United States District Court, S.D. Indiana, Indianapolis Division
Entry Discussing Petition for Writ of Habeas Corpus
SARAH EVANS BARKER, District Judge.
This cause is before the Court on the petition of Fredrick Michael Baer ("Baer") for a writ of habeas corpus, on Respondent's response to such petition, and on Baer's reply. The record has been appropriately expanded.
Whereupon, the Court, having read and considered said pleadings and having also considered the expanded record, finds that Baer's petition for a writ of habeas corpus must be DENIED.
Mr. Baer was convicted of murdering Cory and Jenna Clark, and of robbery, theft and attempted rape, for which crimes the jury recommended the death penalty and the trial court sentenced Baer to death on June 9, 2005. Baer's conviction and sentence were affirmed on direct appeal in Baer v. State, 866 N.E.2d 752 (Ind. 2007)( Baer I ). Baer's second amended petition for post-conviction relief was denied and the Indiana Supreme Court affirmed that denial in Baer v. State, 942 N.E.2d 80 (Ind. 2011)( Baer II ). The facts and circumstances surrounding Baer's offenses were succinctly summarized in the ruling on his direct appeal, as follows:
At about nine o'clock in the morning of February 25, 2004, in a rural Madison County residential neighborhood near Lapel High School, Cory Clark, age twentyfour, stepped onto the porch of her home as the defendant drove by. He turned his vehicle around and drove back, stopped in her driveway, and got out. Later that day, she and her four-year-old daughter Jenna were found murdered in their home, Cory in a bedroom nude from the waist down, lying in a pool of blood, her throat lacerated, and Jenna in another bedroom with spinal injuries and a severely lacerated throat that nearly decapitated her. Cory's purse containing three to four hundred dollars was missing from the house. Later that morning, after changing his clothes, the defendant returned to work. The defendant admitted committing the murders. There is no evidence that Cory and Jenna Clark were anything other than total strangers to the defendant.
Baer I, 866 N.E.2d at 764-65.
Baer's claims in his direct appeal were the following: 1) the prosecutor improperly urged jurors to consider the effect that guilty but mentally ill ("GBMI") verdicts might have on a death sentence in relation to issues raised on appeal; 2) the trial court erred in admitting recorded telephone calls from the jail; 3) the trial court erred by failing to administer an oath to each panel of prospective jurors; and 4) prosecutorial misconduct and trial errors rendered the jury's recommendation of death unreliable.
On appeal from the denial of his post-conviction petition, Baer claimed that: 1) due to prosecutorial misconduct, he was denied a fair trial; 2) he was denied the effective assistance of counsel at trial; 3) he was denied the effective assistance of counsel on appeal; 4) the trial court's rejection of his guilty but mentally ill plea constituted structural error; 5) his severe mental illness reduced his culpability and precluded a death sentence; and 6) previously undiscovered evidence of his longstanding psychosis undermines confidence in and the reliability of his death sentence.
Baer's claims also include that his trial and appellate counsel in Baer I rendered ineffective assistance.
III. Standard of Review
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). Our Court of Appeals has explicated the standard to be applied in ruling on a petition seeking relief under this statute:
When a state court has ruled on the merits of a habeas claim, our review is circumscribed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See 28 U.S.C. § 2254(d); Harrington v. Richter, 131 S.Ct. 770, 783-84, 178 L.Ed.2d 624 (2011). Under AEDPA, we may grant relief only if the state court's decision on the merits "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 in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1) and (2). Plainly stated, these are demanding standards.
Atkins v. Zenk, 667 F.3d 939, 943-44 (7th Cir. 2012); See also Bailey v. Lemke, 735 F.3d 945, 949 (7th Cir. 2013).
Review of Baer's habeas petition is governed by the AEDPA, as noted above. Lambert v. McBride, 365 F.3d 557, 561 (7th Cir. 2004). The AEDPA "place[s] a new constraint" on the ability of a federal court to grant habeas corpus relief to a state prisoner "with respect to claims adjudicated on the merits in state court." Williams v. Taylor, 529 U.S. 362, 412 (2000).
The AEDPA was enacted "to reduce delays in the execution of state and federal criminal sentences, particularly in capital cases and to further the principles of comity, finality, and federalism.'" Woodford v. Garceau, 538 U.S. 202, 206 (2003) (quoting Williams, 529 U.S. at 436). The requirements of 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, 555 U.S. 1, 10 (2007) (citations omitted) and 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)).
