving a car that two of his coworkers at the time had offered to sell him for
$1,000. Weeks recalled that the Petitioner was pulled over while test driving the car, and the car
turned out to be stolen. (PC 574.) On another occasion, the Petitioner had thrown a party at his
parents’ house when they were away. (PC 566.) Marijuana and alcohol were consumed by those
attending the party. (PC 567.) A girl who had been at the party later cashed $600.00 in checks
stolen from Weeks’ bedroom, and this was how the Petitioner’s parents learned what had
happened. (Id.) This incident precipitated the Petitioner’s commitment to a drug treatment
facility at the insistence of his parents, where he remained only days before checking himself
out. (PC 564, 566–67.)
While Weeks testified that she had spoken with counsel about the Petitioner’s substance
abuse and criminal history, she also testified that, to the best of her recollection, counsel did not
ask detailed questions about the Petitioner’s childhood, or what the Petitioner was like as a
person. (PC 567.) Weeks also testified that she had suffered a brain aneurism in 1995, and that it
had affected her short term memory. (PC 569, 572.) She stated that she wanted to come to
Indiana to attend the trial, but that counsel told her that she could not watch the trial, because she
was a potential witness. (PC 568.) If she had been called to testify at the sentencing hearing,
Weeks would have testified that the Petitioner was considerate of others, and that he often helped
others without being asked. (PC 567.)
Trial counsel interviewed the Petitioner’s father, Billy Lynn Stephenson, in Beaumont,
Texas. (PC 418.) He testified that counsel told him he would not be able to attend the trial,
because he was a potential witness. (PC 582.) Though he was never called to testify at the
sentencing hearing, he would have testified that the Petitioner is “a caring individual,” and that
he didn’t think his son could have committed the murders. (PC 584.)

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The Petitioner’s younger sister, Linda Gayle Jackson, testified at the postconviction
hearing. She testified that she did not have many memories of the Petitioner from when they
were children. (PC 589.) As an adult, however, the Petitioner lived with her for a time in
Virginia in late 1988 and early 1989. (Id.) She testified that the Petitioner was “easy to get along
with” and that he went to work every day. (PC 590.) She also testified that she suspected he was
drinking during that time, but that he “never brought it home.” (Id.) The Petitioner’s mitigation
specialist interviewed Jackson by phone. (PC 594.) Jackson testified that he asked her “a few”
questions about the Petitioner, but “[n]othing really specific.” (PC 595.) Jackson testified that she
would have come to the sentencing hearing and testified had she been asked, but that she was not
asked. (PC 594.)
The Petitioner’s older sister, Rhonda Sue LaFleur, also testified at the postconviction
hearing. LaFleur testified that both the mitigation specialist and Petitioner’s counsel contacted
her. (PC 605.) The conversation lasted about thirty minutes. (Id.) She testified that she could not
recall what was discussed, because she was focused on nursing school at the time. (PC 606.) She
testified that she did remember being told that she should not come to Indiana during her summer
break, because she was a potential witness and therefore would not be able to watch the trial.
(Id.) LaFleur testified that she would have been willing to testify on the Petitioner’s behalf at the
sentencing hearing. (PC 607.)
Dr. David Stephenson, the Petitioner’s older brother, also testified at the postconviction
hearing. He testified that the Petitioner had lived with him in Newburgh, Indiana, immediately
following the Petitioner’s release from prison in Virginia. (PC 611.) Dr. Stephenson testified that
he had spoken with many people, including the Petitioner’s trial counsel. (PC 621.) Dr.
Stephenson mentioned that he learned details of the Petitioner’s life from the Petitioner’s counsel

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of which he had previously been unaware. (Id.) For example, he testified that counsel “had done
his research and obtained some medical records” showing that the Petitioner had been treated for
an abnormally small bladder. (Id.) Dr. Stephenson also stated that his interview with trial counsel
was less thorough than his interview with postconviction counsel. (PC 622.)
Dr. Stephenson testified about the Petitioner’s upbringing and childhood in some detail at
the postconviction hearing. He testified that the Petitioner was in and out of trouble from
kindergarten on. (PC 614.) He testified that he believes the Petitioner suffered from undiagnosed
and untreated attention deficit disorder. (PC 613.) He also testified that the Petitioner’s bedwetting continued into junior high school, and that this made the Petitioner a frequent target of
bullying. (PC 614.) He related an incident that occurred in the home, in which he remembered
the Petitioner crying as he was “grabbed out of bed and thrown into a cold bath” after wetting the
bed. (PC 615.) Dr. Stephenson testified that their parents would say that he (Dr. Stephenson) was
the smart one in the family, in implicit contrast to his younger brother, the Petitioner. (PC 614.)
Dr. Stephenson testified that the Petitioner had always had trouble fitting in, and was
consequently desperate for approval. (Id.) This desire for acceptance and approval led to the
Petitioner falling in with the “wrong crowd.” (Id.)
Dr. Stephenson also testified about the Petitioner as an adult. He testified that the
Petitioner worked in construction while he lived with Dr. Stephenson, and that people for whom
the Petitioner had done work raved about what good work he did. (PC 618.) Dr. Stephenson also
testified about the Petitioner’s drinking problem, stating that the Petitioner was a binge drinker.
(Id.) He testified that he had discussions with the Petitioner about his drinking. (Id.) He
specifically recalled an occasion when he told the Petitioner that drinking was always the
underlying cause when the Petitioner got into trouble. (Id.) According to Dr. Stephenson, the

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Petitioner thought for a moment, and then responded by saying, “[y]eah, you’re right.” (Id.) The
Petitioner cut down on drinking “for a while” after that conversation. (PC 615.) Dr. Stephenson
also testified that he warned the Petitioner about the consequences of owning a gun as a
convicted felon still on parole. (PC 619.)
In addition to family, there was a witness, Charles William Carter, who would have
testified that the Petitioner saved him from drowning in the Ohio River. (PC 456–57.) Carter’s
wife wrote a letter to the Petitioner’s trial counsel explaining what the Petitioner had done for her
husband. (PC 460.) Carter testified that he would have been willing to testify about the incident
at the Petitioner’s sentencing hearing if he had been asked to do so. (PC 460.)
The Petitioner’s trial counsel also learned of potentially devastating bad character
evidence that the State possessed and intended to use if the defense opened the door. For
instance, the Petitioner had a prior conviction in Virginia for shooting a firearm at an occupied
dwelling. He once struck a man in the head with a shovel outside a bar in Newburg, Indiana,
though he was only arrested and not convicted in connection with that incident. The Petitioner’s
ex-wife testified at the postconviction hearing that the Petitioner had been excessively
controlling and physically abusive, even putting her in the hospital once. (PC 638.) A defense
attorney would consider these prior bad acts damaging to his client at a capital sentencing.
Shooting into an occupied dwelling involves violence with a firearm, and shows recklessness
with respect to human life. The crime of conviction in the present case was the murder of three
people with a firearm. Domestic violence severe enough to require hospitalization of the
Petitioner’s ex-wife, and striking a man in the head with a shovel show a proclivity for violence.
On the other hand, the Petitioner’s postconviction counsel uncovered mitigation evidence
that trial counsel had not discovered. Some of it would have tended to mitigate the damage of

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some of the Petitioner’s prior convictions and bad acts. For example, the Petitioner’s lawyer in
Virginia, where the Petitioner was convicted of shooting into an occupied dwelling, would have
testified that Stephenson had been harassed and threatened by people in his neighborhood, and
that he had arrived home, intoxicated, to find that his car window had been broken. Counsel also
believed it was unclear whether the Petitioner or his friend had fired the shot, though it is
doubtful that the trial judge would have permitted the Petitioner to re-litigate his prior conviction
at the sentencing hearing. At any rate, the Petitioner’s trial counsel never spoke to the attorney
who represented the Petitioner in the Virginia case, instead relying on a file given to him by the
prosecutor. (PC 452.) In addition, a witness to the bar fight involving the Petitioner could have
testified that the man the Petitioner hit with a shovel in the bar parking lot had first claimed to
have a gun and threatened to shoot the Petitioner. The Petitioner’s trial counsel never spoke to
that witness either. (Id.) The Petitioner argues that this evidence, had his trial counsel discovered
it, would have so altered the balance as to make it unreasonable for counsel to forgo presentation
of the other mitigating evidence out of fear of opening the door to those prior bad acts.
Another witness, Brad Schumacher, would have testified that the Petitioner had stopped
and helped a stranded motorist whose car had broken down by the side of the road. Schumacher
worked at a drug store. (PC 648.) One of his customers had seen the Petitioner walk in, and
asked who he was. (Id.) The customer told Schumacher that her car had broken down on the side
of the road, and that the Petitioner had stopped to help her, devising a temporary fix using pieces
of a tin can that allowed her to drive the vehicle to a mechanic for more permanent repairs. (Id.)
The motorist had offered to pay the Petitioner for his assistance, as he spent over an hour
working on her car, but the Petitioner refused to accept any money. (Id.)

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Other undiscovered and potentially mitigating evidence would have shed more light on
the Petitioner’s childhood. For example, two mental health experts testified at the postconviction
hearing. Dr. Michael Ryan also examined the Petitioner and testified at the postconviction
hearing. Dr. Ryan testified that, in his opinion, the Petitioner did not have a learning disability.
(PC 695.) In Dr. Ryan’s opinion, the Petitioner suffered from “a severe psychiatric disorder
which interferes with his memory and cognitive abilities.” (PC 696.) Dr. Ryan testified that the
Petitioner’s cognitive and memory problems, which he directly observed when he examined the
Petitioner, could be caused either by long-term substance abuse, or emotional issues, or both.
(PC 697.) Because Dr. Ryan is not an expert on substance abuse, he recommended that the
Petitioner’s postconviction counsel consult an expert in that field and counsel did so. (PC 698.)
He also testified about the contents of the Petitioner’s school records, which trial counsel had
tried, but failed, to locate. He noted that the school records indicate that the Petitioner was a very
troubled child, with few friends, and prone to frequent disruptive and oppositional behavior in
school. (PC 703.) He testified that the school records indicate that the Petitioner would exhibit
angry outbursts over minor stresses. (PC 701.) Dr. Ryan testified that he saw evidence in the
Petitioner’s school records that the Petitioner had been expelled from kindergarten, which, he
noted, is extremely rare. (PC 706.) He described the Petitioner’s family life as “dysfunctional.”
(PC 703.) Dr. Ryan also testified that he saw no evidence in the school records that the Petitioner
ever received treatment or therapy for his issues, although it was not possible to be sure from the
school records whether he was given medication. (PC 703.)
Dr. Robert L. Smith, an expert in chemical dependency, testified at the postconviction
hearing about the Petitioner’s alcoholism and drug abuse, which began when the Petitioner was
just twelve or thirteen years old. (PC 667.) Dr. Smith testified about the Petitioner’s short time in

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rehabilitation, during which the Petitioner was not effectively prevented from continuing his
drug abuse. (PC 668.) Dr. Smith believes that this was a major reason for the ineffectiveness of
the treatment. (Id.) He also testified concerning the reasons a person might begin abusing
substances and how an addiction develops. Specifically, he testified about the Petitioner’s home
life, and the inadequacy of his support structure. (PC 665–66.) Furthermore, Dr. Smith
commented on the Petitioner’s difficulty making connections with others, apart from connections
that revolved around substance abuse. He also opined that the Petitioner suffers from a mixed
personality disorder. Dr. Smith also noted that the Petitioner suffered several traumatic events in
his childhood, including his mother’s long battle with thyroid cancer beginning when the
Petitioner was eight years old, a history of beatings by both of his parents with a belt or switch,
and multiple instances of being thrown into a tub of cold water after wetting the bed. (PC 665–
66.) In addition, the Petitioner had told Dr. Smith that he had been fondled by a female babysitter
at the age of twelve, and that at fifteen he had been forced by an adult male to engage in oral sex.
(PC 666.)
Dr. Smith did testify about the Petitioner’s criminal history and abusive behavior toward
his ex-wife, explaining how his personality disorder and substance abuse contributed to the
incidents of abuse. That criminal history, however, does not appear to have been the basis for Dr.
Smith’s expert opinion. Instead, the diagnosis was offered as an explanation of the incidents,
rather than the incidents being pointed to as evidence supporting Dr. Smith’s diagnosis. The
diagnosis itself was based on an actual examination and interview of the Petitioner, during which
Dr. Smith administered several generally accepted psychological tests. Dr. Smith also
interviewed the Petitioner’s family members about his childhood. It is important to note that at
the postconviction stage of the proceedings, postconviction counsel specifically asked about the

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Petitioner’s criminal history. If trial counsel had offered this testimony at trial or at the
sentencing stage, the questions could have been tailored to avoid discussion of criminal history,
as the Petitioner’s criminal history was not the basis for Dr. Smith’s diagnosis.
Dr. Smith also addressed the Petitioner’s confession in the case. Specifically, he testified
regarding the Petitioner’s confusion about the timeline of events the night of the murder. Police
noted that the Petitioner was drinking when he made the statement, but that he did not appear
intoxicated. Dr. Smith explained that years of alcohol abuse can cause many classic outward
signs of intoxication to be absent, even when the subject is significantly cognitively impaired.
That in turn could potentially explain the inaccuracies in the Petitioner’s statement to police,
which were used against the Petitioner at trial. But while Dr. Smith testified that intoxication
might have been the cause of the Petitioner’s inaccurate statements to police regarding the
timeline of the night of the murders, he also testified that nothing about the Petitioner’s mental
problems would rule him out as having committed the murders. (PC 690.)

b.

The Indiana Supreme Court’s Adjudication of This Claim
The Indiana Supreme Court considered and rejected this claim of ineffective assistance of

counsel on the merits. The Petitioner argues that the Indiana Supreme Court applied Strickland
unreasonably in concluding that trial counsel’s mitigation investigation and his presentation at
the sentencing phase were exercises of reasonable professional judgment. There is no question
that Strickland is clearly established federal law as determined by the United States Supreme
Court. However, when a claim has been adjudicated on the merits by the state courts, “a federal
habeas court may not issue the writ simply because the court concludes that the relevant state
court decision applied clearly established federal law erroneously or incorrectly.” Williams v.

