McKinney v. Superintendent
OPINION AND ORDER: Petitioner Chad McKinney's amended habeas corpus petition is DENIED. A certificate of appealability pursuant to Section 2254 Habeas Corpus Rule 11 is DENIED. McKinney's motion to expand the record 63 is DENIED AS MOOT. The Clerk is directed to enter judgment in favor of the Respondent and against the Petitioner. Signed by Judge Philip P Simon on 11/17/2020. (Copy mailed to pro se party)(shk)
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
CAUSE NO. 3:15CV369-PPS/MGG
OPINION AND ORDER
Chad McKinney, a prisoner without a lawyer, filed an amended habeas corpus
petition to challenge his conviction and sentence for murder following a jury trial. On
May 17, 2006, the Marion Superior Court sentenced McKinney to fifty-five years of
In deciding this habeas petition, I must presume the facts set forth by the state
courts are correct unless they are rebutted by clear and convincing evidence. 28 U.S.C. §
2254(e)(1). The victim of the murder was a man named Anthony Laurenzo who was
shot in the head in an unfortunate incident involving the all too common mixture of
drugs and guns. The evidence at trial was a bit convoluted. But here is how the Court
of Appeals of Indiana summarized what happened:
On the night of December 19, 2003, Dominick Bruno (“Dominick”) and
Anthony Laurenzo (“Laurenzo”), who had been a groomsman in
Dominick’s wedding, procured some LSD and then went to Dancer’s
Show Club in Indianapolis. Both men consumed some of the LSD before
entering the club. After a few minutes, Laurenzo began acting abnormally,
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alternating between periods of quiet with his head between his knees and
periods where he had a great deal of energy, was shaking, and was
yelling, “Oh, Jesus.” The club’s doorman saw Laurenzo crying and
rubbing his chest and believed that Laurenzo was hallucinating.
Eventually, the doorman asked Dominick to take Laurenzo out of the
About that time, Dominick received a call from his wife, Connie. Connie,
who was eight-and-a-half months pregnant, was at the couple's trailer
home with their young son, Joseph. Connie told Dominick that McKinney,
who had also been a groomsman in Dominick’s wedding, was at the home
and needed to see him. According to Connie, McKinney had been
drinking whiskey and seemed sad. Dominick and Laurenzo left the club
and drove to the Brunos’ home. During the drive, Laurenzo was swinging
his arms and talking with God and Jesus. Twice during the drive,
Dominick pulled over to calm Laurenzo.
After they arrived at Dominick’s home, Dominick led Laurenzo inside.
McKinney was lying on the floor near the door, and Laurenzo stepped on
him. Laurenzo was still swinging his arms, and he hit McKinney.
McKinney pulled Laurenzo onto a couch and started hitting him before
Dominick and Connie separated them. Dominick told McKinney that
Laurenzo was “on a bad trip” from the LSD, that he was “not trying to
hurt nobody,” and that McKinney should leave him alone. At that point,
Laurenzo was foaming at the mouth and claiming that he was God and
“the most powerful man in the world.” Connie tried to give Laurenzo a
glass of milk, but Laurenzo threw it or knocked it out of her hand.
Dominick left the room to check on Joseph and returned to find McKinney
beating Laurenzo up again, and Dominick again separated the two.
McKinney eventually left the trailer, but he returned approximately ten
minutes later with a purple Crown Royal bag and a white glove. By that
point, Laurenzo had “actually started to listen” to Dominick “a little bit.”
Nonetheless, McKinney removed a small pistol from the purple bag and
pointed it at Laurenzo. McKinney then fired a shot while the gun was
pointed at the ground. Dominick told McKinney, “Look, you just shot a
bullet. You need to go. I got a son here, I’ve got a pregnant wife. You
know this is not good. You need to leave now.” McKinney placed the gun
on an entertainment center but did not leave. Laurenzo was still standing
and claiming to be God and the most powerful man in the world. Connie
told Laurenzo to sit down, and Laurenzo approached her “like he was
going to hit [her] or something.” Connie told Laurenzo, “I’m pregnant and
you're not going to hit me,” and Laurenzo did not do anything to her.
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Connie then called 911 to get help for Laurenzo. While she was on the
phone, McKinney approached Laurenzo, put him in a headlock, pushed
the gun against his temple, and shot him in the head. Laurenzo
immediately fell to the floor.
Dominick saw McKinney drop the gun, and McKinney left the trailer.
Laurenzo died of “a through-and-through contact gunshot wound to the
head.” Dominick and Connie gave statements to the police and identified
McKinney as the shooter. Police found a gun broken into several pieces on
the floor of the trailer.
After McKinney was arrested, he reported to a doctor at the Marion
County Jail that he had a bullet lodged in his hand. He subsequently
removed the bullet himself using a razor blade and gave it to a guard.
