United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DISCUSSING PETITION FOR WRIT OF HABEAS CORPUS
AND DENYING CERTIFICATE OF APPEALABILITY
William T. Lawrence, Judge
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 Christopher
Swartz to show otherwise with respect to his Marion County
conviction 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
Indiana jury found Swartz guilty of the fatal stabbing of
Jose Hernandez in June 2006. The facts and pertinent
procedural history were recited in Swartz's direct
Seventeen-year-old José Hernandez was walking toward
his aunt's house on the southeast side of Indianapolis at
approximately 1:30 a.m. on June 24, 2006. Ken Julian and
Tanya Bright were sitting on their front porch talking to Joe
Culvahouse when they observed three white men approach a
neighboring convenience store. One of the men, Matt Miller,
entered the store and purchased beer. Swartz and Wilburn
Barnard remained outside. Miller returned with the beer and
the three men began walking on the sidewalk.
Thirty seconds later, Hernandez began crossing the street
when Swartz, Barnard, and Miller began heckling him and
shouting racial epithets. Hernandez shrugged his shoulders.
At that point, Swartz walked away from Miller and Barnard and
began taunting Hernandez. Eventually, Hernandez removed his
shirt and approached Swartz. Swartz swung his right fist at
Hernandez and Hernandez ducked. Swartz told Hernandez that he
was going to “f* * * [him] up.” Tr. p. 55, 60.
Swartz and Hernandez began sparring, although neither landed
punches. Miller and Barnard egged Swartz on by telling him to
“f* * * him up.” Id. at 115. Swartz
eventually lifted his shirt and asked Hernandez, “What
you got?” Id. at 122. Hernandez looked down,
saw a knife, and jumped back. At that point, Swartz lunged
forward and stabbed Hernandez in the chest with the knife.
Hernandez staggered away and Swartz turned and ran. Hernandez
stumbled to his aunt's front porch, where he collapsed.
He later died at Wishard Hospital from a stab wound that
punctured his lung and heart.
The State charged Swartz with murder on June 27, 2006. Before
trial, Swartz filed two motions in limine seeking to exclude
(1) a portion of a 911 audiotape in which the caller referred
to Swartz as a “wannabe white boy” and (2)
photographs of Swartz's upper torso depicting his tattoos
“South, ” “Side, ” and “Crazy
White Boy.” Appellant's App. p. 111, 114. The trial
court denied both motions after a hearing.
A three-day jury trial began on May 7, 2007. Swartz renewed
his pretrial objections when the photographs and the
objectionable portion of the 911 audiotape were admitted into
evidence at trial. The jury ultimately found Swartz guilty as
charged. The trial court held a sentencing hearing on June
14, 2007, and sentenced Swartz to sixty years imprisonment.
Swartz v. State, 49A04-0707-CR-393 (Ind.Ct.App.
February 25, 2008). The denial of post-conviction relief, in
which he claimed that he had been denied ineffective
assistance from both his trial counsel and counsel in his
direct appeal, was affirmed in Swartz v. State, 2016
WL 2772124 (Ind.Ct.App.), transfer denied, 57 N.E.3d
816 (Ind. 2016).
now seeks relief pursuant to 28 U.S.C. § 2254(a). The
action is fully at issue and the record has been
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)). The Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), Pub.L. No.
104-132, 110 Stat. 1214, became effective on April 24, 1996,
and governs the habeas petition in this case because Swartz
filed his petition after the AEDPA's effective date.
See Lindh v. Murphy, 521 U.S. 320, 336 (1997).
explained by the Supreme Court, the AEDPA “places a new
constraint on the power of a federal habeas court to grant a
state prisoner's application for a writ of habeas corpus
with respect to claims adjudicated on the merits in state
court.” Williams v. Taylor,529 U.S. 362, 412
(2000); see also Miller-Elv. Cockrell, 537
U.S. 322, 337 (2003) (“Statutes such as AEDPA have
placed more, rather ...