FERGUSON v. WABASH VALLEY CORRECTIONAL FACILITY

Filing 17

Entry Discussing Petition for Writ of Habeas Corpus and Denying Certificate of Appealability - For the reasons explained in this Entry, the petition of Johnnie Ferguson ("Ferguson") for a writ of habeas corpus must be denied and the action dismissed with prejudice. Judgment consistent with this Entry shall now issue. In addition, the court finds that a certificate of appealability should not issue. Signed by Judge William T. Lawrence on 7/19/2016.(BRR)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

JOHNNIE FERGUSON,
Petitioner,
v.
SUPERINTENDENT, Wabash Valley
Correctional Facility,
Respondent.

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No: 2:15-cv-176-WTL-DKL

Entry Discussing Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
For the reasons explained in this Entry, the petition of Johnnie Ferguson (“Ferguson”) for
a writ of habeas corpus must be denied and the action dismissed with prejudice. In addition, the
court finds that a certificate of appealability should not issue.
I. The Petition for Writ of Habeas Corpus
A. Background
Ferguson was convicted in Marion County of murder and of carrying a handgun without
a license. His conviction was affirmed in Ferguson v. State, No. 49A05-0809-CR-514
(Ind.Ct.App. Apr. 22, 2009)(Ferguson), trans. denied. Ferguson’s appeal of the trial court’s
denial of his petition for post-conviction relief was docketed in the Indiana Court of Appeals as
No. 49A05-1312-PC-646 and was dismissed pursuant to Indiana Appellate Rule 45(D) because
Ferguson did not file a brief. The Indiana Supreme Court denied Ferguson’s petition to transfer.
The filing of this action followed.

Pertinent facts recited in Ferguson include the following: On April 23, 2007, an
altercation between Ferguson and Christopher Lucas occurred in the Mullins Tool Rental
parking lot in the 500 block of N. Temple in Indianapolis. Porsche Kimball observed much of
this confrontation develop. As she went to get her daughter, Kimball heard a single gunshot.
Lucas had been shot one time in the heart at close range. Kimball turned and saw Ferguson
lowering his hand with a gun in his hand. Lucas fell to the ground and Ferguson and the others
in his group took off running.
Kimball called 911, checked on Lucas, and performed CPR on Lucas until emergency
personnel arrived. She then ran back to her house, crying hysterically. Lucas died within
approximately ten minutes of being shot.
Kimball contacted police two days later and supplied some details of the incident. Kimball
was contacted by IMPD Detective Kevin Dudley. Kimball picked Ferguson’s photo from a
photo array.
On May 10, 2007, Ferguson was charged. His trial commenced on December 7, 2007. On
the first day of trial, the prosecutor revealed to the defense that the State had failed, during
discovery, to produce certain notes taken by Detective Dudley. Ferguson’s motion for a mistrial
was granted. His motion to dismiss with prejudice was initially taken under advisement and was
denied a few weeks later after a hearing.
Ferguson’s second trial commenced on July 14, 2008 and resulted in him being found
guilty.
In Ferguson, the Indiana Court of Appeals rejected Ferguson’s arguments that his motion
to dismiss with prejudice should have been granted, that the trial court improperly excluded
evidence from witness Jermal Hatton, and that the evidence was insufficient. Ferguson’s action

for post-conviction relief was denied and his appeal from that decision was dismissed as
previously described.
Ferguson then filed the present action. He seeks relief pursuant to 28 U.S.C. § 2254(a).
His claims are those presented and rejected in Ferguson and the additional claim that the trial
court committed error in admitting gruesome autopsy photographs of Lucas.
B. Applicable Law
In the exercise of its habeas jurisdiction, a federal court may grant relief only if the
petitioner shows that he is in custody "in violation of the Constitution or laws of the United
States." Id.
Ferguson filed his habeas petition after the effective date of the Antiterrorism and
Effective Death Penalty Act (AEDPA). The petition, therefore, is subject to the AEDPA. See
Lindh v. Murphy, 521 U.S. 320, 336 (1997). When a habeas petitioner's claim was adjudicated
on the merits in State court proceedings “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), Instead, in such circumstances
federal habeas relief “shall not be granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless” the adjudication “(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 Supreme Court has recently issued several rulings emphasizing the wide latitude that
must be accorded to state court rulings under AEDPA review. See, e.g. Harrington v. Richter,