Testing showed that the bullet had been fired from the gun recovered by
police. Furthermore, McKinney’s wound was consistent with the exit
wound on Laurenzo’s head because the exit wound indicated that
something was resting against Laurenzo’s skin, possibly McKinney's
hand. Finally, DNA testing showed that Laurenzo’s blood was on the
barrel of the recovered gun and on McKinney’s jacket.
The State charged McKinney with murder, a felony. A jury trial was held
on August 15–17, 2005. . . . On August 17, 2005, the last day of the trial, the
jury was unable to reach a verdict, and the trial court declared a mistrial
and scheduled another pre-trial conference. . . . The second jury trial
commenced on April 24, 2006. . . . The jury found McKinney guilty of
murder. . . . Judge Gifford sentenced McKinney to a prison term of fiftyfive years, the presumptive sentence for murder.
ECF 36-7 at 2-8; McKinney v. State, 873 N.E.2d 630, 635-38 (Ind. App. 2007).
In the amended petition, McKinney argues that he is entitled to habeas relief
because trial counsel denied him his right to testify at trial. He also argues that he
received ineffective assistance of trial counsel with respect to requesting a self-defense
instruction; failing to present a pathology expert; failing to present a firearms expert;
failing to timely request a change of judge; failing to prepare for the sentencing hearing;
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failing to challenge the chain of custody for the gun; and failing to object to fabricated
forensic evidence as prosecutorial misconduct.
McKinney further argues that he is entitled to habeas relief because he received
ineffective assistance of post-conviction counsel. While ineffective assistance of postconviction counsel may, under some circumstances, constitute an excuse for procedural
default, it is not a cognizable basis for habeas relief as a freestanding claim.
Coleman v. Thompson, 501 U.S. 722, 752 (U.S. 1991) (“There is no constitutional right to an
attorney in state post-conviction proceedings.”).
Some of these claims are knocked out by procedural default. And the other
claims have no merit. I’ll address the issues barred by the doctrine of procedural default
Before considering the merits of a habeas petition, I must ensure that the
McKinney has exhausted all available remedies in state court. 28 U.S.C. § 2254(b)(1)(A);
Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). This involves navigating a process
that is chock full of traps for the petitioner. Fall into one, and your claim is a goner. To
get the merits of a claim considered in federal court, a petitioner must first have fully
and fairly presented his federal claims to the state courts. Boyko v. Parke, 259 F.3d 781,
788 (7th Cir. 2001). 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). It does, however, require “the petitioner to
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assert his federal claim through one complete round of state-court review, either on
direct appeal of his conviction or in post-conviction proceedings.” Lewis, 390 F.3d at
1025 (internal quotations and citations omitted). “This means that the petitioner must
raise the issue at each and every level in the state court system, including levels at
which review is discretionary rather than mandatory.” Id. at 1025-26. “A habeas
petitioner who has exhausted his state court remedies without properly asserting his
federal claim at each level of state court review has procedurally defaulted that claim.”
Id. at 1026.
McKinney raised his claims regarding ineffective assistance of trial counsel for
denying him his right to testify and for failing to timely move for a change of judge at
each of the three levels of the State court system. ECF 36-9; ECF 36-12. But his remaining
claims are procedurally defaulted either because: 1) he did not raise them with the
Marion Superior Court; 2) he did not raise them in his petition to transfer to the Indiana
Supreme Court; or 3) because he did not raise them at any level. Those claims are
therefore procedurally defaulted.
As an excuse to procedural bar for these claims, McKinney asserts that he
received ineffective assistance of counsel during the post-conviction relief stage. Federal
courts may consider procedurally defaulted claims if the petitioner demonstrates “cause
for his default and prejudice resulting therefrom, or that a miscarriage of justice will
result if we do not consider the merits of his case.” Anderson v. Benik 471 F.3d 811, 815
(7th Cir. 2006). As a general rule, “[n]egligence on the part of a prisoner’s
postconviction attorney does not qualify as cause.” Maples v. Thomas, 565 U.S. 266, 280
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(2012). But “[i]nadequate assistance of counsel at initial-review collateral proceedings
may establish cause for a prisoner’s procedural default of a claim of ineffective
assistance at trial.” Martinez v. Ryan, 566 U.S. 1, 9 (2012); Brown v. Brown, 847 F.3d 502
(7th Cir. 2017). “[A] prisoner must also demonstrate that the underlying ineffectiveassistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner
must demonstrate that the claim has some merit.” Martinez, 566 U.S. at 14.
