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Ward v. Brown

United States District Court, S.D. Indiana, Terre Haute Division

March 26, 2018

ROLAND O. WARD, Petitioner,
v.
RICHARD BROWN, Respondent.

          ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

          Hon. William T. Lawrence, Judge

         Petitioner Roland O. Ward is serving a 58-year sentence for his 2011 Monroe County, Indiana convictions for child molesting, sexual misconduct with a minor, escape, child seduction, dissemination of matter harmful to minors, and neglect of a dependent. He brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons that follow, Mr. Ward's petition for a writ of habeas corpus is denied and the action dismissed with prejudice. In addition, the Court finds that a certificate of appealability should not issue.

         I. Factual and Procedural Background

         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 28 U.S.C. § 2254(e)(1); Daniels v. Knight, 476 F.3d 426, 434 (7th Cir. 2007). On direct and post-conviction appeal, the Indiana Court of Appeals summarized the relevant facts and procedural history:

K.M.J. was born in 1993, and her parents divorced when she was three years old. Beginning at age seven, she lived with her mother (“Mother”) and Ward, her stepfather, in Monroe County, Indiana. Generally, she visited her biological father (“Father”) several evenings each week. Over a period of at least six years, Ward sexually molested K.M.J. at her home.
Ward provided gifts to K.M.J., and he imposed many rules upon K.M.J.'s ability to socialize with friends and participate in after school activities and often precluded her from going out with friends and staying at friends' homes. Ward restricted K.M.J.'s use of her cell phone, which Father had bought for her, and sometimes Ward would review K.M.J.'s text messages and record them on videotape. He deleted contacts or texts that he did not know or like. Ward would tell K.M.J. that he was jealous when she talked or texted with boys.
In 2003 to 2004, K.M.J. was in fourth grade, and one night after Mother had gone to bed, K.M.J. joined Ward in the living room, where he was watching television. K.M.J. sat on his lap and saw that he was watching pornography. Ward asked her, “Wouldn't that be so cool if you could do that?” Tr. at 405. She replied that, no, it would not. Ward lifted her shirt and rubbed and licked her breasts. On another occasion, Ward told his son to let the dog out, and then he turned on pornography and again lifted K.M.J.'s shirt, “sucked” her breasts, and licked her vagina. Id. at 406.
In 2004 to 2005, K.M.J. was in the fifth grade, and Ward continued to molest her “anytime he could get [her] alone.” Id. at 408, 411. Ward would “suck [her] boobs” and “finger” her and require her to perform oral sex. Id. at 407, 411, 414. His acts of molestation would occur in the living room, K.M.J.'s bedroom, the basement, which could only be accessed through an outside door, and Ward's bedroom. Ward told K.M.J. that if she told anyone, she would go into foster care, he would go to jail, and Mother would hate her. The molestation happened so often that K.M.J. assumed something would happen every time they were alone.
It continued throughout middle school and into eighth and ninth grades, when she was fourteen through sixteen years old. The basement became the “frequent” location for sex. Id. at 422. In the basement, there was a pool table with a board on top of it. Often Ward would put a small television with a built-in DVD and VHS player on the pool table and play pornographic movies, which K.M.J. identified by title, including one entitled “Slutty Schoolgirls.” Id. at 450, 454, 594. Ward stored the movies in a drawer of a gun cabinet in the basement. K.M.J. described that Ward would put his finger in K.M.J.'s vagina, and sometimes he would use “a dildo thing.” Id. at 426. One was pink, one was purple, and one was clear but looked like a cactus.
Ward on occasion would take K.M.J. and her female friends and buy alcohol for them, including vodka, tequila, and wine. The teens would drink, and Ward would play strip poker with them. K.M.J.'s friend, E.E., saw Ward do inappropriate things to K.M.J., such as “smack” K.M.J. on the “butt” and “boobs, ” which E.E. thought was “strange.” Id. at 513.
Ward had intercourse with K.M.J. when she was fourteen. The two had been drinking, and he told her that he was “horny.” Id. at 437. Ward put a mint green blanket with snowmen on it on top of the pool table, and Ward attempted to insert his penis into K.M.J.'s vagina. K.M.J. cried, and he stopped. Although he did not attempt intercourse again for a period of time, he continued with other acts of sexual molestation, and the intercourse eventually resumed. When K.M.J. would tell Ward that she did not want to submit to the sex acts, Ward would get angry or cry, saying things like, “why don't you love me?” in an attempt to “make [her] feel bad.” Id. at 442. When K.M.J. was fifteen and sixteen years old, the sexual activity “would happen every day, ” usually when Mother was at work or asleep. Id. at 443. The molestation included anal sex on occasion. Ward wanted to videotape them having intercourse, telling K.M.J. that she could see “how much better [she] had gotten.” Id. at 458-59. K.M.J. told Ward she did not want him to videotape them.
Ward also molested a friend of K.M.J.'s named K.H, who, like K.M.J., was born in 1993. The two girls became friends in seventh grade, and K.H. started spending the night in eighth grade. It was “common” for the two girls and Ward to drink alcohol that Ward provided. Id. at 739. K.H. saw Ward grab K.M.J.'s breasts and comment about them. One night when K.H. spent the night, and the girls were discussing the subject of tattoos, Ward suggested that they watch pornographic movies to see more tattoos. Ward videotaped K.M.J. and K.H. sitting on the pool table, drinking vodka, watching a pornographic movie. Ward appeared in the videotape, asking K.M.J. to hold a cigarette for him. State's Ex. 17; Tr. at 461-62.
