WARD v. BROWN
Filing
24
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS: This Court has carefully reviewed the state record in light of Mr. Ward's claims and has given such consideration to those claims as t he limited scope of its review in a habeas corpus proceeding permits. Having applied the appropriate standard of review, and having considered the pleadings and the record, Mr. Ward's petition for writ of habeas corpus must be 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 procee dings, and 28 U.S.C. § 2253(c), the Court finds that the petitioner has failed to show (1) that reasonable jurists would find this court's "assessment of the constitutional claims debatable or wrong," or (2) that reasonable jurists would find "it debatable whether the petition states a valid claim of the denial of a constitutional right" and "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. See Order for additional information. Signed by Judge William T. Lawrence on 3/26/2018.(SWM)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
ROLAND O. WARD,
Petitioner,
v.
RICHARD BROWN,
Respondent.
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No. 2:16-cv-00295-WTL-DLP
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Roland O. Ward is serving a 58-year sentence for his 2011 Monroe County,
Indiana convictions for child molesting, sexual misconduct with a minor, escape, child seduction,
dissemination of matter harmful to minors, and neglect of a dependent. He brings this petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons that follow, Mr. Ward’s
petition for a writ of habeas corpus is denied and the action dismissed with prejudice. In addition,
the Court finds that a certificate of appealability should not issue.
I.
Factual and Procedural Background
District court review of a habeas petition presumes all factual findings of the state court to
be correct, absent clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1);
Daniels v. Knight, 476 F.3d 426, 434 (7th Cir. 2007). On direct and post-conviction appeal, the
Indiana Court of Appeals summarized the relevant facts and procedural history:
K.M.J. was born in 1993, and her parents divorced when she was three years
old. Beginning at age seven, she lived with her mother (“Mother”) and Ward, her
stepfather, in Monroe County, Indiana. Generally, she visited her biological father
(“Father”) several evenings each week. Over a period of at least six years, Ward
sexually molested K.M.J. at her home.
Ward provided gifts to K.M.J., and he imposed many rules upon K.M.J.’s
ability to socialize with friends and participate in after school activities and often
precluded her from going out with friends and staying at friends’ homes. Ward
restricted K.M.J.’s use of her cell phone, which Father had bought for her, and
sometimes Ward would review K.M.J.’s text messages and record them on
videotape. He deleted contacts or texts that he did not know or like. Ward would
tell K.M.J. that he was jealous when she talked or texted with boys.
In 2003 to 2004, K.M.J. was in fourth grade, and one night after Mother had
gone to bed, K.M.J. joined Ward in the living room, where he was watching
television. K.M.J. sat on his lap and saw that he was watching pornography. Ward
asked her, “Wouldn’t that be so cool if you could do that?” Tr. at 405. She replied
that, no, it would not. Ward lifted her shirt and rubbed and licked her breasts. On
another occasion, Ward told his son to let the dog out, and then he turned on
pornography and again lifted K.M.J.’s shirt, “sucked” her breasts, and licked her
vagina. Id. at 406.
In 2004 to 2005, K.M.J. was in the fifth grade, and Ward continued to
molest her “anytime he could get [her] alone.” Id. at 408, 411. Ward would “suck
[her] boobs” and “finger” her and require her to perform oral sex. Id. at 407, 411,
414. His acts of molestation would occur in the living room, K.M.J.’s bedroom, the
basement, which could only be accessed through an outside door, and Ward’s
bedroom. Ward told K.M.J. that if she told anyone, she would go into foster care,
he would go to jail, and Mother would hate her. The molestation happened so often
that K.M.J. assumed something would happen every time they were alone.
It continued throughout middle school and into eighth and ninth grades,
when she was fourteen through sixteen years old. The basement became the
“frequent” location for sex. Id. at 422. In the basement, there was a pool table with
a board on top of it. Often Ward would put a small television with a built-in DVD
and VHS player on the pool table and play pornographic movies, which K.M.J.
identified by title, including one entitled “Slutty Schoolgirls.” Id. at 450, 454, 594.
Ward stored the movies in a drawer of a gun cabinet in the basement. K.M.J.
described that Ward would put his finger in K.M.J.’s vagina, and sometimes he
would use “a dildo thing.” Id. at 426. One was pink, one was purple, and one was
clear but looked like a cactus.
Ward on occasion would take K.M.J. and her female friends and buy alcohol
for them, including vodka, tequila, and wine. The teens would drink, and Ward
would play strip poker with them. K.M.J.’s friend, E.E., saw Ward do inappropriate
things to K.M.J., such as “smack” K.M.J. on the “butt” and “boobs,” which E.E.
thought was “strange.” Id. at 513.
Ward had intercourse with K.M.J. when she was fourteen. The two had been
drinking, and he told her that he was “horny.” Id. at 437. Ward put a mint green
blanket with snowmen on it on top of the pool table, and Ward attempted to insert
his penis into K.M.J.’s vagina. K.M.J. cried, and he stopped. Although he did not
attempt intercourse again for a period of time, he continued with other acts of sexual
2
molestation, and the intercourse eventually resumed. When K.M.J. would tell Ward
that she did not want to submit to the sex acts, Ward would get angry or cry, saying
things like, “why don’t you love me?” in an attempt to “make [her] feel bad.” Id. at
442. When K.M.J. was fifteen and sixteen years old, the sexual activity “would
happen every day,” usually when Mother was at work or asleep. Id. at 443. The
molestation included anal sex on occasion. Ward wanted to videotape them having
intercourse, telling K.M.J. that she could see “how much better [she] had gotten.”
Id. at 458-59. K.M.J. told Ward she did not want him to videotape them.
Ward also molested a friend of K.M.J.’s named K.H, who, like K.M.J., was
born in 1993. The two girls became friends in seventh grade, and K.H. started
spending the night in eighth grade. It was “common” for the two girls and Ward to
drink alcohol that Ward provided. Id. at 739. K.H. saw Ward grab K.M.J.’s breasts
and comment about them. One night when K.H. spent the night, and the girls were
discussing the subject of tattoos, Ward suggested that they watch pornographic
movies to see more tattoos. Ward videotaped K.M.J. and K.H. sitting on the pool
table, drinking vodka, watching a pornographic movie. Ward appeared in the
videotape, asking K.M.J. to hold a cigarette for him. State’s Ex. 17; Tr. at 461-62.