McKinney raised the claim that trial counsel provided ineffective assistance with
respect to sentencing to the Marion Superior Court and the Court of Appeals of Indiana
but abandoned it in his petition to transfer to the Indiana Supreme Court. ECF 36-9;
ECF 36-12. Consequently, this claim cannot be excused under Martinez, which applies
only to claims that were procedurally defaulted “at initial-review collateral
proceedings.” However, I will discuss the substantiality of the remaining procedurally
defaulted claims below.
Having worked our way through the procedural thicket that plagues habeas
corpus litigation, it is now on to the merits of the claims that survive. But first, some
basics about the standards that govern the decisionmaking. Habeas corpus is an
important error correction tool that helps to ensure the proper functioning of the
criminal justice system. “Federal habeas review . . . exists as a guard against extreme
malfunctions in the state criminal justice systems, not a substitute for ordinary error
correction through appeal.” Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (quotations and
citation omitted). Habeas relief can only be granted in one of two ways: if it is shown
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that the adjudication of the claim by the state court 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 if the state court decision
was based “on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d).
This is a demanding standard that has been described by the Supreme Court as
being “intentionally difficult to meet. We have explained that clearly established
Federal law for purposes of §2254(d)(1) includes only the holdings . . . of this Court’s
decisions. And an unreasonable application of those holdings must be objectively
unreasonable, not merely wrong; even clear error will not suffice.” Woods, 135 S. Ct. at
1376 (quotation marks and citations omitted). What this means is that to succeed on a
habeas claim the petitioner must show that the state court’s ruling “was so lacking in
justification that there was an error well understood and comprehended in existing law
beyond any possibility for fair-minded disagreement.” Id.
Criminal defendants are entitled to a fair trial but not a perfect one. Rose v. Clark,
478 U.S. 570, 579 (1986). To warrant relief, a state court’s decision must be more than
incorrect or erroneous; it must be objectively unreasonable. Wiggins v. Smith, 539 U.S.
510, 520-21 (2003). “A state court’s determination that a claim lacks merit precludes
federal habeas relief so long as fairminded jurists could disagree on the correctness of
the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quotation marks
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One of the most common ways to get a state criminal conviction reviewed in
federal court is by claiming ineffective assistance of counsel. To prevail on an ineffective
assistance of counsel claim, a petitioner must show that counsel’s performance was
deficient and that the deficient performance prejudiced him. Strickland v. Washington,
466 U.S. 668 (1984). The test for prejudice is whether there was a reasonable probability
that “but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. A reasonable probability is a probability “sufficient to
undermine confidence in the outcome.” Id. at 693. In assessing prejudice under
Strickland “[t]he likelihood of a different result must be substantial, not just
conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011). However, “[o]n habeas
review, [the] inquiry is now whether the state court unreasonably applied Strickland.”
McNary v. Lemke, 708 F.3d 905, 914 (7th Cir. 2013). “Given this high standard, even
‘egregious’ failures of counsel do not always warrant relief.” Id.
1. Alleged Denial of Right to Testify
McKinney argues that he is entitled to habeas relief because trial counsel refused
to allow him to testify. He maintains that his testimony was necessary for him to pursue
a self-defense strategy at trial and contends that such a strategy would have likely
resulted in a favorable outcome at trial. “[A] criminal defendant has a constitutional
right to testify in his own behalf under the fifth, sixth, and fourteenth amendments.”
Alicea v. Gagnon, 675 F.2d 913, 923 (7th Cir. 1982). “An ineffective assistance of counsel
claim is the appropriate vehicle in which to allege that counsel violated a defendant’s
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right to testify.” Hartsfield v. Dorethy, 949 F.3d 307, 312 (7th Cir. 2020). “The decision not
to place the defendant on the stand is a classic example of a strategic trial decision.”
United States v. Stuart, 773 F.3d 849, 853 (7th Cir. 2014) (internal quotations omitted).
Trial counsel in this case did not rely on a single narrative to undermine the
prosecution’s case but instead characterized their case as flimsy and well-short of
satisfying their burden of proof. [ECF 16 -- Trial Tr. 674-708]. For instance, trial counsel
noted the material differences between testimony of key witnesses — including the
Brunos (the only eyewitnesses presented at trial) and the forensic experts. Each of them
was effectively impeached with prior statements and this was pointed out by counsel in
closing argument. See e.g., Trial Tr. 122-27, 250-53, 271-80, 341-50, 544-45. Counsel’s
argument was not to concede that McKinney had fired the gun but to suggest that
Dominick Bruno committed the murder, noting that he was in a manic state caused by
bipolar disorder and had consumed hallucinogens and alcohol that night. Id. at 685,
704-05. She also attempted to create doubt by arguing that the victim’s drug dealer or a
disgruntled bar patron committed the murder, noting that he had obtained LSD and
that patrons had noticed the victim’s unusual behavior at the bar earlier that night. Id. at
688-90, 702-03. She further noted unexplained calls on Dominick Bruno’s cellphone and
Connie Bruno’s call to 911 in which she described the shooter as a man she did not
recognize. Id. at 679-80. All of this was an effort to sow doubt about the identity of the
At the post-conviction relief stage, McKinney testified as follows:
Q: Did you request to testify at the second trial?