16

Taylor, 529 U.S. 362, 410–11 (2000). For the Petitioner to be entitled to habeas relief on this
claim, the Court must find that the Indiana Supreme Court’s adjudication of the claim was not
merely erroneous, but objectively unreasonable.
The Indiana Supreme Court found that the record supported the postconviction court’s
conclusion that “[trial] counsel’s decision not to open up [the Petitioner’s] background to allow
[prior bad act] evidence to be presented to the jury by the prosecution during the death penalty
phase of the trial cannot be said to be unreasonable or irrational, or ineffective assistance of
counsel.” Stephenson II, 864 N.E. 2d at 1045. The Indiana Supreme Court was persuaded that
“placing the Petitioner’s character in issue would open the door to rebuttal evidence of [the
Petitioner’s] significant criminal history.” Id. It also rejected the Petitioner’s argument that the
United States Supreme Court’s decision in Rompilla v. Beard, 545 U.S. 374 (2005), required a
reversal of the postconviction court’s ruling. The Indiana Supreme Court distinguished Rompilla
on the ground that Rompilla involved a failure to investigate whether the defendant’s prior
convictions really were of such a nature as to make the defendant eligible for the death penalty in
the first place, while in this case the best that any amount of investigation of the Petitioner’s prior
convictions could have accomplished would have been to soften the blow of the extensive
criminal history evidence that would have been introduced to rebut any good character evidence
the defense might have proffered. Id. As the Indiana Supreme Court put it, “[d]efeating an
eligibility aggravator avoids the death penalty. Establishing some mitigating character evidence
does not close a door, and might open one.” Id. at 1046.

17

c.

Allen v. State
The Petitioner cites Allen v. State, 749 N.E.2d 1158 (Ind. 2001), in support of his

ineffective assistance claim. In Allen, the petitioner, after being convicted of murder and
sentenced to death, sought postconviction relief and the Indiana Supreme Court issued a decision
on his petition. Id. Allen argued that his counsel was ineffective during the penalty phase of his
trial because he did not present evidence regarding Allen’s family history, abuse during
incarceration at the Indiana Boys School (IBS), and testimony from experts analyzing that
evidence. Id. at 1171. During the postconviction hearing, Allen presented testimony from three
sisters and a close friend regarding the challenges of his upbringing and his role as protector of
the family. Id. He also presented the testimony of former IBS employees and men who were
detained at IBS at the same time as the Petitioner. Id. at 1172. Finally, he presented testimony of
mental health professionals that detailed the difficulty of the petitioner’s childhood and how that
might have affected his behavior later in life. They also diagnosed him as having mental
disorders and found that he had a low level of intelligence. Id.
Allen’s counsel testified during a postconviction hearing that his main goal during the
penalty phase was to keep the jury from learning about his client’s criminal history, which
included eight convictions including numerous burglaries and robberies of elderly women. Id.
The criminal history also included a voluntary manslaughter conviction that involved
circumstances similar to the facts of the case he was appealing. Id. The Indiana Supreme Court
found that “evidence of prior crimes became admissible when they were relevant to rebut a trait
of good character that the defendant placed into evidence.” Id. at 1173. That court held that trial
counsel’s performance was not deficient for not presenting the testimony regarding family
history, because presenting such evidence would have opened the door to the criminal history.

18

Id. The court also held that presenting evidence of abuse suffered while incarcerated would open
the door to questions about the reason for his incarceration, and that this in turn would open up
the entire criminal history, lest the jury mistakenly infer that there was no criminal history apart
from what they were told. Counsel therefore was not deficient for choosing not to present that
evidence. Id. at 1174.
With regard to the testimony of three mental health experts, the court evaluated each
expert individually. Id. Trial counsel properly avoided using the testimony of a social worker
regarding Allen’s childhood development, because it was based on the same good character
testimony of friends and family that would have opened the door to criminal history. Id. The
court also found that the testimony of a forensic psychologist, Dr. Mark Cunningham, regarding
Allen’s potential for committing a violent act while in prison, was reasonably avoided for
strategic reasons. His testimony necessarily would have relied on Allen’s previous conduct while
incarcerated, which would have opened the door to his previous convictions. Id.
The court did conclude, however, that the postconviction court improperly found that the
testimony of Dr. Robert Heilbronner, a neuropsychologist, regarding the Allen’s mental health
would have opened the door to criminal history evidence. Id. Dr. Heilbronner diagnosed several
brain dysfunctions that could limit Allen’s ability to control his behavior. Id. at 1174. The
Indiana Supreme Court held that “[t]here is no nexus between Allen’s mental health status and
his criminal history.” Id. at 1175. The court nevertheless determined that Allen was not entitled
to relief, because he had not shown that failure to present the evidence was constitutional error.
Id. The court also found that the trial judge had considered any evidence of mental retardation
and thus the issue had already been litigated. Id.

19

While it is important to note that Allen was decided several years after the completion of
the Stephenson trial, it remains useful because it does not represent a change or shift in the law.
Instead, it simply provided an application of the law that is particularly analogous to the factual
situation in this case. The requirement of a nexus between specific prior bad acts of a defendant
to the particular mitigation evidence being offered was not a new principle of law in the Allen
decision. See, e.g., Brown v. State, 577 N.E.2d 221, 232 (Ind. 1991) (noting that once an accused
offers evidence of good character, the door is opened to evidence of specific misconduct in
rebuttal). The usefulness stems from application of this principle in Allen to mental health
mitigation evidence. As will be made clear, even though the Petitioner’s counsel did not have the
benefit of reading the Allen decision at the time of the Petitioner’s trial, he still made the error of
treating all potentially mitigating evidence as opening the door to the Petitioner’s bad acts. As
was the case at the time of the trial and as Allen makes abundantly clear, not all potentially
mitigating evidence is created equal.

2.

Performance and Prejudice Under the Strickland Test
Under Strickland, attorney performance is measured by a standard of reasonableness

under prevailing professional norms. 466 U.S. at 687. A decision not to pursue a given avenue of
investigation is to be reviewed for reasonableness considering all the circumstances. Defense
attorneys are entitled to a strong presumption that they exercised reasonable professional
judgment. Id. at 690–91. To establish prejudice, the Petitioner must show “that counsel’s errors
were so serious as to deprive the [Petitioner] of a fair trial, a trial whose result is reliable.” Id. at
687. This requires a showing “that there is 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 means “a probability sufficient to undermine confidence in the outcome.”
20

Id. Notably, Indiana law allows the introduction of criminal history evidence to rebut mitigation
evidence only if there is a nexus between the mitigation evidence and the criminal history. Allen
v. State, 749 N.E.2d 1158, 1175 (Ind. 2001); Brown v. State, 577 N.E.2d 221, 232 (Ind. 1991)
(noting that once an accused offers evidence of good character, the door is opened to evidence of
specific misconduct in rebuttal). The Petitioner’s arguments focus on trial counsel’s lack of
investigation into potential mitigating evidence, failure to present evidence that the Petitioner
had once saved a drowning man, and failure to present evidence of the Petitioner’s difficult
childhood and mental health issues.

a.

Lack of Investigation
The Petitioner’s complaints regarding a lack of investigation by trial counsel focus on

counsel’s failure to locate and present numerous witnesses who would have been willing to
testify in support of the Petitioner’s good character. The Indiana Supreme Court, however,
determined that counsel chose not to present character evidence, fearing it would open the door
to damaging criminal history evidence, which included a conviction for shooting a firearm at an
occupied dwelling, an arrest for allegedly striking a man in the head with a shovel, and alleged
physical abuse of his ex-wife. (PC 638.) The Petitioner asserts that additional investigation by
trial counsel would have raised doubts regarding the precise events surrounding several of the
incidents in the Petitioner’s criminal history. Specifically, the Petitioner argues that a witness
would have testified that the Petitioner’s friend, and not the Petitioner himself, pulled the trigger
in the case that led to a conviction in Virginia. Another witness would have testified that the
Petitioner was threatened and provoked in the incident where he was charged with assault for
striking a man with a shovel. It seems unlikely that such attempts to cast doubt on the validity of

21

the Petitioner’s prior arrests and convictions would have persuaded the jury; the Petitioner did,
after all, plead guilty to shooting a firearm into an occupied dwelling. And counsel cannot be
faulted for concluding that presenting evidence of provocation in the bar fight incident would not
be enough to outweigh the harm that would result from the jury learning of the incident in the
first place. Therefore, counsel reasonably calculated that the admission of these prior bad acts
into evidence would significantly and negatively affect the jury’s view of the Petitioner,
regardless of any efforts to minimize that effect.
The Indiana Supreme Court has held that when an accused offers evidence of his own
character, he opens the door to rebuttal evidence regarding his character. Allen, 749 N.E.2d at
1173. Offering evidence of good character in the form of character witnesses would have opened
the door to evidence of the Petitioner’s bad character, which includes his prior bad acts and
criminal convictions. Counsel made a tactical decision that the risk of opening the door to
evidence of the Petitioner’s bad character outweighed the potential benefit of presenting
evidence of his good character traits. Counsel’s tactical decisions are entitled to deference, as it
is presumed that he acted in the exercise of reasonable professional judgment. Strickland, 466
U.S. at 690. The Indiana Supreme Court concluded that counsel made a strategic choice not to
present character evidence. That conclusion was reasonable as to any mitigation evidence that
does in fact go to the Petitioner’s good character.

b.

Saving a Man from Drowning
The Petitioner cites evidence that he saved a person’s life and specifically contends that

“there is no nexus between saving a person’s life and criminal history.” He argues this evidence
would not open the door to criminal history. (Petitioner’s Brief 71.) Such mitigation evidence

22

demonstrates the Petitioner’s good character—particularly selflessness, a concern for the safety
of others, and respect for human life. However, “evidence of prior crimes” is admissible when it
is “relevant to rebut a trait of good character that the defendant placed into evidence.” Allen, 749
N.E.2d at 1173. Therefore, if evidence of good character traits were placed into evidence, any
criminal history relevant to those traits would be admissible. Because this Court is reviewing the
Indiana Supreme Court’s decision, the Petitioner must demonstrate that it was objectively
unreasonable for the Indiana Supreme Court to conclude that counsel was reasonable not to
present mitigation evidence for fear of opening the door to the Petitioner’s criminal history.
The Petitioner’s argument that no nexus exists between saving a life and criminal history
is flawed. Evidence that the Petitioner saved a man’s life tends to show the Petitioner’s concern
for the safety of others and willingness to risk his life to help someone in danger. The reason this
evidence could have been effective in mitigation is precisely that it would have offered the jury a
glimpse of these good character traits. Unfortunately for the Petitioner, his conviction for
shooting a gun into an occupied dwelling is plausibly construed as evidence of corresponding
bad character traits: indifference to the safety of others and a reckless attitude toward human life.
Striking a man with a shovel also arguably relates to those same character traits. The Petitioner,
by placing these character traits at issue, would likely have opened the door to evidence of his
criminal history. The Indiana Supreme Court found that counsel’s failure to present evidence that
the Petitioner had once saved a drowning man was a reasonable strategic decision. This Court
agrees.

23

c.

Mental Health and Doctor Testimony
The Petitioner alleges that the testimony of mental health experts could have been

presented during the sentencing phase of the trial without opening the door to the Petitioner’s
criminal history. Specifically, the Petitioner cites to the testimony of Doctors Robert L. Smith
and Michael Ryan, two doctors who examined the Petitioner at the request of postconviction
counsel, and who testified at the postconviction proceeding. Trial counsel was aware of the
Petitioner’s difficult childhood, substance abuse, and other mental health issues, but elected not
to present evidence of mental health or childhood trauma, citing both concern that it would open
the door to criminal history, and also concern that a lengthy presentation would be
counterproductive due to his perception that the jury was already bored, frustrated, and
exhausted from the length of the trial. (PC 432). The Court is reviewing the Indiana Supreme
Court’s adjudication, which applied the Strickland test to evaluate whether counsel’s assistance
was ineffective.
The Indiana Supreme Court held that the Petitioner’s counsel was not deficient for failing
to introduce mitigation evidence due to concern that presenting such evidence would open the
door to prior bad acts of the Petitioner. As noted above, Indiana law allows the introduction of a
defendant’s prior bad acts or criminal history to rebut mitigating evidence only if there is a nexus
between the evidence introduced by the defendant and the criminal history or prior bad acts.
Allen, 749 N.E.2d at 1175. In the Petitioner’s case, the Indiana Supreme Court specifically noted
the following:
The postconviction court found that trial counsel’s decision not to offer evidence of
Stephenson’s character was not unreasonable in view of the considerable negative
evidence that Stephenson’s character evidence would have produced. We agree.

24

Stephenson II, 864 N.E.2d 1022, 1045 (2007). But the Indiana Supreme Court did not
specifically discuss the testimony of Doctors Smith and Ryan at the postconviction hearing
regarding the mental health of the Petitioner.2 The Indiana Supreme Court simply treated all of
the potential mitigation evidence as character evidence. The postconviction court did the same.
Id. (quoting the postconviction court’s conclusion that “under all the circumstances of this case .
. . counsel’s decision not to open up Stephenson’s background . . . cannot be said to be
unreasonable or irrational, or ineffective assistance of counsel”).
While the Indiana Supreme Court and the postconviction court both categorized the
entirety of the potentially mitigating evidence in the Petitioner’s case as character evidence that
could have opened the door to criminal history, the Indiana Supreme Court’s decision in Allen
calls into question the reasonableness of this assessment with respect to at least some of the
mitigating evidence that the Petitioner contends counsel should have offered. Specifically, the
Allen court stated as follows:
“The post-conviction court was incorrect when it concluded that this evidence could have
opened the door to Allen’s criminal history. There is no nexus between Allen’s mental
health status and his criminal history. To say that this evidence would open the door to
evidence of prior convictions would improperly allow a jury to learn the details of a
defendant’s criminal history every time a defendant introduced a mental health diagnosis
as mitigation evidence. Cf. Roth v. State, 550 N.E.2d 104, 106 (Ind.Ct.App. 1990)
(holding that defendant’s testimony that he was not “a crazy person” and that he had
never been treated for a mental illness did not open the door to his criminal history),
transfer denied.
Allen, 749 N.E.2d at 1175. The Indiana Supreme Court’s reasoning in Allen entails that a
diagnosis of a mental illness or disorder is not character evidence, and therefore does not open
the door to criminal history unless reference to some aspect of a defendant’s criminal history is
necessary to explain the diagnosis or how it was reached.

2
The Indiana Supreme Court did briefly address Dr. Smith’s testimony, but only with respect to the
Petitioner’s statement to police, and not with respect to his childhood or mental health issues. Stephenson
II, 864 N.E.2d at 1043.