On another night, while then-fifteen-year-old K.H. was spending the night
with K.M.J., the two were drinking and playing strip poker with Ward. K.H. took
off her clothes except her underwear, and Ward commented on her breasts. Later
that night, after K.M.J. was asleep, Ward told K.H. to meet him in the basement,
which she did, and he was standing naked. He told her to get on the pool table, and
he had intercourse with K.H. On January 16, 2010, when K.M.J. was sixteen years
old, she was sitting with Mother and Father, discussing moving in with Father fulltime. Her parents agreed to this arrangement, and thereafter, K.M.J. disclosed to
them that Ward was “having sex” with her. Tr. at 466-67, 522-53. K.M.J. told her
parents that she could not take it anymore. Father called the Monroe County
Sheriff’s Department. Detective Shawn Karr (“Detective Karr”) of the Monroe
County Sheriff’s Department and Child Protective Services Investigator Jordan
Roberts (“Roberts”) met with Mother, Father, and K.M.J. at the detective’s office.
Detective Karr obtained a buccal swab DNA sample from K.M.J. Thereafter,
Detective Karr obtained a search warrant of the residence where the molestations
occurred, which was owned by Mother.
That same evening, at approximately 8:00 p.m., Detective Karr,
accompanied by Sergeant Braid Swain (“Sergeant Swain”), Roberts, and an
evidence technician, executed the search warrant. Ward was home alone at the time.
Police instructed Ward that he was to remain seated with them as police officers
searched the premises. They also told Ward that he was required to stay with them
because officers were going to obtain a DNA sample from him by swabbing the
inside of his cheek, as provided in the search warrant. Ward asked and received
permission to call his wife, get a drink, go to the bathroom, and let the pet dog
inside. As he opened the door to let the dog in the house, Ward fled. Police did not
locate him, but Ward turned himself into police custody the following day.
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During the search, police collected from the residence, among other things:
a Sony digital camera, a video recorder, a Handycam, another camcorder, a Sony
VCR, three video cassette tapes, a purple vibrator, a clear vibrator, and a green
snowman blanket, and pornographic DVDs including “Slutty Schoolgirls.” Two of
the video cameras had the recording indicator light covered up with tape.
The State charged Ward with: Count I, Class A felony child molesting for
performing or submitting to deviate sexual conduct with K.M.J., a child under
fourteen years of age; Count II, Class B felony sexual misconduct with a minor for
performing or submitting to deviate sexual conduct by penetrating the sex organ of
K.M.J. with his finger; Count III, Class B felony sexual misconduct with a minor
for performing or submitting to deviate sexual conduct by penetrating the anus of
K.M.J. with his sex organ; Count IV, Class B felony sexual misconduct with a
minor for performing or submitting to deviate sexual conduct by penetrating the
sex organ of K.M.J. with an object; Count V, Class B felony sexual misconduct
with a minor for performing or submitting to sexual intercourse with K.M.J., a child
at least fourteen but less than sixteen years of age; Count VI, Class B felony sexual
misconduct with a minor for performing or submitting to sexual intercourse with
K.H., a child at least fourteen but less than sixteen years of age; Count VII, Class
C felony escape; Count VIII, Class D felony child seduction by engaging in sexual
intercourse with K.M.J., who was at least sixteen but less than eighteen years of
age with the intent to arouse or satisfy the sexual desires of Ward or K.M.J.; Count
IX, Class D felony dissemination of matter harmful to minors by knowingly
disseminating such material to K.M.J.; and Count X, Class D felony neglect of a
dependent, by knowingly placing K.M.J., his dependent, in a situation that
endangered her life or health. Ward filed a motion to dismiss the escape charge,
arguing that he was not being lawfully detained when he fled, and the trial court
denied the motion.
At the jury trial, the State presented the testimony of various witnesses,
including K.M.J, her friends E.E. and K.H., Mother, K.M.J.’s stepmother, and
various law enforcement officers. Ward presented the testimony of his twenty-yearold son. Ward’s defense theory was he did not commit the acts that he was accused
of committing and that K.M.J. had fabricated the allegations as a means of
retaliating for Ward’s strict rules.
After the State rested, Ward sought judgment of acquittal on the escape
charge, which the trial court denied. After the presentation of the evidence, the
parties and the trial court reviewed the trial court’s proposed final jury instructions.
Ward posed no objection to any of them.
On October 6, 2011, the jury found Ward guilty as charged. At the January
2012 sentencing hearing, the trial court imposed an aggregate fifty-eight-year
sentence. Ward timely initiated a direct appeal, but with permission, he suspended
the appeal to return to the trial court to pursue post-conviction relief. Among other
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things, his petition asserted that he received ineffective assistance of trial counsel
because counsel: (1) failed to move to dismiss the charging information for Count
I because it did not allege any mens rea; (2) failed to move to dismiss the charging
information for Counts II, III, IV, V, and VI because they did not properly allege a
“knowingly” element; (3) failed to object to the trial court’s preliminary and final
instructions on Counts I and VIII because they failed to advise the jury that the
defendant must “knowingly” have engaged in the charged conduct and advised the
jury that “it is implied” that the defendant acted knowingly in his conduct; (4) failed
to object to the trial court’s preliminary and final jury instructions with respect to
the Class B felonies charged in Counts II, III, IV, V, and VI because the instructions
advised the jury that “it is implied” that the defendant acted knowingly; (5) failed
to move to sever Count VI, which alleged misconduct with K.H. and was unfairly
prejudicial to a fair consideration of the other charges relating only to K.M.J.; and
(6) failed to object “to the misjoinder” of Count VII, the escape charge. Appellant’s
App. at 166–67.
At the post-conviction hearing, Ward called his trial attorney, Jennifer
Culotta (“Culotta”), to testify, along with two expert witnesses regarding whether
Culotta was deficient in her representation of Ward. In July 2014, the
postconviction court issued extensive findings of fact and conclusions of law,
denying Ward’s petition.
Ward v. State, 30 N.E.3d 788, 2015 WL 1124607, *1-4 (Ind. Ct. App. 2015).