131 S. Ct. 770, 785 (2011); Premo v. Moore, 131 S. Ct. 733, 743 (2011); Renico v. Lett, 130 S.
Ct. 1855, 1862-66 (2010); Thaler v. Haynes, 130 S. Ct. 1171, 1173-75 (2010). In particular, the
Supreme Court has stressed that section 2254, as amended by AEDPA, was meant to stop just
short of imposing a complete bar to federal court relitigation of claims already rejected in state
court proceedings, allowing for federal habeas relief only where there have been “extreme
malfunctions in the state criminal justice systems.” See Harrington, 131 S. Ct. at 786. As a result,
so long as “fairminded jurists could disagree” on the correctness of the state court’s decision,
federal habeas relief should not be granted. Id. (quoting Yarborough v. Alvarado, 124 S. Ct. 2140,
2149 (2004)).
C. Discussion
Mistrial and Motion to Dismiss. The settled law of the United States Supreme Court
is that a mistrial requested by the defendant because of prosecutorial misconduct does not
bar a retrial under double jeopardy principles, unless the prosecutor intentionally
misbehaved for the specific purpose of goading the defendant into moving for the mistrial.
Oregon v. Kennedy, 456 U.S. 667, 676 (1982).
What the prosecution intended, and whether a defendant is “goaded” into seeking a
mistrial, are questions of fact as to which state-court determinations are “presumed correct”
unless the petitioner can rebut the presumption “by clear and convincing evidence.” 28
U.S.C. ' 2254(e)(1); Sprosty v. Buchler, 79 F.3d 635, 643 (7th Cir. 1996). Here, the Indiana
Court of Appeals reviewed the nature of Detective Dudley’s notes, the content of the notes,
the circumstances under which they were produced, and the lack of credibility of the persons
whose interviews the notes reflected. Ferguson, at pp. 4-7. It acknowledged the controlling

standard, id., at p.8, and then reasonably applied this standard to the facts of Ferguson’s
claim:
The State clearly was responsible for the circumstances that forced defense
counsel into moving for a mistrial. This is not enough, however, to compel
dismissal of the charges on double jeopardy grounds. In denying Ferguson’s
motion, the trial court noted that the State was prepared for trial, had called
witnesses to the stand, and had other witnesses present and ready to testify. The
State opposed the motion for mistrial and indicated it was ready to proceed with
trial. In opposing mistrial, the State explained that the information contained in
the detective’s notes was deemed by both the detective and the prosecutor to be
either incredible or irrelevant to the case. In any event, the trial court found there
is no evidence that the State sought to goad defense counsel into submitting a
motion for mistrial, and we decline to reweigh the evidence relative to that
determination.
Id., at p.9 (internal citations omitted). “Under AEDPA, if the state-court decision was
reasonable, it cannot be disturbed.” Hardy v. Cross, 132 S. Ct. 490, 495 (2011). Because
the Indiana Court of Appeals’ conclusion as to the denial of Ferguson’s motion to dismiss
with prejudice following the mistrial was reasonable, Ferguson is not entitled to habeas
relief as to this claim.
Exclusion of Evidence. The trial court granted a motion in limine restricting the scope of
testimony from witness Jermal Hatton. The pertinent portion of information which could be
elicited from this witness, however, was permitted. Ferguson, at pp. 9-11. The Indiana Court of
Appeals found that the restriction was justified on grounds of relevance, id. at pp. 10-11, and
that in any event any error was harmless because the jury had rejected Hatton’s testimony
explicitly suggesting that Weston was the shooter. Id. at p. 11. (“The jury heard Hatton testify
(1) that he saw Weston running away from the scene of the murder just moments after it
occurred, (2) that Weston was carrying a black .22 handgun and breathlessly claimed to have
shot someone, and (3) that Weston threatened Hatton with harm if Hatton told anyone about
it.”).