On another night, while then-fifteen-year-old K.H. was spending the night with K.M.J., the two were drinking and playing strip poker with Ward. K.H. took off her clothes except her underwear, and Ward commented on her breasts. Later that night, after K.M.J. was asleep, Ward told K.H. to meet him in the basement, which she did, and he was standing naked. He told her to get on the pool table, and he had intercourse with K.H. On January 16, 2010, when K.M.J. was sixteen years old, she was sitting with Mother and Father, discussing moving in with Father fulltime. Her parents agreed to this arrangement, and thereafter, K.M.J. disclosed to them that Ward was “having sex” with her. Tr. at 466-67, 522-53. K.M.J. told her parents that she could not take it anymore. Father called the Monroe County Sheriff's Department. Detective Shawn Karr (“Detective Karr”) of the Monroe County Sheriff's Department and Child Protective Services Investigator Jordan Roberts (“Roberts”) met with Mother, Father, and K.M.J. at the detective's office. Detective Karr obtained a buccal swab DNA sample from K.M.J. Thereafter, Detective Karr obtained a search warrant of the residence where the molestations occurred, which was owned by Mother.
That same evening, at approximately 8:00 p.m., Detective Karr, accompanied by Sergeant Braid Swain (“Sergeant Swain”), Roberts, and an evidence technician, executed the search warrant. Ward was home alone at the time. Police instructed Ward that he was to remain seated with them as police officers searched the premises. They also told Ward that he was required to stay with them because officers were going to obtain a DNA sample from him by swabbing the inside of his cheek, as provided in the search warrant. Ward asked and received permission to call his wife, get a drink, go to the bathroom, and let the pet dog inside. As he opened the door to let the dog in the house, Ward fled. Police did not locate him, but Ward turned himself into police custody the following day.
During the search, police collected from the residence, among other things: a Sony digital camera, a video recorder, a Handycam, another camcorder, a Sony VCR, three video cassette tapes, a purple vibrator, a clear vibrator, and a green snowman blanket, and pornographic DVDs including “Slutty Schoolgirls.” Two of the video cameras had the recording indicator light covered up with tape.
The State charged Ward with: Count I, Class A felony child molesting for performing or submitting to deviate sexual conduct with K.M.J., a child under fourteen years of age; Count II, Class B felony sexual misconduct with a minor for performing or submitting to deviate sexual conduct by penetrating the sex organ of K.M.J. with his finger; Count III, Class B felony sexual misconduct with a minor for performing or submitting to deviate sexual conduct by penetrating the anus of K.M.J. with his sex organ; Count IV, Class B felony sexual misconduct with a minor for performing or submitting to deviate sexual conduct by penetrating the sex organ of K.M.J. with an object; Count V, Class B felony sexual misconduct with a minor for performing or submitting to sexual intercourse with K.M.J., a child at least fourteen but less than sixteen years of age; Count VI, Class B felony sexual misconduct with a minor for performing or submitting to sexual intercourse with K.H., a child at least fourteen but less than sixteen years of age; Count VII, Class C felony escape; Count VIII, Class D felony child seduction by engaging in sexual intercourse with K.M.J., who was at least sixteen but less than eighteen years of age with the intent to arouse or satisfy the sexual desires of Ward or K.M.J.; Count IX, Class D felony dissemination of matter harmful to minors by knowingly disseminating such material to K.M.J.; and Count X, Class D felony neglect of a dependent, by knowingly placing K.M.J., his dependent, in a situation that endangered her life or health. Ward filed a motion to dismiss the escape charge, arguing that he was not being lawfully detained when he fled, and the trial court denied the motion.
At the jury trial, the State presented the testimony of various witnesses, including K.M.J, her friends E.E. and K.H., Mother, K.M.J.'s stepmother, and various law enforcement officers. Ward presented the testimony of his twenty-year-old son. Ward's defense theory was he did not commit the acts that he was accused of committing and that K.M.J. had fabricated the allegations as a means of retaliating for Ward's strict rules.
After the State rested, Ward sought judgment of acquittal on the escape charge, which the trial court denied. After the presentation of the evidence, the parties and the trial court reviewed the trial court's proposed final jury instructions. Ward posed no objection to any of them.
On October 6, 2011, the jury found Ward guilty as charged. At the January 2012 sentencing hearing, the trial court imposed an aggregate fifty-eight-year sentence. Ward timely initiated a direct appeal, but with permission, he suspended the appeal to return to the trial court to pursue post-conviction relief. Among other things, his petition asserted that he received ineffective assistance of trial counsel because counsel: (1) failed to move to dismiss the charging information for Count I because it did not allege any mens rea; (2) failed to move to dismiss the charging information for Counts II, III, IV, V, and VI because they did not properly allege a “knowingly” element; (3) failed to object to the trial court's preliminary and final instructions on Counts I and VIII because they failed to advise the jury that the defendant must “knowingly” have engaged in the charged conduct and advised the jury that “it is implied” that the defendant acted knowingly in his conduct; (4) failed to object to the trial court's preliminary and final jury instructions with respect to the Class B felonies charged in Counts II, III, IV, V, and VI because the instructions advised the jury that “it is implied” that the defendant acted knowingly; (5) failed to move to sever Count VI, which alleged misconduct with K.H. and was unfairly prejudicial to a fair consideration of the other charges relating only to K.M.J.; and (6) failed to object “to the misjoinder” of Count VII, the escape charge. Appellant's App. at 166-67.
At the post-conviction hearing, Ward called his trial attorney, Jennifer Culotta (“Culotta”), to testify, along with two expert witnesses regarding whether Culotta was deficient in her representation of Ward. In July 2014, the postconviction court issued extensive findings of fact and conclusions of law, denying Ward's petition.