Mr. Ward utilized the Davis-Hatton procedure1 in the trial court and appealed under a postconviction cause number. As issues that would have been raised on direct appeal, Ward claimed:
(1) that the trial court’s jury instructions had “deprived Ward of federal and state constitutional
rights to have every element of a crime determined beyond a reasonable doubt by his jury,” which
constituted “fundamental error”; and (2) that the evidence supporting his escape conviction was
insufficient. As an issue arising from the denial of post-conviction relief, Mr. Ward claimed that
1
Pursuant to Davis v. State, 267 Ind. 152, 368 N.E.2d 1149 (1977) and Hatton v. State, 626 N.E.2d 442
(Ind. 1993), the Davis-Hatton procedure involves a termination or suspension of a direct appeal already
initiated, upon appellate counsel’s motion for remand or stay, to allow a post-conviction relief petition to
be pursued in the trial court. Talley v. State, 51 N.E.3d 300, 302 (Ind. Ct. App. 2016), trans. denied; see
also Ind. Appellate Rule 37(A) (“At any time after the Court on Appeal obtains jurisdiction, any party may
file a motion requesting that the appeal be dismissed without prejudice or temporarily stayed and the case
remanded to the trial court . . . for further proceedings. The motion must be verified and demonstrate that
remand will promote judicial economy or is otherwise necessary for the administration of justice.”). The
procedure is useful where a defendant needs to develop an evidentiary record to support a claim of
ineffective assistance of trial counsel. Talley, 51 N.E.3d at 303.
5
his trial counsel had rendered ineffective assistance based on: (1) a failure to move to dismiss seven
of the ten counts in the charging information for failure to allege knowing conduct; (2) a failure to
object to multiple jury instructions; (3) a failure to move to sever Count VI, which alleged
intercourse with K.H.; and (4) a failure to seek severance of Count VII, the escape charge. On
March 11, 2015, the Indiana Court of Appeals affirmed Mr. Ward’s conviction and sentence. As
to his claim of ineffective assistance, the Indiana Court of Appeals found that Mr. Ward failed to
establish prejudice from his counsel’s alleged ineffective assistance. See Ward v. State, 2015 WL
1124607, *6-12 (Ind. Ct. App. 2015). As to the jury instructions, the Indiana Court of Appeals
held that Mr. Ward failed to preserve the issue because he failed to object at trial to the final
instructions. Id. at *12. The court held that Mr. Ward failed to establish fundamental error as an
exception to waiver of unpreserved issue because Mr. Ward’s failure to prove ineffective
assistance precluded a claim of fundamental error. Id. at *12-13. Finally, the Indiana Court of
Appeals held that there was sufficient evidence that Mr. Ward committed escape. Id. at *13-14.
Mr. Ward sought further review by the Indiana Supreme Court. The Indiana Supreme
Court denied transfer on July 23, 2015.
On July 20, 2016, Mr. Ward filed this petition for a writ of habeas corpus.
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).
Mr. Ward’s petition is governed by the provisions of the Anti-Terrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 336 (1997).
The Supreme Court has described AEDPA as “a formidable barrier to federal habeas relief
for prisoners whose claims have been adjudicated in state court” and has emphasized that courts
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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).
Where a claim has been adjudicated on the merits in state court, habeas relief is available
under the deferential AEDPA standard only if the state court’s determination was (1) “contrary to,
or involved an unreasonable application of, clearly established federal law, as determined by the
Supreme Court of the United States,” or (2) “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); see Cullen
v. Pinholster, 563 U.S. 170, 181 (2011).
Thus, “under 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). “A statecourt 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). “Under
§ 2254(d)(2), a decision involves an unreasonable determination of the facts if it rests upon factfinding that ignores the clear and convincing weight of the evidence.” Goudy v. Basinger, 604 F.3d
394, 399–400 (7th Cir. 2010) (citing Ward v. Sternes, 334 F.3d 696 (7th Cir. 2003)). “The habeas
applicant has the burden of proof to show that the application of federal law was unreasonable.”
Harding v. Sternes, 380 F.3d 1034, 1043 (7th Cir. 2004) (citing Woodford v. Visciotti, 537 U.S.
19, 25 (2002)).
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III.
Discussion
Mr. Ward raises two grounds in his petition: (1) the jury instructions stating that “[i]t is
implied that the defendant acted knowingly in his conduct” violated his Fifth, Sixth, and
Fourteenth Amendment rights and was a structural due process error not susceptible to Indiana’s
fundamental error review; and (2) ineffective assistance of trial counsel.
Respondent argues that Mr. Ward’s petition is untimely on the theory that the AEDPA oneyear limitation began to run when Mr. Ward’s first direct appeal was dismissed at his request on
May 24, 2012. Respondent otherwise argues that ground one relating to jury instructions is
procedurally defaulted because it was rejected on adequate and independent state-law grounds.
Respondent further argues that the Indiana Court of Appeals reasonably applied Strickland to
conclude that Mr. Ward did not receive ineffective assistance of trial counsel.
In reply, Mr. Ward asserts his petition is timely because the one-year limitation period reset
upon his second direct appeal. Mr. Ward further asserts that ground one was not rejected on
adequate and independent state-law grounds because the Court of Appeals relied on Benefield v.
State, 945 N.E.2d 791 (Ind. Ct. App. 2011), which relies on Strickland v. Washington, 466 U.S.
668 (1984), and is therefore predicated on federal law grounds. Mr. Ward further asserts the Court
of Appeals applied a standard for ineffective assistance of counsel that was contrary to the Supreme
Court’s precedent in Strickland.
Timeliness of Mr. Ward’s Petition
Respondent argues that Mr. Ward’s conviction became final when Mr. Ward dismissed his
initial direct appeal to pursue post-conviction relief. Mr. Ward asserts otherwise.
In an attempt to “curb delays, to prevent ‘retrials’ on federal habeas, and to give effect to
state convictions to the extent possible under law,” Congress, as part of AEDPA, revised several
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statutes governing federal habeas relief. Williams v. Taylor, 529 U.S. 362, 404 (2000). Along
with triggering dates not applicable here, “[u]nder 28 U.S.C. § 2244(d)(1)(A), a state prisoner
seeking federal habeas relief has just one year after his conviction becomes final in state court to
file his federal petition.” Gladney v. Pollard, 799 F.3d 889, 894 (7th Cir. 2015).
The Supreme Court held that “§2244(d)(1)(A), which marks finality as of ‘the conclusion
of direct review or the expiration of the time for seeking such review,’ consists of two prongs.”
Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). Each prong relates to distinct categories of
petitioners. The “conclusion of direct review” prong refers to petitioners who appeal to the
Supreme Court, whose judgment becomes final when the Supreme Court “affirms a conviction on
the merits or denies a petition for certiorari.” For other petitioners, judgment is final at the
“expiration of the time for seeking such review” – when their time to seek review with the Supreme
Court, or the state court, expires. Id.
