Coleman v. Superintendent

Filing 24

OPINION AND ORDER: The Court DENIES the habeas corpus petition; DENIES a certificate of appealability pursuant to Section 2254 Habeas Corpus Rule 11; DENIES leave to appeal in forma pauperis pursuant to 28 U.S.C. § 1915(a)(3); and DIRECTS the clerk to enter judgment in favor of the Respondent and against the Petitioner. Signed by Judge Philip P Simon on 5/7/2018. (Copy mailed to pro se party)(lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
TYRUS D. COLEMAN,
Petitioner,
v.

SUPERINTENDENT,
Respondent.

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Cause No. 3:16-cv-301 PPS

OPINION AND ORDER
Tyrus D. Coleman seeks habeas corpus relief from his conviction for attempted
murder. He was found guilty by a jury, and the Elkhart County Circuit Court sentenced
him to forty-five years of incarceration. He seeks relief based on a slew of issues, but I find
that none of them entitle him to relief.
Let’s start with the facts as set forth by the state court which I must presume are
correct unless they are rebutted with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Coleman does not dispute the Indiana Supreme Court’s summary of the evidence
presented at trial. Here are the facts as set forth by the Indiana Supreme Court:
In a tragic incident occurring March 18, 2007, Tyrus Coleman shot his
friends Anthony Dye and Dye’s son Jermaine Jackson during a
confrontation on Coleman’s property, where Coleman operated a music
recording studio. The confrontation stemmed from an event occurring
approximately four months earlier in which Omar Sharpe, one of
Coleman's musician clients, robbed Dye at gunpoint. Coleman retrieved
part of the stolen property from Sharpe and returned it to Dye. Jermaine
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was irritated when he later learned that Sharpe had robbed his father, but
Dye asked him not to get involved. On the afternoon of the shootings,
Jermaine discovered that Sharpe was present at Coleman's studio and
frantically phoned Dye to “[c]ome over here right now.” Armed with a
handgun Dye headed to Coleman’s studio. In the meantime an armed and
agitated Jermaine pushed open the door to the studio and attempted to
enter. Sharpe, who was present inside, prevented Jermaine’s entry and
closed the door. Exiting the studio Coleman attempted to calm Jermaine
and to dissuade him from trying to enter. Coleman called a neighbor to
come over to help calm Jermaine; he also called his business partner to
inform him of the situation. The neighbor testified that he tried to talk
with Jermaine by telling him what he [Jermaine] was doing “wasn't worth
it. Just go ahead and leave. There was kids around and people around that
didn't have nothing to do with what they was angry about.” According
to the witness Jermaine responded by saying, “F* *k that. He didn't think
about that s* *t when he did the s* *t to my Daddy.” Coleman armed
himself and walked back and forth in front of the studio door holding his
handgun at his side. As Coleman was making a phone call, Dye came into
the yard through a front gate carrying a handgun which was pointed
toward the ground. Dye strode toward his son Jermaine, who was
standing next to Coleman on the patio in front of the studio. Within three
seconds, the following occurred: Dye stepped onto the patio where
Jermaine and Coleman were standing. As Dye stepped in front of
Coleman, Coleman raised his gun and fired at Dye, who immediately fell
to the ground. Coleman then shot Dye a second time. At that point
Coleman “turned to Jermaine.” Coleman saw that Jermaine’s handgun,
which before that time had been concealed under his shirt and in a
holster, was “pointed at [Coleman],” and Coleman shot Jermaine.
Jermaine fell to the ground and died at the scene as a result of his injuries.
After the shooting, Coleman drove to Milwaukee disposing of his weapon
along the way. Several days later he returned to Elkhart and surrendered
to the police.
Coleman v. State, 946 N.E.2d 1160, 1163-64 (Ind. 2011); ECF 7-11 at 2-3.
What is not included in the Supreme Court’s description of the evidence is the fact
that the entire episode is captured on video which I have viewed in my consideration of
Coleman’s petition. State’s Exhibit 25 is a DVD from a security video from the day in

