Hall v. Superintendent
Filing
25
OPINION AND ORDER; habeas corpus is conditionally GRANTED on Ground 1 and DENIED on all other grounds. The State of Indiana may re-try Virgil Hall III providing that it files appropriate documents to do so in the State trial court within 120 days of this Order. The respondent is ordered to file a notice in this court within 150 days of this Order demonstrating that Virgil Hall III has either been released or that the State of Indiana has initiated re-trial proceedings against him. A Certificate of Appealability is DENIED on Grounds 2,3,and 6 but GRANTED on Grounds 4 and 5. ***Civil Case Terminated. Signed by Judge Jon E DeGuilio on 11/29/11. (smp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
VIRGIL HALL, III,
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Petitioner,
v.
SUPERINTENDENT,
Respondent.
Case No. 3:09-CV-506 JD
OPINION AND ORDER
More than a decade ago, a jury found Virgil Hall, III, guilty of neglecting and murdering his
three-year-old step-son, Peyton Fetterhoff. The Grant Circuit Court sentenced him to 65 years under
cause number 27C01-0006-CF-35. Having completed his direct and post-conviction appeals, he has
now filed this habeas corpus petition raising six grounds for relief. Five of the six grounds were
adjudicated on the merits by the state courts.1
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim-(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court
of the United States; or
(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.
28 USCS § 2254(d).
The Court of Appeals of Indiana has reviewed this case three times and each time the Indiana
Supreme Court denied transfer. In Hall v. State, 760 N.E. 2d 688 (Ind. Ct. App. 2002) (hereinafter
Hall I), the court denied his appeal from the denial of his motion to correct error. ECF 12-5. In Hall
1
Ground 3 was not adjudicated by the state courts. See Ground 3, infra.
v. State, 796 N.E. 2d 388 (Ind. Ct. App. 2003) (hereinafter Hall II), the court denied his direct
appeal. ECF 12-9. In Hall v. State, 27A04-0812-PC-740, 2009 WL 2486383, 2009 Ind. App. Unpub.
LEXIS 1054 (Ind. Ct. App. August 14, 2009) (hereinafter Hall III), the court denied his appeal from
the denial of his post-conviction relief petition. ECF 12-12. Relevant facts and applicable legal
standards are provided as necessary in each section below.
Ground 1 - Extrinsic Communications with the Jury
“Hall alleged in his Petition that he was denied an impartial jury due to extrinsic prejudicial
information that was conveyed to his jury.” Traverse at 12, ECF 24. He argues that the limitations
of 28 U.S.C. § 2254(d) are inapplicable because the state court did not adjudicate this claim on the
merits. Though he acknowledges that the state court did discuss and deny this claim, he argues that
because the decision was based on Indiana law and did not mention the Sixth Amendment, his
federal claim was not adjudicated. This is incorrect. “When a federal claim has been presented to
a state court and the state court has denied relief, it may be presumed that the state court adjudicated
the claim on the merits in the absence of any indication or state-law procedural principles to the
contrary.” Harrington v. Richter, 562 U.S. __, __; 131 S. Ct. 770, 784-85; 178 L. Ed. 2d 624, 639
(2011). Here, there is no indication that this federal claim was denied for a state-law procedural
reason. Though the state court did not cite to federal law, the United States Supreme Court has made
clear that “a state court need not cite or even be aware of our cases under § 2254(d).” Id., 131 S. Ct.
at 784; 178 L. Ed. 2d at 638. Therefore habeas relief can only be granted on this claim if Hall is able
to meet one of the exceptions of § 2254(d).
2
In adjudicating this claim, the state court found “that extrinsic communications concerning
a contested matter reached Hall’s jury during deliberations.” Hall II, 796 N.E. 2d at 396.
Specifically, the court found that
during trial juror David Daniels (“Daniels”) told alternate juror Gary Hopkins
(“Hopkins”) that Daniels’ stepson was incarcerated with Hall and believed Hall to
be innocent. At a later stage of trial, Daniels’ stepson and the other inmates changed
their opinion and, by this time, believed Hall to be guilty. Although the inmates’
subsequent opinions were not communicated directly to Daniels, they were relayed
to Daniels’ wife, and Daniels overheard his wife giving this information to another
family member. Daniels conveyed this information to the remainder of the jury
during deliberations.
Id. at 393-394 (citations omitted).
Daniels told Hopkins that his stepson was incarcerated with Hall and believed Hall
to be innocent. Hopkins’ affidavit also indicates that, during deliberations, Daniels
informed the remainder of the jury that his wife had a subsequent conversation with
his stepson and his stepson had changed his previous opinion and now believed Hall
to be guilty.
Id. at 396.