“[A] a state court’s reopening of direct review will reset the limitations period.” Id. at 152
(citing Jimenez v. Quarterman, 555 U.S. 113, 121 (2009) (“where a state court grants a criminal
defendant the right to file an out-of-time direct appeal during state collateral review, but before the
defendant has first sought federal habeas relief, his judgment is not yet ‘final’ for purposes of §
2244(d)(1)(A).”)); see also Hertel v. Superintendent, No. 3:12-CV-742 JD, 2013 U.S. Dist. LEXIS
67602, at *15 (N.D. Ind. May 13, 2013) (noting that petitioner’s “one-year limitation has not
started running” where he had previously filed and dismissed a direct appeal for remand to the trial
court for the purpose of pursuing a Davis/Hatton procedure, and the post-conviction proceedings
were still pending).
Mr. Ward’s conviction and sentence became final when the time to seek certiorari at the
United States Supreme Court expired. 28 U.S.C. § 2244(d)(1)(A). Because the Indiana Supreme
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Court denied transfer on July 23, 2015, the time to seek certiorari expired on October 21, 2015.
See Rule 13 of Rules of the Supreme Court of the United States. Any petition for a writ of habeas
corpus, therefore, was due one year later, on October 21, 2016. Mr. Ward’s petition, filed on July
20, 2016, is therefore timely.
Ground One: Jury Instructions
Mr. Ward asserts that the jury instructions instructing that “[i]t is implied that the defendant
acted knowingly in his conduct” violated his Fifth, Sixth, and Fourteenth Amendment rights and
was a structural due process error that should have been reviewed under the federal plain error
analysis of United States v. Olano, 507 U.S. 725, 732 (1993) and not Indiana’s fundamental error
review. Respondent argues that his claim is procedurally defaulted because it was rejected on
adequate and independent state-law grounds. In reply, Mr. Ward asserts that ground one was not
rejected on adequate and independent state-law grounds because the Court of Appeals relied on
Benefield v. State, 945 N.E.2d 791 (Ind. Ct. App. 2011), which relies on Strickland v. Washington,
466 U.S. 668 (1984), and is therefore predicated on federal law grounds.
1.
Whether the Court of Appeals Rejected the Claim on Adequate and Independent
State-Law Grounds
“A federal habeas court will not review a claim rejected by a state court if the decision of
[the state] court rests on a state law ground that is independent of the federal question and adequate
to support the judgment.” Walker v. Martin, 562 U.S. 307, 315 (2011) (internal quotation marks
and citations omitted). This doctrine is premised on the rule that federal courts have “no power to
review a state law determination that is sufficient to support the judgment.” Coleman v. Thompson,
501 U.S. 722, 729 (1991). The state-law ground precluding review by a federal habeas court “may
be a substantive rule dispositive of the case, or a procedural barrier to adjudication of the claim on
the merits.” Walker, 562 U.S. at 315. Therefore, “[e]rrors of state law in and of themselves are
10
not cognizable on habeas review.” Samuel v. Frank, 525 F.3d 566, 574 (7th Cir. 2008) (internal
quotation marks and citations omitted). “[O]nly if a state court’s errors have deprived the
petitioner of a right under federal law can the federal court intervene.” Id.
On the issue of the jury instructions, the Indiana Court of Appeals held:
Ward contends that the trial court erred when it instructed the jury with Final
Instruction 3. Ward raised no objection to Final Instruction 3 at trial.
Acknowledging this failure to preserve the issue below, Ward brings a direct appeal
issue claiming that the trial court committed fundamental error when instructing the
jury.
A claim that has been waived by a defendant’s failure to raise a
contemporaneous objection can be reviewed on appeal if the
reviewing court determines that a fundamental error occurred. The
fundamental error exception is “extremely narrow, and applies only
when the error constitutes a blatant violation of basic principles, the
harm or potential for harm is substantial, and the resulting error
denies the defendant fundamental due process.” The error claimed
must either “make a fair trial impossible” or constitute “clearly
blatant violations of basic and elementary principles of due
process.” This exception is available only in “egregious
circumstances.”
Oster v. State, 992 N.E.2d 871, 878 (Ind. Ct. App. 2013), trans. denied (internal
citations omitted).
As a preliminary matter, we note that this court has taken the opportunity to address
and compare the fundamental error and ineffective assistance standards. See
Benefield. 945 N.E.2d at 801–05. We observed that both standards make reference
to a defendant’s right to a fair trial, and thus, at first reading, “[I]t is not immediately
obvious whether those standards differ substantively or merely state differently the
same question.” Id. at 802. Indeed, the two standards may frequently lead to the
same result. Id. at 803. However, the Benefield court recognized that there is, in
fact, a “subtle difference” and that “fundamental error and prejudice for ineffective
assistance of trial counsel present two substantively different questions.” Id. at 805.
The court further clarified that “because the standard for ineffective assistance
prejudice is based on a reasonable probability of a different result, and fundamental
error occurs only when the error is so prejudicial that a fair trial is rendered
impossible, we think the standard required to establish fundamental error presents
a higher bar.” Id. at 804. Accordingly, “[W]here an appellant has failed to prove
ineffective assistance of trial counsel, our holding would exclude a finding of
fundamental error.” Id. at 805.
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Applying that premise here, where we have found that Ward was not prejudiced by
counsel’s failure to object to the jury instructions, and he therefore did not received
[sic] ineffective assistance of trial counsel, Ward’s claim of fundamental error fails.
See Walker v. State, 813 N.E.2d 339 341–42 (Ind. Ct. App. 2004) (“[O]ur
conclusion that Walker received effective assistance of counsel necessarily
precludes Walker’s right to relief under the theory of fundamental error.”), trans.
denied. Accordingly, we reject Ward’s direct appeal claim that the trial court
committed fundamental error in instructing the jury.
Ward, 2015 WL 1124607 at *12-13.