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question — March 18, 2007. The shootings occurred at approximately 3:34 pm. The
Supreme Court’s description of the events is accurate. But a picture is worth a thousand
words, and I found viewing the video to be extremely helpful in bringing the case into
focus.
The State charged Coleman with murder for the death of Jermaine Jackson and
attempted murder for the shooting of Mr. Dye. In the first trial, Coleman testified and
admitted the shootings, but contended that his actions against both victims were justified
on the basis of self-defense. The jury acquitted Coleman on the murder of Jackson, but was
hung on the charge of attempted murder of Mr. Dye. Recall that Dye was shot twice and
survived, and Jackson was shot thereafter and died. The trial court thus declared a mistrial
on the count of attempted murder of Mr. Dye and scheduled another trial. Prior to retrial
Coleman filed a motion to dismiss contending a subsequent trial on the attempted murder
of Dye was barred by collateral estoppel and the Double Jeopardy Clauses of both the
United States and Indiana Constitutions. The trial court denied the motion, and a retrial
ensued where Coleman was found guilty of the attempted murder of Dye. He was later
sentenced to a term of forty-five years. Id. at 1164.
Coleman argues that he is entitled to habeas corpus relief because his second trial
on the charge of attempted murder violated the Double Jeopardy Clause. He also argues
that he was denied effective assistance of trial counsel when trial counsel: (1) failed to
question the jurors regarding self defense during voir dire; (2) failed to properly crossexamine Dye’s testimony; (3) failed to comply with a witness separation order and call

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character witnesses; (4) failed to call Omar Sharpe and LaQuisha Hunt as witnesses; (5)
failed to present an uncropped version of the video recording of the shooting; and (6)
presented inconsistent defenses. Coleman has presented these claims to the Indiana
Supreme Court and the Court of Appeals of Indiana. ECF 7-3 at 16-27; ECF 7-10; ECF 7-14;
ECF 7-18. Therefore, Coleman has properly exhausted his State court remedies, and I will
consider his claims on the merits. See 28 U.S.C. § 2254(b)(1)(A); Lewis v. Sternes, 390 F.3d
1019, 1025 (7th Cir. 2004).
Respondent argues that Coleman’s petition is untimely because he missed the
limitations deadline of May 10, 2016, by six days. Respondent concedes that the prison
mailbox rule may apply but notes that Coleman did not corroborate his assertion that he
timely submitted the petition to the prison mail system with an affidavit. See Ray v.
Clements, 700 F.3d 993, 1008 (7th Cir. 2012). However, Coleman has since filed an affidavit
attesting that he submitted the petition to the prison mail system on May 6, 2016. ECF 10-1.
As a result, I find that Coleman’s petition is timely.
Discussion
Federal habeas review serves as an important error-correction role in helping to
ensure the proper functioning of the criminal justice system. But the available relief is very
limited. “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 that the adjudication

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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
fairminded 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 (2003).
“A state court’s determination that a claim lacks merit precludes federal habeas relief so
long as fairminded jurists could disagree on the correctness of the state court’s decision.”
Harrington v. Richter, 562 U.S. 86, 101 (2011) (quotation marks omitted).

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With these standards in mind I will turn to the various claims for relief asserted by
Mr. Coleman.
Issue Preclusion and Double Jeopardy
Coleman claims that the Indiana Supreme Court made an objectively unreasonable
determination that his second trial on the charge of attempted murder did not violate the
Double Jeopardy Clause. On direct appeal, Coleman argued that issue preclusion applied
to the charge of attempted murder of Dye barring a retrial on that count. Coleman’s theory
is that because the jury acquitted him of the murder of Jackson, that amounted to a finding
of fact that he acted in self-defense as to the other victim, Dye.
Let’s start with some basics. The Double Jeopardy Clause of the Fifth Amendment
“was designed to protect an individual from being subjected to the hazards of trial and
possible conviction more than once for an alleged offense.“ Green v. United States, 355 U.S.
184, 187 (1957). The doctrine of issue preclusion “is embodied in the Fifth Amendment
guarantee against double jeopardy.” Ashe v. Swenson, 397 U.S. 436, 445 (1970). This means
that “when an issue of ultimate fact has once been determined by a valid and final
judgment, that issue cannot again be litigated between the same parties in any future
lawsuit.” Id. at 443. “Where a previous judgment of acquittal was based upon a general
verdict, as is usually the case, this approach requires a court to examine the record of a
prior proceeding, taking into account the pleadings, evidence, charge, and other relevant
matter, and conclude whether a rational jury could have grounded its verdict upon an
issue other than that which the defendant seeks to foreclose from consideration.” Id. But