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Q: Why didn’t you testify?
A: [Trial counsel] wouldn’t let me.
Q: Why did you feel that your testimony would be helpful?
A: Because we were asking for a self-defense instruction and my
observation of events, you know, I was being the third person there, other
than the victim, of course and the two-year-old boy, was crucial. There
was so many things throughout . . . throughout these trials that got
misconstrued. People’s perceptions were . . . altered because either they
were on drugs or they were . . . we had one, the eight-and-a-half-month
pregnant woman, obviously a very stressful situation. Chaos going on.
And I’m the only one that can answer certain questions, certain things
about this case. I’m the only on that would know how the gun came apart
or these certain things, you know, so. I couldn’t see why I couldn’t testify.
PCR Tr. 16-17.
McKinney further testified at the PCR hearing about the events at the Bruno
residence. According to McKinney, had he testified at trial he would have talked about
what happened when he returned to the residence with his gun in hand. Here’s what he
told the PCR judge he would have testified to:
Q: And so after you held him down the first time and everybody is kind
of pitching in to help, what happens at that point?
A: This goes on over and over. He would calm down for a second and
then he would start attacking me again. And throughout this time his . . .
I’m the only one he’s . . . he’s being aggressive towards. It became a point
in time . . . I . . . I would say that, you know, he attacked me, you know,
five, six times. It became a point in time Connie got a glass of milk to try to
get him to come out of this acid trip, to come down or to help him calm
down or whatever. So then he, you know, he threw the milk at me and
missed and hit the like the wall or counter behind me. And then Connie
was going to try to tie him down in a chair with a belt. We’re all
participating. Well, Dominick’s not. He’s dazed behind me and he’s just
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saying things like, “Well, Tony, now we’re serious, calm down. Tony,
we’re serious, calm down.” So we’re trying to tie him down with a belt
which was . . . no, it didn’t work. The chair broke. And then at that point
we thought well he’s only being aggressive with me. So the idea was to
get me out of the situation to see if he would calm down. And so . . . so
Connie . . . Connie said Dominick take Chad, why don’t you guys get out
of here and see if he calms down.
Q: Did you leave?
A: I went past the front door. I went to check on Joey. And then I went out
of the front door and I stood right by the front door. Dominick never
followed. And I’m just looking, observing to see what’s going on. And
he’s still being . . . you know, he’s being somewhat calm. He’s standing
there. I seen the three of them. Then all of a sudden I seen [the victim]
start attacking Dominick at that point or start hitting Dominick.
Q: So what did you do?
A: So then I went back in. Or at that point while I’m . . . or I apologize. I
grabbed my jacket, my keys and my cigarettes before I left and went down
the other side of the trailer. So when at that point I realized I had the . . .
the weapon on me and when I came back in I took the weapon out of my
pocket. The same pocket I had earlier put the . . . the bag of Crown Royal.
The Crown Royal comes with a purple bag around the bottle. I’d earlier
stuck that in the same pocket the gun was in. So took the gun out, the bag
came out with it. Just threw the bag on the floor or whatever. And . . . oh, I
was trying to make sure that the gun wasn’t loaded. I was going to use the
gun to scare [the victim] with. You know, nothing else had worked at that
point. While doing this I accidently shot myself and . . .
Q: Where did you shoot yourself?
A: In my left hand. So . . . and I had it down more towards the floor. Shot
myself. You know, I felt the shot. You know, it burned. But at that same
time the sleeve came off of the gun and I put the sleeve on the
entertainment center and at this point in time I had actually felt that I had
taken the clip out before I fired that shot and accidently shot myself in the
hand. Obviously now I know that I had not taken the clip out yet. So I
took the clip out. The clip and the slide at the top of the gun went on top
of the entertainment center. At this point in time, this is the most . . . this is
an important part of this. I had a shell of a gun that I didn’t even think
would operate or fire. I also thought it was unloaded. And so . . . so from
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then I went . . . Dominick is . . . or I’m sorry, [the victim] is swinging on
Dominick and they’re fighting. I’ve got the gun in my right hand. I’m
trying to pull [the victim] off of Dominick with my left. And at some point
sat the gun to my right on the . . . where the coffee table had been. Because
of us fighting it had been moved around and well things had been broken
and whatnot, so I sat it over to the right and I’m trying to get [the victim]
to back off Dominick. Back to the . . . the section of the couch that
throughout all this we’d been trying to keep him detained.