Although the Court of Appeals rejected Mr. Ward’s claim about the jury instructions based
on Indiana’s fundamental error analysis, it did so by comparison to its Strickland analysis of
prejudice from Mr. Ward’s claim of ineffective assistance of counsel. There is a dispute about
whether the state court decision rested on an independent investigation of state law. In such
circumstances, the Supreme Court has held that:
in order to minimize the costs associated with resolving ambiguities in state court
decisions while still fulfilling our obligation to determine if there was an
independent and adequate state ground for the decision, we established a conclusive
presumption of jurisdiction in these cases:
“When, as in this case, a state court decision fairly appears to rest primarily
on federal law, or to be interwoven with the federal law, and when the
adequacy and independence of any possible state law ground is not clear
from the face of the opinion, we will accept as the most reasonable
explanation that the state court decided the case the way it did because it
believed that federal law required it to do so.”
After Long, a state court that wishes to look to federal law for guidance or as an
alternative holding while still relying on an independent and adequate state ground
can avoid the presumption by stating “clearly and expressly that [its decision] is …
based on bona fide separate, adequate, and independent grounds.”
Coleman, 501 U.S. at 733 (1991) (internal citations omitted). Accordingly, the Court will presume
that the Court of Appeals’ decision on jury instructions rested in part on federal law, and thus
habeas review of the claim is not precluded.
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2.
Whether the Court of Appeals Erred in Applying Indiana Fundamental Error
Analysis
Following the enactment of AEDPA, “the critical question on the merits of most habeas
corpus petitions shifted …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 . . . .’” Avila v.
Richardson, 751 F.3d 534, 535 (7th Cir. 2014) (quoting 28 U.S.C. § 2254(d)).
A decision is contrary to clearly established federal law if the state court applies a
rule that conflicts with a rule identified by the Supreme Court, or if the state court
reaches a different conclusion than the Supreme Court in a case with materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A
decision involves an unreasonable application of clearly established law if the state
court “identifies the correct governing legal principle . . . but unreasonably applies
that principle to the facts of the prisoner’s case.” Id. at 413. Under both tests, mere
error is not sufficient; a state court’s decision must be “objectively unreasonable.”
Lockyer v. Andrade, 538 U.S. 63, 76, 123 S. Ct. 1166, 155 L.Ed.2d 144 (2003).
Simonson v. Hepp, 549 F.3d 1101, 1105-06 (7th Cir. 2008). If either test is met as to a given claim,
the federal habeas court reviews that claim “under the pre-AEDPA standard of 28 U.S.C. § 2243
and dispose[s] of the matter ‘as law and justice require,’ which is essentially de novo review.”
Caffey v. Butler, 802 F.3d 884, 894 (7th Cir. 2015).
Mr. Ward contends that, pursuant to Chapman v. California, 386 U.S. 18, 20-21 (1967),
which holds: “[The U.S. Supreme Court] cannot leave to the States the formulation of the
authoritative laws, rules, and remedies designed to protect people from infractions by the States of
federally guaranteed rights ... it is [the U.S. Supreme Court’s] responsibility to protect by
fashioning the necessary rule,” the Court of Appeals’ decision was contrary to clearly established
federal law because the Court of Appeals applied Indiana’s fundamental error analysis instead of
federal plain error analysis under Rule 52 of the Federal Rules of Criminal Procedures.
13
In Chapman, the Supreme Court held that federal law governs where there has been a
federal constitutional error. 386 U.S. at 20-21. Chapman crafted a new federal standard of
“harmless error” to be applied to federal constitutional errors, such as a defendant’s Fifth
Amendment right against self-incrimination, in a state court proceeding: “before a federal
constitutional error can be held harmless, the court must be able to declare a belief that it was
harmless beyond a reasonable doubt.” Id. at 22-24. Subsequent to Chapman, Congress passed
AEDPA, which provides that a writ of habeas corpus may not be granted unless the state court
decision “was contrary to, or involved an unreasonable application of, clearly established Federal
law.” 28 U.S.C. § 2254(d)(1). The Supreme Court later incorporated the “unreasonable
application” language into the Chapman standard and held that habeas relief may not be granted
“if the state court simply erred in concluding that the State’s errors were harmless ... rather, habeas
relief is appropriate only if the [state appellate court] applied harmless-error review in an
‘objectively unreasonable’ manner.” Mitchell v. Esparza, 540 U.S. 12, 18 (2003).
While Chapman’s harmless error analysis would be applicable to federal constitutional
errors in a state court proceeding, Mr. Ward does not assert that the Court of Appeals’ decision
was contrary to Chapman and it is Mr. Ward’s burden to do so, to the extent that is what he wishes
to argue. See Harding, 380 F.3d at 1043. Thus, the Court need not conduct any analysis under
Chapman.
Instead, Mr. Ward goes down a completely different path to argue that the Indiana Court
of Appeals should have applied plain error analysis under Fed. R. Crim. P. 52(b). But the Federal
Rules of Criminal Procedures only apply to federal criminal proceedings (except where it
explicitly states otherwise). See Fed. R. Crim. P. 1(a)(1)-(2); see, e.g. Fed. R. Crim. P. 3
(authorizing state judges to administer oaths for the issuance of a criminal complaint). Mr. Ward
14
does not cite to any clearly established federal law that asserts that a state court should apply Fed.
R. Crim. P. 52(b) in reviewing errors, nor has the Court found any such proposition.
Thus, Mr. Ward has not shown that the Indiana Court of Appeals’ decision on Mr. Ward’s
jury instructions was not “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States.” Their decision,
moreover, was not based on an “unreasonable determination of the facts,” nor does Mr. Ward raise
this argument. Mr. Ward’s arguments regarding the Court of Appeals’ alleged unreasonable
application of Strickland are discussed below.
Accordingly, Mr. Ward is not entitled to habeas relief on the ground of his jury instructions.
Ground Two: Ineffective Assistance of Counsel
Mr. Ward argues that his trial counsel was ineffective for failing to (1) object to jury
instructions; and (2) move to sever the escape charge. He asserts that the Indiana Court of Appeals’
analysis was contrary to Strickland and that the Indiana Court of Appeals erroneously failed to
analyze the prejudice from trial counsel’s performance from a cumulative error perspective.
Respondent argues that the Indiana Court of Appeals reasonably applied Strickland to conclude
that Mr. Ward did not receive ineffective assistance of trial counsel.
1.
Ineffective Assistance of Counsel Standard
Strickland v. Washington, 466 U.S. 668, 684 (1984), supplies the clearly established federal
law, as determined by the Supreme Court of the United States, that governs a claim of ineffective
assistance of counsel.
