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Payne v. Superintendent, Indiana Department of Corrections

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

March 6, 2015

TOBY K. PAYNE, Petitioner,
SUPERINTENDENT, Indiana Department of Corrections c/o Attorney General of Indiana Gregory Zoeller, Respondent.



This matter is before the Court on Petitioner Toby K. Payne's ("Mr. Payne") Petition for Writ of Habeas Corpus (Filing No. 1). For the reasons explained in this Entry, the Petition must be denied and the action dismissed with prejudice. In addition, the Court finds that a certificate of appealability should not issue.


The pleadings and the expanded record establish the following:

1. On April 13, 2009, Mr. Payne entered a plea of guilty to two counts of murder and one count of criminal confinement. He was sentenced on May 15, 2009 to two terms of life without the possibility of parole, plus fifty years. No direct appeal was filed.

2. On February 26, 2013, Mr. Payne filed a motion to correct errors in the trial court. The court denied that motion on March 21, 2013. No appeal was filed.

3. Mr. Payne's co-defendants were each found guilty following jury trials. The direct appeal of co-defendant Juan Lucio produced a description of the setting for the crimes to which Mr. Payne entered a plea of guilty:

The trial evidence favorable to the verdict indicated that the defendant was recruited by Toby Payne to kill Payne's estranged wife Rebecca Payne, and her boyfriend, George Benner. Toby had given the defendant a key to Rebecca's house and a map, and promised him $100, 000 from a life insurance policy in return for the killing. The defendant, in turn, recruited Kyle Duckworth to drive him to Rebecca's house in exchange for $200 or a quarter-pound of marijuana. Originally, the defendant planned to be the shooter, but later changed his mind and recruited Anthony Delarosa to be the triggerman. On April 2, 2007, Duckworth drove the defendant and Delarosa to Rebecca's house. The defendant gave Delarosa a gun, and Delarosa entered the house but returned and said that Rebecca was not home. The men agreed to try again later. On April 4, the defendant called Duckworth to pick him up, called Delarosa to ask if he was ready, and called Toby Payne to inform him they were trying again. The three men drove to Rebecca's home, the defendant again gave Delarosa a gun, and Delarosa entered the house and fired the fatal shots. When police had questioned him during their investigation, the defendant first admitted that Toby Payne had given him a key to the house and asked him to kill Rebecca, but later claimed that they were supposed to scare Rebecca and extort money from her, that Delarosa told him where to go, that he did not know Delarosa had a gun, that he did not know why Delarosa was extorting money from her, and that he and Duckworth were supposed to get $200 each for driving.

Lucio v. State, 907 N.E.2d 1008, 1009 (Ind. 2009). The subsequent direct appeal of co-defendant Anthony Delarosa produced the following description:

The bodies of Rebecca Payne and her boyfriend, George Benner, were discovered in her bedroom at her house in Home Place, Indiana, around noon of April 5, 2007. Police investigation quickly focused on Toby Payne, Rebecca's estranged husband against whom she had obtained a protective order a month earlier. Rebecca, who was in the final stages of divorcing Payne, had been living apart from him with their six-year-old son.
Phone records led the police to arrest Juan Lucio, Kyle Duckworth, and Anthony Delarosa within two weeks of the murders. Lucio and Duckworth lived in Frankfort, and Delarosa lived in Zionsville. A search of Delarosa's bedroom uncovered dark-colored clothing, dark gloves, a letter purportedly from Payne, a rag that smelled of a solvent often used to clean guns, and two keys. A search of Lucio's person and vehicle uncovered two keys. All four keys locked and unlocked Rebecca's front door. Delarosa was charged with two counts of murder and one count of conspiracy to commit murder, all Class A felonies. The State requested life sentences without parole for the two murder charges.
Duckworth testified at Delarosa's trial pursuant to a plea agreement. Tara Cassada, Lucio's girlfriend, and Erica Tamayo, Duckworth's girlfriend, also testified. Lucio, Duckworth, Cassada, and Tamayo socialized together frequently, and the two boyfriends often confided in their girlfriends. Cassada was granted "use immunity" to testify.
Cassada testified that sometime in the fall of 2006, Payne began making plans with Lucio to kill Rebecca to get full custody of their son, and he gave Lucio a key and a map to Rebecca's house. Lucio originally planned to do the shooting himself, but hired Delarosa because "he would go in and be out quick." Lucio and Delarosa would then split Rebecca's $100, 000 life insurance policy.
Duckworth testified that in late March or early April of 2007, Lucio asked him to help with the shooting. They were not to harm Payne's son, but would kill George if he was there. Duckworth would be the driver, and he would receive $200 or a quarter pound of weed for his involvement.
On the evening of April 2, 2007, Duckworth picked up Lucio and Delarosa, and the trio drove to a parking lot behind Rebecca's house. Lucio gave a gun to Delarosa and instructed him where to go. Delarosa left the car, returned about 20 ...

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