Q: Okay. And at some point somebody decided to call 911?
A: Yeah, Connie had said right around this time, Connie had said should I
get help? And I agreed and I said you’re going to have to call someone. At
that point in time she proceeded to call 911. Or you know . . . [the victim]
had also realized at this point in time that she was going to call 911. And
[the victim] is saying, man, don’t call. Don’t call the police on me. Don’t . .
. I’m fine. Don’t call the police on me. And then he’s starting to act erratic
towards Connie. So [the victim] was on the couch. He gets back up off of
the couch. Connie is to [the victim’s] right, which would be my left in the
kitchen where the phone is. At this point in time, you know, I hear Connie
say, “No, Tony, you can’t hit me.” That she was about eight and a half
months pregnant. [The victim] is screaming and yelling throughout the
whole night. I mean throughout all these things he’s screaming and
yelling these crazy things, so. I had picked the gun back up that I thought
was unloaded and wouldn’t even work. And I’m trying to threaten him
with it. He’s trying to get at Connie. I’m holding him with my left hand
and I’ve got him in like a full nelson. And we’re struggling. I’m trying to
hold him back. And then you know at this point in time while she’s
calling 911 is when I accidently shot him.
Id. at 35-38.
At the same evidentiary hearing, trial counsel testified that McKinney had told
her that “he absolutely did not want to testify” based on his concern that the bullet
lodged in his hand was particularly incriminating. Id. at 23-24. She testified that she
rarely placed clients on the stand and likely advised McKinney against testifying. Id.
Her trial strategy was to implicate Dominick Bruno and to portray the Brunos’
testimony as an effort to avoid incriminating themselves. Id. at 24-25. She believed that
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the fact that McKinney had left the house and returned with a gun would have made a
self-defense theory a fool’s errand. Id.
The Marion Superior Court rejected the ineffective assistance claim about
McKinney testifying, and McKinney appealed. ECF 36-11 at 11-12. The Court of
Appeals of Indiana credited trial counsel’s testimony that McKinney did not want to
testify. Id. The appellate court also found that counsel’s decisions to implicate Dominick
Bruno and not to present McKinney as a witness were reasonable strategic decisions
and thus did not constitute deficient performance. Id.
After reviewing the record, I cannot find that the State court made an
unreasonable determination with respect to trial counsel’s decision not to call
McKinney as a witness. As an initial matter, I must presume that State court findings
are correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
McKinney testified that he wanted to take the witness stand at trial and also submits
two affidavits from his relatives to that effect. ECF 62-1 at 2-4. But his lawyer, whose
testimony was credited by the PCR court, testified to the contrary. As just stated, I have
to presume that the State court findings of fact are correct unless rebutted by clear and
convincing evidence. McKinney has failed to meet this high bar.
What’s more, I’m not at all convinced that McKinney’s proposed trial strategy
would have increased his likelihood of success at trial. Under Indiana law, “[f]or a claim
of self-defense to prevail, the defendant must show that he (1) was in a place where he
had a right to be; (2) did not provoke, instigate, or participate willingly in the violence;
and (3) had a reasonable fear of death or great bodily harm.” McEwen v. State, 695
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N.E.2d 79, 90 (Ind. 1998). Even setting aside Dominick Bruno’s testimony describing
McKinney as the aggressor, the record reflects that the Brunos asked McKinney to leave
their home twice. Trial Tr. 80-86, 231-37; PCR Tr. 36. Yet McKinney came back inside
armed with a pistol. It is difficult to see how a claim of self-defense would have gotten
much traction under those circumstances.
McKinney’s testimony would have also opened the door for questioning on
multiple topics that could have harmed his case. For example, he likely would have
been asked how he shot himself in the hand in a way that the bullet became embedded
in his hand without producing an exit wound. He likely would have been asked how
the wound to his left hand was consistent with his testimony that he had the victim in a
full nelson hold1 as he fired the fatal shot, as well as the mechanics of and the thought
process behind his efforts to physically subdue and scare the victim after having
suffered such a significant wound himself. It is unclear how McKinney would have
answered such questions in a manner that did not significantly undermine his
credibility or increase the likelihood of a guilty verdict. More generally, the decision to
testify also includes many risks that are applicable to all criminal defendants. The
prosecution could seize on a minor misstatement to attack the criminal defendant’s
credibility or as support for their case, or the jury may simply not like the criminal
1 A full nelson is “a wrestling hold gained from behind an opponent by thrusting the arms under
the opponent’s arms and clasping the hands behind the opponent’s head.” Merriam-Webster,
https://www.merriam-webster.com/dictionary/full%20nelson (last visited Nov. 4, 2020).
