BRYANT v. SUPERINTENDENT

Filing 35

ENTRY Discussing Petition - The Indiana state courts reasonably determined that Bryant's claims in Bryant II lacked merit. Judgment consistent with this Entry shall now issue. The court therefore denies a certificate of appealability. **SEE ENTRY** Copy to petitioner via US mail. Signed by Judge William T. Lawrence on 8/25/2015.(AH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

ARTHUR JOHN BRYANT,
Petitioner,
vs.
SUPERINTENDENT,
Respondent.

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2:13-cv-00218-WTL-WGH

Entry Discussing Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
Petitioner Arthur Bryant seeks habeas corpus relief with respect to his conviction in the
Harrison Superior Court for murder, theft, and obstruction of justice. Having considered the
pleadings, the expanded record, and the parties’ arguments, and being duly advised, the Court finds
that Bryant has not shown his entitlement to relief and that 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 on the following facts and circumstances:
1.

In January 2000, Bryant murdered, and concealed the body of his stepmother,

Carol. He also sold, pawned and gave away items of personal property belonging to her. His
convictions were affirmed in Bryant v. State, 802 N.E.2d 486 (Ind.Ct.App. 2004)(Bryant I), and
the denial of post-conviction relief was affirmed in Bryant v. State, No. 31A04-1109-PC-00542
(Ind.Ct.App. Oct. 2, 2012)(Bryant II).
2.

In his petition for writ of habeas corpus, Bryant claims that he was denied the

effective assistance of counsel at trial. This claim was presented and rejected on the merits in
Bryant II.

3.

Bryant filed his 28 U.S.C. § 2254 petition after the effective date of the

Antiterrorism and Effective Death Penalty Act (AEDPA). His petition, therefore, is subject to the
AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA “place[s] a new constraint”
on the ability of a federal court to grant habeas corpus relief to a state prisoner “with respect to
claims adjudicated on the merits in state court.” Williams v. Taylor, 529 U.S. 362, 412 (2000).
With respect to claims which the state courts decided on the merits,
[f]ederal habeas relief is available only if the state court’s decision “was contrary
to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or “was based on a
unreasonable determination of the facts in light of the evidence presented in the
State court proceedings.” 28 U.S.C. § 2254(d)(1) and (2); see also Metrish v.
Lancaster, 133 S. Ct. 1781, 1786 (2013).
Bailey v. Lemke, 735 F.3d 945, 949 (7th Cir. 2013). As the United States Supreme Court recently
explained,
AEDPA's standard is intentionally difficult to meet. We have explained that
clearly established Federal law for purposes of § 2254(d)(1) includes only the
holdings, as opposed to the dicta, 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. To satisfy this high bar, a habeas
petitioner is required to 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.
Woods v. Donald, 135 S. Ct. 1372, 1376 (2015)(internal quotation marks and citations omitted).
4.

The first step under § 2254(d)(1) is “to identify the ‘clearly established Federal law,

as determined by the Supreme Court of the United States’ that governs the habeas petitioner’s
claims.” Marshall v. Rodgers, 133 S. Ct. 1446, 1449 (2013) (citing Williams v. Taylor, 529 U.S.
at 412; Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)). As noted, the claim in this action is
that Bryant was denied the effective assistance of counsel. The Sixth Amendment guarantees a
criminal accused the right to assistance of counsel, and Athe right to counsel is the right to the

effective assistance of counsel.@ McMann v. Richardson, 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).
5.

Strickland provides the clearly established Federal law, as determined by the

Supreme Court of the United States that governs Bryant’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).
6.

The foregoing outlines the straightforward features of Strickland’s two-prong test.

In the context of the claim that Bryant 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, 556 U.S. at 123 (internal citations and quotations omitted). The emphasis on deferential
review could not be more clear:
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
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). The
pertinent question for the present habeas review is whether the Indiana state courts “unreasonably
applied a federal doctrine declared by the United States Supreme Court.” Redmond v. Kingston,
240 F.3d 590 (7th Cir. 2001) (citing 28 U.S.C. § 2254(d)(1). “A state-court decision involves an
unreasonable application of this Court's clearly established precedents if the state court applies this
Court's precedents to the facts in an objectively unreasonable manner.” Brown v. Payton, 544 U.S.
131, 141 (2005) (internal citations omitted).
7.

The Indiana Court of Appeals first recognized that Strickland established the

controlling law and that two elements must be established to support a showing of ineffective
assistance of counsel. Bryant II, at p.9. Carter v. Douma, No. 13-3312, 2015 WL 4646664, at *7
(7th Cir. Aug. 6, 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)). “For the first element, this court's review of the
attorney's performance is “highly deferential” and “reflects a strong presumption that counsel's
conduct falls within the wide range of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances, the challenged action might be
considered sound trial strategy.” Daniels v. Knight, 476 F.3d 426, 433-34 (7th Cir. 2007)(citing
Strickland, 466 U.S. at 689). The prejudice inquiry looks at all available evidence, not just that
favoring the defense. Strickland, 466 U.S. at 695 (“In making this determination, a court hearing
an ineffectiveness claim must consider the totality of the evidence before the judge or jury.”). In
assessing the relative weight of the new mitigating evidence, a reviewing court compares and

contrasts the new evidence with that from the trial.”); see also Wong v. Belmontes, 130 S. Ct.
383, 390 (2009)(“[T]he reviewing court must consider all the evidence--the good and the bad-when evaluating prejudice.”).
8.