Based on controlling case law precedent, the following guidelines apply to an AEDPA analysis:
! A state court's decision is deemed contrary to clearly established federal law if it reaches a legal conclusion in direct conflict with a prior decision of the Supreme Court or if it reaches a different conclusion than the Supreme Court based on materially indistinguishable facts. Williams, 529 U.S. at 404-08.
! "A state court decision is contrary to clearly established law if it applies a legal standard inconsistent with governing Supreme Court precedent or contradicts the Supreme Court's treatment of a materially identical set of facts. A state court unreasonably applies Supreme Court precedent if the state court identifies the correct legal rule but applies it in a way that is objectively unreasonable." Bynum v. Lemmon, 560 F.3d 678, 683 (7th Cir. 2009)(internal citations omitted).
! "Clearly established federal law" means "the governing principle or principles set forth by the Supreme Court at the time the state court renders its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).
! Under the "unreasonable application" prong of the AEDPA standard, a habeas petitioner must demonstrate that although the state court identified the correct legal rule, it unreasonably applied the controlling law to the facts of the case. Williams, 529 U.S. at 407; see also Badelle v. Correll, 452 F.3d 648, 653 (7th Cir. 2006). "[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Wood v. Allen, 130 S.Ct. 841, 845 (2010). The Seventh Circuit Ahas defined >objectively unreasonable' as lying well outside the boundaries of permissible differences of opinion and will allow the state court's decision to stand if it is one of several equally plausible outcomes." Burgess v. Watters, 467 F.3d 676, 681 (7th Cir. 2006)(international citations and quotations omitted).
! "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).
! "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)).
! With respect to § 2254(d)(2), state-court determinations of factual issues 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). To overcome the presumption, a habeas petitioner must proffer clear and convincing evidence to show that a factual determination is "objectively unreasonable in light of the evidence presented in the state-court proceeding." Williams v. Beard, 637 F.3d 195, 204 (3rd Cir. 2011)(footnote omitted) (citing Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)).
IV. Ineffective Assistance of Trial Counsel
A defendant has the right under the Sixth Amendment to effective assistance of counsel at trial. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish ineffective assistance of counsel under Strickland, the petitioner must show that counsel's performance was deficient and that the deficient performance prejudiced him. Id. For a petitioner to establish that "counsel's assistance was so defective as to require reversal" of a conviction or a sentence, he must make two showings: (1) deficient performance that (2) prejudiced his defense.
With respect to the first prong, "[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting Strickland, 466 U.S. at 688). With respect to the prejudice requirement, the petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; see also Bell v. Cone, 535 U.S. 685, 697-98 (2002). It is not enough for a petitioner to show that "the errors had some conceivable effect on the outcome of the proceeding." Strickland, 466 U.S. at 693. A petitioner must specifically explain how the outcome at trial would have been different absent counsel's ineffective assistance. Berkey v. United States, 318 F.3d 768, 773 (7th Cir. 2003). In the context of a capital sentencing proceeding, the relevant inquiry is "whether there is a reasonable probability that, absent the errors, the sentencer... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury." Strickland, 466 U.S. at 695.
When the AEDPA standard is applied to a Strickland claim, the following analytical calculus emerges:
Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both "highly deferential, " [ Strickland ] at 689, 104 S.Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 333, n.7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when the two apply in tandem, review is "doubly" so, Knowles, 556 U.S. at __, 129 S.Ct. at 1420. The Strickland standard is a general one, so the range of reasonable applications is substantial. 556 U.S., at ___, 129 S.Ct. at 1420. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.
Harrington v. Richter, 131 S.Ct. at 788; see also Murrell v. Frank, 332 F.3d 1102, 1111-12 (7th Cir. 2003). "A failure to establish either prong results in a denial of the ineffective assistance of counsel claim." Rastafari v. Anderson, 278 F.3d 673, 688 (7th Cir. 2002) (citation omitted).
Baer advances multiple specifications of ineffective assistance of counsel during his trial and direct appeal: 1) trial counsel and appellate counsel failed to challenge the penalty phase jury instructions; 2) during voir dire trial counsel was ineffective by failing to explore with prospective jurors their ability to follow the law, and by impaneling jurors who would automatically vote for death and who were resistant to mitigation; 3) trial counsel failed to challenge the prosecutor's closing arguments on the basis of prosecutorial misconduct; 4) trial counsel failed to adequately prepare and present evidence supporting a sentence of less than death; and 5) appellate counsel failed in the selection and presentation of issues on direct appeal. We consider each claim in order below.
