United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
WILLIAM C. LEE, District Judge.
Kevin Smith, a pro se prisoner, is serving a 58-year aggregate sentence for rape, criminal confinement, criminal deviate conduct, and sexual battery offenses committed in Lake County, Indiana. State v. Smith, No. 45G01-0508-FA-0041. He filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (DE 1.)
In deciding the petition, the court must presume the facts set forth by the state courts are correct. 28 U.S.C. § 2254(e)(1). It is Smith's burden to rebut this presumption with clear and convincing evidence. Id. On post-conviction review, the Indiana Court of Appeals set forth the facts underlying this case as follows:
Shortly before 1:00 in the afternoon on August 15, 2005, eighteen-year-old M.S. was walking past Smith's home on her way to a friend's house. Smith, a thirty-two-year-old whom M.S. had met on several past occasions, was on the front porch of his home and spoke to M.S. He indicated that his girlfriend could give her a ride, as she had on prior occasions, if she came inside the house and waited. M.S. agreed and entered the home.
Once inside the home, Smith approached M.S. and asked her if she wanted to have sex. When M.S. declined and tried to exit, Smith held a knife to her throat and told her to cooperate. Smith forced her into his bedroom and threw her onto the bed. He climbed on top of her and began to choke her when she struggled. Smith forced M.S. to perform fellatio on him for ten to fifteen minutes. He then removed her pants and tampon and had intercourse with her for about five or ten more minutes.
After stopping, Smith forced M.S. into the shower and instructed her to thoroughly clean herself. He provided her with a new tampon and then took her back into his bedroom and allowed her to dress. Smith ordered M.S. to lie on her stomach on the bed and then he bound her hands and feet together with rope behind her back. When M.S. asked what he was planning to do with her, Smith replied that he did not know yet. He held a cigarette for M.S. to smoke and talked to her for a brief period of time. He then lifted her to the floor between the bed and the wall and tied her to the bed frame. He also placed duct tape over her mouth, indicating that he was going to leave to get money and a vehicle.
Smith left the house, but returned within five minutes. At that time, M.S. heard the voice of Smith's seven-year-old son. When she tried to yell, Smith choked her again. Smith then left the residence with his son. At some point, M.S. was able to loosen the ties binding her feet and free herself from the bed. M.S. exited the house shortly before 4:00, with her wrists still bound, and frantically flagged down Jon Metz, a passing motorist. When Metz stopped, M.S. entered the passenger side of his vehicle and asked for help, indicating that she had been raped. M.S., who was carrying a bundle of rope and still bound, was hysterical, shaking, and crying. Metz pulled into a driveway a few houses down from Smith's and called 911. While Metz was making the call, a truck sped into the driveway at Smith's residence. M.S. cowered in her seat and pointed out the truck to Metz. Metz immediately drove away and took M.S. to a nearby business to meet police. A rape examination was later performed on M.S., and Smith's DNA was present in vaginal samples taken from her. Visible injuries to M.S.'s wrists, ankles, and neck were also documented.
On August 16, 2005, the State charged Smith with class A felony rape, class B felony criminal deviate conduct, class B felony criminal confinement, class C felony sexual battery, and class D felony criminal confinement. Smith left the state with his son following the incident. He returned and surrendered to police on August 23. A jury trial was held between May 22 and May 26, 2006. Smith testified on his own behalf and indicated that he had known M.S. before the alleged rape and that they had had seven to nine consensual sexual encounters between January and August 2005. He testified that on the day in question he had consensual intercourse with M.S. sometime before 1:00. According to Smith, his condom broke during sex and they both became scared that she might get pregnant. Thereafter, M.S. asked for Oxycontin and left angry when Smith refused to give her a pill without money. Smith testified that M.S. left around 1:00 and that he left around 1:30 to pick up his son, run errands, and stop at two different residences. Shortly after being warned that police came by his house around 4:30, Smith fled to Virginia with his son.
Smith v. State, No. 45A04-1205-PC-264, slip op. at *2-4 (Ind.Ct.App. Feb. 22, 2013). The jury found Smith guilty on all counts. Id. at *4. He was sentenced to an aggregate term of 58 years in prison. Id.
He appealed, presenting one issue to the Indiana Court of Appeals: that the trial court erred under state law by advising the jury that he had violated a pretrial discovery order. (DE 8-4 at 7.) The state appellate court affirmed. Smith v. State, No. 45A03-0608-CR-360 (Ind.Ct.App. Jun. 22, 2007). Smith filed a pro se petition to transfer with the Indiana Supreme Court raising this same claim. (DE 8-7.) His petition was denied. (DE 8-3 at 3.) He did not seek review in the U.S. Supreme Court. (DE 1 at 1.)
In March 2008, Smith filed a pro se petition for state post-conviction relief. Smith, No. 45A04-1205-PC-264, slip op. at *5. Following an evidentiary hearing at which Smith presented the testimony of several witnesses, the petition was denied. Id. He appealed, asserting claims of ineffective assistance of counsel on various grounds. Id. at *7-13. First, he argued that trial counsel was ineffective in failing to conduct a thorough investigation, failing to pursue an alibi defense, and failing to adequately communicate with him or provide him any legal representation during trial. Id. at *7-10. The appellate court found that Smith failed to establish his counsel was ineffective on any of these grounds. Id. Smith also argued that trial counsel was ineffective in failing to object to certain comments by the prosecutor during trial, but the appellate court found this argument waived due to Smith's failure to develop a cogent argument in support of this claim. Id. at *10-11. Finally, Smith claimed that his appellate counsel was ineffective. Id. at *12. The court concluded that Smith failed to establish deficient performance or prejudice in connection with this claim. Id. at *12-13. Accordingly, the court affirmed the denial of postconviction relief. Id. at *13. Smith sought transfer to the Indiana Supreme Court, raising only his claims pertaining to ineffectiveness of trial counsel. (DE 8-12.) The Indiana Supreme Court denied transfer. (DE 8-8 at 4.) Smith did not seek review in the U.S. Supreme Court. (DE 1 at 2.)
Thereafter, Smith filed a federal habeas petition raising four claims based on ineffective assistance of trial counsel. He claims as follows: (1) counsel failed to conduct a proper pretrial investigation; (2) counsel failed to investigate and pursue other stronger defense theories; (3) counsel failed to communicate with him and adequately defend him during ...