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consideration of counts upon which the jury hung “has no place in the issue-preclusion
analysis.” Yeager v. United States, 557 U.S. 110, 122 (2009). “Because a jury speaks only
through its verdict, its failure to reach a verdict cannot—by negative implication—yield a
piece of information that helps put together the trial puzzle.” Id. at 121.
At the first trial, the prosecution attempted to prove a charge of attempted murder
for the shooting of Dye and a charge of murder for the shooting of Jackson. Direct Appeal
App. 104. Recall that Coleman shot Dye twice, and then, immediately thereafter, Jackson
pointed a gun at Coleman, and Coleman shot and killed Jackson. Coleman asserted selfdefense, and the jury was instructed on this defense. Id. at 112. The jury acquitted Coleman
on the charge of murder of Jackson, but it could not reach a verdict on the charge of
attempted murder of Dye. Id. at 130. Coleman then filed a motion to dismiss the charge of
attempted murder based on issue preclusion, which the trial court denied. Id. at 147-66,
184-88. At the second trial, the jury convicted Coleman on the charge of attempted murder.
Id. at 317.
Here’s how the jury was instructed on self-defense:

A person is justified in using deadly force, and does not have a duty
to retreat, only if he reasonably believes that deadly force is necessary to
prevent serious bodily injury to himself or a third person or the commission
of a forcible felony.
However, a person may not use force if:
He is committing a crime that is directly and immediately connected
to the confrontation;

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He provokes a fight with another person with intent to cause bodily
injury to that person; or
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 fight.
Id. at 112.
On direct appeal, Coleman argued that the jury from the first trial acquitted him on
the charge for the murder of Jackson based on the self-defense instruction, although this
is rank speculation. ECF 7-3 at 18-22. He further argued that this means that this jury
necessarily found that he did not commit a crime by shooting Dye, which took place before
he shot Jackson. Id. To which I ask, why then did the jury not acquit him of the attempted
murder? The respondent argued on direct appeal that the jury could have interpreted the
two shootings as a single confrontation and then considered whether Coleman had
committed a crime prior to this confrontation. ECF 7-4 at 23-27. The Court of Appeals of
Indiana agreed with Coleman and reversed the trial court’s ruling on the motion to
dismiss. ECF 7-6.
Respondent petitioned the Indiana Supreme Court for transfer, which was granted.
ECF 7-9. According to the Indiana Supreme Court, Coleman argued that if the jury found
that he was reasonably in fear of Jackson, then the jury must have necessarily found that
he was reasonably in fear of Dye. ECF 7-11 at 4-6. The Indiana Supreme Court rejected this
argument, noting that the jury could have sensibly found that the second shooting was

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justified but that the first shooting was not because Jackson, unlike Dye, was clearly
agitated and had pointed and fired a gun at Coleman. Id.
Significantly, the Indiana Supreme Court’s reasoning, though internally sound,
wholly misconstrues Coleman’s argument and omits any mention of the reasoning of the
Court of Appeals of Indiana. Indeed, Coleman’s argument regarding issue preclusion
remained consistent at each relevant stage of litigation from his motion to dismiss to the
instant habeas petition, and there is no apparent explanation as to why the Indiana
Supreme Court declined to address it. This discrepancy raises the question of which
standard of review I should apply to the Indiana Supreme Court’s decision.
In Harrington v. Richter, 562 U.S. 86, 98 (2011), the Supreme Court held that, “Where
a state court’s decision is unaccompanied by an explanation, the habeas petitioner’s burden
still must be met by showing there was no reasonable basis for the state court to deny
relief.” In such cases, “a habeas court must determine what arguments or theories
supported or, as here, could have supported, the state court’s decision; and then it must ask
whether it is possible fairminded jurists could disagree that those arguments or theories
are inconsistent with the holding in a prior decision of [the Supreme Court].” Id. at 102. The
Supreme Court extended the Harrington standard of review to “when the state court
addresses some of the claims raised by a defendant but not a claim that is later raised in a
federal habeas proceeding.” Johnson v. Williams, 568 U.S. 289, 293 (2013).
Similarly, the Seventh Circuit extended the Harrington standard of review to cases
in which “the last state court to render a decision offers a bad reason for its decision.” Brady