25

Both the state postconviction court and the Indiana Supreme Court appear to have
glossed over the question of whether at least some of the Petitioner’s mitigation evidence could
have been presented without opening the door to his criminal history. Strickland does clearly
provide for a presumption that counsel exercised reasonable professional judgment in all
significant strategic decisions. But in a death penalty case where no significant mitigation
evidence was ultimately offered, it is unreasonable not to examine in detail the contention that
none of the potential mitigation evidence known to counsel at the time could have been
presented without opening the door to the Petitioner’s criminal history.
The Indiana Supreme Court’s denial of the Petitioner’s ineffective assistance of counsel
claim relies on the court’s characterization of all of the Petitioner’s mitigation evidence as
character evidence. The fact that some—indeed most—of the mitigation evidence goes to the
Petitioner’s character does not mean that counsel’s decision not to present any mitigation
evidence at all was either reasonable or strategic. The Court well understands that the record of
this trial is exceptionally voluminous, that the postconviction proceedings were also extensive,
and that there were many claims to adjudicate. Nevertheless, the state courts’ apparent
assumption that testimony regarding the Petitioner’s difficult childhood and mental health issues
constituted character evidence that would have opened the door to criminal history is not only at
odds with the Indiana Supreme Court’s own decisions in Allen and Roth, but it also implicates
the Petitioner’s Sixth Amendment right under the Constitution of the United States to the
effective assistance of counsel: a decision that counsel makes based on a misunderstanding of the
law is neither strategic nor reasonable.
The Strickland presumption that counsel acted in the exercise of reasonable professional
judgment is rebuttable, and counsel’s alleged strategic decisions must be identified with

26

specificity before they can reasonably be judged by any standard, however deferential. Notably,
the expert opinions of Doctors Smith and Ryan were not based on the Petitioner’s moral
character or criminal history, and with due care in tailoring the particular questions on direct
examination, their expert opinions (or the opinions of other mental health experts) could have
been offered and explained to the jury without any reference to the Petitioner’s moral character
or criminal history. Counsel thus could have presented evidence of the Petitioner’s mental health
issues and childhood trauma without opening the door to the Petitioner’s criminal history. Failure
to present any mitigating evidence out of concern for opening the door to criminal history must
be regarded as deficient performance when there was mitigating evidence that in fact would not
have opened that door. Nor can concern that the jury seemed bored and frustrated justify
counsel’s failure to take any measures at all to humanize the Petitioner in the eyes of the jury,
where there were measures available that would not have opened the door to damaging rebuttal.
The Indiana Supreme Court’s finding that trial counsel’s performance was not deficient
was an application of the performance prong of Strickland. That finding is reasonable with
respect to the bulk of the mitigation evidence, but it is objectively unreasonable with respect to
expert testimony regarding the Petitioner’s mental health and childhood trauma. It was also
unreasonable for the state courts to treat all of the potential mitigation evidence as character
evidence, when some of the available mitigation evidence cannot reasonably be construed as
evidence of the Petitioner’s good character traits. The Court finds that counsel’s failure to fully
investigate and present evidence of the Petitioner’s mental health and childhood trauma
constitutes deficient performance under Strickland, because according to counsel it was based on
the belief that the law would have allowed the state to rebut an expert mental health diagnosis

27

with evidence of the Petitioner’s criminal history—a belief that was, and is, objectively
mistaken.
An ineffective assistance of counsel claim can succeed, however, only if the Petitioner
shows both that his counsel’s performance was deficient and that the deficient performance was
prejudicial. To show prejudice, the Petitioner must demonstrate a reasonable probability that, but
for his counsel’s errors, “the sentencer . . . would have concluded that the balance of aggravating
and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 696. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.
The Indiana Supreme Court was correct to conclude that there was a legitimate strategic
reason not to present any evidence of the Petitioner’s good character traits. It could reasonably be
argued that the better strategic move would have been to bite the bullet and allow the jury to hear
the good, even if it meant they would also hear the bad. But to the extent that counsel’s fear of
opening the door to criminal history was reasonable, this is the sort of choice that the Court will
not second-guess. Therefore, the Court will consider only the mitigation evidence that was not
character evidence.
The bulk of the available mitigation evidence would have opened the door to the
Petitioner’s criminal history. But the question relating to the prejudice prong of the Strickland
standard is whether hearing only that the Petitioner had a difficult childhood, a substance abuse
problem, and a mental disorder would have altered the balance between the aggravating and
mitigating factors sufficiently to undermine confidence in the death sentence. Such evidence
tends to address whether the Petitioner is truly to blame for his actions. Considering, however,
the amount of evidence before the jury and the fact that this mitigation evidence does not
indicate that the Petitioner is any less dangerous than the triple murder would suggest, the Court

28

finds that this type of mitigation evidence would not have altered the outcome. Therefore, the
Petitioner’s ineffective assistance claim is denied.

B.

Ineffective Assistance of Counsel: Failure to Object to Stun Belt
The Petitioner also claims that trial counsel was ineffective for failing to object when the

Petitioner was forced, without a particularized determination of necessity, to wear a stun belt
during his capital murder trial. This claim is before the Court on remand from the Seventh
Circuit Court of Appeals, and this Court’s task is limited to determining whether the Petitioner
was prejudiced at the sentencing phase of his capital trial.
In Ground VII of his Petition, the Petitioner contends that his trial counsel was ineffective
for failing to object when the court ordered the Petitioner to wear a stun belt at his trial. The
Court previously granted summary judgment in favor of the Petitioner on the ground that his
counsel’s failure to object to the stun belt constituted ineffective assistance. Stephenson III, 2009
WL 1886081 (N.D. Ind. 2009). The Seventh Circuit Court of Appeals reversed, holding that the
Petitioner had not been prejudiced with respect to the guilt phase of the trial, even though the
parties did not dispute that his counsel’s failure to object constituted deficient performance.
Stephenson IV, 619 F.3d 664 (7th Cir. 2010). The Seventh Circuit left open the question of
whether the stun belt prejudiced the Petitioner at the sentencing phase of his trial.

1.

Background and Standards of Review
The Petitioner argues that this Court is free to consider de novo the question of prejudice

at sentencing, while the State contends that the AEDPA requires this Court to defer to the
Indiana Supreme Court’s adjudication, which the State argues was reasonable. The AEDPA
provides that a state court’s adjudication of the merits of a habeas petitioner’s claim will not be
29

disturbed unless it “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). A decision is contrary to clearly established federal law
“if it applies a rule that contradicts the governing law set forth in [United States Supreme Court]
cases, or if it confronts a set of facts that is materially indistinguishable from a decision of [the
United States Supreme Court] but reaches a different result.” Brown v. Payton, 544 U.S. 133,
141 (2005). A state court adjudication involves an unreasonable application of clearly
established federal law “if the state court applies [the United States Supreme Court’s] precedents
to the facts in an objectively unreasonable manner.” Id.
The Indiana Supreme Court held that the Petitioner was not prejudiced by counsel’s
failure to object to the stun belt, because any objection would have been properly overruled.
Stephenson II, 864 N.E.2d at 1041. Even though the Seventh Circuit reversed the Court’s grant
of summary judgment in favor of the Petitioner, it did not endorse, defend, or defer to the Indiana
Supreme Court’s reasoning. Rather, even in reaching the same result as the Indiana Supreme
Court, the Seventh Circuit panel supplied its own reasoning with respect to prejudice, and even
explicitly pointed out that the Indiana Supreme Court relied on an inadequate basis for its
conclusion that the Petitioner was not prejudiced by counsel’s failure to object. Stephenson IV,
619 F.3d at 666–67. This Court will therefore review de novo the question of prejudice at the
sentencing phase.

2.

The Performance Prong of the Strickland Test
The Indiana Supreme Court concluded that it was deficient performance for counsel not

to object to the use of the stun belt during both the guilt and sentencing phases of the Petitioner’s

30

trial. Stephenson II, 864 N.E.2d at 1041. This Court agreed, and the Seventh Circuit panel took it
as a given since it was not in dispute. The Seventh Circuit panel noted that the Petitioner’s
argument does not rest directly on the three cases he cites as clearly established law, but instead
relies on the proposition that the use of the stun belt “was sufficiently questionable that, as
federal and state law then stood, an objection to his being forced to wear it during his trial
without a showing that he presented a security risk would, or at least should, have been granted,
and so counsel was deficient in failing to make the objection.” Id. at 667. Neither party disputes
that counsel’s failure to object was deficient performance.

3.

The Prejudice Prong of the Strickland Test
The Indiana Supreme Court ruled that it was deficient performance on the part of the

Petitioner’s trial counsel not to object to the use of the stun belt at trial, but that the Petitioner
was not prejudiced, because such an objection would have been overruled by the trial judge, and
the trial judge’s decision to overrule the objection would have been properly affirmed upon
appeal. Stephenson II, 864 N.E.2d at 1041. The Court previously held that the Indiana Supreme
Court’s adjudication of this claim was not entitled to deference pursuant to 28 U.S.C. 2254(d)(1),
because it involved an unreasonable application of Strickland’s prejudice prong. The Court relied
on the Seventh Circuit’s interpretation of the United States Supreme Court’s decisions in Illinois
v. Allen, 397 U.S. 337 (1970), Estelle v. Williams, 425 U.S. 501 (1976), and Holbrook v. Flynn,
475 U.S. 560 (1986), in concluding that at the time of the Petitioner’s trial, clearly established
Supreme Court precedent prohibited trying a defendant in restraints without a particularized
justification. Stephenson III, 2009 WL 1886081, at *7 (citing Wrinkles v. Buss, 537 F.3d 804
(7th Cir. 2008)). Specifically, the Court wrote that the Seventh Circuit’s decision in Wrinkles v.

31

Buss “unambiguously holds that at the time of Stephenson’s trial in 1996-97, Allen, Estelle, and
Holbrook were clearly established law prohibiting the use of stun belts without particularized
reasoning.” Id. (quoting Wrinkles, 537 F.3d at 814 (stating that “it was well established [at the
time of Wrinkles’s trial in 1995] that a trial court could not restrain a criminal defendant absent a
particularized justification,” and that “[Allen, Estelle, and Holbrook] make clear that
particularized reasoning must support any decision to restrain a defendant”)).
In its order reversing this Court’s previous Order and remanding for consideration of the
Petitioner’s other claims, the Seventh Circuit panel stated that “[i]t could be argued that, read
together, Holbrook, Estelle, and Allen had by 1996 established a rule determined by the Supreme
Court (and therefore a ground of federal habeas corpus) against unnecessary visible restraints
that was broad enough to include the stun belt.” Stephenson IV, 619 F.3d at 668. The Seventh
Circuit panel questioned the Indiana Supreme Court’s reasoning that counsel’s failure to make a
properly doomed objection was deficient performance, but accepted this premise and moved on
to consider any potential prejudice. Stephenson IV, 619 F.3d at 667–70. Ultimately, the Seventh
Circuit remanded the issue of any prejudice during the penalty phase to this Court. Id. at 674.
Here, the State does not simply argue that the Indiana Supreme Court’s adjudication of the
prejudice prong is entitled to deference under the AEDPA.
As the Seventh Circuit pointed out, there is an argument that the Indiana Supreme
Court’s conclusion that an objection would have been properly overruled is contrary to the
United States Supreme Court’s holdings in Allen, Estelle, and Holbrook. Stephenson IV, 619
F.3d at 668; Wrinkles, 537 F.3d at 814 (stating that “[Allen, Estelle, and Holbrook] make clear
that particularized reasoning must support any decision to restrain a defendant”). Given that the

32

stun belt was in fact seen by multiple jurors,3 and given that a stun belt is no less a restraint than
shackles (and no less prejudicial if observed by jurors), this seems the most natural application of
that trio of cases to the facts of the Petitioner’s case. Even more importantly, the Indiana
Supreme Court’s analysis applied the wrong standard: the question should not have been whether
the trial court would have overruled an objection or whether an appellate court would have
affirmed. The question should have been whether the law in effect at the time of the Petitioner’s
trial entitled the Petitioner to be tried without the stun belt had his counsel objected to its use,
and, if so, whether there is a reasonable likelihood that the jury would have acquitted the
Petitioner but for the use of the stun belt.4 Applying the wrong standard is one way in which a
state court may be said to have applied clearly established federal law, as determined by the
United States Supreme Court, in an objectively unreasonable manner. Payton, 544 U.S. at 141.
Had the Petitioner’s counsel objected, there would have been a hearing to determine
whether the use of the stun belt was permissible in the Petitioner’s case. The Indiana Supreme
Court concluded that, had a hearing on the matter been held, there were facts more than
sufficient to form the basis for a particularized finding that the Petitioner could lawfully be tried
in restraints. Stephenson II, 864 N.E.2d at 1040–41. If that were the case, then the Petitioner
certainly would not be able to show that he had been prejudiced by unprofessional errors
committed by his counsel. However, as the Court previously pointed out, and as the Seventh
Circuit panel agreed, the facts relied upon by the Indiana Supreme Court relate solely to the
crime itself, and not to the defendant’s demeanor or conduct after he peacefully and promptly
surrendered himself to police. Stephenson IV, 619 F.3d at 666–67 (stating that, apart from the

3
It is undisputed that multiple jurors were in fact aware of the stun belt, and several of them submitted
sworn affidavits to that effect. See Stephenson II, 864 N.E.2d at 1039 (observing that “at least several of
[the Petitioner’s] jurors were aware of the belt.”).
4
The Indiana Supreme Court did not discuss separately any prejudicial effect the stun belt may have had
at the sentencing phase.

33

facts of the crime itself, “there was no reason to think that the defendant would have been likely
to try to flee the courtroom or cause any other disturbance during the trial”). As the Seventh
Circuit panel put it, “[t]he factors relied upon by the [Indiana Supreme C]ourt to uphold the use
of the stun belt were insufficient in light of the case law both then and now.” Id. at 667. The
Seventh Circuit panel went on to conclude, however, that even if the Petitioner had successfully
objected to the use of the stun belt, there was not a reasonable probability that the outcome of the
guilt phase of his trial would have been different. With respect to this claim, therefore, all that is
left for the Court to determine is whether the use of the stun belt undermines confidence in the
sentence.
To show prejudice, the Petitioner must demonstrate a reasonable probability that, but for
his counsel’s errors, “the sentencer . . . would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 696. A reasonable
probability is a probability sufficient to undermine confidence in the outcome. The Court finds
that there is not a reasonable probability that, but for counsel’s failure to object to the stun belt,
the Petitioner would have been sentenced to life in prison rather than death.
Important to this analysis is the role of future dangerousness in capital jury deliberations.
It is well settled that visible restraints tend to cause a defendant to be perceived as especially
dangerous. The question here is whether, considering the totality of the circumstances, there is a
reasonable probability that the stun belt (and thus counsel’s failure to object) made the difference
between a death sentence and a life sentence. The Petitioner is correct to point out that future
dangerousness is always on the mind of the capital juror, even when the State does not raise the
issue.5 But even in the literature discussing the importance of future dangerousness in capital jury

5
See, e.g., John H. Blume, Stephen P. Garvey & Sheri Lynn Johnson, Future Dangerousness in Capital
Cases: Always “At Issue”, 86 Cornell L. Rev. 397 (2001) (Drawing on the findings of the Capital Jury

34

deliberations, it is noted that the single most important factor is the nature of the crime itself.
Here, the crime at issue was the brutal murder of three people, which in itself is strong evidence
of the Petitioner’s dangerousness in the eyes of the same jury that had just found, beyond a
reasonable doubt, that the Petitioner committed the crime. Whatever influence the stun belt
might have had on the jury’s perception of the Petitioner’s future dangerousness, it was not
nearly as great as the influence that the brutal and heinous nature of the crime had on the jury’s
perception of the Petitioner’s future dangerousness. The Court is confident that if the Petitioner
had not been forced to wear the stun belt, it would not have altered the jury’s conclusion that the
aggravating circumstances outweighed the mitigating circumstances, and that a death sentence
was warranted. See Strickland, 466 U.S. at 696. The Court concludes that there is not a
reasonable probability that the stun belt made the difference between a life sentence and a death
sentence. The Petitioner’s argument does not attack his eligibility for the death penalty.
Accordingly, the Court denies this ground for habeas relief.

