FOSTER v. REAGLE

Filing 15

ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS - Mr. Foster's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and a certificate of appealability shall not issue. Final Judgment in accordance with this decision shall issue. SEE ORDER. Signed by Judge James Patrick Hanlon on 5/22/23.(JRB)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
BRUCE E. FOSTER,
Petitioner,
v.
DENNIS REAGLE,
Respondent.

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No. 1:21-cv-02158-JPH-MKK

ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Bruce Foster was convicted of murder and found to be a habitual offender
in an Indiana state court. In this case, he seeks a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. For the reasons discussed below, Mr. Foster's petition for a
writ of habeas corpus is denied, and a certificate of appealability will not issue.
I.
Background
Federal habeas review requires the Court to "presume that the state court's
factual determinations are correct unless the petitioner rebuts the presumption
by clear and convincing evidence." Perez-Gonzalez v. Lashbrook, 904 F.3d 557,
562 (7th Cir. 2018); see 28 U.S.C. § 2254(e)(1). On direct appeal, the Indiana
Court of Appeals summarized the relevant facts and procedural history as
follows:
On the morning of June 7, 2011, Holder drove her daughter
Anastasia ("Anna") to school. At approximately 9:30 to 10:30 a.m.,
neighbor A.J. Strole, who knew Foster, witnessed him standing on
a balcony and attempting to "jimmy" a second-story window to
Holder's apartment with a wooden-handled knife. Tr. p. 95. Foster

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and Holder had been in a romantic relationship but were apparently
no longer involved. When Holder arrived home, Foster dropped down
from the balcony and approached Holder as she was walking up to
her apartment's door. Foster, who was visibly upset, said, "you
dumbass bitch you got me out here doing this stupid ass shit" just
as Holder opened the door. Tr. p. 100. Holder gave a large backpack
to Foster, who opened it and said, "no bitch this ain't all my shit[,]
barged his way in the door[,] turned[,] and locked the door[.]" Tr. p.
101. Strole then heard six to eight "thumps" against the wall. Tr. p.
101. Foster emerged and drove off in Holder's car.
Anna arrived home from school around 3:00 p.m. Anna had
forgotten her key and had tried, in vain, to contact Holder via text
message and telephone. Anna called her grandmother Sherry
Runyon, who soon arrived with her sister. The trio went shopping
and while shopping, Runyon received a telephone call from her
husband that police had found Holder's purse in Cascades Park at
approximately 3:00 p.m. The trio returned to Holder's apartment
and secured a key from the manager's office. When Anna unlocked
the door, the door would barely open, and, upon looking inside, she
saw her mother's body and screamed. Holder had been stabbed
seven times in the chest with a single-edged knife, causing her
death, in addition to ten times in the extremities. The forensic
pathologist determined that Holder died no later than two hours
after 10:00 a.m. On June 8, 2011, Foster called Detective William
Jeffers of the Bloomington Police Department, and Detective Jeffers
recorded the conversation. On June 15, 2011, a knife was found in
Cascades Park, and swabs taken from the knife were determined to
contain Holder's DNA.
Also on June 8, 2011, the State charged Foster with murder and
Class D felony auto theft and alleged that he is a habitual offender.
On June 18, 2012, a jury found Foster guilty of auto theft but failed
to reach a verdict on the murder count. A second jury trial was held
on the murder and habitual offender counts. During the second
trial, the State presented evidence based on Foster's mobile
telephone records indicating activity on the morning of June 7,
2011, at or near the areas in Cascade Park where Holder's purse
and the knife were found. On December 10, 2012, the second jury
found Foster guilty of murder and of being a habitual offender. The
trial court sentenced Foster to sixty-five years of incarceration for
murder (enhanced thirty years by virtue of his habitual offender
status) and ordered the sentence to be served consecutively to his
three-year sentence for auto theft.

