Justise v. Superintendent
Filing
23
OPINION AND ORDER: DENYING the amended habeas corpus petition 11 and DENYING a certificate of appealability, ***Civil Case Terminated. Signed by Judge Rudy Lozano on 12/18/14. (jld)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
CHARLES E. JUSTISE, SR.,
Petitioner,
vs.
SUPERINTENDENT,
Respondent.
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CAUSE NO. 3:12-CV-826
OPINION AND ORDER
This matter is before the Court on the Amended Petition under
28 U.S.C. Paragraph 2254 for Writ of Habeas Corpus filed by Charles
E. Justise, Sr., a pro se prisoner, on March 28, 2013. For the
reasons set forth below, the amended habeas corpus petition (DE 11)
is DENIED and Justise is DENIED a certificate of appealability.
BACKGROUND
Charles E. Justise, Sr., a pro se prisoner, is challenging his
convictions for Child Molesting as a class A felony and Child
Molesting as a class C felony. He was sentenced to 51 years by the
Marion Superior Court on November 16, 2008, under cause number
49G06-0608-FA-159374. Justise filed a direct appeal which was
denied by the Court of Appeals of Indiana and he filed a petition
to transfer which was denied by the Indiana Supreme Court. He did
not seek post-conviction review.
DISCUSSION
In this petition, Justise raises five grounds for habeas
corpus relief.
An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a
State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary
to, or involved an unreasonable application
of, clearly established Federal law, as
determined by the Supreme Court of the United
States; or
(2) resulted in a decision that was based on
an unreasonable determination of the facts in
light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d).
Under this deferential standard, a federal habeas court must
“attend closely” to the decisions of state courts and “give them
full effect when their findings and judgments are consistent with
federal law.” Williams v. Taylor, 529 U.S. 362, 383 (2000). A state
court decision is contrary to federal law if the state court
arrives at a conclusion opposite to that reached by the U.S.
Supreme Court or reaches an opposite result in a case involving
facts materially indistinguishable from relevant U.S. Supreme Court
precedent. Bell v. Cone, 535 U.S. 685, 694 (2002). To warrant
relief, a state court’s decision must be more than incorrect or
erroneous; it must be “objectively” unreasonable. Wiggins v. Smith,
539 U.S. 510, 520 (2003). This is a difficult standard to meet, and
“[a] state court’s determination that a claim lacks merit precludes
2
federal habeas relief so long as fairminded jurists could disagree
on the correctness of the state court’s decision.” Harrington v.
Richter, 562 U.S. __, __; 131 S. Ct. 770, 786 (2011).
Ground One
Justise argues that his rights under Brady v. Maryland, 373
U.S. 83, 87 (1963) were violated when the State destroyed 332
minutes of telephone calls which included conversations he had with
his daughter while he was housed in the jail. He argues that during
those
calls,
his
daughter
admitted
that
she
fabricated
the
allegation that Justise had sexually assaulted her. The Court of
Appeals of Indiana addressed this claim during his direct appeal
and found that:
Here, however, there was no evidence for the
prosecution to suppress because the phone calls about
which Justise complains were simply not recorded.
Michael, the keeper of inmate phone records at the Marion
County Jail, explained that the system failed to download
approximately 90,000 phone calls due to a system wide
failure. Although the logs indicated that the calls had
been made, the recordings did not exist. It is axiomatic
that if there is no evidence to suppress, there is no
Brady violation. Accordingly, we find no error on this
basis.
Justise v. State, 49A02-1105-CR-408 (Ind. Ct. App. May 22, 2012),
DE 6-6 at 6.
Justise does not explain how the
Court of Appeals of Indiana
misapplied Brady; rather, he argues that it erroneously found that
the calls did not exist because the evidence shows that these 332
minutes of recordings were destroyed after Detective Gregory Norris
3
listened to them. However, there is no evidence in the record to
support his speculation about their destruction. At trial, Buzz
Michael, a computer/telephone record keeper for the Marion County
Jail, testified that about 90,000 inmate phone calls were logged,
but not recorded from March 2006 to February 2007. Trial Record at
129. During a pre-trial hearing, Michael explained it this way:
Basically, to make it simple, you have a computer, and
the calls go out through that computer. The computer
makes the record that you see, the, the visual, the
actual record showing the time and the date of the call,
and the recording, actual recording of the call happens
on another piece of hardware. Those two pieces of
hardware weren’t communicating properly at the time, and
because of that it made the record, but it didn’t
actually make the recording of the call.
September 16, 2008, Pre-Trial Hearing Transcript at 15-16. Michael
also testified that “there’s no rhyme or reason behind which calls
were lost and which calls were kept.” Id. at 17. Then he explained
that, “when you pull up those calls it’s going to pull up a call
log showing that all the calls happened. But when it goes to burn
the CD it’s only going to burn onto the CD the call, the, the
recorded calls that were recorded. It’s not going to be able to
burn on there files that don’t exist.” Id. at 17-18.