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v. Pfister, 711 F.3d 818, 826 (7th Cir. 2013). In such cases, federal courts must “still apply
AEDPA deference to the judgment.” Whatley v. Zatecky, 833 F.3d 762, 775 (7th Cir. 2016).
Stated otherwise, a federal habeas petitioner is not entitled “to de novo review simply
because the state court’s rationale is unsound.” Id. Based on these cases, I conclude that I
must apply the deferential standard of review described in Harrington to the judgment of
the Indiana Supreme Court even if the opinion of the Court did not address the substance
of Coleman’s argument.
After reviewing the record, there is at least one theory that could have supported
the Indiana Supreme Court’s decision. The trial court denied Coleman’s motion to dismiss
because the jury did not necessarily rely on the self defense instruction to acquit Coleman;
they could have acquitted Coleman of the Jackson murder by finding that the prosecution
did not demonstrate the elements of the offense of murder. Direct Appeal App. 187.
Coleman tells me that the fact that he knowingly killed Jackson was not in dispute, but the
trial record suggests otherwise. The jury was instructed that to convict Coleman for
murder, they were required to find that he knowingly killed Jackson and that knowingly
was defined as follows: A person engages in conduct “knowingly” if, when he engages in
the conduct, he is aware of a high probability that he is doing so. Id. at 105,109. Coleman
did not concede this element at trial, but instead testified as follows:
Trial Counsel: Now, you just have explained that you have this history with
[Jackson]. You’re–you’re good friends. Long time. You know he’s not that
type of person. What’s happening here?

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Coleman: I don’t know what’s happening. I don’t–I don’t know. Everything
just went so fast. Every went so crazy fast. It went from being cool and
everything calming down, to right back there in a split second. I just
seen–and I didn’t expect it from him at all. I never been in a situation like this
before in my life.
Trial Counsel: Why did you turn your gun to [Jackson]?
Coleman: Because the gun was pointed at me.
Trial Counsel: Did [Jackson] shoot first or did you shoot first?
Coleman: I think–well, I would probably say he shot first at me ‘cause as
soon as I moved and started like I was going to turn towards him, that’s
when his gun started going off, and then I instantly returned fire.
Trial Counsel: Did the whole thing–did the whole shooting started when
you fired at [Dye]?
Coleman: Yes, sir.
Trial Counsel: Up till that point, [Jackson’s] gun was actually in the holster?
Coleman: Yeah. I–I–I believe when he seen me raise the gun at [Dye], I
believe that’s when he first started to pull his gun out; but, I mean, I’m not
for sure of that because my focus was on [Dye]. I wasn’t really too much
worried about him until I looked over at him. But everything happened so
fast. Everything–I mean, it was all over with within like three seconds.
First Trial Tr. at 299-301.
What’s more, using this testimony for support, trial counsel invited the jury to
acquit Coleman of the murder charge based on the prosecution’s failure to prove beyond
a reasonable doubt that Coleman had formed the requisite mens rea when he fatally shot
Jackson. Here’s what trial counsel said on that subject during closing argument:
Now, the prosecutor is going to go through each element, or did go through
each element of, okay, what is murder and what is attempted murder and

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what does the prosecutor have to prove, and he has to prove each one of
those things beyond a reasonable doubt. You have to be firmly convinced in
the matter of the highest important to you that [Coleman] committed this
crime. Think about the state of mind.
The prosecutor talks a lot about how do we know, how do we know that’s
going on in a person’s mind? We look at all the actions before, during, and
after. We look at the whole context. We look at the totality of the
circumstances. All the shooting lasted three seconds. It’s clear that [Coleman]
was afraid. It’s clear that [Coleman] was irrational after the fact. So did he
really know he was killing [Jackson]; did he really have the specific intent to
kill [Dye]; or was it something else? Was it acting without thinking? Acting
without thinking. Does that make any sense? Anybody ever done that?
Let me give you an example. Somebody tries to punch you in the face and
you duck. Do you think, well, I’m getting ready to get punched in the face
I better duck, or do you just duck? You can act without thinking. Because of
the situation he was in, because there were two armed men coming at him,
one of them a scary guy, two armed men who made it known we’re here to
hurt somebody don’t get in our way or you’ll get it too, in an instant he
reacted. In an instant he stopped [Dye]. [Dye] approaching aggressively, gun
in hand, ready to be fired, and [Coleman] stopped him. That’s what was in
his mind. That was his intent. You can’t say anything more than that. You
can’t be sure beyond a reasonable doubt of anything more than that.
Id. at 396-97. Following this line of argument, it is altogether possible that the jury could
have based it acquittal of Coleman on the lack of proof beyond a reasonable doubt that
Coleman acted “knowingly” and that the acquittal had nothing to do with self-defense.
Let’s be honest about it: we really do not know why the first jury acquitted Coleman
of the murder charge and ended up hung on the attempted murder count. But if one were
to accept Coleman’s argument, the Double Jeopardy Clause would preclude retrial on the
hung count. I see no basis in law or fact why that would be the case. The simple fact of the
matter is that the State of Indiana was free to retry Coleman on the attempted murder