The federal basis of this claim was not fairly presented in Ferguson. As a claim under
state law, moreover, the claim is not cognizable here because the United States Supreme Court
has “repeatedly held that ‘federal habeas corpus relief does not lie for errors of state law.’”
Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (quoting Estelle v. McGuire, 502 U.S. 62, 67 (1991)).
Sufficiency of the Evidence. Ferguson’s insufficiency-of-the-evidence claim is governed
by the “rigorous” standard set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979): “evidence,
viewed in the light most favorable to the State, is sufficient to support a conviction so long as
any rational trier of fact could find the essential elements of the offense to have been proved
beyond a reasonable doubt.” Jones v. Butler, 778 F.3d 575, 581 (7th Cir. 2015); see Monroe v.
Davis, 712 F.3d 1106, 1118-19 (7th Cir. 2013). Because the Court considers “this claim on
collateral review rather than direct appeal, the [AEDPA] imposes an additional layer of defense
onto this inquiry: [the Court] may grant relief on this claim only if the [state court] applied the
Jackson standard unreasonably to the facts of [the petitioner’s] case.” Jones, 778 F.3d at 58182. Therefore, “[f]ederal review of these claims . . . turns on whether the state court provided
fair process and engaged in reasoned, good-faith decisionmaking when applying Jackson’s ‘no
rational trier of fact’ test.” Gomez v. Acevedo, 106 F.3d 192, 199 (7th Cir. 1999).
The Indiana Court of Appeals applied a Jackon-compatible standard in examining the
sufficiency of the evidence. Ferguson, at p. 13 (“We . . . must affirm if the probative evidence
and reasonable inferences could have allowed a reasonable trier of fact to find the defendant
guilty beyond a reasonable doubt.”)(citation and internal quotations omitted). In doing so, it
recognized that “Kimball’s testimony was of critical importance in obtaining Ferguson’s
convictions,” id., reviewed and rejected Ferguson’s specific challenges to Kimball’s credibility,
and concluded that

[a]s to the other points made by Ferguson, these were matters bearing on the
credibility of Kimball’s account of the incident. All of this information was placed
before the jury by defense counsel during Kimball’s cross-examination and in
closing argument. It was the jury’s duty to decide whether, in light of the alleged
inconsistences and the questions raised regarding her ability to observe the shooting
and her motivations for coming forward, Kimball’s testimony was worthy of belief.
Id. The only feature of the evidence Ferguson challenges is the identity of the shooter and the
decision in Ferguson convincingly establishes that based on Kimball’s testimony a reasonable
trier of fact could find Ferguson to have been the shooter. This habeas claim therefore fails.
Admission of Autopsy Photographs. Ferguson’s claim regarding the admission of autopsy
photographs was not presented to the Indiana state courts. 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).
A federally habeas court is barred from considering procedurally defaulted claims unless
the petitioner Acan establish cause and prejudice for the default or that the failure to consider the
claim would result in a fundamental miscarriage of justice.@ Johnson v. Hulett, 574 F.3d 428,
430 (7th Cir. 2009) (internal quotation marks omitted). Ferguson has not attempted either
showing. He has therefore committed unexcused procedural default as to this claim and this
prevents the Court from reaching the merits of it.
D. Conclusion
A federal habeas court's role in reviewing state prisoner applications was modified by the
AEDPA “in order to prevent federal habeas ‘retrials' and to ensure that state-court convictions
are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002). The
requirements of the AEDPA “create an independent, high standard to be met before a federal
court may issue a writ of habeas corpus to set aside state-court rulings.” Uttecht v. Brown, 127

S. Ct. 2218, 2224 (2007) (citations omitted). As the Supreme Court recently explained, the
AEDPA's requirements reflect “the view that habeas corpus is a ‘guard against extreme
malfunctions in the state criminal justice systems,’ not a substitute for ordinary error correction
through appeal.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (quoting Jackson v. Virginia,
443 U.S. 307, 332 n.5 (1979)). No such malfunction tainted Ferguson’s trial with constitutional
error.
Having applied the appropriate standard of review, and having considered the pleadings
and the expanded record, Ferguson’s petition for writ of habeas corpus must be denied. Judgment
consistent with this Entry shall now issue.
II. Certificate of Appealability
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 Ferguson 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.
IT IS SO ORDERED.
_______________________________
Date: 7/19/16

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

Distribution:
Electronically Registered Counsel
JOHNNIE FERGUSON
190220
WABASH VALLEY CORRECTIONAL FACILITY
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