Justise
argues
that
Detective
Norris
testified
that
he
listened to those 332 minutes of missing recordings. However, that
was not his testimony at trial. Detective Norris testified that he
“printed a log” showing that Justise had made over 500 minutes of
calls while at the jail, but he did not testify that he downloaded
4
all of those calls. Trial Record at 280. As Michael explained,
unrecorded calls could not be downloaded, therefore Detective
Norris could not have listened to any of the 332 minutes of
unrecorded calls. Nothing in Detective Norris’ testimony indicates
that
he
did.
Justise
cites
to
Detective
Norris’
affirmative
response to his question on cross-examination, “you listened to all
of the phone calls, is that correct?” Id. But he ignores the
clarifying statement explaining that he “listened to every minute
that I downloaded . . ..” Id. at 281. Nowhere does Detective Norris
testify that he listened to any of the 332 minutes of calls that
Justise alleges were destroyed. The trial record supports the
holding of the Court of Appeals of Indiana that those calls were
not recorded.
Based on the facts in this record, Justise has not shown that
the decision of the Court of Appeals of Indiana “was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).
Therefore he has not demonstrated that he is entitled to habeas
corpus relief based on Ground One.
Ground Two
Justise argues that “[t]he State has an obligation to make
sure that the missing phone calls were recorded.” DE 11 at 2. The
Respondent argues that the Court of Appeals of Indiana reasonably
5
concluded that the calls were not recorded due to an unintended
computer failure. The United States Supreme Court has explained
that, “unless a criminal defendant can show bad faith on the part
of the police, failure to preserve potentially useful evidence does
not
constitute
a
denial
of
due
process
of
law.”
Arizona
v.
Youngblood, 488 U.S. 51, 58 (1988).
Justise argues that bad faith is shown by the evidence
demonstrating that the calls were deleted. However, that is merely
rearguing
the
claim
he
raised
in
Ground
One.
As
previously
explained, Ground One is not a basis for habeas corpus relief
because it was not an unreasonable determination of the facts for
the Court of Appeals of Indiana to have determined that the calls
in question were not recorded. Therefore to the extent that Ground
Two is merely a re-phrasing of Ground One, it is not a basis for
habeas corpus relief. However, to the extent that Ground Two is
raising a different claim – the claim that the calls were not, but
should have been recorded – bad faith cannot be shown by merely
inconsistently asserting that the calls were recorded and later
deleted.
Here, the Court of Appeals of Indiana implicitly found that
the police were not acting in bad faith when it determined that
“the system failed to download approximately 90,000 phone calls due
to a system wide failure.” Justise v. State, 49A02-1105-CR-408
(Ind. Ct. App. May 22, 2012), DE 6-6 at 6. The finding that these
6
calls were the result of a “system wide failure” precludes the
possibility that the police did not record 332 minutes of Justise’s
phone calls because of bad faith. Justise has not identified any
evidence showing that this conclusion “was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d)(2). Therefore he
has not demonstrated that he is entitled to habeas corpus relief
based on Ground Two.
Ground Three
Justise argues that he was prevented from questioning “Ashley
Jackson about what exactly was told to her by [his daughter]
regarding a penis touching her or being ‘fingered.’” DE 11 at 2.
First, the Respondent argues that this claim is procedurally
defaulted because Justise did not raise it as a federal claim in
his
Petition
to
Transfer
to
the
Indiana
Supreme
Court.
Nevertheless, “[a]n application for a writ of habeas corpus may be
denied on the merits, notwithstanding the failure of the applicant
to exhaust the remedies available in the courts of the State.” 28
U.S.C. § 2254(b)(2).
Here, the facts in the record demonstrate that Justise was not
prevented from questioning Ashley Jackson about his daughter’s
statements regarding his penis touching his daughter or his having
fingered his daughter. Rather, the trial record shows that he never
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attempted to ask questions about those two subjects. He asked Ms.
Jackson, “And in that conversation did she . . . the conversation
was about a sexual incident?” Trial Record at 318 (ellipsis in
original), but he withdrew that question. Id. at 319. He then
asked, “Did she at any time say that I had licked her breasts?” Id.
That question was stricken because it called for hearsay. Id. Then
he asked, “Did she give you the impression that she had been
molested?” Id. That question was stricken because it called for
speculation. Id. Then the parties had a side bar conference which
concluded with the judge saying, “So there is nothing I can do for
you on these two questions. So do you have some more?” Trial Record
at 322. Justise argues that “This is clearly referring to the
finger and the penis.” DE 19 at 12. But he is wrong. Justise had
just asked two questions which had been stricken. The trial judge
had just explained why they were inappropriate questions. Trial
Record at 320. The trial judge then explained how it was necessary
to lay a proper foundation before asking questions of a third party
to impeach the testimony of a previous witness. Trial Record at
321-22. Finally, the judge concluded by telling Justise that “there
is nothing I can do for you on these two questions.” Trial Record
at 322. The two questions to which the trial judge was referring
were the two questions that had just been stricken. The trial judge
said nothing about the finger and the penis.
