United States District Court, S.D. Indiana, Indianapolis Division
PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
JANE MAGNUS-STINSON, District Judge.
For the reasons explained in this Entry, the petition of Timothy Taylor 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.
The Petition for Writ of Habeas Corpus
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 Daniels v. Knight, 476 F.3d 426, 434 (7th Cir. 2007). Taylor does not challenge the facts set forth in the Indiana Court of Appeals' decision affirming the trial court's denial of Taylor's petition for post-conviction relief. Therefore, the Court adopts the factual summary set out in that decision:
On May 30, 2007, Sufen Chen, the owner of a massage parlor called "Rejuvenescence, " was in the back room of the business when she heard the bell on the front door ring. Chen came to the front room of the business and saw two people leaving in a hurry. One of the people, a very tall, thin black man, re-entered the business and asked for a massage. Chen told the man that he had to make an appointment. The man swung at Chen, pushed her, and pointed at his gun holster, telling Chen to be quiet. Chen saw a black gun in the holster.
The man then pushed Chen and a female employee onto the floor of another room. The man covered Chen and the employee with a towel and walked out of the room before returning with a large man, later identified as Taylor. Taylor watched Chen and the employee while his partner searched the front room.
Taylor's partner, who was never identified, instructed Chen to come to the front room and open the cash register. Taylor and his partner took approximately $600 in cash from the register and the women's wallets.
Taylor told Chen that she would have to give him and his companion $1000 every Friday or "you won't be safe." Taylor then made a hand gesture that Chen interpreted as a sign that he would kill her if she called the police.
After the men left the business, the women did not call the police because of their fear of reprisal from Taylor and his companion. However, when Chen informed her husband, Xiao Yang Gheng, of the threats, he told her to contact the police. The next day, Chen contacted the police department.
The Indianapolis police department informed Chen that she should shut down her business for a few days, as the department did not have sufficient personnel to work the case at that time. However, an officer did come and dust for prints. On June 1, 2007, Chen and Xiao were cleaning the closed store when Chen heard someone push on the locked front door. When Chen looked out, she saw that it was Taylor at the door. Taylor left but returned an hour later. Taylor asked Chen whether she was ready to pay "the one thousand, " and Chen responded that she would have the money ready in about an hour. Xiao snuck out the back of the business and identified Taylor's car as a Silver Nissan with Connecticut plates. Xiao also made note of the license number.
Chen called the police and a detective came to the business. While the detective was at the store, Taylor called Chen about the money. Taylor told Chen to bring the money to a Walgreen's store on High School Road in Indianapolis.
Using the description of the car given by Xiao, Indianapolis officers saw Taylor's vehicle in the area, made a stop, and arrested him. Chen subsequently identified Taylor as the man who had been in her store on May 30, 2007. During the identification, Taylor again made the hand sign, indicating that he was pointing a gun at Chen. An officer saw the hand sign and identified it as a "shooting motion."
Taylor v. State,
924 N.E.2d 55 at *1-2 (Ind.Ct.App. Feb. 9, 2010)( Taylor I ). Taylor appealed, raising four issues: 1) whether there was sufficient evidence to support his conviction of intimidation as a Class C felony; 2) whether Chen's testimony was incredibly dubious; 3) whether the trial court erred in granting the State's motion in limine; and 4) whether the trial court ...