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Foster v. State, 5 N.E.3d 814, 2014 WL 683993, *1-2 (Ind. Ct. App. 2014) (Foster
I) (available in the record at dkt. 8-6).
The Indiana Court of Appeals affirmed Mr. Foster's conviction and
habitual offender status, and the Indiana Supreme Court denied transfer. Dkt.
8-2 at 7; dkt. 8-6. Mr. Foster then filed a pro se petition for post-conviction
relief, which was denied. The Indiana Court of Appeals affirmed the postconviction court, and the Indiana Supreme Court denied his petition to transfer.
Dkt. 8-11 at 6; dkt. 8-15.
Mr. Foster filed his petition for a writ of habeas corpus in this case on
August 2, 2021. Dkt. 1. Mr. Foster argues that there was insufficient evidence
to convict him, that the trial court made evidentiary errors, and that both his
trial and appellate counsel were ineffective because they failed to argue that there
was insufficient evidence to support his habitual offender designation.
II.
Applicable Law
A federal court may grant habeas relief only if the petitioner demonstrates
that he is in custody "in violation of the Constitution or laws . . . of the United
States." 28 U.S.C. § 2254(a). The Antiterrorism and Effective Death Penalty Act
of 1996 ("AEDPA") directs how the Court must consider petitions for habeas relief
under § 2254. "In considering habeas corpus petitions challenging state court
convictions, [the Court's] review is governed (and greatly limited) by AEDPA."
Dassey v. Dittmann, 877 F.3d 297, 301 (7th Cir. 2017) (en banc) (citation and
quotation marks omitted). "The standards in 28 U.S.C. § 2254(d) were designed
to prevent federal habeas retrials and to ensure that state-court convictions are
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given effect to the extent possible under law." Id. (citation and quotation marks
omitted).
A federal habeas court cannot grant relief unless the state court's
adjudication of a federal claim on the merits:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d).
"The decision federal courts look to is the last reasoned state-court
decision to decide the merits of the case, even if the state's supreme court then
denied discretionary review." Dassey, 877 F.3d at 302. "Deciding whether a state
court's decision 'involved' an unreasonable application of federal law or 'was
based on' an unreasonable determination of fact requires the federal habeas
court to train its attention on the particular reasons—both legal and factual—
why state courts rejected a state prisoner's federal claims, and to give
appropriate deference to that decision[.]" Wilson v. Sellers, 138 S. Ct. 1188, 119192 (2018) (citation and quotation marks omitted). "This is a straightforward
inquiry when the last state court to decide a prisoner's federal claim explains its
decision on the merits in a reasoned opinion." Id. "In that case, a federal habeas
court simply reviews the specific reasons given by the state court and defers to
those reasons if they are reasonable." Id.

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"For purposes of § 2254(d)(1), an unreasonable application of federal law
is different from an incorrect application of federal law." 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." Id. "If this standard is difficult to
meet, that is because it was meant to be." Id. at 102. "The issue is not whether
federal judges agree with the state court decision or even whether the state court
decision was correct. The issue is whether the decision was unreasonably wrong
under an objective standard." Dassey, 877 F.3d at 302. "Put another way, [the
Court] ask[s] whether the state court decision 'was so lacking in justification that
there was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.'" Id. (quoting Richter, 562 U.S. at
103). "The bounds of a reasonable application depend on the nature of the
relevant rule. The more general the rule, the more leeway courts have in reaching
outcomes in case-by-case determinations." Schmidt v. Foster, 911 F.3d 469, 477
(7th Cir. 2018) (en banc) (citation and quotation marks omitted).
III.
Discussion
A. Claim based appellate counsel's performance
Mr. Foster claims that his appellate counsel failed to argue that his
habitual offender designation was not supported by sufficient evidence. Dkt. 1
at 25–29. The State argues that this claim is procedurally defaulted. Dkt. 8 at
13–14. Procedural default "occurs when a claim could have been but was not

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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). "[S]uch default can be excused if [the petitioner]
can demonstrate cause for the default and prejudice, or that the failure to
consider his claims would constitute a miscarriage of justice." Martin v. Zatecky,
749 F. App'x 463, 464 (7th Cir. 2019).
Here, Mr. Foster failed to fairly present this claim to the Indiana Court of
Appeals or Indiana Supreme Court. Dkt. 8-12; dkt. 8-16. His petition does not
argue that he had cause for not presenting the claim at the state level, that he
has been prejudiced, or that the Court's failure to consider the claim would
constitute a miscarriage of justice. And Mr. Foster did not file a reply to the
response to the order to show cause. Therefore, Mr. Foster's claim that his
appellate counsel failed to argue that his habitual offender designation was not
supported by sufficient evidence is procedurally defaulted.
B. Claims based on the admission of cell phone records
videorecording of Mr. Foster's interview with the police