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By contrast, though trial counsel’s strategy also had flaws, it did not expose
McKinney to the risks of cross-examination. By suggesting that Dominick Bruno
committed the murder, the strategy provided a motive for the Brunos’ decision to
testify in support of the prosecution’s case against him. And trial counsel had used the
same strategy in the first trial with some success, persuading six members of that jury
that McKinney should have been acquitted. ECF 36-9 at 5.
In sum, the Indiana Court of Appeals did not unreasonably apply the Strickland
standards in determining that the decision to not have McKinney testify at trial was a
sound strategic decision by trial counsel. And so, there is no basis for habeas relief on
2. Motion for a Change of Judge
McKinney argues that he is entitled to habeas relief because trial counsel did not
file a timely motion for a change of judge. Here’s how the issue arose in state court. On
the first day of the first trial, the trial judge informed the parties that the victim’s mother
had worked for her in the early 1980’s and asked if the parties had any concerns. Direct
Appeal App. 491-97. Trial counsel decided not to ask for a mistrial or recusal at that
time because “she felt she was winning the trial.” Id. After the first trial, trial counsel
did move for a change of judge, but the trial court denied the motion as untimely and
without merit because there was no showing of bias or prejudice. Supp. Direct Appeal
App. 1-4. On direct appeal, the Court of Appeals of Indiana affirmed the trial court on
both grounds. ECF 36-7 at 8-12. It noted that twenty years had passed between the
termination of Laurenzo’s mother’s employment with the court and the trial. And more
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to the point, there was no evidence to suggest any other relationship between the
victim’s mother and the trial judge during that time. Id. It also noted trial counsel’s
statements that she believed the trial judge was fair and that she had a good
relationship with the trial judge. Id.
At the post-conviction stage, trial counsel testified that she did not perceive any
bias from the trial judge and that her understanding was that the employment
relationship ended on poor terms. PCR Tr. 26-29. The appellate court found that the
decision to not move for a change of judge earlier was a reasonable strategic decision
and thus did not constitute deficient performance. ECF 36-11 at 14-16. The appellate
court further found a lack of prejudice given its prior finding that the motion would
have been denied even if it was timely and given the absence of any indication that the
outcome of the case would have been different with another trial judge. Id.
It is worth returning to the standard governing my review of this ineffective
assistance of counsel claim. Recall that it is a “high standard” and “even ‘egregious’
failures of counsel do not always warrant relief.” McNary, 708 F.3d at 914. On this
record, there is no indication that a motion to change judge would have been granted if
it was timely or that the outcome of the case would have been different if the motion
had been granted. Therefore, the claim regarding the motion for a change of judge is not
a basis for habeas relief.
3. Post-Conviction Counsel Claims
McKinney argues that post-conviction counsel provided ineffective assistance by
failing to pursue four ineffective assistance of trial counsel claims in the Marion
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Superior Court and that I should excuse the procedural bar on these four claims. “[A]
prisoner must also demonstrate that the underlying ineffective-assistance-of-trialcounsel claim is a substantial one, which is to say that the prisoner must demonstrate
that the claim has some merit.” Martinez v. Ryan, 566 U.S. 1, 14 (2012). Consequently, I
will now consider whether these claims have any merit.
a. Self-Defense Instruction
McKinney argues that post-conviction counsel should have asserted that trial
counsel was ineffective for requesting a self-defense instruction without offering
evidence to support it. He maintains that the instruction acted as an admission that he
was the shooter in direct contradiction to the trial strategy. The self-defense instruction
read as follows:
A person may use reasonable force against another person to protect
himself from what the person reasonably believes to be the imminent use
of unlawful force.
A person is justified in using deadly force only if he reasonably believes
that deadly force is necessary to prevent serious bodily injury to himself
or a third person.
However, a person may not use force if he has willingly entered into a
fight with another person or started the fight, unless he withdraws from
the fight and communicates to the other person his intent to withdraw
and the other person nevertheless continues or threatens to continue the
The State has the burden of proving beyond a reasonable doubt that the
defendant did not act in self-defense.
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Direct Appeal App. 638. The jury instructions also read, “The defendant was not
required to present any evidence to prove his innocence or to explain anything,” and,
“A defendant must not be convicted on suspicion or speculation.” Id. at 631, 645.
At closing, trial counsel argued:
I think you could tell, I was somewhat bothered by [the prosecution] on a
couple of occasions [telling] you what the defense arguments would be,
and he talked about self-defense and voluntary manslaughter, and my
argument is as to that, this is an attempt by the State to shift its burden of
proof onto the defense making that type of argument to the jury, getting
up here and telling you what we’re going to argue, because remember,
Chad McKinney has to prove nothing. Remember in our voir dire when
we discussed that? That is called the United States Constitution, and I
hope that you all hold it near and dear. He has no burden of proof in this
case. The burden of proof rests on the State of Indiana. And indeed, [the
prosecution] did not read to you the part of the jury instructions he
referenced. In particular, the first instruction of self-defense, [the
prosecution] failed to read to you that the State has the burden of proving
beyond a reasonable doubt that the defendant did not act in self-defense. .