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count because the first jury was hung on that charge. This is because, as stated above, “a
rational jury could have grounded its” acquittal of Coleman in the Jackson murder “on an
issue other than that which the defendant seeks to foreclose from consideration.” Ashe, 397
U.S. at 443. In other words, the jury could have grounded its acquittal of Coleman on
something other than self-defense. So nothing about the retrial on the hung count offends
the Double Jeopardy Clause.
Ineffective Assistance of Counsel
Coleman alleges that trial counsel from his second trial provided constitutionally
ineffective assistance of counsel. To prevail on an ineffective assistance of counsel claim in
the State courts, a petitioner must show that counsel’s performance was deficient and that
the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668 (1984). 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, 562 U.S. at 112. 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.
Coleman generally argues that the Court of the Appeals of Indiana was misguided
on how to apply the prejudice prong of the Strickland analysis by the Indiana Supreme

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Court’s decision in Helton v. State, 907 N.E.2d 1020 (Ind. 2009). In a footnote in Helton, the
Indiana Supreme Court cited an incorrect articulation of the Strickland prejudice test merely
to reject it. Id. at 1023 n.1. Though the Court of Appeals of Indiana cited Helton as it set
forth the Strickland analysis, there is no indication that the Court of Appeals of Indiana
relied on this incorrect standard when deciding Coleman’s case. Therefore, Coleman’s
argument that Court of Appeals of Indiana was misguided by Helton is not a basis for
habeas relief.
Coleman has a number of specific claims of ineffective assistance of counsel which
I will address below. But first, Coleman claims that the state habeas court’s description of
the video of the crime was an unreasonable determination of the facts in light of the
evidence presented during the state court proceedings. I’ll take that issue up first before
moving on to the specific claims of ineffective assistance of counsel.
1.

Summary of the Video Recording

At the post-conviction relief stage, the State courts considered the video recording
of the shootings as they assessed Coleman’s ineffective assistance of counsel claims.
Coleman takes issue with the State courts’ summary of the video recording:
The video taped recording of the actual shooting herein . . . shows Dye
entering the backyard until he is twice shot by Coleman; Dye has his gun to
his side, and is walking in the direction of and looking at his son, [Jackson].
Coleman appears from the shadow and from the side and behind Dye, and
as Dye walks past [Coleman] with his gun down, Coleman raised his own
gun and shoots Dye in the back of his head behind his ear. As Dye falls to the
ground, Coleman shoots him again. It is not until this separate and distinct
crime occurs that Dye’s son [Jackson] pulls his weapon and shoots at
Coleman. The evidence presented at trial was also that after the shooting,

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[Coleman] paced in the backyard, had a cell phone but did not call
emergency personnel or law enforcement, but rather fled with his weapon,
later throwing the gun into a body of water and left the state.
ECF 7-17 at 7-8.
Coleman argues that this fact summary: (1) wrongfully implies that Coleman
shot Dye for the second time after he fell to the ground but he fired this shot when
Dye was standing; (2) wrongfully states that Coleman appeared from a shadow but
Dye had full vision of Coleman from the moment he entered the backyard; and (3)
wrongfully states that Coleman appeared from behind Dye and that he shot Dye in
the back of the head as Dye walked past Coleman. I have reviewed the video
recording. The first two statements accurately characterize the events even if they
could have been more precise and, perhaps, more fairly phrased. I agree with
Coleman that the third statement is inaccurate but not to an unreasonable degree
when considering the perspective of the surveillance camera and that Dye
seemingly intended to walk past Coleman and was only one or two steps from
doing so. Accordingly, I cannot conclude that the Court of Appeals of Indiana based
its decision on an unreasonable determination of the facts in light of the evidence
presented during the State court proceedings.

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2.

