CULVER v. ZATECKY
ENTRY discussing petition for writ of habeas corpus and denying certificate of appealability. Signed by Judge William T. Lawrence on 4/18/2017.(CBU)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
KELLY E. CULVER,
Entry Discussing Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
Once convicted and after exhaustion or waiver of any right to appeal, a defendant is
presumed to stand “fairly and finally convicted.” United States v. Frady, 456 U.S. 152, 164 (1982).
For the reasons explained in this Entry, the effort of Kelly E. Culver to show otherwise fails. His
petition for a writ of habeas corpus will therefore be denied. In addition, the Court finds that a
certificate of appealability should not issue. This disposition is compelled by the following facts
Culver was convicted by an Indiana jury of the May 11, 1997, murder of Charles
Horton. His conviction was affirmed on appeal and the trial court’s denial of his petition for
post-conviction relief was likewise affirmed. This action followed.
The background was outlined by the Indiana Supreme Court in its disposition of
Culver’s direct appeal:
The facts most favorable to the verdict indicate that in the early morning
hours of May 11, 1997, Defendant left a neighbor’s house intoxicated and was
followed home by his girlfriend, Lori McCullough. Defendant began arguing with
McCullough. When these arguments escalated, McCullough called her brother,
Brad Peters, to come pick up her and her children. Defendant threatened to fight
Peters and then rummaged through a kitchen drawer where he had previously stored
an ice pick.
As they left the apartment arguing, other residents had gathered in the
hallway, including Charles Horton who was standing in his doorway. According to
one witness, Horton was preparing for work which began at 5:00 a.m. By 4:20 a.m.,
Peters had managed to pick up his sister and her children without further incident.
Shortly after 5:00 a.m., while driving on Sanford Road just east of State
Road 63, Mark Barrett observed Horton’s car parked in the middle of the road.
Concerned that he would be unable to bypass the car without hitting it, Barrett
slowed down briefly and then stopped his car. He observed Defendant bent over
along the side of the road as if he were searching for an item. Defendant approached
Barrett’s vehicle, then turned and walked away. At this time, Defendant was
wearing a black jacket. Later that morning, Chris Newhart saw Defendant trying to
hitchhike a few hundred feet north of Sanford Road. Now Defendant was not
wearing a shirt or jacket despite the cold weather.
Around 6:00 a.m., at the intersection of State Road 63 and Sanford Road,
Defendant approached Stephen Gariepy’s truck as Gariepy stopped at a stop sign.
Defendant solicited Gariepy’s help, telling him that he and a friend had been
attacked, that he believed his attackers killed his friend, and that he needed a ride
into Terre Haute to notify police. Because Defendant was shirtless, Gariepy gave
him a plaid shirt to wear. At approximately 6:15 a.m., Defendant exited Gariepy’s
truck at a railroad crossing in Terre Haute within the proximity of McCullough’s
residence. Defendant and Gariepy parted without ever having notified the police of
the alleged attack.
At 6:50 a.m., while asleep at her residence, McCullough was awakened by
a “nervous and scared” Defendant. Defendant, who had been wearing black
sweatpants and a black Adidas jacket that morning, was now wearing black
sweatpants and a plaid shirt. He had mud all over his sweatpants and red stains on
his thermal boxer shorts. As Defendant requested, McCullough gave him a shirt to
wear. As he changed clothes, she saw him remove a bundle of money from his
sweatpants. Before leaving, Defendant told McCullough that he had done
something wrong, that he was in trouble, and to tell people that he never owned a
black Adidas jacket.
At 9:30 a.m., Vigo County Police Officer Steve Barnhart discovered
Horton’s abandoned car on Sanford Road just east of State Road 63. Officer
Barnhart observed blood in the car and on the road outside of the car. Looking in
the nearby wooded area, Officer Barnhart found Horton’s body. Horton had been
stabbed twenty-eight times with an ice-pick. Horton received a final stab wound
through his right eye that entered his brain. Officer Barnhart discovered the body
with the ice-pick still in Horton’s eye.
Three days after discovering Horton’s body, police found Defendant’s
Adidas jacket near the intersection of Sanford Road and State Road 63. After
obtaining a search warrant for Defendant’s apartment, officials uncovered a pair of
black sweatpants and thermal boxer shorts in the kitchen trash container.
The State charged Defendant with Murder. The jury found Defendant guilty
as charged. The trial court sentenced Defendant to 65 years of incarceration.
Culver v. State, 727 N.E.2d 1062, 1064–65 (Ind. 2000) (footnotes omitted)(Culver I).
Culver seeks relief pursuant to 28 U.S.C. § 2254(a). “The writ of habeas corpus
stands as a safeguard against imprisonment of those held in violation of the law. Judges must be
vigilant and independent in reviewing petitions for the writ, a commitment that entails substantial
judicial resources.” Harrington v. Richter, 562 U.S. 86, 91 (2011). “In general, if a convicted state
criminal defendant can show a federal habeas court that his conviction rests upon a violation of
the Federal Constitution, he may well obtain a writ of habeas corpus that requires a new trial, a
new sentence, or release.” Trevino v. Thaler, 133 S. Ct. 1911, 1917 (2013). The Anti-Terrorism
and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 (AEDPA) applies to Culver’s petition
because it was filed after this statute's effective date of April 24, 1996. Lindh v. Murphy, 521 U.S.
320, 326-29 (1997).
The United States Supreme Court has described AEDPA as “a formidable barrier
to federal habeas relief for prisoners whose claims have been adjudicated in state court” and
emphasized that courts must not “lightly conclude that a State's criminal justice system has
experienced the ‘extreme malfunction’ for which federal habeas relief is the remedy.” Burt v.
Titlow, 134 S. Ct. 10, 16 (2013) (quoting Harrington v. Richter, 562 U.S. 86 (2011)); see also
Renico v. Lett, 559 U.S. 766, 773 (2010) (“AEDPA . . . imposes a highly deferential standard for
evaluating state-court rulings, and demands that state court decisions be given the benefit of the
doubt.”) (internal quotation marks, citations, and footnote omitted).
In conducting habeas review pursuant to 28 U.S.C. § 2254, a federal court is limited
to deciding whether a claim that was adjudicated on the merits in state court proceedings (1)
resulted in a decision that is contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court, or (2) resulted in a decision that was
based on an unreasonable determination of the facts in light of the evidence presented in the State
court proceeding. 28 U.S.C. § 2254(d). A determination of a factual issue made by a state court is
presumed to be correct unless the petitioner successfully rebuts the presumption of correctness by
clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
A state court's decision is “contrary to” clearly established Supreme Court
precedent “if the state court either ‘applies a rule that contradicts the governing law set forth in
[Supreme Court] cases' or ‘confronts a set of facts that are materially indistinguishable from a
decision of [the] Court and nevertheless arrives at a result different from [the] precedent.’” Penry
v. Johnson, 532 U.S. 782, 792 (2001) (citing Williams v. Taylor, 529 U.S. 362, 405–406 (2000)).
A state court decision is an unreasonable application of clearly established Supreme Court
precedent if it correctly identifies the governing legal rule but applies it unreasonably to the facts
of a particular prisoner's case. Id. (citing Williams, 529 U.S. at 407–408). “A federal habeas court
making the unreasonable application inquiry should ask whether the state court's application of
clearly established federal law was objectively unreasonable.” Penry, 532 U.S. at 793. That means
that “even clear error will not suffice. Rather, as a condition for obtaining habeas corpus from a
federal court, a state prisoner must show that the state court's ruling on the claim being presented
in federal court was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.” White v.
Woodall, 134 S. Ct. 1697, 1702 (2014) (emphasis added, citations, quotation marks, and alterations
omitted). “State-court factual findings [ ] are presumed correct; the petitioner has the burden of
rebutting the presumption by clear and convincing evidence.” Davis v. Ayala, 135 S. Ct. 2187,
2199-2200 (2015) (citations and internal quotations omitted).
When no state court has addressed the merits of the federal constitutional issue,
“the claim is reviewed de novo.” Cone v. Bell, 556 U.S. 449, 472 (2009).
If a state court adjudicated the merits of a claim, deferential AEDPA standards
described above must be applied. 28 U.S.C. § 2254(d); see Premo v. Moore, 562 U.S. 115, 121
(2011); Waddington v. Sarausad, 555 U.S. 179, 190 (2009). The scope of relief, moreover, is
governed by 28 U.S.C. § 2254(a) itself. “[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)). A viable habeas claim pursuant to § 2254(a) necessarily
precludes a claim which is based on alleged noncompliance with federal law. Wilson v.
Corcoran, 131 S. Ct. 13, 16 (2010); Perruquet v. Briley, 390 F.3d 505, 511 (7th Cir. 2004)(“To
say that a petitioner's claim is not cognizable on habeas review is thus another way of saying that
his claim ‘presents no federal issue at all.’”) (quoting Bates v. McCaughtry, 934 F.2d 99, 101 (7th
In addition to the foregoing substantive standards, “[a] state prisoner . . . may obtain
federal habeas review of his claim only if he has exhausted his state remedies and avoided
procedurally defaulting his claim.” Thomas v. McCaughtry, 201 F.3d 995, 999 (7th Cir. 2000). “It
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)). Procedural default “occurs when a claim could have been but was not presented to the
state court and cannot, at the time that the federal court reviews the habeas petition, be presented
to the state court.” Resnover v. Pearson, 965 F.2d 1453, 1458 (7th Cir. 1992), cert. denied, 508
U.S. 962 (1993). When procedural default has occurred, it can be overcome if a habeas petitioner
“can demonstrate either (a) cause for the default and prejudice (i.e., the errors worked to the
petitioner's ‘actual and substantial disadvantage,’); or (b) that failure to consider his claim would
result in a fundamental miscarriage of justice (i.e., a claim of actual innocence).” Conner v.
McBride, 375 F.3d 643, 648 (7th Cir. 2004) (internal citations omitted); see also Dellinger v.
Bowen, 301 F.3d 758, 764 (7th Cir. 2002), cert. denied, 537 U.S. 1214 (2003).
Culver’s habeas claims are the following:
(a) Culver contends that the trial court erroneously admitted blood samples without a chain
(b) Culver contends that the trial court violated his Sixth Amendment rights when it
admitted the DNA expert’s testimony because the State violated a discovery order;
(c) Culver contends that his trial counsel was ineffective;
(d) Culver contends that the trial court should have instructed the jury on voluntary
(e) Culver contends that the trial court’s sentencing findings did not support his enhanced
(f) Culver contends that his appellate counsel was ineffective; and
(g) Culver contends that the post-conviction courts erred by not addressing the merits of
some of his arguments.
The respondent is correct that in the circumstances of this case claims (a), (d), (e)
and (g) are based on asserter errors under Indiana law and hence are not cognizable here. See
Wilson v. Corcoran, 131 S. Ct. 13, 16 (2010)(“But it is only noncompliance with federal law
that renders a State's criminal judgment susceptible to collateral attack in the federal courts.”);
Del Vecchio v. Illinois Dep’t. of Corr., 31 F.3d 1363, 1370 (7th Cir. 1994) (habeas corpus
jurisdiction is limited to evaluating alleged violations of federal statutory or constitutional
law); Bloyer v. Peters, 5 F.3d 1093, 1098 (7th Cir. 1993) (citing Estelle v. McGuire, 502 U.S.
62, 67-68 (1991)).
Culver’s contention that the trial court violated his Sixth Amendment rights
when it admitted the DNA expert’s testimony was asserted in his direct appeal. The Indiana
Supreme Court found that this claim had been waived because Culver he did not object to the
testimony at trial. Culver I, 727 N.E.2d at 1066. In other words, there was no contemporaneous
objection to the admission of the evidence at trial, contrary to the requirements of Indiana law. Id.
This was a finding of procedural default. Clemons v. Pfister, 845 F.3d 816, 819 (7th Cir. 2017)
(citing Thomas v. Williams, 822 F.3d 378, 384 (7th Cir. 2016)); Hogan v. McBride, 74 F.3d 144,
146 (7th Cir. 1996) (“Forfeiture under § 2254 is a question of a state's internal law: failure to
present a claim at the time, and in the way, required by the state is an independent state ground of
decision, barring review in federal court.”). Culver has not shown the presence of circumstances
permitting him to overcome this procedural default. Accordingly, the Court does not reach the
merits of this claim.
Culver next makes the familiar claim that he was denied the effective assistance of
counsel at trial. United States v. Farr, 297 F.3d 651, 658 (7th Cir. 2002)(“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 Indiana Supreme Court properly recognized that the governing
Supreme Court case for resolving an ineffective assistance claim is Strickland v. Washington, 466
U.S. 668 (1984).
“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 Supreme
Court framed the determinative question as “whether counsel's conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having produced a just
result.” Strickland, 466 U.S. at 686.
The Indiana Supreme Court fielded two specifications of ineffective assistance of
counsel in Culver’s direct appeal:
The first specification was Culver’s contention that he was denied the effective assistance
of counsel at trial because no objection was made to the DNA expert’s testimony. This
claim was asserted in Culver’s direct appeal. The Indiana Supreme Court rejected this
claim because the trial court would not have sustained an objection at trial. Culver I, 727
N.E.2d at 1066-67. This conclusion was reached, it was found, because Culver had
adequate time to prepare for the DNA evidence. Id. at 1067. In turn, there was no
ineffective assistance of counsel for failing to make an objection which would not have
been sustained because “[i]t is not deficient performance to fail to raise an argument with
no real chance of success.” Hough v. Anderson, 272 F.3d 878, 898 n.8 (7th Cir. 2001).
Culver’s second specification was that his trial counsel was ineffective for not objecting to
the chain of custody for the blood samples. As to the victim’s blood, which the expert
testified matched the blood on Culver’s jacket, the Indiana Supreme Court found a
continuous chain of custody, so there was no error in its admission under Indiana law.
Culver I, 727 N.E.2d at 1067-68. Thus, an objection would not have been sustained. As
for the admission of Culver’s blood, which the expert testified did not match the blood on
his jacket, the Indiana Supreme Court concluded that the trial court would have sustained
an objection because the State did not show a continuous chain of custody, id. at 1068, but
also found that this omission was not prejudicial under Strickland because “[t]he jury had
overwhelming evidence to convict [Culver] without the challenged serological evidence.”
Culver I, 727 N.E.2d at 1069. It then summarized this evidence, id., from which the court
reasonably concluded that there was no reasonable probability that the result of Culver’s
trial would have been different without the evidence of his blood, which merely ruled him
out as the contributor to the blood on his jacket. Id.
The Indiana Supreme Court’s conclusion on these points—first, rejecting a claim of deficient
performance, and second, finding no prejudicial error—was entirely reasonable under Strickland
in light of the proceedings at trial and the evidence. And because it was a reasonable application
of the controlling federal standard, “[u]nder AEDPA . . . it cannot be disturbed.” Hardy v. Cross,
132 S. Ct. 490, 495 (2011).
Culver’s representation in his direct appeal then came under attack in the action for
post-conviction relief. Culver v. State, 55 N.E.3d 393 (Ind.Ct.App.), transfer denied, 54 N.E.3d
370 (Ind. 2016)(Culver II). The Indiana Court of Appeals recognized the Strickland standard and
likewise applied it in a reasonable fashion. The specifications were these, viz., appellate counsel
should have argued that his trial counsel was ineffective for “conceding” Culver’s guilt during voir
dire, his appellate counsel should have argued that his trial counsel was ineffective for not
investigating Culver’s mental health history, and his appellate counsel should have challenged, in
a petition for rehearing, the Indiana Supreme Court’s application of the Strickland prejudice prong.
As for the performance prong, the Indiana Court of Appeals concluded that
Culver’s “failure to present any testimony from [his] trial or appellate counsel is dispositive.”
Culver II, at *4. Without a record of appellate counsel’s strategy, the Court was not willing to
“speculate on why the strategies or reasons raised by Culver were not advance[d] by his counsel”
Id. The Indiana Court of Appeals also concluded that, even if Culver’s claims of deficient
performance were true, they did not “establish that he suffered any prejudice. As the Indiana
Supreme Court correctly determined, evidence of Culver’s guilt was overwhelming . . . .” Id. at
*5. These findings simply rest on Culver’s failure to meet his burdens under Strickland to establish
both deficient performance and prejudice. The absence of evidence from or concerning his
appellate attorney’s strategy, together with the overwhelming evidence of Culver’s guilt, show that
the analysis and conclusions of the Indiana Court of Appeals constitute a reasonable application
of Strickland. Considering the “doubly deferential” AEDPA standard applicable here, these
conclusions withstand the deferential scrutiny which this Court must apply. Cullen v. Pinholster,
131 S. Ct. 1388, 1410–11 (2011) (citation omitted). Under 28 U.S.C. § 2254(d), “the question is
not whether counsel's actions were reasonable. The question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Harrington v. Richter, 131 S.
Ct. 770, 788 (2011).
“[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, 504 U.S. 1, 14
(1992) (O'Connor, J., dissenting) (internal citations omitted). In this case, Culver has encountered
the hurdles produced by the requirement of cognizability as to several claims and by the doctrine
of procedural default as to one claim. He has not shown the existence of circumstances permitting
him to overcome these hurdles. The other claims do not warrant relief in light of the deferential
standard required by the AEDPA. Harrington v. Richter, 562 U.S. 86, 101 (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)); Stern v. Meisner, 812 F.3d 606, 610 (7th Cir. 2016) (“In other words,
[the habeas petitioner] must show a complete absence of reasonableness in the [state] appellate
court's decision.”) (citing Harrington, 562 U.S. at 98).
Culver’s petition for writ of habeas corpus is therefore denied. Judgment consistent
with this Entry shall now issue.
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 Culver 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 declines to issue a
certificate of appealability.
IT IS SO ORDERED.
Jesse R. Drum
INDIANA ATTORNEY GENERAL
KELLY E. CULVER
PENDLETON - CF
PENDLETON CORRECTIONAL FACILITY
Electronic Service Participant – Court Only
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
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