United States District Court, S.D. Indiana, Terre Haute Division
ENTRY DISCUSSING PETITION FOR WRIT OF HABEAS CORPUS
AND DENYING CERTIFICATE OF APPEALABILITY
William T. Lawrence, Judge United States District Court.
convicted and after exhaustion or waiver of any right to
appeal, a defendant is presumed to stand “fairly and
finally convicted.” United States v. Frady,
456 U.S. 152, 164 (1982).
reasons explained in this Entry, the effort of Mark Jervis to
show otherwise fails. His petition for a writ of habeas
corpus will therefore be denied. In addition, the Court finds
that a certificate of appealability should not issue.
his first trial resulted in a hung jury, an Indiana jury
found Jervis guilty of the August 1993 murder of Terri Boyer
in Newburgh, Indiana. He is currently serving the 60-year
sentence imposed for that offense. Jervis now challenges his
conviction, contending that he was denied the effective
assistance of counsel both at trial and in his direct appeal.
circumstances associated with Jervis's offense and
prosecution were described by the Indiana Supreme Court in
his direct appeal:
On August 14, 1993, Terri Boyer went on a drinking spree with
her husband, her brother and the brother's girlfriend.
The four began in the early afternoon in Hatfield, their home
town, and took the brother's truck to visit several bars,
the last in Newburgh. In Newburgh, Boyer and her husband got
into an argument that resulted in Boyer leaving the truck.
The other three drove back to Hatfield, leaving an
intoxicated Boyer to fend for herself. Just before 10 p.m.
Boyer found her way to Frenchie's, a tavern in Newburgh,
where she asked several patrons to give her a ride back to
Hatfield. All refused. At some point, defendant Jervis
entered the bar, met Boyer, and offered to take her to
Hatfield. The two had no prior acquaintance.
Jervis and Boyer were seen leaving the bar together some time
around midnight, but no one actually saw them drive away in
Jervis's car. Witness Terry Timberlake testified that he
saw a car resembling Jervis's station wagon pull into the
Newburgh Cinema parking lot around 11:30 p.m. Timberlake
stated that two people, one male and one female, appeared to
be in the car, but he could not positively identify them as
Jervis and Boyer. Approximately thirty minutes later,
Timberlake saw the station wagon leave the Cinema parking lot
and park in an adjacent lot of a daycare center where it
remained for about ten minutes. It then returned to the
Cinema parking lot, and finally drove away. Jervis returned
to Frenchie's alone around 12:30 to 1:30 a.m. the same
night, telling those present that he was unable to take Boyer
to Hatfield because his car had broken down. Jervis went home
a half hour later. At approximately 12:30 p.m. the next day,
the owner of Newburgh Cinema found Boyer's body on a
grass strip next to the Cinema parking lot. Boyer was nude
below her waist and her bra and shirt were pushed up to her
shoulders. An autopsy concluded that Boyer had been strangled
and had died around midnight.
On September 5, 1993, Jervis was charged [ ] with Boyer's
murder. The State's case against Jervis was largely
circumstantial and included the following evidence: (1) an
envelope, pencil and pen Boyer had been carrying in her purse
were found in Jervis's trash can outside his apartment;
(2) Boyer's driver's license and her daughter's
library card were found in Jervis's car; and (3) DNA
evidence established a strong likelihood that a blood stain
on Jervis's shirt and a pubic hair found on his pants
were Boyer's. Several witnesses also testified as to
Jervis's whereabouts on the night in question. The jury
was unable to reach a verdict in Jervis's first trial in
1994. The State retried Jervis in 1995 and a second jury
Jervis v. State, 679 N.E.2d 875, 876-77 (Ind.
1997)(“Jervis I”). Jervis's
conviction at the second trial was affirmed on appeal,
id., and the trial court's denial of his action
for post-conviction relief was likewise affirmed. See
Jervis v. State, 28 N.E.3d 361 (Ind.Ct.App.
seeks relief pursuant to 28 U.S.C. § 2254(a).
“[I]n all habeas corpus proceedings under 28 U.S.C.
§ 2254, the successful petitioner must demonstrate that
he ‘is in custody in violation of the Constitution or
laws or treaties of the United States.'” Brown
v. Watters, 599 F.3d 602, 611 (7th Cir. 2010) (quoting
28 U.S.C. § 2254(a)). Jervis's habeas petition is
governed by the provisions of the Anti-Terrorism and
Effective Death Penalty Act of 1996 (“AEDPA”).
See Lindh v. Murphy, 521 U.S. 320, 336
Recognizing that state courts are no less experienced than
federal courts in dealing with claims of ineffective
assistance of counsel, Burt v. Titlow, 571 U.S. __,
134 S.Ct. 10, 15-16, 187 L.Ed.2d 348, 2013 WL 5904117 at *4
(U.S. Nov. 5, 2013), federal law erects a high deferential
standard . . . for claims that a state court erred. Federal
habeas relief is available only if the state court's
decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States, ”
or “was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceedings.” 28 U.S.C. § 2254(d)(1) and (2);
see also Metrish v. Lancaster, 133 S.Ct. 1781, 1786
Bailey v. Lemke, 735 F.3d 945, 949 (7th Cir. 2013).
The decision made by a state court is deemed to be contrary
to clearly established federal law “‘if the state
court applies a rule different from the governing law set
forth in [Supreme Court] cases, or if it decides a case
differently than [the Supreme Court has] done on a set of
materially indistinguishable facts.'” Emerson
v. Shaw,575 F.3d 680, 684 (7th Cir. 2009)(quoting
Bell v. Cone,535 U.S. 685, 694 (2002)). The
decision by a state court is deemed to involve an
unreasonable application of clearly established federal law
“‘if the state court correctly identifies the
governing legal principle from [Supreme Court] decisions but
unreasonably applies it to the facts of the particular
case.'” Emerson, 575 F.3d at 684 (quoting
Bell, 535 U.S. at 694). “Under §
2254(d)(2), a decision involves an unreasonable determination