The respondent argues that “[t]here is nothing in the record to support the Court of Appeals’
finding that the jury was told that any particular inmates had at some point ‘changed their belief’
about Hall’s guilt or innocence.” Return at 22-23, ECF 13. Though it is unclear whether the State
of Indiana may collaterally attack the findings of its own courts during a federal habeas corpus
proceeding, it is clear that “a determination of a factual issue made by a State court shall be
presumed to be correct.” 28 U.S.C. § 2254(e)(1). Here, the affidavit of Juror C. David Daniels stated
that “Tracy [Barber] said to me he was in jail with Virgil Hall, III and Tracy thought he was
innocent.” Appellant’s Appendix at 30. It also stated, “That on another occasion during the trial, I
overheard my wife . . . say, Tracy [Barber] had told her the inmates thought Virgil Hall, III was
guilty.” Id. Finally, it says, “[t]hat I told . . . the jury this information.” Id. Tracy Barber’s affidavit
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states that during one phone call to his mother, “I told her I thought Virgil Hall, III was innocent .
. ..” Id. at 25. During a later phone call, he, “told her others in the jail had changed their minds about
Virgil’s innocence and I told her I thought he was guilty.” Id. Though these statements do not
explicitly say that the jury was told that Tracy Barber, or any other inmate, changed his mind,
nothing in the record contradicts that possibility. The specific wording of what Daniels said to the
other jurors is ambiguous and the State court “had an independent right to draw inferences from the
record.” Mendiola v. Schomig, 224 F.3d 589, 592 (7th Cir. 2000). Though the respondent also points
out several inconsistencies with the affidavits, none of them undermine the relevant finding that the
jury heard that Hall’s fellow inmates thought he was innocent, but later changed their minds and
thought he was guilty. Thus, the respondent has presented no basis to believe that this finding was
“an unreasonable determination of the facts in light of the evidence presented . . ..” 28 U.S.C. §
2254(d)(2).
Having found “juror misconduct involving an out-of-court communication with an
unauthorized person,” Hall II at 394, the Court of Appeals of Indiana explained “that the State
should bear the burden of proving that Hall was not prejudiced by the extrinsic communications,”
id., but that it was constrained by the Indiana Supreme Court opinion in Griffin v. State, 754 N.E.
2d 899 (Ind. 2001). “[B]ecause mandatory precedent clearly places the burden of proving prejudice
on the defendant, we require Hall to prove he was prejudiced by the misconduct.” Id. at 396.
Hall argues that placing the burden on him to prove prejudice violated Remmer v. United
States, 347 U.S. 227 (1954) which held:
In a criminal case, any private communication, contact, or tampering, directly
or indirectly, with a juror during a trial about the matter pending before the jury is,
for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of
known rules of the court and the instructions and directions of the court made during
4
the trial, with full knowledge of the parties. The presumption is not conclusive, but
the burden rests heavily upon the Government to establish, after notice to and
hearing of the defendant, that such contact with the juror was harmless to the
defendant.
347 U.S. at 229.
The respondent argues that Hall cannot obtain habeas corpus relief based on Remmer because
it is not clearly established law. “Section 2254(d)(1)’s ‘clearly established’ phrase ‘refers to the
holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as of the time of the relevant
state-court decision.’” Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (quoting Williams v. Taylor, 529
U.S. 362, 412 (2000)). “In other words, ‘clearly established Federal law’ under § 2254(d)(1) is the
governing legal principle or principles set forth by the Supreme Court at the time the state court
renders its decision.” Id. (citing Bell v. Cone, 535 U.S. 685, 698 (2002)). The respondent argues that
Remmer’s allocation of the burden of proof is not clearly established because the Supreme Court’s
subsequent “intrusion jurisprudence” seems to have abrogated that portion of its holding. Further,
respondent argues that the lack of a clearly established rule is demonstrated by a circuit split on the
issue.
The court has carefully considered respondent’s argument and the case law on which it relies.
It is true that later Supreme Court statements contradicted Remmer’s placement of the burden of
proof. See Smith v. Phillips, 455 U.S. 209, 215 (1982) (“[t]his Court has long held that the remedy
for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove
actual bias.” (emphasis added)); United States v. Olano, 507 U.S. 725 (1993) (“[t]here may be cases
where an intrusion should be presumed prejudicial[,]” but the ultimate inquiry is “[d]id the intrusion
affect the jury's deliberations and thereby its verdict?”); see also United States v. Williams-Davis,
90 F.3d 490 (D.C. Cir. 1996) (for a thorough chronological summary of the Supreme Court’s
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intrusion jurisprudence). It is also true that the federal appellate courts have taken diverse
approaches to resolving the conflict,2 and that circuit splits in the absence of a clear statement by the
Supreme Court tend to show that a given proposition has not been clearly established. See, e.g.,
Kane v. Garcia Espitia, 546 U.S. 9, 10 (2005) (per curiam) (taking a circuit split into account while
holding that Supreme Court case did not clearly establish a right); Tolliver v. Sheets, 594 F.3d 900,
916 n. 6 (6th Cir. 2010) (“[w]e may look to decisions by other circuits not as binding precedent on
whether a legal principle has been clearly established by the Supreme Court, but rather to inform
the analysis of Supreme Court holdings to determine whether a legal principle had been clearly
established”); Holland v. Anderson, 583 F.3d 267, 282 (5th Cir. 2009) ("clear split" among federal
and state courts as to whether defendant possessed a certain right precluded finding that a state court
decision was contrary to clearly established federal law); Hines v. Miller, 318 F.3d 157, 164 (2d Cir.