Ward v. State, 30 N.E.3d 788, 2015 WL 1124607, *1-4 (Ind.Ct.App. 2015).

         Mr. Ward utilized the Davis-Hatton procedure[1] in the trial court and appealed under a post-conviction cause number. As issues that would have been raised on direct appeal, Ward claimed: (1) that the trial court's jury instructions had “deprived Ward of federal and state constitutional rights to have every element of a crime determined beyond a reasonable doubt by his jury, ” which constituted “fundamental error”; and (2) that the evidence supporting his escape conviction was insufficient. As an issue arising from the denial of post-conviction relief, Mr. Ward claimed that his trial counsel had rendered ineffective assistance based on: (1) a failure to move to dismiss seven of the ten counts in the charging information for failure to allege knowing conduct; (2) a failure to object to multiple jury instructions; (3) a failure to move to sever Count VI, which alleged intercourse with K.H.; and (4) a failure to seek severance of Count VII, the escape charge. On March 11, 2015, the Indiana Court of Appeals affirmed Mr. Ward's conviction and sentence. As to his claim of ineffective assistance, the Indiana Court of Appeals found that Mr. Ward failed to establish prejudice from his counsel's alleged ineffective assistance. See Ward v. State, 2015 WL 1124607, *6-12 (Ind.Ct.App. 2015). As to the jury instructions, the Indiana Court of Appeals held that Mr. Ward failed to preserve the issue because he failed to object at trial to the final instructions. Id. at *12. The court held that Mr. Ward failed to establish fundamental error as an exception to waiver of unpreserved issue because Mr. Ward's failure to prove ineffective assistance precluded a claim of fundamental error. Id. at *12-13. Finally, the Indiana Court of Appeals held that there was sufficient evidence that Mr. Ward committed escape. Id. at *13-14.