and

Mr. Foster claims that the trial court erred by admitting certain evidence
in violation of the Fourteenth Amendment—including cell phone records and
testimony related to them and an unredacted copy of his statement to the
police—and by allowing the jury to have his recorded statements during their
deliberations.
"Errors of state law in and of themselves are not cognizable on habeas
review." Samuel v. Frank, 525 F.3d 566, 574 (7th Cir. 2008) (cleaned up).
"Because a state trial court's evidentiary rulings . . . turn on state law, these are
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matters that are usually beyond the scope of federal habeas review." Perruquet
v. Briley, 390 F.3d 505, 511 (7th Cir. 2004). "However, a state defendant does
have a Fourteenth Amendment due process right to a fundamentally fair trial."
Id. In the federal habeas context, allegedly erroneous evidentiary rulings
implicate the right to a fundamentally fair trial only when such errors "produce[]
a significant likelihood that an innocent person has been convicted." Anderson
v. Sterns, 243 F.3d 1049, 1053 (7th Cir. 2001) (citation and quotation marks
omitted). Therefore, to sustain a due process claim based on evidentiary rulings,
the petitioner must "draw[] enough of a connection between his right to due
process and the trial court's . . . evidentiary . . . errors to render his claim
cognizable on habeas review." Perruquet, 390 F.3d at 512. "To consider the
significance of the alleged errors, a court must examine the entire record, paying
particular attention to the nature and number of alleged errors committed; their
interrelationship, if any, and their combined effect; how the trial court dealt with
the errors, including the efficacy of any remedial measures; and the strength of
the prosecution's case." Anderson, 243 F.3d at 1053.
Here, Mr. Foster claims that the state trial court erred by admitting
evidence relating to cell phone records and his statement to the police. Cell phone
records admitted at trial indicated that Mr. Foster's cell phone was active on the
day of the murder near where the victim's purse and the knife used in the
stabbing were found. At trial, Mr. Foster objected to the records being admitted
on the basis that the State's witness—an AT&T engineer—could not personally
verify that the records were accurate. Dkt. 1 at 13-14. On direct appeal, the state
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court held that the AT&T engineer's testimony was sufficient foundation to
authenticate the cell phone records and admit them as business records:
AT&T engineer and network performance team manager David
Salyer indicated that it is the regular practice for AT&T to compile
telephone usage data and that he understood the method by which
the data are collected and maintained. Salyers testified that every
time an AT&T mobile telephone customer uses his telephone, the
device will register on one of AT&T's cellular towers, and a record of
that activity will automatically be complied in a nation-side
database. Moreover, Salyers explained how to interpret the records,
how they are kept, how the information is stored, what the various
terms of art in the records meant, how AT&T uses the information,
and how cellular towers and zones work. In summary, Salyers's
testimony clearly indicated that he possessed the required
functional knowledge of how AT&T's mobile telephone records were
generated.
Foster, 2014 WL 683993 at *3-4; Trial Transcript at 239-46 (in the record at dkt.
10 (manual filing)).
Mr. Foster also alleged that the trial court erred when it admitted an
unredacted video of his statement to police. The trial court gave a cautionary,
limiting instruction to the jury before admitting the video evidence:
[L]adies and gentlemen, you are about to see and to listen to an
interview of Defendant by Detective Joe Henry of the Bloomington
Police Department. During the interview you will hear Defendant say
he was in jail shortly before the time period in question, that he was
scheduled to appear for a change of plea hearing, and, at another
point, that he smoked marijuana. You are advised that such
statements are being admitted for the sole purpose of allowing
Defendant's statements to be seen and heard in context. Defendant
was not in jail as a result of any charge involving violence or a result
of any matter related to the allegations in this case. You are
instructed that whether Defendant was in jail or facing criminal
charges, whether he failed to appear for a scheduled hearing, or
whether he smoked marijuana at some point are all matters which
are irrelevant and immaterial to the allegations made against him in
this case. When you retire to deliberate you shall accord no weight
to such matters in determining whether the State has or has not
proven the guilt of the defendant beyond a reasonable doubt.
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Trial Transcript at 564–65. On direct appeal, the state court held that the trial
court did not abuse its discretion in admitting the unredacted statement, and
that to the extent it was error, it was harmless. Foster, 2014 WL 683993 at *23. The admissions that Mr. Foster smoked marijuana and had recently been in
jail for a non-violent offense were unrelated to the charges in this case and the
trial court appropriately admonished the jury to disregard them. Id. And
because it was not error to admit the unredacted video, it was not error to allow
the jury to have it during their deliberations. Id. at *5.
Mr. Foster has not shown that admission of the cell phone records and Mr.
Foster's unredacted statement to police, whether considered individually or
together, implicated his right to a fundamentally fair trial. As the Court of
Appeals explained, a witness saw Mr. Foster attempting to break into the
victim's apartment with a knife and then arguing with the victim as the two
entered her apartment on the morning she was stabbed to death. Foster I, 2014
WL 683993 at *2 (citations omitted). While the evidence that Mr. Foster
challenges further supported the jury's verdict, the remaining evidence shows
that there is not a significant chance that an innocent person was convicted.
See Anderson, 243 F.3d at 1053.
Mr. Foster has failed to show "enough of a connection between his right to
due process and [any] . . . evidentiary . . . errors to render his claim cognizable
on habeas review." Perruquet, 390 F.3d at 512. Therefore, he is not entitled to
relief on these claims.