2
Some circuits have followed the more recent Phillips in its entirety, shifting the burden to the defendant. See,
e.g., Tunstall v. Hopkins, 306 F.3d 601, 611 (8th Cir. 2002)(“[s]ince Phillips, we have, with deference to the trial court,
required a party to show that outside contact with the jury presents a reasonable possibility of prejudice to the verdict
before requiring a hearing.”); United States v. Pennell, 737 F.2d 521, 532 (6th Cir. 1984) (“[i]n light of Phillips, the
burden of proof rests upon a defendant to demonstrate that unauthorized communications with jurors resulted in actual
juror partiality. Prejudice is not to be presumed.”). Indiana’s Supreme Court has obviously done the same.
Most Circuits have attempted to reconcile the conflicting case law, either indicating that the court must weigh
the likelihood of prejudice before any burden attaches, or forging some other compromise method. See, e.g., United
States v. Sylvester, 143 F.3d 923, 934 (5th Cir. 1998) (stating “[w]e agree that the Remmer presumption of prejudice
cannot survive Phillips and Olano” and holding that “the trial court must first assess the severity of the suspected
intrusion; only when the court determines that prejudice is likely should the government be required to prove its
absence”); United States v. Williams-Davis, 90 F.3d 490, 496 (D.C. Cir. 1996) (noting inconsistency between Remmer
and Phillips, and stating “this court has in fact not treated the supposed “presumption” as particularly forceful, but rather
has accepted the necessity of focusing on the specific facts of the alleged contact[.]”); United States v. Cheek, 94 F.3d
136, 141 (4th Cir. 1996) (describing a three-step process for analyzing allegations of extrajudicial juror contact: first,
the complaining party must show that the contact was more than innocuous; second, the presumption is triggered; third,
the opposing party must prove a lack of prejudice); United States v. Dutkel, 192 F.3d 893, 895 (9th Cir. 1999)
(distinguishing “prosaic” kinds of jury misconduct, where no presumption attaches, from “jury tampering,” where the
Remmer directive controls). The Seventh Circuit usually falls into this “compromise” category. See United States v.
Spano, 421 F.3d 599, 605 (7th Cir. 2005) (ordinarily when extraneous materials are brought into the jury room, a hearing
is required, “[b]ut that is not a hard and fast rule.”).
Still other solutions exist. The Tenth Circuit has held, for example, in cases analogous to the one before the
court, that the Remmer presumption is “a rule of federal criminal procedure, rather than a rule of federal criminal law.”
See Crease v. McKune, 189 F.3d 1188, 1193 (10th Cir. 1999). Accordingly, it does not control in the habeas context.
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2003) (habeas relief inappropriate “[g]iven the many divergent approaches and outcomes in federal
courts that have applied clearly established Supreme Court precedent to the facts at issue[.]”);
Tunstall v. Hopkins, 306 F.3d 601, 611 (8th Cir. 2002), cert. denied, 538 U.S. 968 (holding that
"when the federal courts disagree on the application of Remmer regarding any presumption of
prejudice, it is difficult to say [a state] court's decision is contrary to, or involved an unreasonable
application of, clearly established federal law, as determined by the Supreme Court.").
Based solely on the foregoing, this court would struggle to independently conclude that no
fairminded jurist could disagree about the placement of the burden of proof at a Remmer hearing,
as is required to grant habeas relief. Bobby v. Dixon, No. 10-1540, 2011 WL 5299458 at * 1 (U.S.
November 7, 2011) (“[u]nder the Antiterrorism and Effective Death Penalty Act, a state prisoner
seeking a writ of habeas corpus from a federal court must show that the state court's ruling on the
claim being presented in federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded disagreement.”
(internal citations omitted)); Harrington v. Richter, 131 S.Ct. at 786 (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004) (“[a] state court's determination that a claim lacks merit
precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of
the state court's decision.”)). Jurists do disagree, with at least the Eighth and Sixth Circuit Courts
of Appeal joining the Indiana Supreme Court in placing the burden on the defendant pursuant to
Smith v. Phillips. See Tunstall, 306 F.3d at 611; Pennell, 737 F.2d at 532. However, the case law in
the Seventh Circuit appears clear, and we are bound by our circuit’s previous determination that the
law has been clearly established. Tolliver, 594 F.3d at 916 n.6.
7
In Wisehart v. Davis, 408 F.3d 321 (7th Cir. 2005), the Seventh Circuit had occasion to
decide what rule, if any, was clearly established by the Supreme Court in Remmer and its progeny.