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 defence” 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
15
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. This Court must give “double deference” to the state court’s
ruling on ineffective assistance of counsel claims because habeas review under AEDPA requires
a habeas court to give the state court and the defense attorney the benefit of the doubt. Woods v.
Donald, 135 S. Ct. 1372, 1376 (2015).
Whether AEDPA deference applies to each prong depends on whether the state court
addressed each prong. If it decides the issue only on one prong, the other is reviewed de novo.
See Woolley v. Rednour, 702 F.3d 411, 422 (7th Cir. 2012) (“Because [the state court] did not
reach Strickland’s ineffectiveness prong, [this Court] . . . review[s] the issue de novo.”); see Porter
v. McCollum, 558 U.S. 30, 38 (2009); Rompilla v. Beard, 545 U.S. 374, 390 (2005).
“It is essential to evaluate the entire course of the defense, because the question is not
whether the lawyer’s work was error-free, or the best possible approach, or even an average one,
but whether the defendant had the ‘counsel’ of which the sixth amendment speaks.” Williams v.
Lemmon, 557 F.3d 534, 538 (7th Cir. 2009). Nevertheless, a “single error may suffice if that error
is sufficiently egregious and prejudicial.” Id. (internal citations and quotation marks omitted).
In deciding the issue of ineffective assistance of counsel, the Indiana Court of Appeals
recited the Strickland standard. Ward, 2015 WL 1124607 at *5. The Court of Appeals explained
that the Court “assess[es] counsel’s performance based on facts that are known at the time and not
through hindsight.” Id. at *6 (internal citations omitted). “Evidence of isolated poor strategy,
inexperience, or bad tactics will not support an ineffective assistance claim; instead, we evaluate
16
counsel’s performance as a whole.” Id. “[C]ounsel’s performance is presumed effective, and a
defendant must offer strong and convincing evidence to overcome this presumption.” Id.
2.
Jury Instructions – Indiana Court of Appeals’ Application of Strickland
As to Mr. Ward’s claim that his counsel was ineffective for failing to object to the jury
instructions, Mr. Ward and Respondent both agree that the Indiana Court of Appeals did not offer
any rationale based on the performance prong of Strickland. With respect to the prejudice prong
of Strickland, the Indiana Court of Appeals held:
…Here, Ward’s defense was that the charged conduct did not occur. He did not
assert the conduct was a mistake, accident, or that he did not otherwise know what
he did. In line with this defense, Culotta testified that she did not consider mens rea
or knowledge to be at issue, or in any way contested, at trial. Given Ward’s defense,
the jury was not asked to decide if Ward knew what he was doing when he engaged
in the conduct; the jury was asked to determine if he committed the charged acts at
all. There was considerable evidence mounted against Ward. It was his word
against the victims’ word, and the jury did not believe Ward. The post-conviction
court considered the evidence presented at trial and determined that Ward failed to
establish prejudice as a result of any error associated with his counsel’s failure to
object to Final Instruction 3. In this case, the post-conviction judge was also the
trial judge. We have held, that where the same judge conducted both the trial and
the post-conviction proceedings, “[The post-conviction court’s findings and
judgment should be entitled to greater than usual deference” because the court is
“uniquely situated to assess whether [the defendant’s] counsel’s performance fell
below an objective standard of reasonableness ... and whether, but for counsel's
unprofessional conduct, there was a reasonable probability that the jury would have
reached a different verdict.” McCullough v. State, 973 N.E.2d 62, 75 (Ind. Ct. App.
2012), trans. denied.
Here, the post-conviction court determined that Ward failed to carry his burden to
show that, but for counsel’s failure to object to Final Instruction 3, there is a
reasonable probability that he would have been found not guilty. Our review of the
record does not lead us to an opposite conclusion than that reached by the postconviction court. See Hubbard v. State, 696 N.E.2d 72, 75 (Ind. Ct. App. 1998)
(where defendant claimed he did not shoot gun that killed victim, and he was not
contesting element of intent, defense counsel’s failure to object to instruction,
which did not state the mens rea for murder in the same terms as charged by the
information, was not ineffective assistance).
Ward, 2015 WL 1124607 at *8.
17
This assessment is compatible with the prejudice prong of the federal Strickland standard.
And because of this reasonable application of the controlling federal standard, “[u]nder AEDPA .
. . it cannot be disturbed.” Hardy v. Cross, 132 S. Ct. 490, 495 (2011).
3.
Escape Charge
A.
Standard to Apply
Mr. Ward asserts that because his trial counsel failed to move to sever the escape charge,
Mr. Ward was subjected to “flight is a sign of guilt” prejudice. As to this claim, Mr. Ward and
Respondent both agree that the Indiana Court of Appeals did not offer any rationale based on the
performance prong of Strickland. With respect to the prejudice prong of Strickland, the Indiana
Court of Appeals held:
…Ultimately, the post-conviction court declined to address whether Culotta’s
performance was deficient, and fell below the objective standard of reasonableness,
because Ward was not prejudiced. It stated, “Even if the escape charge were severed
and [the State was] precluded from arguing [consciousness] of guilt in its closing,
the Court finds that the jury would not have reached a different decision.” Id. at
159.
We agree. K.M.J. detailed the course and pattern of the molestations, which
generally included pornographic movies and sometimes alcohol, both of which
Ward provided, if not required. The movies were found in a drawer of a gun cabinet,
as K.M.J. described. The movies, which K.M.J. identified by title, were admitted
at trial and were consistent with her description. The dildos likewise were admitted
and consistent with her description of them. K.H. and E.E. testified to Ward
providing the girls with alcohol, and they witnessed Ward touch K.M.J.
inappropriately. K.M.J. identified the green snowman blanket often used during the
course of the molestations, and K.H. identified a certain sleeping bag that Ward put
on the pool table before engaging in intercourse with her; both items were retrieved
by police. Ward’s defense was that the events did not occur and that K.M.J. and
K.H. fabricated them, in order to avoid or be alleviated from his strict parenting
rules; however, regularly providing alcohol to minors and playing strip poker, as
claimed by K.M.J. and K.H., and which the jury evidently believed, is not
consistent with strict parenting. Considering the evidence presented at trial, Ward
has failed to show by a preponderance of the evidence that Culotta’s failure to seek
severance of the escape charge changed the results of the proceedings. Accordingly,
Ward failed to establish that he was prejudiced by any failure to seek severance of
the escape charge, and the post-conviction court properly denied Ward’s claim that
he received ineffective assistance of counsel on this basis.