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C. Claim based on sufficiency of the evidence
Mr. Foster next claims that the evidence admitted at trial was insufficient
to support his conviction. Evidence is constitutionally sufficient to support a
conviction if, "after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319
(1979) (emphasis original). "[H]abeas reviews of Jackson claims are subject to
two levels of judicial deference creating a high bar: first, the state appellate court
determines whether any rational trier of fact could have found the evidence
sufficient; second, a federal court may only overturn the appellate court's finding
of sufficient evidence if it was objectively unreasonable." Saxon v. Lashbrook, 873
F.3d 982, 987–88 (7th Cir. 2017). "Federal review of these claims . . . turns on
whether the state court provided fair process and engaged in reasoned, goodfaith decisionmaking when applying Jackson's 'no rational trier of fact' test."
Gomez v. Acevedo, 106 F.3d 192, 199 (7th Cir. 1999).
In addressing this challenge to the sufficiency of the evidence, the Indiana
Court of Appeals correctly articulated the Jackson standard:
When reviewing the sufficiency of the evidence to support a
conviction, we consider only the probative evidence and reasonable
inferences supporting the verdict. It is the factfinder's role to assess
witness credibility and weigh the evidence to determine whether it
is sufficient to support a conviction. We consider conflicting evidence
in the light most favorable to the trial court's ruling. We affirm the
conviction unless no reasonable fact-finder could find that the
elements of the crime were proven beyond a reasonable doubt.

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Foster I, 2014 WL 683993 at *2 (citations omitted). It then reviewed the evidence
against Mr. Foster including that a witness saw him attempting to break into the
victim's apartment with a knife and then arguing with the victim as the two
entered her apartment on the morning she was stabbed to death. The Indiana
Court of Appeals "had little trouble" concluding that there was sufficient evidence
to support Mr. Foster's conviction. Id. The record demonstrates that the state
court applied Jackson reasonably and in good faith. Mr. Foster is not entitled to
relief. Wilson, 138 S. Ct. at 1191-92.
D. Claim based on ineffective assistance of trial counsel
Mr. Foster next claims that his trial counsel was ineffective when counsel
failed to challenge the sufficiency of the evidence in support of his habitual
offender designation. A criminal defendant has a right under the Sixth
Amendment to effective assistance of counsel. See Strickland v. Washington, 466
U.S. 668, 687 (1984). For a petitioner to establish that "counsel's assistance was
so defective as to require reversal," he must make two showings: (1) that
counsel's performance "fell below an objective standard of reasonableness" and
(2) "that the deficient performance prejudiced the defense." Id. at 687−88. "This
inquiry into a lawyer's performance and its effects turns on the facts of the
particular case, which must be viewed as of the time of counsel's conduct." Laux
v. Zatecky, 890 F.3d 666, 673–74 (7th Cir. 2018) (citation and quotation marks
omitted).
"As for the performance prong, because it is all too easy to conclude that
a particular act or omission of counsel was unreasonable in the harsh light of
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hindsight, Strickland directs courts to adopt a strong presumption that counsel's
conduct falls within the wide range of reasonable professional assistance." Id. at
674 (citation and quotation marks omitted). "The prejudice prong requires the
defendant or petitioner to 'show that there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding would have been
different.'" Laux, 890 F.3d at 674 (quoting Strickland, 466 U.S. at 694).
The Indiana Court of Appeals correctly stated the Strickland standard.
Foster v. State, 168 N.E.3d 1078, 2021 WL 1748054, *4 (Ind. Ct. App. 2021)
(Foster II) (available in the record at dkt. 8-15). The court then determined that
counsel did not perform deficiently, and that Mr. Foster had misunderstood
Indiana's habitual offender statute:
Foster first asserts that his trial counsel ineffectively failed to
challenge the sufficiency of the State's evidence in support of the
habitual offender allegation. Specifically, Foster asserts that the
records of his prior convictions were not properly certified and,
further, that they did not sufficiently identify him as they did not
include photographs or fingerprints of him. But Foster's arguments
are misplaced. The records were certified, although his trial counsel
strategically chose to have copies published to the jury that did not
include those certifications, and the records unambiguously
identified Foster by name, date of birth, and social security number,
which is sufficient.
Nonetheless, Foster also argues that his trial counsel failed to object
to the State's submission of two overlapping offenses in support of
the habitual offender allegation. At the time of his offenses, Indiana
Code Section 35-5-2-8(c) required the State to support a habitual
offender allegation with a showing of two prior, unrelated felony
convictions, which required a showing that the second offense "was
committed after sentencing" for the first offense and that the instant
offense "was committed after sentencing" for the second offense.
The State offered evidence of five prior offenses to show Foster was
a habitual offender. Foster asserts that the post-conviction court
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correctly found that two of those offenses were overlapping such that
one had been committed prior to sentencing on the other, which
reduced the number of available prior offenses from five to four. He
then asserts on appeal that two other offenses are also overlapping
as he "was charged" for one offense "while serving time" on the other.
Appellant's Br. at 14-15.
But Foster's reading of the statute is not correct. Even if the State
charged Foster for one offense while he was "serving time" on
another, those facts do not implicate the statute so long as the latter
offense was committed after the prior offense's sentencing date,
which Foster does not address on appeal. And, in any event, he
acknowledges that, if we were to accept his argument here, it would
still be "true that Foster has at least two [other] prior unrelated
felonies ...." Id. at 16. We therefore affirm the post-conviction court's
denial of his petition with respect to counsel's performance during
the habitual offender stage of the trial.
Id. at *4–5.
The state court's determination that Mr. Foster's trial counsel did not
perform deficiently turned on its interpretation of Indiana's habitual offender
statute. The state court rejected Mr. Foster's interpretation of that statute and
concluded that the trial court properly applied it to Mr. Foster.