. . I hope you understand that that is a critical part of how jurors should
analyze the evidence in this case.
Trial Tr. 674-75.
After reviewing the record, I disagree with McKinney’s contention that trial
counsel’s request for a self-defense instruction acted as an admission that McKinney
shot the victim. As a general proposition, “[courts] presume that juries follow
instructions.” Perry v. McCaughtry, 308 F.3d 682, 690 ( 7th Cir. 2002). Here, the jury
instructions clearly articulated that the burden of proof relating to self-defense rested
with the prosecution. There are certainly cases in which a trial counsel concedes that the
criminal defendant killed the victim but argues that the need for self-defense justified
the killing, but, here, trial counsel emphatically insisted during closing arguments that
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that was not her strategy. Instead, by requesting a self-defense instruction, trial counsel
merely increased the prosecution’s burden by requiring them to disprove self-defense in
addition to proving the elements of murder. A claim at the post-conviction relief stage
that trial counsel was ineffective for requesting the self-defense instruction would have
been futile, so I find that post-conviction counsel was not ineffective for declining to
pursue such a claim, which remains procedurally barred.
b. Pathology Expert
McKinney argues that post-conviction counsel should have asserted that trial
counsel was ineffective for failing to hire a pathology expert to rebut the testimony of
Dr. Radentz, the State’s pathologist. He asserts that Dr. Radentz described the wound
on the left side of the victim’s head as a “classic exit wound” at a pretrial deposition but
described the wound as a “shored exit” that indicated an object rested against the exit
point when the bullet exited the wound. He further asserts that Dr. Radentz testified
that the suturing of the exit wound did not affect his ability to assess whether it was
shored, which, McKinney maintains, contradicts common sense. McKinney also argues
that trial counsel acted ineffectively by not insisting that Dr. Radentz appear at the
second trial. Instead, the parties read into the record the testimony of Dr. Radentz from
the first trial. According to McKinney, the failure to require Dr. Radentz to testify in
person forfeited an opportunity to cross-examine him about his questionable
conclusions. The problem with this argument is that trial counsel competently
highlighted these exact points to the jury on cross-examination, and the second jury
heard those points when the testimony was read to them. And these points were able
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to be made without the aid of an opposing pathology expert, which indicates a lack of
prejudice. Trial Tr. 340-48.
At the post-conviction stage, trial counsel testified that she agreed to use Dr.
Radentz’s testimony from the first trial due to her concern that his testimony would
change in favor of the prosecution’s case, noting that the Brunos’ testimony did just
that. PCR Tr. 25-26. The record thus indicates that trial counsel’s decision to agree to use
Dr. Radentz’s testimony from the first trial was a strategic decision.
McKinney also asserts that Dr. Radentz falsely testified that there were no bullet
fragments in the victim’s head, but, after reviewing the trial transcript, I cannot find
such testimony in the trial transcript, and McKinney offers no citation. He also asserts
that other witnesses falsely testified about the absence of bullet holes in the trailer
home, but it is unclear how this relates to Dr. Radentz’s testimony, pathology, or the
performance of trial counsel. Accordingly, I find that post-conviction counsel was not
ineffective for declining to pursue a claim regarding trial counsel’s approach on expert
c. Firearms Expert
McKinney argues that he is entitled to habeas relief because trial counsel and
PCR counsel failed to present a firearms expert to challenge the prosecution witnesses’
testimony. He asserts that a firearms expert could have contradicted the testimony of
David Brundage, the prosecution’s firearm expert, that the gun was capable of falling
apart when dropped on the floor. He asserts that a firearms expert could have also
testified that the gun was capable of being fired when it was dismantled. First, I note
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that McKinney doesn’t establish that these propositions about firearms are true, and
would have been testified to by an expert. In any event, McKinney contends that such
testimony would have supported the self-defense strategy that he proposed at the postconviction evidentiary hearing. As set forth above, the State court’s determination
regarding trial counsel’s defense strategy was reasonable, and trial counsel did not
perform deficiently by failing to present expert testimony to support an alternative one.
McKinney asserts that a firearms expert could have contradicted Brundage’s
testimony that the gun had a blue finish rather than a nickel-plated finish, and that the
gun was made in Miami, Florida, rather than Italy. Here, again, McKinney provides no
citations to the record, and I am unable to find such testimony in the trial transcript.
