MCCULLOUGH v. BUTTS

Filing 26

ENTRY Denying Petition for Writ of Habeas Corpus and Denying Certificate of Appealability. (See Order). Signed by Judge Tanya Walton Pratt on 10/6/2015.(MAC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
IAN McCULLOUGH,
Petitioner,
v.
SUPERINTENDENT KEITH BUTTS,
Respondent.

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Case No. 1:13-cv-00496-TWP-MJD

ENTRY ON PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
This matter is before the Court on Petitioner Ian McCullough’s Petition for Writ of Habeas
Corpus. McCullough seeks habeas corpus relief with respect to his conviction in the Marion
Superior Court for various counts of child molesting. Having considered the pleadings, the
expanded record, and the parties’ arguments, and being duly advised, the Court finds that
McCullough has not shown his entitlement to relief, therefore, his Petition for Writ of Habeas
Corpus must be DENIED. In addition, the Court finds that a certificate of appealability should
not issue. These conclusions are based on the following facts and circumstances:
I. BACKGROUND
McCullough was convicted in Marion County in 2008 of three counts of child molesting—
two as Class A felonies and one as a Class C felony. His convictions were affirmed in McCullough
v. State, 2009 WL 69360 (Ind. Ct. App. Jan. 13, 2009) (McCullough I), and the denial of his action
for post-conviction relief was affirmed in McCullough v. State, 973 N.E.2d 62 (Ind. Ct. App. 2012)
(McCullough II). In this action, McCullough contends that he was denied the effective assistance
of counsel both at trial and in his direct appeal. This is a continuation of certain arguments he
presented in his action for post-conviction relief in the state courts.