8
Justise did not ask Ashley Jackson any questions about his
daughter’s statements regarding his penis or his having fingered
his daughter. He was not prevented from trying to do so, nor even
told not to try. Indeed, after telling him why his two questions
had
been
stricken,
and
explaining
how
to
ask
a
permissible
question, the trial judge asked him, “So do you have some more
[questions]?” Trial Record at 322. However, Justise abandoned the
line of questioning related to his sexual assault on his daughter
and turned to asking about a phone call from Denise Taylor instead.
Because Justise was not prevented from asking Ashley Jackson about
what his daughter told her about his penis and how he fingered the
girl, his argument – in Ground Three – that he was prevented from
doing so is not a basis for habeas corpus relief.
Ground Four
Justise argues that the evidence was insufficient to support
his conviction because his daughter’s inconsistent statements were
“mere story telling.” DE 11 at 3. On direct appeal, the Court of
Appeals of Indiana was required to determine “whether, after
viewing
the
evidence
in
the
light
most
favorable
to
the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson
v. Virginia, 443 U.S. 307, 319 (1979)(emphasis in original). The
State court correctly identified this standard when it explained
9
that it would “affirm the conviction unless no reasonable fact
finder could find the elements of the crime proven beyond a
reasonable doubt.” Justise v. State, 49A02-1105-CR-408 (Ind. Ct.
App. May 22, 2012), DE 6-6 at 7.
Justise concedes that a single witness is generally
sufficient to sustain a conviction and does not challenge
the evidence supporting the elements of the offense.
Rather, he argues that [his daughter] engaged in “mere
story telling.” Appellant’s Br. p. 4. Specifically,
Justise contends that [his daughter] was “jealous of
other women . . . and in competition with a person she
told . . ..” Appellant’s Br. p. 4. However, this argument
is nothing more than an invitation for us to reweigh the
evidence, which we cannot do. See Peny, 962 N.E.2d at
154. Therefore, we affirm the decision of the trial
court.
Id. at 8.
On habeas review, when considering a sufficiency of the
evidence claim premised on witness credibility, the Court’s role is
even more limited. To find in favor of the petitioner on such a
claim, the court would not only have to conclude that the witness
was unreliable as a matter of law, “but [also] that no court could
reasonably think otherwise.” McFowler v. Jaimet, 349 F.3d 436, 456
(7th Cir. 2003).
Justise argues that his daughter’s testimony was unreliable
because, “[h]er story has changed three times on whether the penis
was soft (TR 99) or hard (TR 98) when it entered her, before
settling on in between (TR 99) [and because s]he is not aware of
how her pants got off (TR 66).” DE 19 at 14 (footnote omitted).
However, as Justise himself notes, the “thing that remains common
10
is the part that . . . a penis was inside here [sic].” Id. What is
also consistent is that it was his penis. Despite the fact that his
12 year old daughter had difficulty describing his penis and in
recalling
every
detail
about
how
he
molested
her,
she
was
consistent in her assertion that he did so. It was not unreasonable
for
the
jury
to
have
found
Justise
guilty
and
it
was
not
unreasonable for the Court of Appeals to have found that there was
sufficient evidence to convict him. This Court does not find that
his daughter was unreliable as a matter of law and Ground Four is
not a basis for habeas corpus relief.
Ground Five
Justise argues that he was not allowed to present a complete
defense because he was unable to play 25 phone calls he had with
his daughter while he was in the Marion County Jail. As discussed
in the court’s review of Ground One, a computer failure resulted in
these calls not being recorded. The recordings Justise argues that
he wanted to play for the jury never existed. Nevertheless, Justise
argues that it was error for the State to have been permitted to
play some of the telephone calls that were recorded because the
jail did not record every call that he made while at the jail. As
discussed in this court’s review of Ground Two, the failure to
record the missing calls was not done in bad faith. Despite his
unsupported conjecture to the contrary, there is no evidence that
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the State decided whether to record a call based on its content. As
the Jail’s computer/telephone record keeper testified about the
missing 90,000 recordings, “there’s no rhyme or reason behind which
calls were lost and which calls were kept.” September 16, 2008,
Pre-Trial Hearing Transcript at 17. Without a showing of bad faith,
the missing telephone recordings are not a basis for excluding any
of the recordings that were made. Cf. Arizona v. Youngblood, 488
U.S. 51, 58 (1988). Therefore Ground Five is not a basis for habeas
corpus relief.
Certificate of Appealability
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases,
the
court
must
consider
whether
to
grant
a
certificate
of
appealability. To obtain a certificate of appealability under 28
U.S.C. § 2253(c), the petitioner must make a substantial showing of
the
denial
of
a
constitutional
right
by
establishing
“that
reasonable jurists 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).
Here, Justise has not made such a showing and will be denied a
certificate of appealability.
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CONCLUSION
For the reasons set forth above, the amended habeas corpus
petition (DE 11) is DENIED and Justise is DENIED a certificate of
appealability.
DATED: December 18, 2014
/s/RUDY LOZANO, Judge
United State District Court
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