B.

Juror Misconduct
The Petitioner alleges two instances of juror misconduct. First, one juror learned during

the trial that the sister of one of the victims taught his children in Sunday school. The juror failed
to inform the trial court after becoming aware of the relationship. The second claimed instance of
misconduct occurred when extraneous information about an alleged prior bad act of the
Petitioner reached several jurors. The jurors in question did not disclose this to the court. The
Indiana Supreme Court adjudicated both claims on the merits in favor of the State. The Petitioner

Project, which found that jurors discussed questions relating to future dangerousness in their deliberations
such as the need to keep the convicted from killing again and the likelihood of the convicted later being
released, even in cases where the state did not raise the issue of future dangerousness at all.)

35

contends that the adjudication of these claims involved an unreasonable application of Remmer v.
United States, 347 U.S. 227 (1954).
With respect to the first claimed instance of juror misconduct, the Indiana Supreme Court
concluded that, although the juror in question should have informed the court upon becoming
aware of his relationship to the victim’s sister, this relationship was rather tenuous and was not
indicative of bias. In addition, there is no indication that the juror lied during voir dire, or even
that he knew the victim’s sister personally, as opposed to merely being acquainted with her. The
Indiana Supreme Court’s decision is entitled to deference, and will not be disturbed unless it
involved an unreasonable application of clearly established federal law as determined by the
United States Supreme Court. The Petitioner contends that the burden should have been on the
State to prove that the jury’s deliberations were not poisoned by bias arising from the juror’s
acquaintance with the sister of one of the victims. In support of this, he cites Wisehart v. Davis,
408 F.3d 321 (7th Cir. 2005), in which the Seventh Circuit held that when any juror is exposed to
extraneous information “of a character that creates a reasonable suspicion that further inquiry is
necessary to determine whether the defendant was deprived of his right to an impartial jury,” an
inquiry must be conducted to determine whether the extraneous information had a prejudicial
effect. Wisehart, 408 F.3d at 326. How much inquiry is necessary depends on the likelihood that
the extraneous information prejudiced the defendant. Id. But Wisehart is distinguishable from the
Petitioner’s first claim of juror misconduct, because it involved a claim of juror bias arising from
the introduction of extraneous information bearing directly on the question of the defendant’s
guilt or innocence of the charged offense. In such a case the burden is properly placed upon the
State to show that the extraneous information did not influence the jury’s deliberations.
Wisehart, 408 F.3d at 326. Because this alleged instance of extraneous information relating to

36

juror misconduct did not involve the Petitioner’s guilt or innocence, there was no presumption of
prejudice, and the postconviction court was correct to deny the claim based on the lack of
evidence of actual bias. The postconviction court’s inquiry was appropriate to the circumstances
because the juror in question was deposed, and the deposition was entered into evidence at the
postconviction hearing. See Pet. Ex. 59. Given the tenuous nature of the relationship between the
juror and the victim’s sister, this inquiry was sufficient. The Indiana Supreme Court
appropriately reviewed the postconviction court’s conclusion for clear error and, finding none,
appropriately affirmed the denial of the Petitioner’s claim.
The second claim of juror misconduct is more troubling, as it involved the introduction of
extraneous information to multiple jurors. Moreover, the extraneous information related to a
prior bad act allegedly committed by the Petitioner—that he once struck a man with a shovel
during a fight outside a bar in Newburgh, Indiana. Because, this information was not admitted
into evidence at trial, and would not have been admissible if offered by the State, it is clearly
extraneous. Furthermore, information about a defendant’s prior bad acts is generally
inadmissible precisely because of the fear that such information would be far more prejudicial
than probative. Fed. R. Evid. 404(b)(1). The Court must examine this claim of juror misconduct
under Wisehart.
The Indiana Supreme Court adjudicated this claim on the merits and first noted that
“jurors’ consideration of evidence not in the record violates the defendant’s right to
confrontation.” Stephenson II, 864 N.E.2d at 105. The court then explained that not all
constitutional error requires reversal, and that where an error is harmless beyond a reasonable
doubt the verdict will stand. Id. It also noted that under Indiana case law, whether or not to
overturn a verdict due to the jury’s consideration of extraneous information requires analysis of a

37

case’s specific facts. Id. The court then set out to determine “whether the jury contact with
outside information has so prejudiced the defendant that he was denied a fair trial.” Id. This is
essentially the same question federal law directs appellate courts to consider. The court
determined that there was no evidence that any juror was predisposed to convict. Id. But the
analysis did not stop there. The record also indicates that the exchange among the jurors was
brief, that a juror who overheard the comments admonished the offending jurors that they were
not permitted to discuss the subject (and that the offending jurors heeded this admonishment),
and that none of the jurors who heard it shared it with the full jury. Id. The fact that the full jury
did not hear about the shovel incident is relevant only to the extent that it affects the scope of a
reasonable inquiry. Only those jurors exposed to extraneous information need be evaluated for
bias arising from that exposure. That alone does not resolve the claim, however, because every
defendant is entitled to a jury “no member of which has a bias induced by extraneous matter.”
Wisehart, 408 F.3d at 327 (emphasis added).
There are two questions before this Court. First, the Court must decide whether the scope
and depth of the inquiry conducted by the postconviction court (and endorsed by the Indiana
Supreme Court) were reasonable under the circumstances. Second, the Court must determine
whether the inquiry was reasonably thorough and whether the finding of harmless error was
objectively unreasonable based on the facts uncovered by that inquiry.
The postconviction court heard from most of the jurors through affidavits or depositions.
Juror Bryant’s affidavit makes no mention of any knowledge of the bar fight in Newburgh,
Indiana. Pet. Ex. 46. Juror Reiff’s affidavit mentions that she overheard one juror mention the
bar fight to another juror, and that a third juror quickly admonished them to stop discussing the
bar fight immediately, which they did. Pet. Ex. 47. Juror Hills’s affidavit does not indicate that

38

she was aware of the bar fight during the trial. Pet. Ex. 48. Juror Branson could not recall
whether he had heard about the bar fight during the trial or afterwards. Pet. Ex. 58 at 12. Juror
Fox was certain he did not hear about the bar fight until after the trial. Pet. Ex 59 at 20. Juror
Faulkenberg did not learn of the bar fight during the trial. Pet. Ex. 60 at 9. Juror Holland did not
know about the bar fight during the trial. Pet Ex. 61 at 11–12. Juror Wadsworth was unaware of
the bar fight during the trial. Pet. Ex. 62 at 8. Juror Young was not aware of the bar fight during
the trial, but learned of it afterward. Pet. Ex. 63 at 13–14. Juror McCammish was not asked about
the bar fight during her deposition, and gave no indication she was aware of it. Pet. Ex. 64. The
Indiana Supreme Court concluded that the postconviction court did not clearly err in finding that
the extraneous information did not play any material role in deliberations. Id.
The Indiana Supreme Court’s adjudication of this claim is entitled to deference on habeas
review, and will not be overturned unless it involved an objectively unreasonable application of
clearly established federal law or an objectively unreasonable determination of the facts. While
the Indiana Supreme Court based its analysis on state law, the standard it applied required a
showing that the extraneous information did not influence the jury’s deliberations. Such a
showing also satisfies the requirements of federal law. The Indiana Supreme Court’s
acknowledgement of the “harmless beyond a reasonable doubt” standard suggests that the burden
was on the State to show harmlessness. It appears that the postconviction court, having heard
from the jurors through affidavits and depositions entered into evidence at the hearing, was
satisfied that the extraneous information did not influence the verdict. The Indiana Supreme
Court then concluded that the postconviction court had not clearly erred in its investigation or its
conclusion. There is a basis in the record for concluding that the error was harmless, and the
Indiana Supreme Court noted this. The juror who overheard the discussion about the bar fight

39

immediately admonished the offending jurors that they were not to talk about such things. This
admonishment was heeded, and there is no indication that the subject was ever broached again.
From the fact that many of the jurors had never heard of the bar fight until they were asked about
it during the course of the investigation into juror bias, it can be inferred that the bar fight was
not discussed during deliberations. The extraneous information could still have altered the
verdict, but only if at least one of the jurors exposed to the information would have steadfastly
refused to convict but for that exposure. In a case where the extraneous information at issue did
not directly concern the ultimate question before the jury, the state courts reasonably concluded
that the extraneous information did not undermine confidence in the result of the trial.
Considering the circumstances, the postconviction court’s investigation was sufficiently
thorough to satisfy Remmer.
While any material extraneous information reaching jurors is cause for serious concern,
the findings of the state courts indicate that they were convinced after a reasonable investigation
that the error was harmless. This case is distinguishable from Hall v. Zenk, 692 F.3d 793 (7th
Cir. 2012), in which the state court’s decision was based, not on a reasonably thorough
investigation, but instead on the erroneous legal conclusion that the defendant bore the burden of
proving prejudice on direct appeal. Here, the state court conducted a reasonable investigation
into potential juror bias and concluded that the extraneous information was not reasonably likely
to have influenced the verdict. In Hall, the Seventh Circuit explained that when engaging in such
an inquiry the federal constitution requires a state court
to limit the questions asked the jurors to whether the communication was made and what
it contained, and then, having determined that communication took place and what
exactly it said, to determine—without asking the jurors anything further and emphatically
without asking them what role the communication played in their thoughts or
discussion—whether there is a reasonable possibility that the communication altered their
verdict.
40

Hall, 692 F.3d at 806 (quoting Haugh v. Jones & Laughlin Steel Corp., 949 F.2d 914, 917 (7th
Cir. 1991)).
It appears that the state court’s juror bias investigation in this case complied with Hall’s
prescription. The court asked the jurors whether they heard the extraneous information, and, if
so, when they heard it and what exactly they heard. The jurors were not asked how, if at all, the
information affected their deliberations. In noting the harmless error standard, the Indiana
Supreme Court recognized that the verdict could not stand if there were a reasonable probability
that the extraneous information influenced the jury’s deliberations. The Court reads the Indiana
Supreme Court’s opinion as concluding that the postconviction court’s investigation yielded
sufficient evidence of harmlessness that confidence in the result of the trial was not undermined.
No further investigation was possible, given the limits the Indiana (and the Federal) Rules of
Evidence place on jurors impeaching their own verdicts. See Ind. R. Evid. 606(b); Fed. R. Evid.
606(b). Unlike in Hall, the state courts did not decide this matter based on an absence of
evidence and the presence of a dispositive burden of proof. The Court cannot say that the state
court’s adjudication of this claim was an objectively unreasonable application of Remmer, nor
can the Court say that the adjudication was based on an objectively unreasonable determination
of the facts. While the evidence of the Petitioner’s guilt was not overwhelming, this case is
distinguishable from Wisehart and Hall in that the extraneous information that reached the jury
did not pertain to the crime for which the Petitioner was on trial. In light of the appropriate
investigation that the state court conducted into the matter and the support that investigation
provides for their conclusion, the state court was not objectively unreasonable in concluding that
there is not a reasonable likelihood “that the communication altered [the jury’s] verdict.” See
Hall, 692 F.3d at 806.

41

Even if the state courts had erroneously placed the burden on the Petitioner to prove that
the extraneous information prejudiced his case, and even if they had cited the burden of proof as
the sole basis for denying the Petitioner’s claim, the Petitioner would still bear the very same
burden of showing prejudice on habeas review. See Hall, 692 F.3d at 805. The investigation into
juror bias was reasonably thorough, uncovered no evidence of actual bias, and provided reason to
believe that the extraneous information did not alter the verdict. The Petitioner’s juror
misconduct claim is therefore denied.

C.

Sufficiency of the Evidence
The Petitioner argues that the evidence against him is insufficient to support his

conviction. The Court begins by discussing the standard on direct appeal for challenges to
evidentiary sufficiency, because the State contends that the Petitioner did not fairly present this
claim to the Indiana Supreme Court on direct appeal. The Court concludes that the Petitioner did
fairly present his federal claim; that the Indiana Supreme Court adjudicated that claim on the
merits; that this adjudication is entitled to deference under 28 U.S.C. § 2254(d)(1); and that the
adjudication was not contrary to, or an unreasonable application of, clearly established federal
law as determined by the United States Supreme Court.

1.

Standard on Direct Appeal
In a criminal trial, proof beyond a reasonable doubt is “an essential of Fourteenth

Amendment Due Process.” Jackson v. Virginia, 443 U.S. 307, 318 (1979) (citing In re Winship,
397 U.S. 358 (1970)). Therefore, a state prisoner who challenges the sufficiency of the evidence
supporting his conviction has stated a federal constitutional claim. Id. at 321–22, 324. To

42

succeed in a challenge to the sufficiency of the evidence, an appellant must show, based on the
record evidence, that no rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. Id. at 319. Jackson directs the reviewing court to consider all of the
evidence in the light most favorable to the State, to draw inferences in favor of the State, and to
resolve conflicting inferences in favor of the State. United States v. Beniach, 825 F.2d 1207,
1212 (7th Cir. 1987) (citing United States v. Moya, 721 F.2d 606, 610 (7th Cir. 1983)).
The Jackson standard is designed to impinge on the jury’s discretion “only to the extent
necessary to guarantee the fundamental protection of due process of law.” Jackson, 443 U.S. at
319. Because juries observe the demeanor of trial witnesses and courts of appeals do not, “the
assessment of the credibility of witnesses is generally beyond the scope of review.” Schlup v.
Delo, 513 U.S. 298, 330 (1995); see also United States v. Bailey, 444 U.S. 394, 414–15 (1980)
(“It is for [jurors] and not for appellate courts to say that a particular witness spoke the truth or
fabricated a cock-and-bull story”). In applying the Jackson standard, an appellate court will not
consider any new evidence not presented at trial, because the question is whether any rational
trier of fact could have convicted “upon the record evidence adduced at the trial.” Jackson, 443
U.S. at 324 (emphasis added).
The test for evidentiary sufficiency under Indiana law is worded a bit differently than the
federal standard, but the two are substantially the same. Indiana law requires that there be
“substantial evidence of probative value which would permit a reasonable trier of fact to find the
existence of each element of the offense beyond a reasonable doubt.” Bowen v. State, 478 N.E.2d
44, 46 (Ind. 1985). Under both Indiana law and federal law, the ultimate question is whether any
reasonable trier of fact could have found all elements of the offense beyond a reasonable doubt.

43

2.