         Mr. Ward sought further review by the Indiana Supreme Court. The Indiana Supreme Court denied transfer on July 23, 2015.

         On July 20, 2016, Mr. Ward filed this petition for a writ of habeas corpus.

         II. Applicable Law

         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). Mr. Ward's 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 (1997).

         The Supreme Court has described AEDPA as “a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court” and has emphasized that courts must not “lightly conclude that a State's criminal justice system has experienced the ‘extreme malfunction' for which federal habeas relief is the remedy.” Burt v. Titlow, 134 S.Ct. 10, 16 (2013) (quoting Harrington v. Richter, 562 U.S. 86 (2011)); see also Renico v. Lett, 559 U.S. 766, 773 (2010) (“AEDPA . . . imposes a highly deferential standard for evaluating state-court rulings, and demands that state court decisions be given the benefit of the doubt.”) (internal quotation marks, citations, and footnote omitted).

         Where a claim has been adjudicated on the merits in state court, habeas relief is available under the deferential AEDPA standard only if the state court's determination was (1) “contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, ” or (2) “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); see Cullen v. Pinholster, 563 U.S. 170, 181 (2011). Thus, “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). “A state-court decision involves an unreasonable application of this Court's clearly established precedents if the state court applies this Court's precedents to the facts in an objectively unreasonable manner.” Brown v. Payton, 544 U.S. 131, 141 (2005) (internal citations omitted). “Under § 2254(d)(2), a decision involves an unreasonable determination of the facts if it rests upon fact-finding that ignores the clear and convincing weight of the evidence.” Goudy v. Basinger, 604 F.3d 394, 399-400 (7th Cir. 2010) (citing Ward v. Sternes, 334 F.3d 696 (7th Cir. 2003)). “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)).

         III. Discussion

         Mr. Ward raises two grounds in his petition: (1) the jury instructions stating that “[i]t is implied that the defendant acted knowingly in his conduct” violated his Fifth, Sixth, and Fourteenth Amendment rights and was a structural due process error not susceptible to Indiana's fundamental error review; and (2) ineffective assistance of trial counsel.

         Respondent argues that Mr. Ward's petition is untimely on the theory that the AEDPA one-year limitation began to run when Mr. Ward's first direct appeal was dismissed at his request on May 24, 2012. Respondent otherwise argues that ground one relating to jury instructions is procedurally defaulted because it was rejected on adequate and independent state-law grounds. Respondent further argues that the Indiana Court of Appeals reasonably applied Strickland to conclude that Mr. Ward did not receive ineffective assistance of trial counsel.

         In reply, Mr. Ward asserts his petition is timely because the one-year limitation period reset upon his second direct appeal. Mr. Ward further asserts that ground one was not rejected on adequate and independent state-law grounds because the Court of Appeals relied on Benefield v. State, 945 N.E.2d 791 (Ind.Ct.App. 2011), which relies on Strickland v. Washington, 466 U.S. 668 (1984), and is therefore predicated on federal law grounds. Mr. Ward further asserts the Court of Appeals applied a standard for ineffective assistance of counsel that was contrary to the Supreme Court's precedent in Strickland

         A. Timeliness of Mr. Ward's Petition

         Respondent argues that Mr. Ward's conviction became final when Mr. Ward dismissed his initial direct appeal to pursue post-conviction relief. Mr. Ward asserts otherwise.

         In an attempt to “curb delays, to prevent ‘retrials' on federal habeas, and to give effect to state convictions to the extent possible under law, ” Congress, as part of AEDPA, revised several statutes governing federal habeas relief. Williams v. Taylor, 529 U.S. 362, 404 (2000). Along with triggering dates not applicable here, “[u]nder 28 U.S.C. § 2244(d)(1)(A), a state prisoner seeking federal habeas relief has just one year after his ...


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