Counsel’s Performance During Voir Dire

Coleman argues that his trial counsel was ineffective when he failed to
question the jurors in voir dire about their views on self defense. The Court of
Appeals of Indiana found that Coleman did not show deficient performance because
the prosecution asked the jurors about their ability to assess the self defense issue
and trial counsel chose to focus on studying the jurors as they responded to the
prosecution’s questions. ECF 7-17 at 9-11. The appellate court also found that
Coleman did not demonstrate that he was prejudiced by trial counsel’s voir dire
strategy. Id.
After reviewing the record, I find that the appellate court’s determination
regarding trial counsel’s failure to question the jurors in voir dire was not
objectively unreasonable. During voir dire, trial counsel stated that he had no
questions for the jurors due to the prosecution’s thorough line of questioning, which
suggests a strategic decision. Voir Dire Tr. 72. Additionally, regarding the prejudice
prong, Coleman offers no evidence to show that more voir dire questioning would
have changed the outcome of the trial but merely speculates that the jurors may not
have believed in self defense. Because the appellate court’s determination was not
unreasonable, the claim that trial counsel was ineffective for failing to question
jurors regarding self defense is not a basis for habeas relief.

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3.

Cross Examination of Dye

Coleman argues that trial counsel was ineffective for failing to impeach Dye
with inconsistent testimony from the first trial and pending charges and failing to
question Dye regarding his gun. The first inconsistency highlighted by Coleman is
that, at the first trial, Dye testified that, prior to the shootings, he might have asked
Jackson about Omar Sharpe’s location, but, at the second trial, he testified that he
did not say anything. First Trial Tr.135-36; Second Trial Tr. 156. Coleman also notes
the following inconsistency in the testimony regarding Coleman’s involvement in
the prior robbery of Dye. At the first trial here’s what Dye said:
Trial Counsel: And you didn’t – you knew that [Coleman] wasn’t involved
in this robbery?
Dye: Well, I protected him to the end. Anytime somebody would ask me I
would always say no. [Coleman] ain’t have nothing to do with it. That was
my take on it.
And then at the second trial, here’s what he said:
Trial Counsel: Okay. You knew Tyrus didn’t have anything to do with the robbery,
right, the – Omar’s robbery of you?
Dye: At first. I mean, when it first happened, you know, I gave him the benefit of
the doubt, you know. Everybody else, though, kept putting him in it, but I protected
him til the end.
First Trial Tr. 151; Second Trial Tr. 160. In my view, these are trifling discrepancies in Dye’s
testimony. Trial counsel may have felt that pointing out such modest inconsistencies would
have been silly and nitpicky. That’s a judgment call.

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The Court of Appeals’ determined that counsels’ failure to impeach did not result
in prejudice under Strickland; that decision was entirely reasonable. After reviewing the
record, I find that the State court’s determination regarding trial counsel’s failure to
impeach Dye was not objectively unreasonable. Coleman argues that the failure to impeach
prejudiced him because the prosecution’s case primarily relied on Dye’s testimony and the
video recording, which meant that Dye’s credibility was pivotal to the jury’s decision.
Coleman does not further elaborate on this argument, and it is not clear that Dye’s
credibility was a material consideration by the jury. The entire episode was captured on
video for the jury to review. In all likelihood, the video is what made the case. In any
event, Coleman has not cited any portion of Dye’s testimony that substantially undermined
his defense.
Coleman also argues that trial counsel was ineffective for failing to ask Dye whether
his gun was loaded. The appellate court rejected this claim, reasoning that whether the gun
was loaded was irrelevant because Coleman had no knowledge regarding this detail. ECF
7-17 at 13. In other words, whether the gun was loaded or not was neither here nor there
because there was no way for Coleman to have known this, and that is the only person that
matters. The court concluded that asking this question would not have changed the
outcome of the proceedings, and therefore there is no prejudice under Strickland. This
conclusion is entirely reasonable.

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4.

Counsel’s Handling of Character Witnesses

Coleman argues that trial counsel was ineffective because trial counsel intended to
call three character witnesses at trial who would have testified regarding Coleman’s
reputation for truthfulness but were excluded due to trial counsel’s failure to advise them
of a separation order. The appellate court rejected this claim based on lack of prejudice,
citing Indiana Rule of Evidence 608 and reasoning that character testimony would not have
been admissible because the prosecution did not attack Coleman’s character for
truthfulness. ECF 7-17 at 14-15.
Though Coleman argues that the prosecution did attack his character for
truthfulness, I find that the appellate court’s finding of no prejudice was not objectively
unreasonable. As discussed by the appellate court, the trial transcript shows that trial
counsel had decided to call only one character witness, Thomas Rogers. Second Trial Tr.
453-54. The trial court excluded Rogers’ testimony because he violated the separation order
but also because Rogers did not have sufficient knowledge regarding Coleman’s reputation
in the community. Id. at 470-76. Therefore, Rogers’ testimony would have been excluded
anyway, even if trial counsel had properly advised Rogers of the separation order. In any
event, in the face of compelling video evidence of the shooting, it is difficult to see how
character witnesses would have made any difference in this case. Because the appellate
court’s determination was not unreasonable, the claim regarding trial counsel’s failure to
introduce character testimony is not a basis for habeas relief.