Like the petitioner here, the petitioner in Wisehart sought habeas relief under Remmer’s broad
holding that “any private communication, contact, or tampering directly or indirectly, with a juror
during a trial about the matter pending before the jury” triggers a presumption of prejudice that the
government must disprove. Id. at 326, quoting Remmer, 347 U.S. 227, 229. The Seventh Circuit
noted that “[r]ipped from its context, the [Remmer] statement is difficult to take seriously, because
it is so easy to imagine situations in which a ‘private communication ... with a juror during a trial
about the matter pending before the jury’ would not create a rational presumption of prejudice.” Id.
at 326. Concluding that the rule had to be tempered at least somewhat to accommodate for the
practical realities of the justice system, the court held that “[i]n short . . . the extraneous
communication to the juror must be 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. How much inquiry is necessary (perhaps very little, or even none) depends on how likely was
the extraneous communication to contaminate the jury's deliberations.” Id.
Although the court in Wisehart did not explicitly state that the quoted rule was clearly
established by Supreme Court precedent, that is the obvious and necessary implication of the ruling.
This was a habeas corpus case governed by the AEDPA, and the state court had decided the case
on the merits. The court proceeded to apply the rule to the facts. In Wisehart, a juror learned through
a private communication that the reason the trial had been adjourned for the day was so that the
defendant could take a polygraph test. Though the juror was never told the result of the test, the
intrusion “was bad enough to require a hearing, however abbreviated, to determine what impact the
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news that he had taken the test had on the jury.” Id. at 328. Furthermore, “it was the state’s burden,
given [knowledge that word of the test had reached the juror], to present evidence that the jury’s
deliberations had not been poisoned by the reference to Wisehart’s having been given a polygraph
test.” Id. at 327-328. The petitioner’s request for relief was granted, and the Seventh circuit directed
the state to release Wisehart, to retry him, or to conduct a Remmer hearing addressed to the issue of
jury bias. Id. at 328. We are therefore precedentially bound to treat the Remmer rule, as stated in
Wisehart, as clearly established, and we analyze the state court decision accordingly.
Here, like in Wisehart, the information that reached the jury was “of a character that create[d]
a reasonable suspicion that further inquiry [was] necessary to determine whether the defendant was
deprived of his right to an impartial jury.” 408 F.3d at 326. The Indiana Court of Appeals recognized
that reality:
[T]he extraneous information concerned Hall’s fellow inmates’ opinions of his
innocence and guilt. The fact that the inmates lived with Hall and once believed he
was innocent, but changed their belief to guilt, renders the impression that the
inmates had a special insight into Hall’s guilt – seemingly gained as a result of their
frequent contact with Hall and ability to see Hall when he had not composed himself
for a jury.
Hall II, 796 N.E.2d at 398. The court continued, “if the jury allowed themselves to consider this
information, there can be little doubt that the information had a prejudicial impact on the verdict
obtained.” Id. In stating as much, the court recognized that this communication was, by its nature,
probably prejudicial. Such “probably prejudicial” communications are exactly the sort of contact
that, under the rule Wisehart held was clearly established by the Remmer line of cases, necessitate
a hearing at which the state must show that the deliberative process was not actually poisoned.
Wisehart, 408 F.3d at 326; Remmer, 347 U.S. at 229. No such hearing was ordered, and that result
is contrary to clearly established law. Id.
9
Ordinarily under these circumstances, the court would afford the state an opportunity to
conduct the missing Remmer hearing. See Wisehart, 408 F.3d at 328. Without a developed record,
this court would be unable to conclude whether jury deliberations were actually tainted by the
communication and whether, therefore, Hall’s Sixth Amendment right to an impartial jury was
actually violated. But the Indiana Court of Appeals, believing that – consistent with Remmer – the
burden should have been placed on the prosecution, explained that “the burden of proof is absolutely
pivotal in this case. If we were to place the burden of proof on the State . . . Hall would prevail on
this issue and be entitled to a new trial.” Hall II, 796 N.E.2d at 396 n.7. Thus, the state court
determined that, with or without a hearing, the prosecution could not meet its burden of proving that
the extrinsic communication did not infringe Hall’s right to an impartial jury. The respondent has
not presented any reason why this court cannot or should not defer to that conclusion, but even if
he had, this court would reach the same decision based on an independent analysis of the facts in
this case. A hearing would be little more than a formality, with the trial court already bound to find
in Hall’s favor based on the appellate court decision. Hall is therefore entitled to habeas corpus relief
on this claim in the form of either release or retrial.
This court is not insensitive to the difficulties of re-trying a case that was originally tried over
a decade ago. Nor is it oblivious to costs that this decision imposes on the State of Indiana or the
pain that it will cause the victim’s family. Nevertheless, the Indiana Court of Appeals expressed it
best when, in 2003, it stated:
We neither take lightly the impact that such a decision would have on a case
involving the murder of a three-year-old nor do we envy the task of our supreme
court, should they grant transfer to resolve this issue. Nonetheless, we believe it
would be far better for all concerned that Hall’s conviction be vacated at such a
juncture than at a subsequent one – when memories will have faded and Peyton’s
10
survivors would be faced with the unpleasant task of revisiting his loss after having
a significant amount of time to heal.
Id. Today is the subsequent time that the Indiana Court of Appeals foresaw. Because “[t]he integrity
of jury proceedings must not be jeopardized by unauthorized invasions” Remmer, 347 U.S. at 229,
habeas corpus relief must be conditionally granted. “Conditional writs enable habeas courts to give
States time to replace an invalid judgment with a valid one.” Wilkinson v. Dotson, 544 U.S. 74, 87
(2005) (Scalia J., concurring). The State of Indiana is free to re-try Virgil Hall, III, providing that
it files appropriate documents in the state trial court seeking such relief within 120 days of this
Order.
Ground 2 - Cross-Examination of Kelly Fetterhoff
Hall argues that he was denied his Sixth Amendment right to confront and cross-examine
Kelli Fetterhoff. During his trial, “Hall sought to admit alleged evidence of Fetterhoff striking
Peyton on the morning of his death as a means of establishing an alternate cause of death.” Hall II,
796 N.E.2d at 398. Once again, Hall contends that he is entitled to a de novo review because the
state court did not adjudicate this claim on the merits. As previously explained, 28 U.S.C. § 2254(d)
applies even where a state court does not identify the federal basis of the claim. Richter, 131 S. Ct.
at 784-85; 178 L. Ed. 2d at 639. Here, because there is no indication that this federal claim was
denied for a state-law procedural reason, the limitations of § 2254(d) apply. Alternatively, Hall
argues that the state court ruling was an unreasonable application of clearly established law.
The United States Supreme Court has made clear that “the 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 v. Mississippi., 410 U.S. 284, 295 (1973). In
addressing this claim on direct appeal, the Court of Appeals of Indiana explained that although
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“[b]ias and infirmities in testimony are always relevant; exploration of a theory expounding an
impossible cause of death and contradicting the defendant’s own theory of the case is not.” Id., 796
N.E.2d at 399, n.10. The state court held that testimony about Fetterhoff having hit Peyton earlier
in the day was not relevant because the medical evidence indicated that such a blow could not have
caused his death. It also reasoned that such testimony would contradict Hall’s own statements about
how Peyton was injured.
In reviewing a similar Sixth Amendment Confrontation Clause claim, the Seventh Circuit
affirmed the denial of a habeas corpus petition by explaining that, “[t]he trial court in the instant case
did not exclude vital evidence by applying evidentiary rules in an unyielding or mechanistic fashion.
Rather, the court, for good reason, found the evidence at issue to be speculative, remote, and
therefore irrelevant, and it applied the state evidentiary rules accordingly.” Hood v. Uchtman, 414
F.3d 736, 738-739 (7th Cir. 2005). “As a condition for obtaining habeas corpus from a federal court,
a state prisoner must show that the state court’s ruling on the claim being presented in federal court
was so lacking in justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” Richter, 131 S. Ct. at 786-87; 178 L. Ed.
2d at 641. Here, Hall has not done so. Though there is room to disagree with the decision to exclude
Fetterhoff’s testimony about having hit Peyton earlier in the day, the trial court’s decision to do so
was not so lacking in justification that habeas corpus relief can be granted on this ground because
“[i]n order for a federal court to find a state court’s application of [United States Supreme Court]
precedent ‘unreasonable,’ the state court’s decision must have been more than incorrect or
erroneous. The state court’s application must have been ‘objectively unreasonable.’” Wiggins v.
12
Smith, 539 U.S. 510, 520-521 (2003) (citations omitted). Therefore habeas corpus relief will not be
granted on this ground.
Ground 3 - Exclusion of Expert Testimony by Lawson F. Bernstein, M.D.
This claim is procedurally defaulted. As Hall explains in his traverse, the “Respondent points
out that Hall did not present [this ground as] a federal claim to the state court. Hall must concede
that Respondent is correct.” Traverse at 24, ECF 24. Nevertheless, a habeas petitioner can overcome
a procedural default by showing cause and prejudice or by establishing that the court’s refusal to
consider a defaulted claim on the merits would result in a fundamental miscarriage of justice. House
v. Bell, 547 U.S. 518, 536 (2006). Hall attempts to make both showings.
Hall argues that he has demonstrated cause and prejudice because his attorney was
ineffective for not presenting this claim on direct appeal. Attorney error rising to the level of
ineffective assistance of counsel can constitute cause to set aside a procedural default, but to succeed
on such a claim Hall must demonstrate that the state courts were unreasonable in adjudicating his
ineffective assistance of appellate counsel claim. See Wrinkles v. Buss, 537 F.3d 804, 812-13 (7th
Cir. 2008). The Court of Appeals of Indiana addressed this ineffective assistance claim; therefore,
pursuant to 28 U.S.C. § 2254(d), habeas corpus relief cannot be granted unless that decision was
unreasonable. Wrinkles, 537 at 812-813.