Moreover, it is unclear why McKinney believes that such contradictions are material or
how they would have had any effect on the outcome of the trial.
McKinney further asserts that law enforcement failed to adequately search the
trailer home for bullet holes; that Detective Brown prepared an incident report
regarding stolen evidence but later rescinded it; the absence of photographs of the gun
with visible serial numbers; that Detective Brown abruptly left his deposition at the
prosecuting attorney’s direction; and that the chain of custody documentation for the
gun was flawed. These assertions suggest that McKinney believes that the gun
produced at trial was not the gun used to kill the victim. Even assuming that the
prosecution engaged in such a tactic and that it inured to their benefit at trial, these
topics are outside the expertise of a firearms expert. Accordingly, I find that post-
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conviction counsel was not ineffective for declining to pursue a claim regarding trial
counsel’s approach on expert firearm evidence.
d. Chain of Custody
McKinney argues that he is entitled to habeas relief because PCR counsel and
trial counsel did not challenge the chain of custody for the gun. He notes discrepancies
in the chain of custody documentation and Detective Brown’s rescinded report that the
gun and other evidence were stolen. He implies that the prosecution presented a
different gun at trial, but he does not explain how this tactic could have prejudiced his
case. There is no dispute that McKinney’s gun was used to kill the victim, that it was
fired twice in the trailer home that night, or that it fired the bullet lodged in McKinney’s
hand. The material dispute at trial was the identity of the individual who fired the gun
at the victim. Under McKinney’s proposed defense strategy, the material dispute would
have been his intent as he fired the gun at the victim. Because it is unclear that a
challenge to the chain of custody would have had any effect on the outcome of the trial,
I find that post-conviction counsel was not ineffective for declining to pursue a related
ineffective assistance of trial counsel claim.
e. Prosecutorial Misconduct
Finally, McKinney argues that he is entitled to habeas relief because trial and
PCR counsel did not challenge the prosecution’s presentation of forensic witnesses as
prosecutorial misconduct. He asserts that these witnesses falsely documented the chain
of custody for evidence, falsely testified that they could test for blood that they could
not see with the naked eye, falsely testified that the victim’s exit would was a shored
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exit, changed their opinion about whether the gun could fall apart if dropped, falsely
testified that the victim’s head had no bullet fragments, and falsely testified that sutures
did not alter the appearance of the victim’s exit wound.
“In reviewing a claim of prosecutorial misconduct properly raised in the trial
court, [Indiana courts] determine (1) whether misconduct occurred, and if so, (2)
whether the misconduct, under all of the circumstances, placed the defendant in a
position of grave peril to which he or she would not have been subjected otherwise.”
Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014) “The gravity of peril is measured by the
probable persuasive effect of the misconduct on the jury’s decision rather than the
degree of impropriety of the conduct.” Id. For each of McKinney’s assertions, there is
little to suggest the witness knowingly produced false evidence or presented false
testimony, and there is nothing to suggest that the prosecution knowingly presented
such false evidence at trial. Nor it is clear that this alleged misconduct would have had
a meaningful effect on the jury’s decision. To the extent that the record contains any
support for McKinney’s assertions, his trial counsel noted the discrepancies with the
witnesses’ testimony at trial; specifically, the testimony regarding whether the victim’s
exit wound was a shored exit, whether the gun could fall apart if dropped, and whether
sutures altered the appearance of the victim’s exit wound.
McKinney further asserts that jail staff’s refusal to remove the bullet from his
hand constitutes prosecutorial misconduct. This assertion is an even less viable basis for
a prosecutorial misconduct claim as there is no indication that the prosecution or their
witnesses had any involvement with McKinney’s medical treatment at the Marion
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County Jail. Consequently, I find that post-conviction counsel was not ineffective for
declining to pursue an ineffective assistance of trial counsel claim with respect to
Certificate of Appealability
Pursuant to Section 2254 Habeas Corpus Rule 11, I must grant or deny a
certificate of appealability. To obtain a certificate of appealability under 28 U.S.C. §
2253(c), the petitioner must make a substantial showing of the denial of a constitutional
right by establishing “that a reasonable jurist could debate whether (or, for that matter,
agree that) the petition should have been resolved in a different manner or that the
issues presented were adequate to deserve encouragement to proceed further.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). For the reasons explained in this order, there is no
basis for encouraging McKinney to proceed further.
Petitioner Chad McKinney’s amended habeas corpus petition is DENIED.
A certificate of appealability pursuant to Section 2254 Habeas Corpus Rule 11 is
McKinney’s motion to expand the record [DE 63] is DENIED AS MOOT.
The Clerk is directed to enter judgment in favor of the Respondent and against
SO ORDERED on November 17, 2020.
/s/ Philip P. Simon
UNITED STATES DISTRICT COURT
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