18
Ward, 2015 WL 1124607 at *11-12.
The Indiana Court of Appeals’ use of a “preponderance of the evidence” standard for
determining prejudice was contrary to clearly established Supreme Court case law. The Supreme
Court has explained that, under Strickland, the standard for prejudice is whether “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694.
Thus, because the Indiana Court of Appeals did not offer a rationale on the performance
prong of Strickland, and its holding on the prejudice prong was contrary to Strickland, the Court
reviews de novo Mr. Ward’s claim of ineffective assistance of counsel for failing to sever the
escape charge. See Caffey, 802 F.3d at 894; Woolley, 702 F.3d at 422.
B.
Mr. Ward’s Arguments
Mr. Ward argues that his trial counsel, Ms. Culotta, was ineffective for failing to sever the
escape charge. He argues that there is ample evidence that Ms. Culotta’s performance fell below
an objective standard of reasonableness: (1) Ms. Culotta admitted in her post-conviction testimony
that she wanted the escape charge separated from the sex crime charges, but failed to take action
until the morning of trial to file a motion to dismiss the escape charge as an attempt to exclude it;
(2) Ms. Culotta’s motion to dismiss was not only untimely but also improper; and (3) Ms. Culotta
should have not waited until the last moment and should have correctly filed a motion to sever
through a motion in limine or a motion claiming misjoinder. Mr. Ward further argues that, but for
trial counsel’s ineffectiveness, and without the “flight is a guilty conscious” prejudice, he might
not have been convicted on the more serious sex crime charges. He also asserts there is a
reasonable probability the outcome of the escape charge, if not the sex crimes too, would have
been different if the escape charge had been severed.
19
C.
Right to Severance
As an initial matter, Mr. Ward has failed to show that the Court would have granted a
motion to sever. Two or more offenses may be joined in the same information when the offenses:
(1) are of the same or similar character, even if not part of a single scheme or plan; or (2) are based
on the same conduct or on a series of acts connected together or constituting parts of a single
scheme or plan. Ind. Code § 35-34-1-9(a). However, if two or more offenses have been joined
for trial in the same information solely because they are of the same or similar character, the
defendant shall have a right to sever the offenses. Ind. Code § 35-34-1-11(a). Where it is not a
matter of right, the court, upon motion by the defendant or the prosecutor, has the discretion to
sever if it is:
appropriate to promote a fair determination of the defendant’s guilt or innocence of
each offense considering: (1) the number of offenses charged; (2) the complexity
of the evidence to be offered; and (3) whether the trier of fact will be able to
distinguish the evidence and apply the law intelligently as to each offense.”
Id.
Because the escape charge was not joined solely because of “same or similar character”
but because it was “based … on a series of acts connected together or constituting parts of a single
scheme or plan,” severance was not a matter of right. The trial court had the discretion to sever.
Indeed, Ms. Culotta testified in her deposition for the post-conviction hearing that she considered
but did not file a motion to sever the escape charge because she did not believe the judge would
grant her motion to sever. Ward v. State, Cause No. 53A01-1308-PC-330 (hereinafter “PCR”),
Hearing on August 21, 2013, Ex. 7 at 14.
D.
Effects of Failure to Sever on Molestation Charges
Moreover, Mr. Ward’s argument that inclusion of the escape charge improperly subjected
him to a “flight is guilty conscious” prejudice is unavailing. In Indiana, “flight and related conduct
20
may be considered by a jury in determining a defendant’s guilt.” Dill v. State, 741 N.E.2d 1230,
1232 (Ind. 2001) (citing Johnson v. State, 284 N.E.2d 517, 519 (Ind. 1972). “[E]vidence of flight
may, under appropriate circumstances, be relevant, admissible, and a proper subject for counsel’s
closing argument.” Id. (internal citations omitted). Thus, even if Ms. Culotta had properly
submitted and won a motion to sever the escape charge, evidence of Mr. Ward’s flight could still
have been brought in as evidence and argued in the prosecutor’s closing argument. Although Mr.
Ward has argued that Ms. Culotta should have filed a possible motion in limine or an objection to
prevent the prosecutor from arguing conscience of guilt, the post-conviction court noted that “[f]or
the same reasoning [as in Dill], even if Ms. Culotta had filed a motion in limine this Court finds
that it would not have been required to grant the motion or sustain the objection, which would be
required to find ineffective assistance of counsel.” PCR, Appellant’s Appendix at 159 n. 6.
Even had the escape charge been severed and excluded and a motion in limine filed and
granted to exclude arguments regarding “flight is guilty conscious,” as detailed in the Indiana
Court of Appeals’ opinion, there was substantial evidence against Mr. Ward on the sex crime
charges (Ward, 2015 WL 1124607 at *12). Thus, Mr. Ward has failed to show that, but for Ms.
Culotta’s performance, there was a reasonable probability that the jury would have reached a
different decision as to the sex crime charges.
E.
Effect on Escape Charge
With regard to whether severance would have changed the result of the escape charge, Mr.
Ward has likewise failed to show that the jury would have decided differently if the escape charge
had been severed. At the end of the prosecutor’s case, Ms. Culotta moved for judgment of acquittal
as to the escape charge, arguing that because Mr. Ward paused briefly while running and looked
over his shoulder before continuing to run off, the police officers allowed him to leave and he was
21
no longer detained. See State v. Ward, Case No. 53C02-1001-FA-00059 (hereinafter “Crim.”),
Trial Tr. 791:11-93:3. The State disagreed, noting that Sergeant Swain and Detective Karr testified
that they yelled stop to Mr. Ward a number of times and never gave him permission to leave. The
trial court agreed that judgment at acquittal was not proper, finding “there was sufficient testimony
from the officer about the defendant – asking him to sit down a number of times, keeping him
around in case something was discovered, sufficiently to submit the case – the charge to the jury.”
Id. at 795:3-8. The Indiana Court of Appeals also agreed (when deciding the issue of the
sufficiency of the evidence for the escape charge, an issue not raised in this petition):
Ward was not given any temporary leave or liberty, he was supervised and
accompanied at all times and was told that he needed to remain with Detective Karr
until the search was completed and a buccal swab had been obtained from him.
Under such circumstances, we are not persuaded that he reasonably believed that
he was not compelled to stay on the premises, as he claims. We find that the State
presented sufficient evidence from which the jury could conclude that Ward
committed escape.