A. Counsel's Failure to Challenge the Penalty Phase Jury Instructions.
Baer claims that both his trial and appellate counsel failed to: (1) object to, or challenge on appeal, the omission of the words "or of intoxication" in a jury instruction identifying a statutory mitigating circumstance; (2) object to, or challenge on appeal, a jury instruction stating that only involuntary intoxication is a defense; (3) proffer an instruction to the jury that "life without parole" meant life without parole; and (4) object to instructions that referenced insanity.
Omission of the words "or of intoxication." Baer claims that his counsels' failure to object to, or challenge on appeal, the trial judge's omission of the words "or of intoxication" from jury instruction eleven on a statutory mitigating circumstance violated Strickland and Lockett v. Ohio, 438 U.S. 586, 604 (1978). A mitigating factor under the Constitution is Aany aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Id. As former Justice O'Connor noted: AEvidence about the defendant's background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse." California v. Brown, 479 U.S. 538, 545 (1987) (O'Connor, concurring).
The Indiana Supreme Court determined that Baer's tendered instruction containing the intoxication reference, "could have been rejected by the trial court because the evidence showed that Baer was not intoxicated" when he murdered Cory and Jenna Clark. Baer II, 942 N.E.2d at 97. Baer claims that appellate counsel's failure to raise the issue relating to this jury instruction as constituting fundamental error also violated Strickland. The Indiana Supreme Court ruled that, "[g]iven the link between ongoing methamphetamine usage and mental illness that repeatedly arose in expert testimony, the jury had an adequate opportunity to hear and act on this evidence even with the omission of or of intoxication' from the jury instruction." Id. at 107 (citations to trial record omitted). Accordingly, trial counsel's omission did not constitute ineffective assistance, because the jury could have found mitigation based on the instruction as given, and appellate counsel's omission was not ineffective assistance as well for the same reason.
Jury instruction stating that only involuntary intoxication is a defense. Baer also contends that the jury was improperly instructed that voluntary intoxication was not a defense and that such instruction prevented jurors from considering intoxication as a mitigating factor. The Indiana Supreme Court rejected this argument, explaining:
This instruction was a correct statement of the law and was relevant in determining whether Baer committed his crimes intentionally. As to mitigation, the court told jurors they could consider "[a]ny... circumstances" in mitigation and that "there are no limits on what factors an individual juror may find as mitigating." An objection to the instruction on voluntary intoxication as a defense to the crime would have been overruled at trial.
Baer II, 942 N.E.2d at 97 (citations omitted). The Indiana Supreme Court reviewed Baer's similar claim as to his appellate counsel and determined that "[l]ikewise, [attorney] Maynard's decision not to challenge the instruction that intoxication was not a defense to commission of any crime did not prejudice Baer's appeal because as we noted above it did nothing to muddy the waters by implying that intoxication could not be a mitigator." Id. at 107 (citations to trial transcript omitted). Baer fails in his petition before us to demonstrate that this determination was contrary to or an unreasonable application of federal law. 28 U.S.C. § 2254(d); Williams, 529 U.S. at 1519-22.
Failure to proffer a proper instruction as to the meaning of "life without parole." Baer next claims that trial counsel failed to tender an instruction properly apprising the jury that "life without parole" means life without parole or to challenge the trial court's failure to instruct the jury as to the meaning of "life without parole." As to the meaning of "life without parole, " the Indiana Supreme Court held that the referenced phrase "consists of ordinary words that can easily be understood by the average person." Baer II, 942 N.E.2d at 97. The Indiana Supreme Court also explained that Baer's appellate counsel's "decision not to challenge the court's failure to instruct that life without parole' really meant life without parole must be viewed against the fact that sentencing statutes do in fact change over time. The most a trial court could have told the jury was that the present statutes do not permit parole, something the jury obviously already knew." Id., at 107 (footnote omitted) (internal quotation marks added). We are unable to fault this holding by the Indiana Supreme Court as an unreasonable application of the Strickland standard to Baer's claims of ineffective assistance of counsel. This claim thus falls short of establishing an entitlement to habeas corpus relief. Murrell v. Frank, 332 F.3d 1102, 1111 (7th Cir. 2003) (citing Bell v. Cone, 535 U.S. 685, 694 (2002)).