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5.

Counsel’s Failure to Call Witnesses Omar Sharpe and LaQuisha Hunt

Coleman argues that trial counsel was ineffective by failing to call Omar Sharpe and
LaQuisha Hunt as witnesses. He argues that Sharpe’s testimony would have established
that Coleman was not involved in the robbery of Omar Sharpe four months prior to the
incident for which Coleman was on trial. He further claims that Sharpe would have
testified that Jackson was aggressive and enraged. The appellate court found that trial
counsel did not perform deficiently because trial counsel had no reason to anticipate that
the prosecution would suggest that Coleman was involved in the robbery. ECF 7-17 at 1517.
Coleman takes issue with the State court’s characterization of the decision not to call
Sharpe as strategic, pointing to trial counsel’s testimony during the post-conviction relief
stage. There, trial counsel testified that, on the third day of the trial, he hastily had Sharpe
returned to custody because he was discouraged by what had happened at trial. PCR Tr.
65-69. It is questionable whether trial counsel’s handling of Sharpe was deficient
performance or not. But there was no prejudice in any event. As the respondent argued
on appeal at the post-conviction relief stage, (1) the value of Sharpe’s testimony was to
bolster Coleman’s testimony that he did not participate in the robbery of Dye; (2) Sharpe’s
testimony could have prejudiced Coleman’s case by contradicting Coleman’s testimony
and placing even more focus on the robbery instead of the shooting; and (3) in any event,
the prosecution only briefly implied during closing argument that Coleman might have
participated in the robbery. ECF 7-15 at 30-33. Considered together, and in the face of

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strong evidence of Coleman’s guilt in the form of video evidence, it is doubtful that
Sharpe’s testimony would have changed the outcome of the trial.
Coleman argues that LaQuisha Hunt’s testimony would have corroborated his
testimony about a threatening telephone call he received from Dye. The appellate court
denied this claim based on lack of prejudice, describing Hunt’s testimony during the postconviction evidentiary hearing as fabricated and imprecise. ECF 7-17 at 15-17. Coleman
responds that Hunt’s credibility was not challenged when she testified at his first trial. On
cross-examination at the evidentiary hearing, the respondent questioned Hunt on how she
was able to identify Dye’s voice, and she admitted that she had never met him or heard his
voice before that telephone call. PCR Tr. 246-50. By contrast, at the first trial, the
prosecution did not meaningfully challenge Hunt’s testimony. Hunt Tr. 1-5. Though this
contrast demonstrates that the prosecution could have chosen not to challenge Hunt’s
testimony, it does not demonstrate that the State court’s assessment of the testimony or its
determination regarding lack of prejudice was unreasonable. Therefore, the claim that trial
counsel was ineffective by failing to call Omar Sharpe and LaQuisha Hunt as witnesses is
not a basis for habeas relief.
6.

Presentation of the Video Recording

Coleman argues that trial counsel was ineffective for showing at trial a cropped
version of the video recording that did not show Jackson drawing and firing his gun. He
argues that this prejudiced him by allowing the jury to infer that Coleman attacked Jackson
without provocation. The Court of Appeals of Indiana found no prejudice because two

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eyewitnesses testified that Jackson was armed. ECF 7-17 at 19. Coleman responds that an
uncropped version of the video would have irrefutably demonstrated that his conduct
toward Jackson was an act of self defense.
At trial, Coleman and another witness testified that Jackson had a gun and was
acting erratically at the recording studio; a detective testified regarding the location of the
bullet holes; and the video recording showed the relative positions of Coleman and
Jackson. Second Trial Tr. 86, 310-11, 374-77. From this evidence, a jury could have deduced
that Jackson drew and fired his gun. Moreover, though trial counsel presented the cropped
version of the video recording as a result of a lack of familiarity with the courtroom
technology, he later considered presenting additional evidence to show Jackson’s conduct.
Id. at 447-53. However, after discussing the potential negative consequences of focusing
on Jackson’s conduct with the trial court, trial counsel consulted with Coleman and
declined the opportunity. Id. Therefore, trial counsel made a strategic decision not to
present additional evidence, which suggests that he did not perform deficiently in that
respect. The appellate court’s decision was thus not unreasonable, and the claim that trial
counsel was ineffective for showing at trial a cropped version of the video recording that
did not show Jackson drawing and firing his gun is not a basis for habeas relief.
7.