“[I]n all habeas corpus proceedings under 28 U.S.C. § 2254, the successful petitioner must
demonstrate that he ‘is in custody in violation of the Constitution or laws or treaties of the United
States.’” Brown v. Watters, 599 F.3d 602, 611 (7th Cir. 2010) (quoting 28 U.S.C. § 2254(a)).
McCullough’s petition is governed by provisions of the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”). The AEDPA amended 28 U.S.C. § 2254(d) to narrow the power of
federal courts to grant habeas corpus relief to state prisoners. Under that AEDPA, the critical
question on the merits of most habeas corpus petitions shifted from whether the petitioner was in
custody in violation of the Constitution, laws, or treaties of the United States to a much narrower
question: whether the decision of the state court keeping the petitioner in custody was “contrary
to, or involved an unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable
determination of the facts . . . .” 28 U.S.C. § 2254(d). Avila v. Richardson, 751 F.3d 534, 535 (7th
Cir. 2014).
A federal habeas court “presume[s] that the state courts’ account of the facts is accurate,
unless the petitioner rebuts this presumption ‘by clear and convincing evidence.’ 28 U.S.C. §
2254(e)(1).” Caffey v. Butler, 2015 WL 5559399, at *1 (7th Cir. Sept. 22, 2015) (citing
Etherly v. Davis, 619 F.3d 654, 660 (7th Cir. 2010)). Here, McCullough asserts that the state
courts’ findings are deficient in this regard, but he fails to show by clear and convincing evidence
any unreasonable account of the facts.
The facts underlying McCullough’s convictions are set forth in the memorandum decision
issued on direct appeal as follows:
The facts most favorable to the conviction are that L.D. (DOB 1/22/98) is
the daughter of Sarah Calvert and Jason Dees. When L.D. was approximately one
year old, [Sarah] began dating McCullough, and eventually moved in with him.
During the next few years, the couple had two children together, E.M. (DOB
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5/14/2000) and M.M. (DOB 6/4/2002). However, in 2003 or 2004, the couple
separated. Thereafter, L.D. lived with her mother, [Sarah], in Greenfield, while
E.M. and M.M. lived with their father, McCullough, in Indianapolis. On weekends,
L.D. would visit with McCullough, whom she referred to as “daddy,” and her halfsisters. When she stayed overnight at McCullough’s home, L.D. slept in bed with
him or in a different room with E.M. and M.M.
At some time before L.D. entered pre-school, McCullough touched her
vagina with his fingers. McCullough touched L.D. inappropriately more than once
over the next few years. Twice he touched her vagina with his tongue while they
were in his bed at his home. Another time, McCullough touched L.D.’s vagina
with his finger while she sat in the seat next to him in his vehicle. In the fall [of]
2005, McCullough inserted his finger in L.D.’s vagina. McCullough referred to his
actions as a “tickle” and instructed L.D. not to tell anyone lest he get in trouble.
In early December 2005, Judy Calvert (“Judy”), L.D.’s maternal
grandmother, with whom she was living at the time, said that L.D. would be visiting
with McCullough for the weekend. L.D. became upset, and questioned if she had
to go. Moved by L.D.’s tears and pleading, Judy told her she did not have to go but
asked why L.D. was reluctant. L.D. replied that she had been masturbating, that
she had taught E.M. how to do it, and that she worried that it was wrong. When
Judy attempted to assure L.D. that her behavior was not bad per se, L.D. inquired
whether it was okay for McCullough to be touching her private parts. Shaking and
crying, L.D. confided in her grandmother that McCullough would stop if L.D. asked
him to; L.D. made Judy promise not to tell anyone else.
Upon [Sarah’s] return home, Judy immediately shared L.D.’s statements
with her, and they took L.D. to Riley Children’s Hospital that same night. Riley
employees and/or [Sarah] reported the allegations to Child Protective Services
(“CPS”).
McCullough I, *1-2.
II. ANALYSIS
As noted, the claim in this action is that McCullough was denied the effective assistance
of counsel. This is hardly surprising, because complaining about a lawyer's performance after the
fact is “a favorite tactic of an unsuccessful criminal defendant.” Ford v. Israel, 701 F.2d 689, 692
(7th Cir. 1983).
The Sixth Amendment guarantees a criminal accused the right to assistance of counsel, and
“the right to counsel is the right to the effective assistance of counsel.” McMann v. Richardson,
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397 U.S. 759, 771 n.14 (1970). This guarantee exists “in order to protect the fundamental right to
a fair trial.” Strickland v. Washington, 466 U.S. 668, 684 (1984). Strickland provides the clearly
established Federal law, as determined by the Supreme Court of the United States that governs
McCullough’s claim.
Strickland recognized that the Sixth Amendment’s guarantee that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel
for his defense” entails that defendants are entitled to be represented by an attorney
who meets at least a minimal standard of competence. Id., at 685–687. “Under
Strickland, we first determine whether counsel’s representation ‘fell below an
objective standard of reasonableness.’ Then we ask whether ‘there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.’” Padilla v. Kentucky, 559 U.S. 356, 366 (2010)
(quoting Strickland, supra, at 688, 694).
Hinton v. Alabama, 134 S. Ct. 1081, 1087-88 (2014) (parallel citations omitted).
The foregoing outlines the straightforward features of Strickland’s two-prong test. In the
context of the claim that McCullough presents, however, AEDPA raises the bar. “The standards
created by Strickland and § 2254(d) are both ‘highly deferential,’ and when the two apply in
tandem, review is ‘doubly’ so.” Harrington v. Richter, 131 S. Ct. 770, 788 (2011) (internal and
end citations omitted). When the AEDPA standard is applied to a Strickland claim, the following
calculus emerges:
The question is not whether a federal court believes the state court’s determination
under the Strickland standard was incorrect but whether that determination was
unreasonable--a substantially higher threshold. And, because the Strickland
standard is a general standard, a state court has even more latitude to reasonably
determine that a defendant has not satisfied that standard.
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (internal citations and quotations omitted). The
emphasis on deferential review could not have been clearer:
Federal habeas review thus exists as “a guard against extreme malfunctions in the
state criminal justice systems, not a substitute for ordinary error correction through
appeal.” This is especially true for claims of ineffective assistance of counsel,
where AEDPA review must be “doubly deferential” in order to afford “both the
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state court and the defense attorney the benefit of the doubt.
Woods v. Donald, 135 S. Ct. 1372, 1376 (2015) (citations and some quotations omitted). A state
court unreasonably applies clearly established federal law only if “no fairminded jurist could agree
with the state court's” decision. Davis v. Ayala, 135 S. Ct. 2187, 2203 (2015). This standard is
both mandatory and difficult to meet. White v. Woodall, 134 S. Ct. 1697, 1702 (2014).
In addition to the substantive principles just noted, “[i]t is the rule in this country that
assertions of error in criminal proceedings must first be raised in state court in order to form the
basis for relief in habeas. Claims not so raised are considered defaulted.” Breard v. Greene, 523
U.S. 371, 375 (1998) (citing Wainwright v. Sykes, 433 U.S. 72 (1977)); see also Johnson v. Foster,
786 F.3d 501, 504 (7th Cir. 2015) (“federal courts will not review a habeas petition unless the
prisoner has fairly presented his claims ‘throughout at least one complete round of state-court
review, whether on direct appeal of his conviction or in post-conviction proceedings.’”) (quoting
Richardson v. Lemke, 745 F.3d 258, 268 (7th Cir. 2014), and citing 28 U.S.C. § 2254(b)(1)).
Although ineffective assistance of counsel is a single claim, Pole v. Randolph, 570 F.3d
922, 934 (7th Cir. 2009) (citing People v. United States, 403 F.3d 844, 848 (7th Cir. 2005)), the
Court must consider each ineffective assistance of counsel argument separately because
McCullough was required to have properly presented each such argument to the state courts.
Stevens v. McBride, 489 F.3d 883, 894 (7th Cir. 2007) (exhaustion provision “requires the
petitioner to assert his federal claim through one complete round of state-court review, either on
direct appeal of his conviction or in post-conviction proceedings.”) (quoting Lewis v. Sternes, 390
F.3d 1019, 1025 (7th Cir. 2004)); Kelley v. Secretary for Dep’t of Corrections, 377 F.3d 1317,
1344 (11th Cir. 2004) (“[T]o preserve a claim of ineffective assistance of counsel, the habeas
petitioner must assert this theory of relief and transparently present the state courts with the specific

