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Foster v. Superintendent

United States District Court, N.D. Indiana, Fort Wayne Division

June 11, 2014



JON E. DEGUILIO, District Judge.

Gregory Foster, a pro se prisoner, filed a petition pursuant to 28 U.S.C. § 2254 challenging his 2002 conviction in Allen County for rape, criminal deviate conduct, and criminal confinement. (DE 1.) For the reasons stated below, the petition is denied.


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 Foster's burden to rebut this presumption with clear and convincing evidence. Id. The Indiana Court of Appeals set forth the facts underlying Foster's conviction as follows:

On November 18, 2000, at approximately 3:00 a.m., S.J. was walking from her apartment to visit a friend. S.J. lived in the Eden Green Apartments in Fort Wayne, Indiana. As S.J. walked down the street, Foster drove by in a white Toyota Camry, and called out the name "Diane, " thinking that S.J. was her aunt. S.J. informed Foster that she was not Diane and told him her first name. Foster offered S.J. a ride because it was late at night and she was walking alone. S.J. accepted the ride and entered the car. Once S.J. entered the car, Foster drove in the opposite direction of S.J.'s intended destination.
As a result, S.J. informed Foster that he was going in the wrong direction. Foster told S.J. that he had to take care of some business first and encouraged her to calm down. At this point, S.J. became worried, but she was not scared. However, S.J. asked Foster several times to stop in order to let her out of the car. Foster ignored her requests and continued to drive to the Canterbury Green Apartments, on the other side of town. Foster parked in a carport and left the car for about five minutes. S.J. testified that she remained in the car for the following reasons: (1) it was late, (2) she did not know the area, (3) it was dark, and (4) mostly white people, who she did not think would help her, inhabited the Canterbury Green Apartments.

When Foster reentered the car, he placed a black handgun on the dashboard and drove to Shoaff Park located in Fort Wayne, Allen County, Indiana. After seeing the handgun, S.J. was scared, and she began to cry. Again, S.J. informed Foster that she wanted to go home. Foster told S.J. to shut up. Then, Foster parked the car in a dark area of Shoaff Park surrounded by trees. He ordered that S.J. perform oral sex on him. When Foster threatened to use the handgun, S.J. performed oral sex on him as he requested. Afterwards, Foster instructed S.J. to pull her pants off and sit back in her seat. When S.J. complied, Foster lay on top of her, and engaged in sexual intercourse with her. S.J. testified that she cried and asked Foster to stop, but that he just told her to shut up and stop crying. Foster ejaculated on S.J.'s thigh and ordered her out of the car. S.J. testified that she refused to exit the car because she thought Foster would kill her if she exited the car. When S.J. refused to exit the car, Foster drove her back to her apartment. As Foster drove away, S.J. remembered the license plate number of the car Foster was driving.

As S.J. stood outside, she saw Fort Wayne Police Officer James King (Officer King) in a store parking lot. S.J. approached Officer King and told him that she had been raped. S.J. was hysterical and Officer King calmed her down before taking her statement. S.J. provided Officer King with a description of her attacker, and a description of the car he was driving with the license plate number. Officer King contacted the medics for S.J. S.J. was taken to the Sexual Assault Treatment Center and examined by Nurse Stephanie Good (Nurse Good). Nurse Good completed a rape kit for S.J. S.J. reported that her upper arms were tender. There were also fresh bruises on her lower extremities. In the meantime, Officer King ran the license plate number provided by S.J. and discovered that the car was registered to Shirley Foster, Foster's mother. S.J. later identified Foster from a photo array.

Indiana State Police DNA Analyst, Mary Reed, performed a DNA analysis on several of the samples from S.J.'s rape kit. The swab taken from S.J.'s left thigh was consistent with Foster's DNA. She testified that one African-American in fifty-eight billion would match the DNA found on S.J.'s left thigh and external genitalia. The vaginal and cervical swabs were consistent with S.J., Foster, and an unknown third contributor. The swab taken from S.J.'s right groin area was also consistent with both S.J. and Foster. On November 21, 2000, Fort Wayne Detective Hilda Williams (Detective Williams) interviewed Foster. Detective Williams testified that, at first, Foster denied that he picked up a girl during the early hours of November 18, 2000. However, Detective Williams testified that Foster later claimed that he picked up a girl, on November 18, 2000, and drove her one block up the street, but that no sexual contact occurred.

On February 16, 2001, the State of Indiana filed an information charging Foster with Count I, rape, a Class A felony; Count II, criminal deviate conduct, a Class A felony; and Count III, criminal confinement, a Class B felony. On March 5, 2001, a warrant was issued for Foster's arrest. Foster was arrested pursuant to the warrant on March 7, 2001. On March 9, 2001, the trial court held Foster's initial hearing. On April 25, 2001, the State filed an additional information alleging that Foster was a habitual offender, I.C. § 35-50-2-8.

A jury trial was held on April 23-24, 2002. On April 24, 2002, during a hearing held outside of the presence of the jury regarding final instructions, Foster objected to the State's tendered final instruction providing that a conviction can rest on the uncorroborated testimony of the victim, if believed beyond a reasonable doubt. The trial court gave the instruction over Foster's objection. On the same date, the jury found Foster guilty of rape, criminal deviate conduct, and criminal confinement. The jury also determined that Foster was a habitual offender.
On May 20, 2002, a sentencing hearing was held. The trial court sentenced Foster to the Indiana Department of Correction for a period of fifty (50) years on Count I, enhanced by a term of thirty (30) years due to his habitual offender status; fifty (50) years on Count II; and twenty (20) years on Count III, for an aggregate sentence of 150 years; each sentence to run consecutively to the others.

Foster v. State, 795 N.E.2d 1078, 1082-84 (Ind.Ct.App. 2003) (footnotes omitted).

On direct appeal, Foster raised the following claims: (1) the trial court erred in connection with the jury instructions; (2) the trial court improperly denied his speedy trial motion under Indiana Criminal Rule 4; and (3) his 150-year aggravated sentence was excessive. Id. at 1082. The Indiana Court of Appeals affirmed his conviction and sentence. Id. at 1093. Foster sought transfer to the Indiana Supreme Court raising these same claims (DE 13-9), but his petition was denied. (DE 13-3.)

Thereafter, Foster pursued state post-conviction relief. Foster v. State, No. 02A04-1107-PC-398, slip op. at 5 (Ind.Ct.App. May 3, 2012). Following an evidentiary hearing at which he was represented by counsel, the petition was denied. Id. On appeal, he argued that his trial counsel was ineffective in failing to: investigate the DNA of the unknown contributor found during S.J.'s examination; object to S.J.'s testimony that she was not sure whether Foster was the father of her child; move for a directed verdict at the close of the state's case; and object when the trial court submitted an ex parte response to a jury question. Id. at 7. He further argued that his appellate counsel was ineffective in failing to raise an argument based on Blakely v. Washington, 594 U.S. 296 (2004) challenging his enhanced sentence. Id. at 15. Finally, he argued that his conviction should be overturned based on newly discovered evidence showing that he was not the father of S.J.'s child. Id. at 21. The court rejected these arguments and affirmed the denial of post-conviction relief. Id. at 7-22. Foster filed a petition to transfer raising these same claims. (DE 13-14.) The petition was denied. (DE 13-4.)

Thereafter, Foster sought federal habeas relief. In his petition, he raises the following claims: his trial counsel was ineffective on numerous grounds; his appellate counsel was ineffective in failing to raise a Blakely claim; the trial court erred in denying his motion for release under Indiana Criminal Rule 4; and his conviction should be overturned ...

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