Failure to object to "insanity" reference. Baer further claims that his trial counsel rendered ineffective assistance by not objecting to penalty phase instruction number 22, which included the term, "insanity." The instruction stated that "the jury has the right to accept or reject any or all of the testimony of witnesses, whether expert or lay witnesses on the questions of insanity or mental illness." (Direct Appeal Appendix of Appellant at 1336). The Indiana Supreme Court ruled on this claim as follows: "We think it unlikely that most counsel would have worried much about this mention of insanity. The court properly instructed the jury on issues of GBMI and insanity. Baer's trial counsel told the jury repeatedly that they were not arguing that Baer was insane. The jury would not have inferred that Baer was claiming he was legally insane." Baer II, 942 N.E.2d at 97. The Indiana Supreme Court in our view reasonably concluded that trial counsel did not render ineffective assistance by failing to object to penalty phase instruction number 22, thus removing a basis for habeas relief.
B. Counsel's Ineffectiveness During Voir Dire
Impaneling jurors who would automatically vote for death and failing to explore their ability to follow the law. In Witherspoon v. Illinois, 391 U.S. 510, 522 (1968), the Supreme Court held that "a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." The Supreme Court later clarified that "the proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment" is "whether the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" Wainwright v. Witt, 469 U.S. 412, 424 (1985). In Patton v. Yount, 467 U.S. 1025, 1036 (1984), the Court held that the impartiality of a juror is a question of fact.
The Sixth Amendment requires that a state provide an impartial jury in all criminal prosecutions. "[D]ue process alone has long demanded that, if a jury is to be provided the defendant, regardless of whether the Sixth Amendment requires it, the jury must stand impartial and indifferent to the extent commanded by the Sixth Amendment." Morgan v. Illinois, 504 U.S. 719, 727 (1992). If "even one [partial] juror is empaneled and the death sentence is imposed, the State is disentitled to execute the sentence." Id. at 729. The Court in Witt noted:
This standard likewise does not require that a juror's bias be proved with "unmistakable clarity." This is because determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism. What common sense should have realized experience has proved: many veniremen simply cannot be asked enough questions to reach the point where their bias has been made "unmistakably clear"; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings. Despite this lack of clarity in the printed record, however, there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law.... [t]his is why deference must be paid to the trial judge who sees and hears the juror.
Witt, 469 U.S. at 424-426. The standard of review under the habeas statute posits that "the question is not whether a reviewing court might disagree with the trial court's findings, but whether those findings are fairly supported by the record." Id. at 434.
The Indiana Supreme Court considered the death penalty voir dire issues in Baer II. A decision contrary to the holdings in Witherspoon or Morgan did not result from the Court's analysis. Thus, we address next the Aunreasonable application" prong of 2254(d)(1). The Indiana Supreme Court held as follows:
During voir dire, juror Brown indicated that he would consider mitigating circumstances. (Trial Tr. at 769.) When Lockwood asked, "I want to have a chance with you for a vote of life. Do I have that chance with you, " Brown responded "[y]es." (Trial Tr. at 790.) Juror Criss generally disfavored the death penalty but felt that it could be appropriate in some cases. (Trial Tr. at 658-59.) Further questioning revealed that juror Criss would base her decision on all the evidence.
(Trial Tr. at 659-60.) Juror Lewis stated that he would decide the case based on the evidence. (Trial Tr. at 386.) Not even the most tortured reading of the transcript suggests that juror Lewis was an automatic death penalty juror.
Baer II, 942 N.E.2d at 94. The trial court's factual determinations are entitled to a presumption of correctness (28 U.S.C. § 2254(e)(1)) and it is clear that Baer has failed to rebut that presumption by clear and convincing evidence.
In finding no error, the Indiana Supreme Court also reasonably concluded that Baer's trial counsel had not rendered deficient performance. Baer's argument that the State Court's decision was based on an unreasonable determination of the facts in light of the evidence under § 2254(d)(2) also fails, given that the evidence considered by the Indiana Supreme Court included the extensive questioning of the jurors as to their views on the death penalty and whether they would make their decisions based on the evidence. Regarding counsel's failure to explore with prospective jurors their ability to follow the law, the Indiana Supreme Court further noted that "Baer does not direct us to any particular place in the record where more questioning was required, and the record is full of defense counsel's thorough questioning on the potential ...