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acts or omissions of his lawyers that resulted in prejudice.”).
In McCullough II, it was argued that McCullough had been denied the effective assistance
of counsel at trial based on his attorney’s actions: (1) in offering and failing to object to evidence
of prior uncharged misconduct and failing to object to the prosecutor’s references to that
misconduct; (2) in failing to adequately cross-examine the State’s investigators; (3) in failing to
make an offer of proof when the trial court excluded his expert’s testimony; (4) in failing to present
expert evidence of child memory; (5) in failing to present certain evidence; and (6) in failing to
tender or request the jury instruction mandated by Indiana’s Protected Person Statute.
McCullough’s petition to transfer in McCullough II presented the first and last of these arguments
and the additional argument that the Indiana Court of Appeals had erred in declining to find
ineffective assistance of counsel by treating in isolation each of the alleged errors and not properly
assessing their cumulative prejudicial impact. These have been associated without objection with
habeas claims 1(1), 1(2), 1(7), and 1(8). Petitioner’s third issue on transfer was a claim of
cumulative error. The petition to transfer was denied on February 12, 2013.
McCullough has committed procedural default with respect to habeas claims 1(3), 1(4),
1(5), and 1(6) because they were not included his petition to transfer and hence were not raised “in
one complete round of the State’s established appellate review process.” O'Sullivan v. Boerckel,
526 U.S. 838, 845 (1999). His responsive argument that certain broad language in his petition to
transfer was sufficient to preserve habeas claims with respect to habeas claims 1(3), 1(4), 1(5), and
1(6) for review in this proceeding is unpersuasive because Indiana does not permit litigants to
present argument by incorporation in petitions to transfer. See Lockridge v. State, 809 N.E.2d 843,
844 (Ind. 2004) (“In a Petition to Transfer, mere reference to argument and/or authorities presented
in brief to [the Court of Appeals], without an explanation of the reasons why transfer should be

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granted, does not satisfy [Indiana Appellate] Rule 57(G) (requirements of a transfer petition).”).
“A federal court may excuse a procedural default if the habeas petitioner establishes that
(1) there was good cause for the default and consequent prejudice, or (2) a fundamental miscarriage
of justice would result if the defaulted claim is not heard.” Johnson v. Foster, 786 F.3d 501, 504
(7th Cir. 2015) (internal citations omitted). Although he does not agree with the respondent’s
argument as to procedural default, McCullough does not attempt to overcome that default in the
event the Court finds the argument persuasive, which it has.
Turning, then, to the claims which have been properly preserved for federal habeas review,
“[u]nder AEDPA, federal courts do not independently analyze the petitioner’s claims; federal
courts are limited to reviewing the relevant state court ruling on the claims.” Rever v. Acevedo,
590 F.3d 533, 536 (7th Cir. 2010). As one court has explained, “[i]t is this Court’s obligation to
focus on the state court decision that previously addressed the claims rather than the petitioner’s
freestanding claims themselves.” McLee v. Angelone, 967 F.Supp. 152, 156 (E.D.Va. 1997).
The pertinent Sixth Amendment standard has already been identified. The Indiana Court
of Appeals recognized that Strickland established the controlling law and that two elements must
be established to support a showing of ineffective assistance of counsel. McCullough II, 973
N.E.2d at 74. See Carter v. Douma, 796 F.3d 726, 735 (7th Cir. 2015) (“Under Strickland’s
familiar two-pronged standard, Carter must show both that his counsel’s performance was
deficient and that he was prejudiced as a result.”) (citing Harrington v. Richter, 562 U.S. 86, 104
(2011)).
The Indiana Court of Appeals reviewed and carefully evaluated each of McCullough’s
specifications of ineffective assistance of counsel. In each instance, the Indiana Court of Appeals
recognized and identified the governing standard, as determined by the Supreme Court of the

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United States, and its analysis did not result 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. See Atkins v. Zenk, 667 F.3d 939, 944 (7th Cir. 2012) (“This Court has
recognized that federal courts should deny a habeas corpus petition so long as the state court took
the constitutional standard ‘seriously and produce[d] an answer within the range of defensible
positions.’”) (quoting Mendiola v. Schomig, 224 F.3d 589, 591–92 (7th Cir. 2000)); Campbell v.
Reardon, 780 F.3d 752, 762 (7th Cir. 2015) (“The question is whether an attorney’s representation
amounted to incompetence under prevailing professional norms, not whether it deviated from best
practices or most common custom.”).

Because its decision was reasonable, “it cannot be

disturbed.” Hardy v. Cross, 132 S. Ct. 490, 495 (2011) (per curiam).
The claim of cumulative error in evaluating the Strickland arguments is assigned to the
decision in McCullough II, not to the performance of trial counsel. However, the Court finds no
error to have occurred associated with the ineffective assistance of counsel arguments, so there is
no error to become “cumulative.” See Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir. 2011) (“Because
we conclude that no error of constitutional magnitude occurred, no cumulative prejudice is
possible.”); Turner v. Quarterman, 481 F.3d 292, 301 (5th Cir. 2007) (“where individual
allegations of error are not of constitutional stature or are not errors, there is ‘nothing to
cumulate.’”); Le v. Mullin, 311 F.3d 1002, 1023 (10th Cir. 2002) (“a cumulative error analysis
should evaluate only the effect of matters determined to be error, not the cumulative effect of nonerrors”).
McCullough’s bid to lay prejudicial blame at the feet of his attorney at trial in the
circumstances of this case exceeds the boundaries of a credible complaint. The Seventh Circuit
noted in United States v. Farr, 297 F.3d 651, 658 (7th Cir. 2002):

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We have observed in the past that criminal defendants frequently “demonize” their
lawyers. “If we are to believe the briefs filed by appellate lawyers, the only reasons
defendants are convicted is the bumbling of their predecessors. But lawyers are not
miracle workers. Most convictions follow ineluctably from the defendants’ illegal
deeds.”
The same is true as to McCullough’s arguments that he was denied the effective assistance of
counsel. It was explained in Holman v. Gilmore, 126 F.3d 876, 882 (7th Cir. 1997), that:
the question posed by Strickland [is] whether, taking all of the proceedings into
account, counsel made “the adversarial testing process work in the particular case.”
[Strickland,] 466 U.S. at 690, 104 S. Ct. at 2066. Counsel must contest the
prosecution’s case and advance a good defense; if that role has been fulfilled, a writ
of habeas corpus should not issue. See Burris v. Parke, 116 F.3d 256 (7th Cir.
1997).
McCullough’s attorney fulfilled this role at trial.
“[H]abeas corpus has its own peculiar set of hurdles a petitioner must clear before his
claim is properly presented to the district court.” Keeney v. Tamayo-Reyes, 112 S. Ct. 1715, 1722
(1992) (O'Connor, J., dissenting) (internal citations omitted). One of these is the doctrine of
procedural default. That is the barrier McCullough faces here as to certain of his ineffective
assistance of counsel arguments, and he has failed to overcome that barrier. As to the ineffective
assistance of counsel arguments which were properly preserved in the Indiana state courts, they
do not warrant relief in light of the deferential standard required by the AEDPA. Harrington v.
Richter, 131 S. Ct. 770, 786 (2011) (“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.”) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
Accordingly, McCullough’s petition for writ of habeas corpus must be DENIED.

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III. CERTIFICATE OF APPEALABILITY
A habeas petitioner does not have the absolute right to appeal a district court’s denial of
his habeas petition, rather, he must first request a certificate of appealability. See Miller–El v.
Cockrell, 537 U.S. 322, 335 (2003); Peterson v. Douma, 751 F.3d 524, 528 (7th Cir. 2014).
Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing
§ 2254 proceedings, and 28 U.S.C. § 2253(c), the Court finds that McCullough has failed to show
that reasonable jurists would find it “debatable whether the petition states a valid claim of the
denial of a constitutional right” and “debatable whether [this court] was correct in its procedural
ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court therefore DENIES a certificate
of appealability.
IV. CONCLUSION
For the reasons stated above, McCullough’s Petition for a Writ of Habeas Corpus (Filing
No. 1) must is DENIED and the Court DENIES a certificate of appealability. Judgment consistent
with this Entry shall now issue.
SO ORDERED.

Date: 10/6/2015

DISTRIBUTION:
Michael K. Ausbrook
[e-mail]
Henry A. Flores, Jr.
OFFICE OF THE INDIANA ATTORNEY GENERAL
[e-mail]

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