Ward, 2015 WL 1124607 at *14.
Indeed, during the trial, Detective Karr testified that Mr. Ward was told about fifteen times
that he was not free to go and needed to stay put with him. Crim. Tr. at 582:13-22. Detective Karr
further testified that Mr. Ward was a suspect, was actually listed in the search warrant because of
the need to get his DNA in the form of a buccal swab, so Mr. Ward needed to remain on the
premises. Id. at 583:13-84:6. At one point, Sergeant Swain brought to Mr. Ward and Detective
Karr a black bag that had a video camera with tape covering the on indication light. Id. at 594:2095:8; 625:3-22. Mr. Ward then went to the kitchen, went to the backdoor, and started running
across the backyard towards his barn. Id. at 595:9-19; 625:3-22. Detective Karr never told Mr.
Ward that he could go, and hadn’t gotten the DNA swab. Id. at 595:20-96:1. Sergeant Swain also
never told Mr. Ward he could leave the house or be released from Detective Karr’s detention. Id.
22
at 626:6-11. When Mr. Ward started running, Sergeant Swain called out to him to stop. Id. at
626:12-24. Both Detective Karr and Sergeant Swain gave chase, but gave up because it was dark
and muddy. Id. at 596:11-25; 620:22-21:7; 626:25-627:5. Thus, there was substantial evidence
to support the jury’s conviction of Mr. Ward on the escape charge.
Mr. Ward’s sole argument is that “the jury likely paid little attention to the thin evidence
the State offered in support of the minor escape charge after finding Ward guilty of nine, much
more serious charges.” Dkt. No. 2 at 23. However, “[it is] the almost invariable assumption of
the law that jurors follow their instructions. We presume that jurors, conscious of the gravity of
their task, attend closely the particular language of the trial court's instructions in a criminal case
and strive to understand, make sense of, and follow the instructions given them.” United States v.
Olano, 507 U.S. 725, 740 (1993) (internal quotation marks and citations omitted). Without more,
Mr. Ward has failed to show a reasonable probability that the result of the escape charge, and thus
the proceeding, would have been different.
Because the Court has found that Mr. Ward has failed to show a reasonable probability that
the result of the proceeding would have been different, the Court does not need to decide whether
Ms. Culotta’s performance fell below objective standards.
Accordingly, Mr. Ward is not entitled to habeas relief on this ground.
4.
Cumulative Effect of Prejudice
Finally, Mr. Ward argues briefly that the Court of Appeals failed to analyze the prejudice
against Mr. Ward from a cumulative perspective, see Sussman v. Jenkins, 636 F.3d 329, 360 (7th
Cir. 2011) (the court must consider the cumulative impact of all of the trial counsel’s errors), and
not just in isolation, and that there is a reasonable probability that the verdict in Mr. Ward’s trial
would have been different if the jury was not subjected to the cumulative effect of trial counsel’s
23
failure to object to the directed verdict on the element of “knowing” and for failing to sever the
escape charge. Respondent does not address Mr. Ward’s arguments.
The Indiana Court of Appeals addressed each alleged error by trial counsel in isolation.
See Ward, 2015 WL 1124607 at *5-12. Additionally, the Indiana Court of Appeals failed to
discuss the errors’ cumulative effect. See id. The Indiana Court of Appeals’ failure to do so was
contrary to or an unreasonable application of Strickland. See, e.g., Harris v. Thompson, 698 F.3d
609, 648 (7th Cir. 2012) (“The question is whether counsel’s entire performance . . . prejudiced
[the petitioner]. By analyzing each deficiency in isolation, the [state] appellate court clearly
misapplied the Strickland prejudice prong,” and therefore concluded that the state “appellate
court’s prejudice determination was unreasonable insofar as it failed to apply the correct
framework.”); see also Sussman v. Jenkins, 636 F.3d 329, 360-61 (7th Cir. 2011) (“Here . . . we
are not faced with a single error by counsel and, therefore, must consider the cumulative impact of
this error when combined with counsel’s [other identified error].”); Goodman v. Bertrand, 467
F.3d 1022, 1030 (7th Cir. 2006) (“[The Court] must assess the totality of the omitted evidence
under Strickland rather than the individual errors.”) (internal quotation marks and citations
omitted).
As detailed above, the evidence against Mr. Ward on both the sex crime charges and the
escape charge was overwhelming. With respect to the sex crimes, Mr. Ward’s defense at trial was
that the sex crimes did not happen and K.M.J. and K.H. fabricated their testimony. Ward, 2015
WL 1124607, *8. His defense was not that the conduct was a mistake, that it was an accident, or
that he did not know what he was doing. Thus, the error with respect to the jury instruction was
minor. Indeed, given that the jury found Mr. Ward guilty of providing alcohol and pornography
to coerce two underage individuals to submit to a variety of sex acts over the period of several
24
years, it is very difficult to comprehend how Mr. Ward could have done so accidentally and
unknowingly. With respect to the escape charge, Mr. Ward’s defense was that he was “not in
detention” – not that he didn’t run. Severance of the escape charge would not have reasonably
changed the outcome given the strong evidence that Mr. Ward ran away when he was to remain in
the custody of the police. Looking to the cumulative effect of the error from the jury instruction
and Ms. Culotta’s failure to sever the escape charge, Mr. Ward has not shown there is a reasonable
probability that the verdicts would have been different. Thus, Mr. Ward is also not entitled to
habeas relief on this ground.
IV.
Conclusion
This Court has carefully reviewed the state record in light of Mr. Ward’s claims and has
given such consideration to those claims as the limited scope of its review in a habeas corpus
proceeding permits.
Having applied the appropriate standard of review, and having considered the pleadings
and the record, Mr. Ward’s petition for writ of habeas corpus must be denied.
Judgment consistent with this Entry shall now issue.
V.
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 the petitioner has failed to show
(1) that reasonable jurists would find this court’s “assessment of the constitutional claims debatable
or wrong,” or (2) that reasonable jurists would find “it debatable whether the petition states a valid
claim of the denial of a constitutional right” and “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.
25
IT IS SO ORDERED.
_______________________________
Date: 3/26/18
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
Distribution:
Eric Parker Babbs
INDIANA ATTORNEY GENERAL - MEDICAID FRAUD CONTROL UNIT
eric.babbs@atg.in.gov
David Elsworth Deal
VOYLES ZAHN & PAUL
deal@daviddeallaw.com
26
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