This Court

cannot second guess that determination. See Wilson v. Corcoran, 562 U.S. 1, 5
(2010) ("It is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions." (cleaned up)); Miller v. Zatecky, 820 F.3d
275, 277 (7th Cir. 2016). The Indiana Court of Appeals reasonably applied
Strickland when it held that trial counsel's failure to challenge the evidence
supporting Mr. Foster's habitual offender designation was not deficient
performance. The Seventh Circuit has long held that "[c]ounsel is not ineffective
for failing to raise meritless claims." Warren v. Baenen, 712 F.3d 1090, 1104 (7th
Cir. 2013); Stone v. Farley, 86 F.3d 712, 717 (7th Cir. 1996) ("Failure to raise a
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losing argument, whether at trial or on appeal, does not constitute ineffective
assistance of counsel."). Mr. Foster is not entitled to relief on this claim.
IV.
Certificate of Appealability
"A state prisoner whose petition for a writ of habeas corpus is denied by a
federal district court does not enjoy an absolute right to appeal." Buck v. Davis,
137 S. Ct. 759, 773 (2017). Instead, a state prisoner must first obtain a certificate
of appealability. See 28 U.S.C. § 2253(c)(1). "A certificate of appealability may
issue . . . only if the applicant has made a substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2). In deciding whether a certificate of
appealability should issue, "the only question is whether the applicant has
shown that jurists of reason could disagree with the district court's resolution of
his constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further." Buck, 137 S. Ct. at 773
(citation and quotation marks omitted).
Rule 11(a) of the Rules Governing Section 2254 Proceedings in the United
States District Courts requires the district court to "issue or deny a certificate of
appealability when it enters a final order adverse to the applicant." No reasonable
jurist would disagree that the Indiana Court of Appeals reasonably applied
federal law when it held that Mr. Foster's trial counsel did not perform deficiently
and that there was sufficient evidence to convict him. And no reasonable jurist
would

disagree

that

his

remaining

claims

are

non-cognizable

and/or

procedurally defaulted. Therefore, a certificate of appealability is denied.

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V.
Conclusion
Mr. Foster's petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2254 is denied, and a certificate of appealability shall not issue.
Final Judgment in accordance with this decision shall issue.
SO ORDERED.
Date: 5/22/2023

Distribution:
BRUCE E. FOSTER
882248
PENDLETON - CF
PENDLETON CORRECTIONAL FACILITY
Electronic Service Participant – Court Only
Sierra A. Murray
INDIANA ATTORNEY GENERAL
[e-mail]

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