Inconsistent Defense Theories

Coleman argues that trial counsel was ineffective for arguing at closing that
Coleman had no intent to kill and that he acted in self defense. He says these are
inconsistent theories and arguing inconsistent theories to a jury is not a wise thing to do.

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This argument is a bit perplexing because it is not at all clear that the two arguments are
even inconsistent. It is plausible that an individual could shoot at another individual with
the intent of defending himself without the intent to kill. Indeed, Coleman testified that this
is precisely what happened:
Trial Counsel: [Coleman], was your intent when you fired at [Dye] to end his
life?
Coleman: No. No. ‘Cause if I wanted him dead I could have shot–
Prosecution: Objection. Calls for narrative.
The Court: I’m sorry.
Prosecution: I said objection. Call for narrative.
The Court: Rephrase your question.
Trial Counsel: Was your intent when you fired at [Dye] to end his life?
The Court: That’s the same question. Rephrase it.
Trial Counsel: What was your intent, [Coleman], when you fired at [Dye]?
Coleman: To get the gun out of his hands.
Trial Counsel: What was your belief as far as the threat that [Dye] post at the
time you fired your gun at [Dye]?
Coleman: I felt he was coming to shoot Omar, me too.
Second Trial Tr. 401-02.
Additionally, it is plausible that an individual reacted in self defense without
enough time for any intent to develop. This theory is reflected in trial counsel’s closing
arguments. Id. at 525-26. Further, during the first stage of closing arguments, the

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prosecution focused solely on the elements of murder, which further suggests that trial
counsel’s decision to respond to the prosecution was sound even assuming that the selfdefense theory was more likely to succeed than arguing lack of intent to kill. Id. at 497-515.
The Court of Appeals of Indiana found that trial counsel made a strategic decision to make
these arguments and did not perform deficiently. ECF 7-17 at 19-20. Based on the
foregoing, that decision was not an unreasonable one.
8.

Cumulative Errors

Coleman argues that even if no individual error was sufficiently prejudicial to merit
habeas corpus relief, the court should grant him relief based on the cumulative prejudice
of all of the errors combined. The Court of Appeals of Indiana found that the cumulative
effect of trial counsel’s errors did not deprive Coleman of his right to effective assistance
of counsel. ECF 7-17 at 24. “[P]rejudice may be based on the cumulative effect of multiple
errors. Although a specific error, standing alone, may be insufficient to undermine the
court’s confidence in the outcome, multiple errors together may be sufficient.” Malone v.
Walls, 538 F.3d 744 (7th Cir. 2008).
After reviewing the record and considering Coleman’s claims of ineffective
assistance claims, I cannot find that the State court’s determination regarding cumulative
error was objectively unreasonable. Trial counsel arguably performed deficiently and
Coleman arguably suffered some prejudice from the cross-examination of Dye, the failure
to call Sharpe and Hunt, and the presentation of the cropped version of the video
recording. However, at trial, the parties presented a substantial amount of evidence

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consisting of testimony from eight prosecution witnesses, including Dye; testimony from
seven defense witnesses, including Coleman; photographs; and a video recording, which
shows Coleman shooting Dye. After weighing the evidence presented at trial against the
cumulative effect of these errors, I cannot conclude that these errors are sufficient to
undermine the outcome of the trial. Based on the foregoing, the claim regarding
cumulative error is not basis for habeas relief.
***
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 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). For the reasons explained in this opinion for denying habeas corpus relief,
there is no basis for encouraging Coleman to proceed further. For the same reasons, he may
not appeal in forma pauperis because an appeal could not be taken in good faith.
Accordingly, the court DENIES the habeas corpus petition; DENIES a certificate of
appealability pursuant to Section 2254 Habeas Corpus Rule 11; DENIES leave to appeal
in forma pauperis pursuant to 28 U.S.C. § 1915(a)(3); and DIRECTS the clerk to enter
judgment in favor of the Respondent and against the Petitioner.
SO ORDERED.

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ENTERED: May 7, 2018.
/s/ Philip P. Simon
Judge
United States District Court

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