Procedural Default and Fair Presentment
The State argues that this claim is barred by procedural default, because the Petitioner

never fairly presented it to the Indiana Supreme Court on direct appeal. 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. 2001). “Fair presentment requires the petitioner to
give the state courts a meaningful opportunity to pass upon the substance of the claims later
presented in federal court.” Id. (quoting Rodriguez v. Scillia, 193 F.3d 913, 916 (7th Cir. 1999)).
In the interests of federal-state comity, both the operative facts and controlling law must be put
before the state courts. Ellsworth v. Levenhagen, 248 F.3d 634, 639 (7th Cir. 2001) (citing
Wilson v. Briley, 243 F.3d 325, 327 (7th Cir. 2001); Boyko, 259 F.3d at 788).
In determining whether a federal claim was fairly presented to the state courts, “the task
of the habeas court . . . is assessing, in concrete, practical terms, whether the state court was
sufficiently alerted to the federal constitutional nature of the issue to permit it to resolve that
issue on a federal basis.” Ellsworth, 248 F.3d at 639 (quotation marks and internal citations
omitted). Fair presentment “does not require a hypertechnical congruence between the claims
made in 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). There are four (4) factors to consider in determining whether a federal claim was fairly
presented to the state courts: “(1) whether the petitioner relied on federal cases that engage in a
constitutional analysis; (2) whether the petitioner relied on state cases which apply a
constitutional analysis to similar facts; (3) whether the petitioner framed the claim in terms so
particular as to call to mind a specific constitutional right; and (4) whether the petitioner alleged
a pattern of facts that is well within the mainstream of constitutional litigation.” Id. at 815.

44

The State argues that the Petitioner presented only a state claim, and not a federal claim,
to the Indiana Supreme Court. The State emphasizes the fact that most of the cases cited by the
Petitioner, and most of the Petitioner’s argumentation, revolve around a state law rule called the
“incredible dubiosity” rule, which allows a state appellate court to reweigh the credibility of a
witness whose testimony is “inherently improbable, coerced, equivocal, or wholly
uncorroborated.” Davis v. State, 658 N.E. 2d 896 (Ind. 1995). But the Petitioner also “relied on
federal cases that engage in a constitutional analysis.” Anderson, 471 F.3d at 815. He argued on
direct appeal to the Indiana Supreme Court that the evidence presented at his trial was
insufficient to support his conviction, citing Jackson v. Virginia, 443 U.S. 307 (1979), a
frequently cited United States Supreme Court opinion that engages in extensive constitutional
analysis. (Pet’r’s Appellate Br. 9.) The Petitioner pointed out that the federal and Indiana
constitutions both require proof beyond a reasonable doubt. Id. Then, after attacking the evidence
against him for approximately twenty pages, he concluded by claiming that the evidence against
him was insufficient to support a conviction under either the state or the federal standard, citing
the Supreme Court’s Winship decision as well as several Indiana state cases. Id. at 31. The
Petitioner’s emphasis on the state law “incredible dubiosity” rule is not surprising, given that the
central evidence in the case was the testimony of two witnesses whose credibility the Petitioner
has vigorously contested at every opportunity. Indiana has a special rule explicitly allowing
appellate courts to reweigh the credibility of “incredibly dubious” witnesses. Under federal law
there is no such explicit rule, and “the assessment of the credibility of witnesses is generally
beyond the scope of review.” Schlup, 513 U.S. at 330. While it does not follow that no court
applying federal law can ever reweigh witness credibility, the Petitioner recognized that the state
law argument was more likely than the federal law argument to persuade the Indiana Supreme

45

Court to revisit the witnesses’ credibility. He allocated the limited space in his brief accordingly.
It does not follow that he failed to present the federal claim.
In addition to citing the appropriate federal precedent, the Petitioner also “framed the
claim in terms so particular as to call to mind a specific constitutional right.” Anderson, 471 F.3d
at 815. The Petitioner claimed that the evidence was insufficient to support his conviction, citing
the United States Supreme Court’s opinion in Jackson v. Virginia. Variations on the phrase
“sufficiency of the evidence,” in the context of a challenge thereto, immediately call to mind the
requirement that a defendant not be convicted of a crime absent proof of all elements beyond a
reasonable doubt. Proof of guilt beyond a reasonable doubt has been explicitly recognized by the
United States Supreme Court as a requirement of Fourteenth Amendment Due Process since at
least 1970. See In re Winship, 397 U.S. at 364 (“Lest there remain any doubt about the
constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process
Clause protects the accused against conviction except upon proof beyond a reasonable doubt of
every fact necessary to constitute the crime with which he is charged.”). A challenge to
evidentiary sufficiency, in addition to being a longstanding and well-recognized federal
constitutional claim, is also a common claim on direct appeal. The Indiana Supreme Court was
thus “sufficiently alerted to the federal constitutional nature of the issue to permit it to resolve
that issue on a federal basis.” Ellsworth, 248 F.3d at 639.
It is difficult to imagine what more the State believes was necessary to fairly present the
federal claim. The factual substance of the state and federal claims is identical. The Petitioner
was attacking the credibility of witness testimony, and he therefore focused most of his attention
on a state law rule explicitly permitting the reassessment of the jury’s credibility determinations
in rare cases. However, he also asserted that the evidence against him failed to meet the

46

minimum standard under the Due Process Clause of the Fourteenth Amendment to the United
States Constitution, and he cited to appropriate federal legal authority in making that assertion.
Thus, both the operative facts and the controlling federal law were put before the state court.
Whatever the merits of his federal challenge to the sufficiency of the evidence, the Petitioner
succeeded in fairly presenting the claim on direct appeal.

3.

The Indiana Supreme Court’s Adjudication of the Claim
Having concluded that this claim was fairly presented to the state court, the next question

is whether the Indiana Supreme Court adjudicated the claim on the merits; it did. Therefore, that
process is entitled to deference under the AEDPA, which provides that a state court’s
adjudication of the merits of a habeas petitioner’s claim will not be disturbed unless it “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).
The Indiana Supreme Court’s adjudication of this claim was not contrary to clearly
established federal law, as determined by the United States Supreme Court. The Indiana
Supreme Court, after summarizing the Petitioner’s challenge to the evidence against him, found
that “the jury could have reasonably concluded beyond a reasonable doubt that [the Petitioner]
committed the burglary and the three murders.” Stephenson I, 742 N.E.2d at 499. While the
Indiana Supreme Court cited only to state precedents, the state law standard is substantially the
same as the federal standard, and the state and federal claims share the same set of operative
facts. In concluding that a reasonable jury could have convicted the Petitioner of the charged
offenses, the Indiana Supreme Court adjudicated both the state claim and the federal claim on the
merits. While the Indiana Supreme Court did not cite Jackson explicitly, it applied the correct

47

standard in rejecting the Petitioner’s claim. Therefore the adjudication was not contrary to clearly
established federal law, as determined by the Supreme Court of the United States.
Furthermore, the Indiana Supreme Court did not apply the Jackson standard “in an
objectively unreasonable manner.” Payton, 544 U.S. at 141. The Indiana Supreme Court
discussed both the evidence and the Petitioner’s challenges to that evidence. It concluded that
witnesses Funk and Mossberger were not “incredibly dubious” witnesses for purposes of the
“incredible dubiosity” rule, despite the presence of several inconsistencies in their testimony. It
pointed out that the jury was made aware of these inconsistencies, and that there was also some
circumstantial evidence pointing to the Petitioner’s guilt. Stephenson I, 742 N.E.2d at 497. The
court also noted that the Petitioner’s own statements to police and the testimony of his alibi
witnesses also contained inconsistencies. Id. at 499. The jury had the opportunity to observe all
witnesses who testified, and the state court declined to reweigh the credibility of their testimony.
The decision not to apply the “incredible dubiosity” rule was one of state law, and is therefore
not subject to review by this Court. As a matter of federal law, which has no explicit “incredible
dubiosity” rule, the decision not to impinge upon the jury’s credibility determinations was not
objectively unreasonable, because such determinations are generally beyond the scope of review
in claims challenging the sufficiency of the evidence.
The Indiana Supreme Court applied the correct standard in adjudicating the Petitioner’s
claim on the merits, and its application of that standard was not objectively unreasonable in light
of clearly established federal law. The Petitioner’s sufficiency of the evidence claim is therefore
denied.

48

D.

Freestanding Actual Innocence Claim
The Petitioner asserts his actual innocence in a freestanding claim. Whether such a claim

is cognizable is a question that the United States Supreme Court has, to date, explicitly avoided
deciding. However, the Petitioner points to case law that, in his view, strongly indicates that the
United States Supreme Court would find the claim to be cognizable were it to reach the question.
The State contends that the Petitioner should not be procedurally allowed to make such a claim,
and that, even if allowed, the claim lacks merit. This Court will follow the United States
Supreme Court in assuming without deciding that the claim is cognizable, because the Court
finds that the new evidence presented by the Petitioner is insufficient to surmount the
extraordinarily high bar that the Petitioner must clear to prevail on this claim.

1.

Is a Freestanding Innocence Claim Cognizable?
Every time the United States Supreme Court has been asked to decide whether a

freestanding actual innocence claim is cognizable, it has assumed in the affirmative without
deciding. See, e.g., In re Davis, 557 U.S. 952, 952 (2009) (transferring original habeas petition
asserting a freestanding innocence claim to a district court with instructions to “receive
testimony and make findings of fact as to whether evidence that could not have been obtained at
the time of trial clearly establishes petitioner’s innocence”); House v. Bell, 547 U.S. 518, 555
(2006) (finding that the petitioner had met the gateway standard for excusing procedural default,
but that he had not made a sufficient showing for a freestanding claim of innocence and
assuming without deciding that the claim was cognizable); Hererra v. Collins, 506 U.S. 390,
417–19 (1993) (assuming without deciding that a freestanding innocence claim is cognizable,
and concluding that the petitioner’s evidence in support of his claim of innocence fell “far short

49

of that which would have to be made in order to trigger the sort of constitutional claim we have
assumed, arguendo, to exist”). In the most recent of these cases, In re Davis, the district court,
upon transfer from the United States Supreme Court, decided that a freestanding innocence claim
is cognizable, though it also found that the petitioner in that case had failed to establish his actual
innocence. The district court explained its decision to reach the question of cognizability despite
finding that the petitioner could not establish actual innocence:
When courts find a Herrera claim insufficient after lengthy factfinding regarding
innocence, it is usually because the extensive factfinding was already necessary to
determine a Schlup claim, and the Herrera claim can be resolved by reference to the
Schlup determination. See House v. Bell, 547 U.S. 518 (2006). By contrast, this Court has
already expended significant resources taking in evidence specifically regarding Mr.
Davis’s Herrera claim. It will have to expend even more resources to review the
evidence and determine the merits of the Herrera claim, which is not facially insufficient
even though it fails upon close examination. The expenditure of those resources can, and
should, be avoided if this claim is not cognizable. Accordingly, the Court declines to
dodge the question that is squarely before it.
In re Davis, 2010 WL 3385081, at *37 n.15 (S.D. GA. Aug. 24, 2010) (internal parallel citations
omitted). In deciding that the claim is cognizable, the district court held that the execution of one
who is demonstrably innocent would violate the Eighth Amendment prohibition of cruel and
unusual punishment, even if the conviction followed a fair trial and all appeals had been
exhausted. The district court made use of the following hypothetical scenario:
A defendant is convicted of the murder of his child after a full and fair trial, and he is
then sentenced to death. Ten years later, the defendant discovers the “murdered” child
has been safely living on a remote island, conclusively disproving defendant’s guilt. The
defendant then goes before the state with his living child, but is denied relief and the state
prepares to move forward with his execution. The challenge under these circumstances is
whether, in spite of the truly persuasive proof of innocence, the state may proceed with
the execution without violating the Eighth Amendment of the United States Constitution.
Id. at *40 n.24. The district court noted the decision in Robinson v. California, 370 U.S. 660
(1962), in which the United States Supreme Court held that any punishment is disproportionate
where the convicted is without culpability. The district court also conducted a thorough analysis
50

of more recent Eighth Amendment jurisprudence before concluding that a freestanding
innocence claim is cognizable.
While the Court finds the reasoning of the district court in Davis persuasive, there is not a
similar justification for reaching the issue of cognizability in this case. The Court need not
conduct a lengthy evidentiary hearing on the question of actual innocence, because in this case
all of the new evidence is already in the record, including that which the Indiana Supreme Court
decided was not genuinely new. Because of this, and because the Court finds that the Petitioner
has not clearly established his actual innocence, the Court will assume without deciding that a
freestanding actual innocence claim is cognizable.

2.

Standard of Proof
The United States Supreme Court has recognized a claim of actual innocence as a

“gateway” for excusing procedural default, allowing a federal habeas court to hear claims that
would otherwise be barred if the Petitioner can present new reliable evidence, not available at
trial, demonstrating “that it is more likely than not that no reasonable juror would have convicted
him in the light of the new evidence.” Schlup v. Delo, 513 U.S. 298, 327 (1995). The Supreme
Court has also noted that the standard of proof for a hypothetical, freestanding innocence claim
would have to be higher than the standard for a gateway claim. House, 547 U.S. at 555. The
United States Supreme Court’s instructions to the district court in Davis should also be accorded
significant weight in determining the proper standard. The Supreme Court ordered the district
court to determine whether the petitioner could “clearly establish” his innocence. Davis, 557
U.S. at 952. Also of import to this Court’s analysis, the Supreme Court noted in Schlup that
“newly presented evidence may indeed call into question the credibility of witnesses presented at

51

trial. In such a case, the habeas court may have to make some credibility assessments.” Schlup,
513 U.S. at 330. The reviewing court should focus its inquiry “on the likely behavior of the trier
of fact,” had the trier of fact been aware of the new evidence as well as the evidence actually
presented at trial. Id. The Supreme Court recently clarified that a court considering an actual
innocence gateway claim should not count unjustifiable delay by the petitioner “as an absolute
barrier to relief, but as a factor in determining whether actual innocence has been reliably
shown.” McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013). Taking all of this guidance
together, the Petitioner’s freestanding actual innocence claim can succeed only if the totality of
the evidence, old and new, clearly shows that the Petitioner is actually innocent of the crime for
which he is incarcerated.

3.

The New Evidence
All of the new evidence the Petitioner offered at the postconviction hearing was in the

form of witness testimony. The Petitioner has presented new testimony from a number of
witnesses, some of whom testified at trial and some of whom did not. Ten of these witnesses
gave testimony at the postconviction hearing that implicated Guy James “Jimmy” Knight. Two
other witnesses (who did not testify at the postconviction hearing, but who were later deposed)
pointed the finger at Brian Mossberger, one of the State’s key witnesses. The Petitioner’s trial
counsel presented witnesses to the jury who testified that Knight had implicated himself in the
three murders. The jury apparently did not credit this testimony, and none of it is more than
suggestive of Knight’s involvement in the murders.

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a.