To demonstrate ineffective assistance of appellate counsel, Hall must show that his appellate
counsel’s performance was deficient and that the deficient performance prejudiced him. Strickland
v. Washington, 466 U.S. 668 (1984). To establish prejudice, “the question is whether there is a
reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt
13
respecting guilt.” Strickland, 466 U.S. at 695. “The likelihood of a different result must be
substantial, not just conceivable.” Richter, 131 S. Ct. at 792; 178 L. Ed. 2d at 647.
The Court of Appeals of Indiana explained that the omission of this federal claim during
Hall’s direct appeal was neither deficient nor prejudicial.
Appellate counsel argued that the trial court erred by excluding Dr.
Bernstein’s testimony from the jury, and, in fact, this court agreed, though it found
the error to be harmless. Hall argues that appellate counsel should have provided an
argument based in federal law in addition to state law on this issue. Given that
counsel succeeded with the argument he made, we do not find him ineffective for
deciding to forego an argument based in federal law. Furthermore, Hall does not
explain why a decision based in federal law would have led this court to conclude
the error was anything other than harmless. Therefore, we decline to find ineffective
assistance for this reason.
Hall III, 2009 WL 2486383, *9, 2009 Ind. App. Unpub. LEXIS 1054 *28. On direct appeal, the state
court had previously explained why Hall was not prejudiced by the exclusion of the testimony of
Dr. Bernstein.
Considering all of the evidence in the case, we find the error limiting Dr. Bernstein’s
testimony sufficiently minor so as not to have affected Hall’s substantial rights.
Peyton’s treating physician and the pathologist who performed Peyton’s autopsy
both testified that Peyton died as a result of multiple blunt force trauma. In light of
the concurring testimony of the physicians who treated Peyton and performed his
autopsy, it is unlikely that the jury would have found that Peyton died from a
different cause. For this reason, we conclude that the error excluding Dr. Bernstein’s
theory of Peyton’s death did not interfere with Hall’s substantial rights.
Hall II, 796 N.E.2d at 400 (citations omitted).
Though there is room to disagree as to how much influence Dr. Bernstein’s testimony might
have had on the jury, there is no merit to Hall’s contention that his testimony would have caused the
jury to totally disregard the testimony of the state’s medical experts. Rather, had the jury heard Dr.
Bernstein testify, it would have been faced with resolving these competing expert opinions.
Certainly it is conceivable that the jury could have accepted Dr. Bernstein’s opinion and acquitted
14
Hall, but it was not unreasonable for the Court of Appeal of Indiana to have concluded that there was
not a substantial likelihood that it would have done so.
For the same reason, Hall is unable to demonstrate that it would be a miscarriage of justice
not to consider the merits of this federal claim. To met the miscarriage of justice test, Hall must
establish that “a constitutional violation has resulted in the conviction of one who is actually
innocent of the crime.” Schlup v. Delo, 513 U.S. 298, 324 (1995). A petitioner who asserts actual
innocence “must demonstrate innocence; the burden is his, not the state’s . . . .” Buie v. McAdory,
341 F.3d 623, 626-27 (7th Cir. 2003) (emphasis in original). Here, the introduction of a divergent
expert opinion does not demonstrate innocence. Therefore Hall has not overcome the procedural
default and habeas corpus relief cannot be granted on this claim.
Ground 4 - Ineffective Assistance of Trial Counsel
Hall presents a number of reasons why he believes that his trial counsel was ineffective. He
also argues that 28 U.S.C. § 2254(d) does not apply to this claim. He recognizes that the state court
opinion cited Strickland, addressed the merits of this claim, and then denied it. However, he argues
that § 2254(d) does not apply because the opinion does not “elaborate on whether there was no
deficient performance or no prejudice.” However, it is not relevant “whether or not the state court
reveals which of the elements in a multipart claim it found insufficient, for § 2254(d) applies when
a ‘claim,’ not a component of one, has been adjudicated.” Richter, 131 S. Ct. at 784; 178 L. Ed. 2d
at 638. Therefore the state court opinion is entitled to the deference required by § 2254(d).
“Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. __,
__; 130 S. Ct. 1473, 1485; 176 L. Ed. 2d 284, 297 (2010). “Establishing that a state court’s
application of Strickland was unreasonable under § 2254(d) is all the more difficult [because] . . .
15
[w]hen § 2254(d) applies [as it does here], the question is not whether counsel’s actions were
reasonable. The question is whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.” Richter, 131 S. Ct. at 788; 178 L. Ed. 2d at 643.
Here, Hall identifies several instances where he argues that his trial counsel was ineffective
in regard to the State’s medical evidence.3 He argues that counsel should have more vigorously
challenged the expert testimony of Drs. Yablong, Scherer, Luerssen, and Hawley. He argues that
counsel should have conducted more extensive pre-trial discovery and investigation related to the
medical issues involved with this case. He argues that counsel should have argued that Peyton’s
death was caused by a medical abnormality with his blood clotting system: Disseminated
Intravascular Coagulation (DIC). He argues that counsel should have argued that Peyton’s death was
the result of the administration of the drug Mannitol.