The Indiana Court of Appeals reviewed and carefully evaluated each specification

of ineffective assistance of counsel and it is undisputed that the defense strategy was to portray
Lee, Carol’s husband and Bryant’s biological father, as the perpetrator of Carol’s murder and to
focus the jury’s attention on him.
a.
The trial court admitted evidence of statements that Bryant made during his
consultation with his mother at the police station, prior to being advised of his rights. On
appeal, the police conduct was found to have been improper, but because some of this
evidence was admitted without objection—and Bryant’s objection to the first such witness
through whom these statements were sought to be admitted had been overruled—it was
concluded that further objection would have been futile. Bryant II, at p. 8. In denying
Bryant’s petition for rehearing on this point, the Indiana Court of Appeals was rejected,
with the emphasis on the prejudice prong of the Strickland test:
Bryant was not prejudiced by his counsel's failure to object because there
was substantial independent evidence of his guilt such that it is unlikely the
erroneously admitted evidence played a role in his conviction. See Sundling
v. State, 679 N.E.2d 988 (Ind.Ct.App. 1997) (erroneous admission of
evidence is harmless where there was substantial independent evidence of
guilt such that erroneously admitted evidence likely played no role in the
conviction). Here, jeans were found in the trunk of the vehicle where
Bryant's step-mother's body was found. DNA tests of the jeans revealed that
they were stained with Bryant's step-mother's bodily fluids and that Bryant
had worn them. Bryant gave away some of his step-mother's jewelry and
pawned some of her property. He showed the car to his friends, while his
step-mother's body remained in the trunk, and drove around in that car for
a number of days. In short, the erroneously admitted evidence likely had no
impact on Bryant's conviction given the strength of the State's case against
him.
Bryant v. State, 980 N.E.2d 450 (Ind.Ct.App. 2012).
b.
During the trial testimony of Alice Alcorn, she provided evidence that Bryant had
angrily stated he would pay back his stepmother before he turned eighteen and that on
another occasion she heard Bryant state that he would kill his stepmother. Bryant argued
in Bryant II that his trial counsel were ineffective for not objecting to Alcorn’s testimony
as prior misconduct evidence under Indiana Evidence Rule 404(b), for not moving to strike

it, and in not impeaching Alcorn with her prior statements that did not mention any threat
by him to kill his stepmother. The Indiana Court of Appeals held that the statement was
not impermissible 404(b) evidence under Indiana law because the testimony was relevant
to show Bryant’s motive and intent. Thus, an objection would not have been sustained.
Bryant II, at p. 11.
c.
Bryant argues that his counsel was ineffective based on the failure to keep out
evidence regarding Bryant’s anger, temper, and prior juvenile adjudications. It was held
that the first of these were not evidence of prior bad acts, and hence would not have been
excluded on that basis, and Bryant himself had testified to his past convictions and juvenile
adjudications. Bryant II, at pp. 18-21. For various reasons, the conduct of counsel in
relation to this evidence was based on their reasonable strategy of portraying Lee as the
perpetrator and to be receptive to Bryant’s version. It is of no consequence that Bryant’s
counsel were critical of their own performance the post-conviction relief hearing. See Ebert
v. Gaetz, 610 F.3d 404, 415 (7th Cir. 2010)(citing cases).
d.
Bryant argues that his attorneys failed to impeach portions of Lee’s testimony. The
Indiana Court of Appeals found, however, that “[t]rial counsel thoroughly cross-examined
Lee and conducted as much impeachment of his testimony as the trial court would allow.”
Bryant II, at pp. 23-24. Bryant then failed to support his argument that he was prejudiced
in various ways by the limitation on Lee’s cross-examination. Id. at p.24.
e.
Tracy Beemer was interviewed by Detective Bauman prior to trial. Bauman
informed Bryant’s attorneys that Beemer would not provide evidence that was favorable
to Bryant’s defense. It was developed at the post-conviction relief hearing that this
statement was untrue and that Beemer could have testified to statements Carol made that
would have been helpful to Bryant’s defense by supporting his defense that Lee was the
perpetrator. The Indiana Court of Appeals found that it could not determine if failure of
Bryant’s counsel to interview Beemer was a matter of trial strategy. As illustrated by
decisions such as Campbell v. Reardon, 780 F.3d 752, 763 (7th Cir. 2015)(“The
fundamental problem with the state court's analysis—which made it not just incorrect but
unreasonable—is that it ignored counsel's duty to perform a reasonable pretrial
investigation before committing to a defense strategy.”)(emphasis in original), this finding
was an unreasonable application of the performance prong established in Strickland. It is
true, as the respondent argues, that “[i]t should go without saying that the absence of
evidence cannot overcome the ‘strong presumption that counsel’s conduct [fell] within the
wide range of reasonable professional assistance.’” Burt v. Titlow, 134 S. Ct. 10, 17 (2013)
(quoting Strickland, 466 U.S. at 689). This is hardly a situation, however, where the
demonstrated information Beemer could have provided to Bryant’s attorneys before trial
could be understood as “the absence of evidence.” Bryant is not entitled to relief on this
claim, however, because the Indiana Court of Appeals proceeded to discuss the prejudice
prong of Strickland and reasonably explained that Bryant was not prejudiced because
Beemer would not have been permitted to testify to the statements allegedly made to her
by Carol. Bryant II, at pp. 25-27. The reason for this holding was that Carol’s alleged
statements would have been inadmissible hearsay and were not admissible under any
exception to the hearsay rules.