Danyel Renfro
Danyel Renfro was a friend of Brandy Southard, one of the victims. Renfro’s testimony

at trial implicated Jimmy Knight in the murders. She testified that a few days before the
murders, Southard had told her that Knight had threatened to shoot Southard over a $1,500.00
debt, saying that “[her] time was coming.” (PC 285.) At the postconviction hearing, Renfro
reiterated that testimony, and went on to say that Knight was “not right in the mind,” and that he
scared her. (Id. at 287.) When asked to explain why he scared her, Renfro stated that she had
seen him “go off,” striking his girlfriend, Becky Beasley, repeatedly before being restrained. (Id.
at 287–88.)
At the time of the murders, Renfro was living with Herschel Siefert, an associate of
Knight. (Id. at 285.) Renfro also testified at the postconviction hearing that Troy Napier had
come to Siefert’s house in the days following the murders, looking nervous and insisting he had
nothing to do with them despite not having been asked about the murders. (Id. at 286.) Renfro
testified that Herschel Siefert had “give[n] [her] advice” about testifying, though a hearsay
objection was sustained with respect to the contents of the communication. (Id.) She was also
asked whether “Herschel Siefert [had given] any indication that he knew about these homicides,
these murders, before they happened,” to which she responded in the affirmative. (Id.) Once
again, a hearsay objection was sustained as to the contents of any such communications. (Id. at
287.) When asked if the Petitioner’s trial counsel had asked her the same questions that
postconviction counsel asked her at the hearing, Renfro could not remember clearly, stating that
at the time of the murders and the trial she “was drugged out real bad,” though she had since
stopped using drugs. (Id. at 289–90.)

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b.

David Stephenson
David Stephenson, the Petitioner’s brother, testified at the postconviction hearing. He did

not testify at the trial. Much of Stephenson’s testimony had to do with the Petitioner’s childhood
and substance abuse issues, and has already been recounted supra. However, Stephenson also
gave testimony that is relevant to the Petitioner’s actual innocence claim. Stephenson testified
that he saw the Petitioner on March 28, 1996, and that the Petitioner told Stephenson at that time
that Mossberger was in possession of the Petitioner’s SKS rifle, which neither party disputes was
the murder weapon. (PC 628.) Stephenson testified that he knew this conversation occurred on
March 28, but that he was not sure about the exact date of the murders. (Id.) (March 28 was in
fact the day of the murders.)

c.

Rebecca Beasley
Rebecca Beasley testified at the Petitioner’s trial. At the time of the trial, she was living

with Herschel Siefert. (PC 292.) Beasley testified that she learned of the triple homicide from
Detective Marvin Heilman, who came to Jimmy Knight’s house. (Id.) She also testified that she
has lived with Knight, though she was not sure if she was living with him at the time of the
murders. (Id. at 294.) Beasley and Knight have two children together. (Id.) Asked whether she
knew that Knight “broke the law sometimes,” she testified that “everyone was aware of it”
because Knight was “stupid.” (Id.) Asked if Knight ever said anything to her that would indicate
his involvement in the triple homicide, Beasley answered, “No.” (Id.)

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d.

Becky Francis
Becky Francis testified at the Petitioner’s trial. At that time her name was Becky Johnson.

(PC 327.) Francis had recently been arrested on drug charges when she testified at trial. (Id.) She
testified at the postconviction hearing that she was still suffering from withdrawal at the time of
her trial testimony. Francis testified at the Petitioner’s trial that, a few days before the murder,
Jimmy Knight had told Herschel Siefert to avoid Warrick County. (Id. at 328.) She also testified
that Siefert had bragged about lying to police, saying he had passed a polygraph test. (Id.)
Francis also testified that Knight had approached her brother, Ronnie Story, and asked him if he
wanted to go on a hit with Knight. (Id.) Francis also testified at trial that Knight had told her that
the victims had intercepted some drugs and that examples were going to be made. (Id.) She said
that Knight owed Siefert money, and that Siefert told Knight to take care of the issue of the
missing drugs. (Id.) Francis testified that her understanding was that the drugs were at Troy
Napier’s house, that Knight went to Napier’s house and the drugs were not there, and that
because Napier was in jail at the time, Knight concluded that Brandy Southard must have been
responsible. (Id.)
At the postconviction hearing, Francis also testified about Jimmy Knight, saying he was a
“lunatic” and a “very mean, nasty, devious person.” (Id. at 331.) She also described how Knight
would regularly beat her friend, Christina Baker, when Baker dated Knight. (Id.) Francis also
testified that when she told Baker that she thought Knight was involved in the murders, Baker
immediately left, and an angry Knight showed up soon after. (Id. at 334.) Francis testified that
Knight did not say anything indicating he killed the victims, but was simply angry that she was
saying she thought he did it. (Id.) Francis testified that Knight told her that anyone telling people

55

he committed the murders would “watch every single person they care about die around them.”
(Id. at 334.)

e.

Brandi Martin
Brandi Martin testified at the Petitioner’s trial. Martin was friends with the victims, and

testified that Southard told her Troy Napier, her boyfriend, owed Knight money. (Id. at 345.)
Napier was in jail at the time. She testified that Southard told her that Knight was calling her at
Napier’s trailer and threatening her life. (PC 340.) Martin also testified that Southard was afraid,
because she didn’t have the money Knight was demanding. (Id. at 341.) She also mentioned that
Southard told her that someone had been lurking around Napier’s trailer, and that Southard
thought it was Knight. (Id.)
Martin was also friends with victim Kathy Tyler. She testified that Tyler told her she was
afraid, and that she thought she was being followed. (Id. at 342.) Martin testified that Tyler had
said she wanted to go back to Illinois, where she and her husband, victim Jay Tyler, had lived
before moving to Indiana. (Id. at 342.)

f.

Carl Bruner
Carl Bruner testified at the Petitioner’s trial. Bruner knew Knight, and testified that

Knight had once pawned a gun to him for $50.00. (PC 317.) He also testified that Knight later
came back to get the gun, saying he needed to give it to Detective Heilman. (Id.) Bruner testified
further that he gave Knight a ride to court within days of the murders, and that Knight said
something along the lines of “they went too far,” or “someone went too far.” (Id. at 319.) Asked

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if Knight ever said anything that indicated he might have had something to do with the murders,
Bruner answered, “Oh no. No. He never did tell me that.” (Id.)

g.

Terri Greenlee West
Terri Greenlee West did not testify at trial. Stephenson II, 864 N.E.2d at 1053. West and

Becky Beasley were friends and also roommates at the time of the murders. (PC 376.) West
testified that Knight came to her home on the morning of March 29, 1996. (Id. at 377.) West
testified that “Knight’s appearance was very disoriented and he was very upset.” (Id.) West said
that Knight asked to speak to Beasley outside, and that Beasley came back inside, told West that
three people had been murdered, gathered a few of her things, and left with Knight. (Id. at 384.)
West testified that Knight never said anything at all to her about the murders, much less anything
suggesting his involvement. (Id.) It is unclear from the record whether the Petitioner’s trial
counsel ever interviewed West.

h.

Christina Baker Barenfanger
Christina Baker Barenfanger knew Knight from a prior romantic relationship that had

lasted several years. (PC 296.) She testified at the postconviction hearing that she had known
Knight for close to twenty years. (Id.) Barenfanger described Knight as “nuts,” saying, “[h]e’s
got a problem.” (Id.) She testified that he was “often” physically abusive, and that he was also
mentally abusive. (Id.) Barenfanger testified that she had asked Knight whether he had anything
to do with the murders when she visited him in jail. (Id. at 297.) She testified that he winked and
nodded. (Id.) Barenfanger testified that she believed he was serious, though she also testified that

57

when she asked him about it again later, he denied involvement. (Id. at 299.) She said that to her
knowledge Knight had never murdered anyone. (Id.)
Barenfanger also testified that Herschel Siefert had said something to her that made her
think Siefert might have been involved, but she was not asked exactly what he said that led her to
suspect his involvement. (Id. at 302.) Barenfanger was not asked whether she was ever contacted
by the Petitioner’s trial counsel.

i.

David Kifer
David Kifer did not testify at the Petitioner’s trial. Kifer was in jail with Knight during

the trial, and the two were in the same cell block. (PC 307–08.) Kifer described Knight as
“moody” and “very unpredictable.” (Id. at 307.) Kifer testified that the Petitioner’s trial was on
the television in the jail. (Id. at 308.) Kifer testified that Knight had expressed concern that
Knight’s clip was left in the murder weapon. (Id.) He also testified that Knight called himself a
“cold-blooded killer” in what Kifer perceived to be an attempt to intimidate him. (Id. at 309.) In
addition, Kifer testified that Knight told him of the murders, “I know [the Petitioner] didn’t do
that, but he’s hit.” (Id. at 310.) Kifer explained that Knight frequently used the word “hit” in that
context, and that to say that someone was “hit” meant that he was stuck with what happened.

j.

Chad Adams
Chad Adams did not testify at either the trial or the postconviction hearing, because his

existence as a potential witness did not come to the attention of police until after the
postconviction trial court had already denied the petitioner’s request for postconviction relief.
Police learned of Adams when other inmates with whom he had been in jail alerted police that

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Adams had claimed to have knowledge of the murders for which the Petitioner was convicted. At
that time, the Petitioner’s motion to correct error had already been filed with the postconviction
court. That court agreed to delay ruling on the motion to correct error until after the new
evidence was investigated. Several new witnesses were deposed, and Adams was given a
polygraph examination.6 After reviewing this evidence, the postconviction trial court denied the
motion without comment.
Adams told police he knew Mossberger as an acquaintance, through Adams’s friend
Donald Goodman. (PC App. 762.) Adams told police that on the day of the murders, he and
Goodman had worked on a car together at Mossberger’s house. (Id.) Adams said that around five
or six o’clock in the evening, several people arrived for a bonfire party. (Id.) The Petitioner was
among them. (Id.) Adams said that he did not know most of the people who had arrived, and that
he and Goodman continued working on the car. (Id.) Mossberger went back and forth between
the bonfire and working on the car. (Id.) Adams stated that he left the party around 8:30 PM to
pick up his wife from work. (Id.) He said he was gone about 30 to 45 minutes, and that he
continued working on the car after he returned. (Id.) Adams said that a truck drove past the house
at around 10:30 PM, and that he thought it was a red full-sized pickup truck. (Id. at 763.) Adams
said he heard Mossberger say, “I’m going to get that son of a bitch,” at which point Mossberger
left in his own truck to follow. Adams said he saw the Petitioner walk back to the bonfire after
Mossberger left. Adams told police that he and his wife then went to get more beer, and that
when they returned, Goodman came out front and said that they needed to leave immediately.
(Id.) Adams said that he went inside to put the beer in the freezer, and that Goodman told him
again they needed to leave, and that Mossberger and the Petitioner were in the bathroom. (Id.)

6
These depositions, as well as Adams’s polygraph report, can be found in the Postconviction Appendix to
the Brief of the Petitioner/Appellant (“PC App.”).

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Adams said that he then heard Mossberger say, “I got them on Youngblood road.” (Id.) Adams
stated that he, his wife, and Goodman all left the party about five minutes later. (Id.) Adams told
police that the Petitioner was at Mossberger’s house at all times Adams was there that evening.
(Id.)
Adams stated that Goodman came to Adams’s home the next day, and that they talked
about the previous night. (Id.) Adams said his wife and his mother were at his house at this time.
(Id.) Adams told police that Goodman said he thought Mossberger had killed someone the
previous night, and that Goodman told Adams not to talk about it to anyone. (Id.) Adams told
police that Goodman had looked upset and nervous, and that he believes Goodman moved to
Michigan to get away from the whole situation. (Id.) Adams said that fear was what had kept
Adams silent. (Id.)
The polygraph report notes three specific questions asked of Adams. First, he was asked
whether he actually heard Mossberger say he was going after the truck. Adams answered, “Yes,”
and the polygraph detected “no significant indications of deception.” (Id. at 764.) Adams was
asked whether he actually saw Mossberger drive off after the truck. He answered, “Yes,” and the
polygraph again detected “no significant indications of deception.” (Id.) Adams was then asked
whether he actually heard Mossberger say that he “got him on Youngblood Road.” Adams
answered, “Yes,” and this answer scored as “truthful.” (Id.)

k.

Carla Smith
Carla Smith is Chad Adams’s mother. Like Adams, Smith did not testify at the trial or at

the postconviction hearing; the need for her testimony did not arise until Chad Adams had come
forward. Smith testified at her deposition that Donald Goodman came to Adams’s house the day

60

after the murders, and that she knew this because she was there. (PC App. 753.) Smith testified
that Goodman was acting scared and talking about a man named “Brian.” (Id. at 754.) She said
Goodman talked about seeing Brian return to his (Brian’s) house on Sharon Road. (Id.) Smith
said that Goodman said Brian had come home “bloody.” (Id.) She testified that she recalled
“something about a knife or gun and it was bloody and [Goodman] said that this Brian had
threatened him and he was scared to death and he said I’m leaving the state.” (Id.) Smith said
that she was going to call the police when she realized this had to do with the triple murder that
was in the news at the time, but that Goodman had told her to “keep [her] mouth[] shut because
this guy might come after [her].” (Id. at 755.) Smith said that she had not come forward earlier
because she was afraid. (Id. at 756.) She said that she came forward when she did because “they
told us we had to be here.” (Id. at 757.) She said that her son, Chad Adams, had told her only that
Goodman had denied coming over to their house after the murders. (Id.) She said that this was
not true, and that Goodman did come to the house. (Id.)

l.

Donald Goodman
Donald Goodman was deposed after the postconviction hearing had been conducted,

because it was only after police interviewed Chad Adams that anyone became aware of the need
to depose Goodman. Goodman’s cousin, Frances Harper, was married to Chad Adams at the
time of the murders. Goodman and Harper were good friends as well as cousins, and Goodman
got to know Adams through Harper, though according to Goodman he and Adams never grew
particularly close.
Goodman’s account differs rather substantially from those of Adams and Smith.
Goodman testified at his deposition that he was “definitely not [at Mossberger’s] that night.” (PC

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App. 709.) He said that around the time of the murders (which occurred on a Thursday night), he
was working six nights a week, Monday through Saturday. (Id. at 709–10.) He stated that “unless
it happened on a Sunday, I was working.” (Id.) Goodman told police he had been to
Mossberger’s house on a few occasions, but never with Adams. (Id. at 724.) Goodman also
stated that he never discussed the murders with Chad Adams or Carla Smith, and that he did not
go to Adams’s house the day after the murders. (Id. at 714.) He said that he thought Adams was
seeking attention by coming forward now, saying that Adams “loves attention” and “likes to look
like he’s big and bad.” (Id. at 727.)

m.

Frances Harper
Frances Harper is Chad Adams’s ex-wife and Donald Goodman’s cousin. Harper and

Adams were married at the time of the murders. Harper testified in her deposition that she had
stopped at Mossberger’s house with Adams on the night of the murders, and that she had gone
inside for a few minutes to use the restroom. (PC App. 745.) She then returned to the car. (Id.)
Harper testified that she was not feeling well that night, as she was pregnant and “due any time.”
(Id.) She said there were “a couple” of people at Mossberger’s house, but she had no recollection
of a party or a bonfire. (Id. at 747.) She had no recollection of Donald Goodman being at
Mossberger’s house that night, though she also testified that she “didn’t pay any attention to who
was there.” (Id at 745–46.) Harper did recall that Goodman moved back to Michigan shortly
after the murders. (Id. at 746.) Harper also testified that she did not talk about the murders with
Goodman, Adams, and Smith on the day following the murders. (Id.) She testified that she never
spoke to anyone about that night. (Id.)

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4.

The Substantive Actual Innocence Claim
The state postconviction court was not impressed by the Petitioner’s new evidence, nor

was the Indiana Supreme Court, which held that the Petitioner’s new evidence did not undermine
confidence in the outcome of his trial. Stephenson II, 864 N.E.2d at 1054. However, the Indiana
Supreme Court based this conclusion on consideration of only some of the evidence that the
Petitioner contended was new; it refused to consider the testimony of Adams, Smith, Goodman,
and Harper, finding that the Petitioner did not show that he had exercised due diligence in
attempting to discover the evidence in time for use at trial. Id. at 1053.
This Court does not defer to the Indiana Supreme Court’s decision to disregard this
testimony. Whether evidence is “new” for purposes of Indiana Code §35-50-2-9(k) is a different
question from whether or not it is “new” for purposes of a hypothetical federal freestanding
actual innocence claim—or for purposes of a gateway actual innocence claim. The Indiana
Supreme Court’s decision not to consider the testimony was based on a state law requirement
that a petitioner offering new evidence after conviction make a showing that he exercised due
diligence in trying to find the evidence before his conviction. Stephenson II, 864 N.E.2d at 1053
(applying Indiana Code §35-50-2-9(k)). But even assuming the Petitioner failed to exercise
diligence in locating Adams, a failure of diligence in uncovering new evidence is the sort of
defect that can be overcome on habeas review by a sufficiently persuasive showing of actual
innocence. See Herrera, 506 U.S. at 429 (White, J., concurring) (“. . . I assume that a persuasive
showing of “actual innocence” made after trial, even though made after the expiration of the time
provided by law for the presentation of newly discovered evidence, would render
unconstitutional the execution of [the] petitioner in this case.”); McQuiggin, 133 S. Ct. at 1928
(“[A] federal habeas court, faced with an actual-innocence gateway claim, should count

63

unjustifiable delay on a habeas petitioner’s part, not as an absolute barrier to relief, but as a
factor in determining whether actual innocence has been reliably shown.”)
The Court concludes that if a freestanding actual innocence claim is cognizable, then the
evaluation of such a claim should include any relevant evidence that was not heard by the jury.
To be sure, when a new witness comes forward (or an old witness recants) at the eleventh hour, a
court should consider such suspicious timing in assessing the reliability of that testimony. But as
the Supreme Court recently held, if the late timing of an actual innocence claim is due to an
unjustifiable delay on the petitioner’s part (which is one sort of failure to exercise diligence),
then that is but one factor weighing against finding the new evidence reliable. McQuiggin, 133 S.
Ct. at 1928. Moreover, McQuiggin involved a gateway innocence claim that had been filed after
the statutory deadline imposed by the AEDPA had passed. If lack of diligence can be excused by
a showing that a petitioner is probably innocent, then it follows that a showing that a petitioner is
clearly innocent must also be sufficient. The Court will therefore consider all evidence that is
relevant to the question of actual innocence, including all of the evidence presented at trial, all of
the evidence from the postconviction hearing that was not presented at trial, and also the
deposition testimony from the new witnesses discovered after the postconviction hearing but
before the postconviction trial court denied the Petitioner’s motion to reconsider. If the totality of
the evidence clearly established the Petitioner’s actual innocence, then the Indiana Supreme
Court’s exclusion of some of the “new” evidence from consideration under Indiana law for lack
of due diligence would be no obstacle to relief.
Unfortunately for the Petitioner, the totality of the evidence in this case does not clearly
establish his actual innocence. It would be a rare case in which new evidence consisting solely of
witness testimony could be sufficiently clear and compelling that a petitioner who was originally

64

convicted upon legally sufficient evidence would be entitled to relief on a freestanding actual
innocence claim, which places an even greater burden on a petitioner than does a gateway
innocence claim. See McQuiggin, 133 S. Ct. at 1928 (cautioning that tenable gateway claims of
actual innocence are very rare). The new evidence in this case is not sufficiently clear or
conclusive to merit relief on a hypothetical freestanding actual innocence claim. The jury did in
fact hear testimony suggesting that Knight was the real killer, and they knew that Mossberger
was in possession of the murder weapon following the murders. Nevertheless, the jury convicted
the Petitioner of the murders. And as the Court has already concluded, the jury did so upon
legally sufficient evidence.
The only new testimony that might have given the jury real pause is that of Adams.
Adams passed a state-administered polygraph, and there is persuasive precedent suggesting that
polygraph results may be considered by a habeas court hearing an actual innocence claim. See
Schlup v. Delo, 912 F.Supp. 448, 455 (E.D. Mo. 1995) (considering polygraph results in
determining witness credibility in an actual innocence claim). However, as the United States
Supreme Court has observed, “there is simply no consensus that polygraph evidence is reliable,”
and “the scientific community remains extremely polarized about the reliability of polygraph
techniques.” United States v. Scheffer, 523 U.S. 303, 309 (1998). Federal circuits also disagree
about how to regard polygraph results. The Seventh Circuit generally leaves the admission or
exclusion of polygraph results to the discretion of the district court. United States v. Lea, 249
F.3d 632, 638 (7th Cir. 2001) (citing United States v. Robbins, 197 F.3d 829, 844 (7th Cir.
1999)). In contrast, the Fourth Circuit maintains a per se rule that polygraph evidence is
inadmissible for bolstering or impeaching witness credibility. United States v. Prince-Oyibo, 320

65

F.3d 494, 501 (4th Cir. 2003) (“Our post-Daubert precedents foreclose our abandonment today
of this Circuit’s per se rule.”).
An actual innocence claim requires the Court to make a probabilistic determination,
based on the totality of the evidence, of what a reasonable and properly instructed jury would do.
Schlup, 513 U.S. at 329. The fact that Adams passed a polygraph examination is insufficient to
support a finding that the Petitioner has clearly established that no reasonable jury would have
believed Mossberger’s and Funk’s testimony over Adams’s. The problem is not just the lack of
scientific consensus regarding the reliability of polygraph results. Also problematic is the fact
that Adams’s testimony conflicts not only with Mossberger’s testimony, but also with the
Petitioner’s own statement to police, and with other new testimony that the Petitioner asks the
Court to consider in deciding this claim (most of which, if credited, would tend to implicate
Knight, not Mossberger). For instance, Adams says that Donald Goodman was with him at
Mossberger’s house on the night of the murders, but Goodman denies that he was there.
Goodman also insists he did not go to Adams’s house the day after the murders, as Adams and
Smith testified. Frances Harper was with Adams both on the night of the murders and the next
day at Adams’s house. She does not recall seeing Goodman either at Mossberger’s house on the
night of the murders or at Adams’s house the next day. In addition, Harper denies ever
discussing the events of the night of the murders with anyone, again directly contradicting the
testimony of Adams and Smith.
While the jury might have chosen to believe Adams over Mossberger and Funk, the
totality of the evidence does not clearly establish the Petitioner’s actual innocence. And while the
United States Supreme Court has indicated that new evidence can sometimes make it necessary
for a habeas court to reweigh witness credibility in evaluating an actual innocence claim, the

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extent of the reweighing that would be necessary in order to grant this petition is not justified by
the Petitioner’s new evidence. Here, new testimony conflicts with old testimony, and new
testimony conflicts with other new testimony, and both old and new testimony conflict with the
Petitioner’s own statement to police. Attempting to reweigh this jumble of conflicting testimony
would be a futile endeavor, the result of which would at best be no more reliable than the result
of the original trial. All of the key witnesses appear to have (at least) arguable credibility issues.
However, the Court cannot conclude based on this record that the Petitioner has clearly
established his actual innocence.

E.

Right to Confrontation, Prosecutorial Misconduct, and Cumulative Error
The Petitioner contends that he was denied his Sixth Amendment right to confront and

cross-examine the witnesses against him when the trial court declined to admit evidence that one
of the chief witnesses against him had been convicted of armed robbery seventeen years prior to
the Petitioner’s trial. He also argues that the prosecutor committed misconduct by insinuating to
the jury that the Petitioner was involved in drug trafficking, despite offering no evidence that this
was the case; that the trial court erred in refusing to grant the Petitioner’s motion to declare a
mistrial following those comments; and that the cumulative effect of these claimed errors was to
deny him the fair trial to which every defendant is entitled. The Indiana Supreme Court held that
the trial court’s exclusion of the stale convictions did not violate the Petitioner’s Sixth
Amendment right to confrontation, or his right to a fair trial. It also held that the prosecutor’s
comments did not rise to the level of misconduct, and that the trial court’s admonishment to the
jury was sufficient to cure the defect.

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1.

Procedural Default
The State contends that the Petitioner’s cumulative effect argument is barred by

procedural default, because in the state court he did not argue cumulative effect specifically, but
instead argued separately that each of the two issues here raised is sufficient by itself to merit
relief. In deciding whether the cumulative effect of multiple errors amounts to a harmful
constitutional deprivation, a habeas court will consider first whether there were two or more
constitutional errors. Alvarez v. Boyd, 225 F.3d 820, 824 (7th Cir. 2000). Without multiple
errors, there can be no accumulation of harmful effects. In deciding whether the cumulative
effect of multiple errors was to render a petitioner’s trial fundamentally unfair, “[t]he court will
consider . . . plain errors or errors which were preserved for appellate review.” Id. at 825. If
multiple errors are found, the court will then decide whether, considering the entire record, “the
multiple errors so infected the jury’s deliberation that they denied the petitioner a fundamentally
fair trial.” Id. at 824.
The question of the nature and scope of cumulative error analysis is the subject of a
circuit split. The Sixth Circuit treats cumulative error claims as separate claims that are
procedurally defaulted on habeas review unless first asserted explicitly in state court.
Abdur’Rahman v. Colson, 649 F.3d 468, 472 (6th Cir. 2011). The Sixth Circuit does except
claims of multiple Brady violations and claims of multiple instances of ineffective assistance of
counsel from this general requirement of explicitly asserting cumulative effect in state court. Id.
at 472–73. In contrast the Fifth Circuit, in an en banc opinion, considered on the merits a
cumulative error argument that had not been raised in the state courts (though each of the
constituent claims had been properly preserved). Derden v. McNeel, 978 F.2d 1453, 1456–57
(5th Cir. 1992). The Seventh Circuit’s approach in Alvarez likewise appears to require only that

68

the individual claimed errors be either plain or properly preserved. While it does not appear that
procedural default was raised in Alvarez as a bar to the petitioner’s cumulative error argument,
Alvarez is mandatory authority that provides a formula for evaluating cumulative effect
arguments in this circuit. Accordingly, the Court will follow the analysis set forth in that
decision, which means reaching the merits of the Petitioner’s cumulative effect argument.
In finding that neither the exclusion of the prior convictions nor the refusal to grant a
mistrial constituted error, the Indiana Supreme Court effectively decided this claim on the merits.
If the Petitioner had explicitly argued cumulative effect before the Indiana Supreme Court, the
analysis would have been complete as soon as the Indiana Supreme Court found that there were
not multiple errors. And in rejecting each of the claims whose alleged cumulative effect is at
issue, the Indiana Supreme Court did in fact find that there were not multiple errors. That
adjudication is entitled to deference under 28 U.S.C. 2254(d)(1), and the Indiana Supreme Court
was not unreasonable in determining that the claimed errors constituting the Petitioner’s
cumulative error argument were not errors.

2.

Exclusion of the Stale Robbery Convictions
The Petitioner claims that the trial court’s exclusion of evidence of witness Brian

Mossberger’s three armed robbery convictions, which were 17 years old at the time of the
Petitioner’s trial, violated the Petitioner’s rights under the confrontation clause of the Sixth
Amendment. While federal habeas corpus is not normally used to review questions about the
admissibility of evidence, Estelle, 502 U.S. at 72, a federal habeas court does have an
independent duty to determine whether the application of state evidence rules to a particular case
violates the Constitution. Sussman v. Jenkins, 636 F.3d 329, 353 (7th Cir. 2011) (citing Jones v.

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Cain, 600 F.3d 527, 536 (5th Cir. 2010)). The rules of evidence may not be applied
mechanistically to defeat the ends of justice, but rather must be applied so as to meet
fundamental standards of due process. Chambers v. Mississippi, 410 U.S. 284, 313 (1973).
However, a defendant’s right to confront and to cross-examine “is not absolute and may, in
appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.”
Chambers, 410 U.S. at 309. In applying their evidentiary rules, states must carefully weigh the
interests served by a rule against any limitation of a particular defendant’s constitutional rights.
Rock v. Arkansas, 483 U.S. 44, 56 (1987). In addition, to be entitled to relief on this claim the
Petitioner must show not only that there was a constitutional error, but also that the error had “a
substantial and injurious effect or influence on the jury’s verdict.” Brecht v. Abrahamson, 507
U.S. 619, 637–38 (1993).
The Indiana Rules of Evidence provide that a witness’s prior criminal convictions are
admissible under certain circumstances and for certain purposes. Prior convictions for certain
enumerated felonies, including robbery, are generally admissible for the purpose of impeaching a
witness’s credibility, provided the conviction is not more than ten years old. See Ind. R. Evid.
609(a) and 609(b). Older convictions may be admissible, but only if the trial court determines,
upon a showing by the proponent, that the probative value of the stale conviction substantially
outweighs its prejudicial effect, and provided also that the proponent gives the adverse party
sufficient written notice of intent to use such evidence. Ind. R. Evid. 609(b). The proponent’s
argument for probative value must be supported by specific facts and circumstances. Scalissi v.
State, 759 N.E.2d 618, 624 (Ind. 2001). The decision to admit or exclude such evidence lies
within the discretion of the trial judge and is reviewed for abuse of that discretion. Implicit in the
ten-year time limit of Indiana Evidence Rule 609(b) is the general principle “that older

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convictions have little bearing on the current state of a defendant’s credibility.” Id. at 625. Rule
609(b) draws the line at ten years, but also provides an exception to the general rule by allowing
evidence of older convictions upon a showing by the proponent that the probative value of a
particular stale conviction remains great enough substantially to outweigh the danger of unfair
prejudice. Both the general rule and the exception are designed to protect the integrity of the
fact-finding process, which is a legitimate state interest. The AEDPA limits the Court’s authority
to determining whether the Indiana Supreme Court failed to conduct the required balancing of
interests, or whether it conducted the required balancing in an objectively unreasonable manner.
Payton, 544 U.S. at 141.
In deciding the Petitioner’s claim that the trial court erred in excluding evidence of
Mossberger’s stale robbery convictions, the Indiana Supreme Court noted that the Petitioner bore
the burden of showing that the probative value of the prior convictions substantially outweighed
its prejudicial effect. Stephenson I, 742 N.E.2d at 486 (citing Schwestak v. State, 674 N.E.2d 962,
964 (Ind. 1996)). While the court acknowledged that Mossberger’s testimony was important to
the State’s case, it rejected the Petitioner’s contention that Mossberger’s credibility was a
dispositive factor. Id. at 485. The court reasoned that the import of Mossberger’s testimony was
to corroborate the testimony of Dale Funk, who testified that he was with the Petitioner at the
time of the murders and that the Petitioner was the one who shot and killed the three victims. Id.
at 486. The court acknowledged that “a Sixth Amendment issue is raised when a defendant is
prohibited from cross-examining a crucial witness on an area of his credibility.” Id. (citing
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). But the court also noted that the Sixth
Amendment “guarantees an opportunity for effective cross-examination, not cross-examination
that is effective in whatever way, and to whatever extent, the defense might wish.” Id. (citing

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Van Arsdall, 475 U.S. at 479 (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985))). The trial
court conducted a hearing to determine whether the probative value of the stale convictions was
sufficient to merit exception from the general rule that stale convictions are inadmissible, and it
ruled that the probative value of the convictions was insufficient to merit exception from the
general ten year time limit imposed by Indiana Evidence Rule 609(b). (R. 1966–67.) The Indiana
Supreme Court agreed. Rather than merely relying on the deferential nature of the “abuse of
discretion” standard, the court explicitly held that Mossberger’s stale robbery convictions were
of insufficient probative value to outweigh their likely prejudicial effect. Stephenson I, 742
N.E.2d at 486. The court also pointed out that the Petitioner’s counsel was not prevented from
conducting an extensive cross-examination of Mossberger, consisting of approximately 500
pages of trial record. Id. at 486–87. This cross-examination focused “in some extended detail”
upon Mossberger’s credibility, id. at 487, and the Petitioner acknowledged in his brief to the
Indiana Supreme Court that the cross-examination did effectively “expose some of Mossberger’s
evasiveness, selective memory, and lies.” Id. (quoting Pet’r’s Appellate Br. at 33). The Indiana
Supreme Court concluded that the Petitioner was not denied the opportunity to meaningfully and
effectively cross-examine Mossberger. Id.
The Indiana Supreme Court’s adjudication is entitled to deference under 28 U.S.C. §
2254(d)(1), and it was neither contrary to, nor an objectively unreasonable application of, the
United States Supreme Court’s decision in Chambers. In Chambers, the defendant was denied
any opportunity either to cross-examine a witness whose testimony was clearly and severely
damaging to the defendant, or to call to the stand friends of that witness, each of whom was
prepared to testify to a separate occasion on which the witness had confessed to committing the
very crime with which the defendant was charged. Chambers, 410 U.S. at 308–10. The

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confessions were especially important because the evidence pointed to a single perpetrator. Id. at
297. The state court ruling denying the defendant the right to cross-examine the witness was
based on a state evidence rule providing that parties may cross-examine only adverse witnesses.
The state courts limited the definition of an “adverse” witness to witnesses called by the adverse
party, regardless of the actual content of the witness’s testimony. The United States Supreme
Court reversed and remanded, reasoning that “the right to cross-examine those who give
damaging testimony against the accused has never been held to depend on whether the witness
was initially put on the stand by the accused or by the State.” Id. at 297–98. The Supreme Court
held that allowing such a “technicality” to determine the substantive rights of the defendant
amounted to a denial of the defendant’s right to a fundamentally fair trial. Id. at 298.
The facts of Chambers bear little resemblance to the Petitioner’s case. The Petitioner was
not denied the opportunity to cross-examine Mossberger. In fact, he was able to cross-examine
Mossberger at considerable length and in considerable depth. The only limitation of his right to
cross-examination was the refusal of the trial court to admit evidence of Mossberger’s prior
robbery convictions, which preceded the Petitioner’s trial by seventeen years. The Petitioner had
the opportunity to participate, and did participate, in a hearing to determine whether the stale
convictions should be admitted pursuant to an exception to the general time limit imposed by
Indiana Evidence Rule 609(b)—an exception that exists precisely to prevent the sort of
mechanistic, technicality-driven application of the rules that the United States Supreme Court
condemned in Chambers. The Indiana Supreme Court reasonably concluded that the exclusion of
this evidence did not amount to a deprivation of the Petitioner’s right to cross-examine
Mossberger on the issue of credibility. Mossberger’s commission of three robberies in 1979 is at
best only slightly probative of his propensity to tell the truth under oath in 1996. The likely

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prejudicial effect could reasonably be said to outweigh this slight probative value. Indeed, if
clearly established federal law required the admission of Mossberger’s stale convictions, then
the general ten-year limit of Indiana Evidence Rule 609(b) would become the exception, and the
exception the rule. The Indiana Supreme Court dutifully weighed the competing interests and
concluded—reasonably—that in this case Mossberger’s stale convictions were properly
excluded.

3.

Prosecutorial Misconduct
The Petitioner asserts that the prosecutor repeatedly insinuated, in the presence of the

jury, that the Petitioner was involved in drug trafficking or some other illegal means of
supporting himself. Although the Indiana Supreme Court acknowledged, as did the trial court,
that the prosecutor had made inappropriate comments, it nevertheless declined to conclude that
the trial court abused its discretion in denying the Petitioner’s motions for a mistrial. The
Petitioner argues that the Indiana Supreme Court’s determination of the facts was unreasonable,
giving this Court grounds to grant his Petition under 28 U.S.C. 2254(d)(2), and also that the
Indiana Supreme Court unreasonably applied the United States Supreme Court’s precedent in
Donnelly v. Dechristoforo, 416 U.S. 637 (1974), giving the Court grounds to grant his petition
under 28 U.S.C. 2254(d)(1). The Court concludes that the Indiana Supreme Court did not ignore
or unreasonably apply clearly established federal law in determining that the trial court did not
abuse its discretion in declining to declare a mistrial.
The Petitioner alleged numerous instances of misconduct before the Indiana Supreme
Court, but focuses here on two instances. The first instance occurred when the Petitioner was
cross-examining a state witness. The Petitioner asked the witness about the witness’s use of

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“crank” (an illegal drug), and the prosecutor objected, saying, “[u]nless I get to ask these kind of
questions concerning the Defendant . . . I do not know that this line of questioning has any
relevance.” Stephenson I, 742 N.E.2d at 483 (quoting R. at 23, 212–13). The Petitioner objected
to this comment. The trial judge sustained the objection, admonished the jury to disregard the
prosecutor’s comment, and granted the Petitioner’s request for individual voir dire on the matter
to ensure that each juror could indeed disregard the prosecutor’s comment. Stephenson I, 742
N.E.2d at 484. The trial judge acknowledged that the prosecutor’s comment was serious, but
concluded that it did not “rise to the level of placing the Defendant in grave peril in light of an
appropriate admonishment.” Id. (quoting R. at 23, 232). The Indiana Supreme Court agreed with
the trial judge’s conclusion. Id.
The second offending comment by the prosecutor occurred during the testimony of State
witness Detective Marvin Heilman. On cross-examination, the Petitioner’s counsel asked
Detective Heilman whether he had discovered any visible means of income or support for
various State witnesses. Id. at 484. On re-direct, the prosecutor asked Detective Heilman whether
he had discovered any visible means of income or support for the Petitioner. Id. The Petitioner’s
counsel objected at that point, accusing the prosecutor of insinuating that the Petitioner must be
supporting himself by illegal means. Id. The Petitioner moved for a mistrial. Id. The trial court
denied the motion for a mistrial, but sustained the Petitioner’s objection to the prosecutor’s
question. Id. The Indiana Supreme Court found no indication in the record that Detective
Heilman ever answered the prosecutor’s question in the presence of the jury. Id. The Indiana
Supreme Court concluded that the prosecutor’s question, while inappropriate, “had no probable
persuasive effect on the jury’s decision.” Id. Given the volume of evidence heard by the jury

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during a trial lasting approximately five months, this Court cannot say that the Indiana Supreme
Court’s ultimate conclusion was objectively unreasonable. The claim is therefore denied.
Because the Indiana Supreme Court did not unreasonably apply federal law in finding
that neither of the Petitioner’s claimed errors were really errors, the Court denies the
confrontation clause claim, the prosecutorial misconduct claim, and the cumulative error claim.

F.

Right to Counsel and the Right to be Present
The Petitioner contends that his Sixth Amendment right to counsel and his Fourteenth

Amendment due process right to be heard in a meaningful time and in a meaningful manner were
violated when the trial judge, without notifying the parties, summarily denied a jury request to
review certain evidence presented at trial. The Indiana Supreme Court rejected the Sixth
Amendment claim on state procedural grounds. The Petitioner failed even to cite the Fourteenth
Amendment in his brief to the Indiana Supreme Court. The State contends that these claims are
barred by procedural default.

1.

Sixth Amendment Right to Counsel
In his brief to the Indiana Supreme Court, the Petitioner asserted that the absence of his

counsel when the judge rejected the jury’s request to review certain evidence constituted a
violation of his Sixth Amendment right to be represented by counsel at all critical stages of the
trial. (Pet’r’s Appellate Br. 59.) In support, the Petitioner’s brief failed to develop the argument
beyond merely citing the text of the Sixth Amendment itself. (Id.) While the Indiana Supreme
Court acknowledged that under state law the trial judge should have informed the parties of the
jury’s request before responding, it found that the error was harmless because the judge merely

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refused the request without comment. Stephenson I, 742 N.E.2d at 492 (citing Pendergrass v.
State, 702 N.E.2d 716, 719–20 (Ind. 1998) (stating that an ex parte communication is
presumptive error, but where the trial judge merely denies the jury’s request, “any inference of
prejudice is rebutted and any error deemed harmless”) (quoting Bouye v. State, 699 N.E.2d 620,
628 (Ind. 1998))). This finding of harmless error was based in state law, as the Indiana Supreme
Court treated the Petitioner’s federal Sixth Amendment claim as waived due to failure to
properly present the issue, citing Indiana’s then-Rule of Appellate Procedure 8.3(A)(7).7
Stephenson I, 742 N.E.2d at 493.
Nevertheless, as an alternative ground for rejecting the federal claims, the Indiana
Supreme Court cited Pendergrass for a discussion of the right to be present under the Sixth and
Fourteenth Amendments. Id., citing Pendergrass, 702 N.E.2d at 718–19, n.3. This discussion
points out that “the Confrontation Clause of the Sixth Amendment extends to situations related to
the presentation of witnesses or evidence, when the right of cross-examination is implicated.”
Pendergrass, 702 N.E.2d at 718–19, n.3 (citing Kentucky v. Stincer, 482 U.S. 730, 737–38
(1987)). The Indiana Supreme Court also noted in Pendergrass that “[u]nder the Due Process
Clause of the Fourteenth Amendment, ‘a defendant is guaranteed the right to be present at any
stage of the criminal proceedings that is critical to its outcome if his presence would contribute to

7
The Indiana Rules of Appellate Procedure were changed in 2001. The applicable rule at the time of the
Petitioner’s appeal provided in relevant part:
Rule 8.3. Arrangement and Contents of Briefs
(A) Brief of Appellant. The brief of Appellant shall contain under appropriate headings and in
the order listed here. . .
(7) An Argument. Each error that appellant intends to raise on appeal shall be set forth
specifically and followed by the argument applicable thereto. . .The argument shall contain
the contentions of the appellant with respect to the issues presented, the reasons in support of
the contentions along with citations to the authorities, statutes, and parts of the record relied
upon, and a clear showing of how the issues and contentions in support thereof relate to the
particular facts of the case under review.

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the fairness of the procedure.’” Pendergrass, 702 N.E.2d at 718–19 (quoting Stincer, 482 U.S. at
745).
The Court is limited to determining whether the application of the state rule in this case
violated this Petitioner’s federal constitutional right to due process of law. The Indiana Supreme
Court determined that the Petitioner failed to make clear in his brief the legal basis for his federal
Sixth Amendment right to counsel claim. But even if the Indiana Supreme Court should have
entertained the federal arguments on the merits, the Petitioner’s Sixth Amendment rights were
not violated, and for essentially the same reasons the Indiana Supreme Court gave for rejecting
the Petitioner’s parallel state law claim under Article I § 13 of the Indiana Constitution. Even
though it was error under federal as well as state law for the trial judge not to inform and hear
from the defense before responding to the jury’s request, the judge simply rejected the request
without further comment. There was no evidence presented to the jury through the trial judge’s
response to the jury’s request. No testimony was heard that might have been challenged through
cross-examination. There was nothing in the judge’s response to the jury request that could have
unduly influenced the jury’s deliberation. On collateral review the burden is on the Petitioner to
show that the trial court’s failure to notify the parties before rejecting the jury’s request had a
“substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S.
at 637–38. The Petitioner has not met this burden.

2.

Fourteenth Amendment Right to Be Heard
Before this Court, the Petitioner cites Gardner v. Florida, 430 U.S. 349 (1977), for the

general proposition that a defendant has a Fourteenth Amendment due process right to be heard
in a meaningful time and in a meaningful manner. However, the Petitioner did not cite either

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Gardner or the Fourteenth Amendment itself in his brief to the Indiana Supreme Court. He may
not do so for the first time now. This claim is therefore procedurally defaulted for failure to fairly
present it to the state courts. The Petitioner did not even cite the Fourteenth Amendment in the
relevant section of his brief to the Indiana Supreme Court, much less comply with the applicable
state procedural rules for properly supporting an argument in an appellate brief. In addition, as
with the Petitioner’s Sixth Amendment right to counsel argument, the burden on collateral
review is on the Petitioner to prove any error was not harmless. And as with the Sixth
Amendment right to counsel argument, the Petitioner has not met that burden with respect to this
claim.
The Petitioner’s Sixth Amendment right to counsel claim and his Fourteenth Amendment
right to be heard claim are both barred by procedural default, and even if they were not, any error
was harmless. Both claims are therefore denied.

CONCLUSION
Based on the foregoing, the Court finds that none of the Petitioner’s proposed grounds for
Habeas relief satisfies the requirements set forth in 28 U.S.C. § 2254. Accordingly, his First
Petition for Writ of Habeas Corpus [ECF No. 19] is DENIED.
SO ORDERED on September 30, 2014.
s/ Theresa L. Springmann
THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
FORT WAYNE DIVISION

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