Each of those claims were considered by the Court of Appeals of Indiana. The court
explained “that it is evident that these witnesses were qualified to testify as experts, and any
objection to the contrary would certainly have been overruled.” Hall III, 2009 WL 2486383, *4,
2009 Ind. App. Unpub. LEXIS 1054 *11.
[H]is attorneys cross-examined both doctors at length and challenged them regarding
the cause of death and also presented a photogrammetry expert, who testified that the
width of the injuries on Peyton’s head were consistent with the width of the bars on
the dog cage. It was for the jury to evaluate the competing theories and make the
ultimate conclusion. Furthermore, even if Hall’s attorneys had objected to this
testimony, the objection would have been overruled, inasmuch as this testimony is
neither speculative nor false. Instead, it is based on the wealth of experience of these
two witnesses. Therefore, we cannot say that trial counsel was ineffective on this
basis.
3
In his traverse, Hall withdrew “the subclaims that trial counsel was ineffective in regards to Dr. Hibbard and
performance at sentencing.” Traverse at 31, ECF 24.
16
Id. at WL *5, LEXIS *12-13.
Hall emphasizes that, at the post-conviction hearing, he offered the testimony of Dr.
John Plunkett, who disagreed with Dr. Hawley’s conclusions regarding the cause of
Peyton’s bruises and death. That Dr. Plunkett disagreed with Dr. Hawley does not
establish, as contended by Hall, that Dr. Hawley’s testimony was inaccurate and
misleading. It also does not establish that trial counsel was ineffective for failing to
allege that Dr. Hawley’s testimony was false, and we decline to find ineffective
assistance on this basis.
Id. at WL *5, LEXIS *14.
Hall admits, however, that his attorneys spent considerable time with Dr. Scherer and
Dr. Luerssen prior to trial, merely complaining that, in the end, counsel failed to
establish that malpractice occurred. That, however, does not mean that counsel was
ineffective. And as noted above, trial counsel hired and presented its own expert
witnesses, including Dr. Bernstein and a photogrammetry expert.
Id. at WL *5, LEXIS *15-16 (quotation marks, brackets, and citation omitted).
[T]he DIC issue was explored at trial. Dr. Luerssen testified that DIC is a known
complication of severe or life-threatening brain injuries. Dr. Hawley testified that
Peyton’s DIC was not any different from that of other patients who received the
extent of medical intervention received by Peyton and that, in his opinion, DIC was
not the cause of Peyton’s death. Dr. Scherer testified that Peyton’s severe head injury
caused the DIC and that Peyton died because the injury caused his brain to swell to
the point that its blood supply was entirely cut off, not because of DIC.
Id. at WL *6, LEXIS *18 (citations omitted). “That the jury ultimately decided that it was Hall’s
actions, rather than DIC, that caused Peyton’s death, does not mean that trial counsel were
ineffective.” Id. at WL *6, LEXIS *19.
[B]ased upon the evidence establishing that Peyton’s injuries were caused by blunt
force trauma, the jury could still have reasonably concluded that Hall’s initial actions
started the chain of events. To break the chain of criminal responsibility, an
intervening cause must be so extraordinary that it would be unfair to hold the
defendant responsible for the death. Here, Hall has not established that the
administration of Mannitol was such an event, given the overwhelming evidence that
Peyton was near death when he arrived at the hospital. Therefore, we decline to find
ineffective assistance based on his trial attorneys’ decision to forego presenting this
evidence to the jury.
17
Id. at WL *6, LEXIS *17 (citation omitted).
In evaluating an ineffective assistance of counsel claim, there is a strong presumption that
counsel acted effectively. Strickland v. Washington, 466 U.S. 668, 690 (1984). “Judicial scrutiny
of counsel’s performance must be highly deferential.” Id. at 689. “There are countless ways to
provide effective assistance in any given case.” Id. “The question is whether an attorney’s
representation amounted to incompetence under ‘prevailing professional norms,’ not whether it
deviated from best practices or most common custom.” Richter, 131 S. Ct. at 788; 178 L. Ed. 2d at
643. Here, Hall has not demonstrated that it was unreasonable for the Court of Appeals of Indiana
to have denied his claim that trial counsel was ineffective. Therefore he has not established this as
a basis for habeas corpus relief.
Ground 5 - Ineffective Assistance of Appellate Counsel
Hall argues that his appellate counsel was ineffective for not challenging the trial court’s
failure to give jury instructions on the lesser included offenses of reckless homicide, voluntary
manslaughter, and involuntary manslaughter. The Court of Appeals of Indiana rejected the reckless
homicide instruction stating, “Given that Hall’s theory of the case was that Peyton’s death was
purely accidental, there was no evidence supporting a jury instruction that related to reckless
homicide.” Hall III, 2009 WL 2486383, *8, 2009 Ind. App. Unpub. LEXIS 1054 *26. It rejected the
voluntary manslaughter instruction because the difference between murder and voluntary
manslaughter is sudden heat and “there was no evidence of sudden heat . . ..” Id. Finally, it rejected
the involuntary manslaughter instruction because involuntary manslaughter requires that the death
be caused by a battery and, “Hall argued that he neither battered Peyton nor killed him.” Id. at WL
*9, LEXIS *27.