9.

Each specification of ineffective assistance of counsel was assessed by the Indiana

Court of Appeals and, with the one exception noted, the decisions of that Court neither 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. See Yarborough v. Alvarado,
541 U.S. 652, 661 (2004) ("We look for 'the governing legal principle or principles set forth by
the Supreme Court at the time the state court renders its decision.'") (quoting Lockyer v. Andrade,
538 U.S. 63, 71 (2003)). “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.’” Atkins v. Zenk, 667 F.3d 939, 944 (7th Cir.
2012) (quoting Mendiola v. Schomig, 224 F.3d 589, 591–92 (7th Cir. 2000)). The Indiana Court
of Appeals did so. The one exception, moreover, did not extend to include the prejudice prong of
Strickland. This is critical because “[t]o prevail on [an ineffective assistance of counsel] claim,
[the petitioner] must meet both the deficient performance and prejudice prongs of Strickland.”
Wong v. Belmontes, 558 U.S. 15, 16 (2009) (per curiam). Thus, Bryant is not entitled to habeas
relief based on his claim of ineffective assistance of counsel.
10.

Bryant sought post-conviction relief on the basis of newly discovered evidence

consisting of information from Tracy Beemer. This emerged as a claim based on Brady v.
Maryland, 373 U.S. 83, 87 (1963).
a.
The Indiana Court of Appeals correctly recognized that Brady was the controlling
federal authority. Bryant II, at pp. 28-29. Brady “has been on the books since 1963 and
easily qualifies as clearly established law.” Steidl v. Fermon, 494 F.3d 623, 628 (7th Cir.
2007).
b.
"There are three components of a true Brady violation: The evidence at issue must
be favorable to the accused, either because it is exculpatory, or because it is impeaching;
that evidence must have been suppressed by the State, either willfully or inadvertently;
and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82 (1999). The

prejudice element requires that there be a reasonable probability that the result of the
proceeding would have been different. Carvajal v. Dominguez, 542 F.3d 561, 566–67
(7th Cir. 2008).
c.
The Indiana Court of Appeals considered whether Bryant had met his burden of
showing the three Brady requirements were present. It found first that the first
requirement was not satisfied because Bryant’s lawyers knew of Detective Bauman’s
interview of Tracy Beemer and could have contacted Beemer if they had made the effort.
Bryant II, at pp. 28-29.
d.
The Indiana Court of Appeals next determined that the element of materiality was
absent because the discovery of Beemer’s information would not have led to the
introduction of admissible evidence and did not otherwise create a reasonable probability
that the result of the proceeding would have been different. Id. at p. 29.
e.
The Indiana Court of Appeals’ conclusion that the withholding and the prejudice
elements were absent was a completely reasonable application of the controlling Supreme
Court decisions in Brady and Strickler.
11.

“When reviewing state criminal convictions on collateral review, federal judges are

required to afford state courts due respect by overturning their decisions only when there could be
no reasonable dispute that they were wrong.” Woods v. Donald, 135 S. Ct. 1372, 1376 (2015).
Federal habeas relief is barred for any claim adjudicated on the merits in state court “unless one of
the exceptions listed in 28 U.S.C. § 2254(d) obtains.” Premo v. Moore, 131 S. Ct. 733, 739 (2011).
None do. The Indiana state courts reasonably determined that Bryant’s claims in Bryant II lacked
merit. “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, 131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652,
664 (2004)). Bryant’s habeas petition presents such a situation and that petition is therefore denied.
12.

Judgment consistent with this Entry shall now issue.

13.

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 Bryant has failed to
show that reasonable jurists would find Ait debatable whether the petition states a valid claim of

the denial of a constitutional right.@ Slack v. McDaniel, 529 U.S. 473, 484 (2000). The court
therefore denies a certificate of appealability.
IT IS SO ORDERED.
_______________________________
Date: 8/25/15
Distribution:
Arthur John Bryant
No. 988867
Wabash Valley Correctional Facility
Special Needs Unit
P.O. Box 1111
Carlisle, IN 47838
Electronically Registered Counsel

Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana