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Foote v. Zatecky

United States District Court, S.D. Indiana, Indianapolis Division

February 20, 2014

GEORGE A. FOOTE, JR., Petitioner,
DUSHAN ZATECKY, Respondent.[1]



For the reasons explained in this Entry, the petition of George A. Foote, Jr., 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


Foote is serving the executed portion of a sentence of 80 years imposed in Greene County following his convictions in August 2008 for child molesting and for incest. Utilizing the Davis-Hatton procedure, [2] Foote's convictions were affirmed in Foote v. State, No. 28A04-11-02-PC-140 (Ind.Ct.App. December 30, 2011).

A summary of the evidence, the sufficiency of which Foote does not challenge, will suffice: Foote and his wife, Karen Foote ("Karen"), had two daughters, J.F. and B.F. J.F. was born on December 20, 1990 and B.F. was born nearly a year later. In 2004, Karen traveled to Florida to attend her mother's funeral. While Karen was away, Foote forced the girls to perform several sexual acts. Other incidents, involving both girls, occurred in March 2007. Foote, at pp. 2-3. When authorities learned of this behavior the girls and a sibling were declared Children in Need of Services (CHINS) and placed outside the home. Id., at p. 3.

In his appeal, Foote argued that his trial attorney was ineffective because he: (1) did not attempt to impeach J.F. and B.F. with their CHINS testimonies; (2) did not call certain witnesses at trial; and (3) did not address other problems or advance other defenses that Foote claims to have discussed with him. The Indiana Court of Appeals rejected these claims and affirmed the denial of post-conviction relief. The same specifications of attorney ineffectiveness and two others are asserted in Foote's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254(a).

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)(1996).

Foote filed his habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA). The petition, therefore, is subject to 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 the 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." Harrington, 131 S.Ct. at 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). As a result, as long as "fairminded jurists could disagree" on the correctness of the state court's decision, federal habeas relief should not be granted. Id. Therefore, even if the federal court disagrees with the state court ruling, the federal court should not grant habeas relief unless the state court ruling was objectively unreasonable. See id. at 785 ("an unreasonable application of federal law is different from an incorrect application of federal law.") (quoting Williams v. Taylor, 120 S.Ct. 1495, 1522 (2000) (emphasis in original)).

As discussed above, a state court unreasonably applies controlling Supreme Court precedent when it "identifies the correct governing legal rule" from the Court's cases, "but unreasonably applies it to the facts of the particular state prisoner's case." Williams v. Taylor, 529 U.S. 362, 407 (2000). An unreasonable application also occurs when a state court unreasonably refuses to extend a governing legal principle to a context in which it should have controlled, or "unreasonably extends a principle to a situation in which it should not have controlled." Jones v. Basinger, 635 F.3d 1030, 1044 (7th Cir. 2011). Only the former strain is implicated by Foote's arguments.


Foote's habeas claim is that he was denied the effective assistance of counsel at trial. Although "ineffective assistance of counsel is a single ground for relief no matter how many failings the lawyer may have displayed, " Peoples v. United States, 403 F.3d 844, 848 (7th Cir. 2005), the various specifications Foote asserts must be ...

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