18
Hall argues that the Court of Appeals of Indiana misapplied State law in deciding whether
these lesser included jury instructions should be given. In Lopez v. Thurmer, 594 F.3d 584 (7th Cir.
2010), the Seventh Circuit examined a similar argument.
Lopez’s first argument--that the state appellate court’s application of
Strickland to the facts of his case was unreasonable--cannot overcome a number of
hurdles. According to Lopez, the state appellate court applied the wrong standard
under Wisconsin law to determine whether he was entitled to a felony-murder
instruction: instead of inquiring whether the jury could have found him guilty of
first-degree intentional murder, he argues, the state appellate court should have
inquired whether the jury could have acquitted him of first-degree intentional
murder. But, as Lopez concedes, we may not grant habeas relief under 28 U.S.C. §
2254 merely because a state court has misinterpreted or misapplied state law. And
we will not fault counsel as ineffective for failing to advance a position under state
law that the state appellate court said was meritless. Because we leave undisturbed
the state appellate court’s holding that Lopez was not entitled to a felony-murder
instruction, its additional ruling that counsel’s performance was constitutionally
adequate under Strickland was reasonable. It is not well outside the boundaries of
permissible differences of opinion, to conclude that counsel’s performance is
constitutionally adequate when he fails to request an instruction that, as a matter of
state law, the defendant is not entitled to in the first place.
Id. at 587 (citations omitted). The same analysis is applicable here. The Indiana court found that
these instructions were not applicable. Even if that ruling was an incorrect application of Indiana
law, that is not a basis for habeas corpus relief. Because the Court of Appeals of Indiana found that
Hall was not entitled to jury instructions on these lesser included offenses, his appellate counsel was
not ineffective for not having raised these arguments.
Ground 6 - Juror Depositions
Related to his extrinsic jury communications claim in Ground 1, Hall argues that the State
court denied his request to depose the jury. Though true, this is not a basis for habeas corpus relief.
“In conducting habeas review, a federal court is limited to deciding whether a conviction violated
the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 67-68
19
(1991). Here, the denial of juror depositions merely denied him the opportunity to gather additional
information in support of Ground 1. As such, his efforts to obtain that discovery in the State courts
might have permitted him to conduct discovery in this proceeding pursuant to 2254 HABEAS RULE
6 and 28 U.S.C. § 2254(e)(2)(A)(ii). See Holland v. Jackson, 542 U.S. 649, 653 (2004) and Boyko
v. Parke, 259 F.3d 781, 790 (7th Cir. 2001). However, because he has prevailed on Ground 1
without those deposition, the question of additional discovery is moot.
Certificate of Appealability
To obtain a certificate of appealability under 28 U.S.C. § 2253(c), the petitioner must make
a substantial showing of the denial of a constitutional right by establishing “that reasonable jurists
could debate whether (or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve encouragement to proceed
further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quote marks and citation omitted).
When the court dismisses a petition on procedural grounds, the determination of whether a
certificate of appealability should issue has two components. Id. at 484–85. First, the petitioner must
show that reasonable jurists would find it debatable whether the court was correct in its procedural
ruling. Id. at 484. Next, the petitioner must show that reasonable jurists would find it debatable
whether the petition states a valid claim for denial of a constitutional right. Id. To obtain a certificate
of appealability, the petitioner must satisfy both components. Id. at 485.
Here, the court has denied the writ on five of the six grounds: three on the merits and two
on procedural grounds. For the reasons previously explained, reasonable jurists would not disagree
that Ground 2 was properly resolved on the merits. Neither would they disagree that Grounds 3 and
6 were properly dismissed for procedural reasons. Grounds 4 and 5, addressing ineffective assistance
20
of counsel claims, are different. Even if no jurist would reach a different conclusion, because
reasonable jurists could debate how much the jury could have been influenced by additional
information and jury instructions, a certificate of appealability will issue as to those two grounds.
Conclusion
For the foregoing reasons, habeas corpus is conditionally GRANTED on Ground 1 and
DENIED on all other grounds. The State of Indiana may re-try Virgil Hall, III, providing that it files
appropriate documents to do so in the State trial court within 120 days of this Order. The respondent
is ORDERED to file a notice in this court within 150 days of this Order demonstrating that Virgil
Hall, III, has either been released or that the State of Indiana has initiated re-trial proceedings against
him. A Certificate of Appealability is DENIED on Grounds 2, 3, and 6, but GRANTED on Grounds
4 and 5.
SO ORDERED.
ENTERED: November 29, 2011
/s/ JON E. DEGUILIO
Judge
United States District Court
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