United States District Court, S.D. Indiana, Terre Haute Division
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND
DENYING A CERTIFICATE OF APPEALABILITY
Jane Magnus-Stinson, Chief Judge
James Saylor is serving a 138-year sentence for his 2012
Allen County, Indiana convictions for child molesting,
neglect of a dependent, and battery. He brings this petition
for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. For the reasons that follow, Mr. Saylor's petition
for a writ of habeas corpus is denied and
the action is dismissed with prejudice. In
addition, the Court finds that a certificate of appealability
should not issue.
Factual and Procedural Background
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 appeal from the denial of
post-conviction relief, the Indiana Court of Appeals
summarized the relevant facts and procedural history:
In April 2005, Saylor moved into a home in Madison with his
wife (“Wife”) and four children. B.D., then a
ten-year-old girl, and M.D., then a thirteen-year-old boy,
are Wife's children from a previous relationship. J.M.S.
is Saylor's son from a previous relationship and was
approximately eighteen years old. J.S., who was seven years
old at the time, is the only child Saylor and Wife have
Over a period of approximately eighteen months, Saylor forced
B.D. to have sexual intercourse and oral sex with him, forced
M.D. and B.D. to have sexual intercourse and oral sex with
each other while Saylor watched, and taught B.D. to have sex
with the family dog. Saylor threatened to harm B.D. if she
told anyone what was happening. But in July 2006, when B.D.
was eleven years old, she told a family friend, Jasmine
Mardello, who notified the Department of Child Services.
Saylor was arrested the next day. Kathy Scifres, a
forensic-nurse examiner, conducted a physical examination of
B.D. The State ultimately charged Saylor with two counts of
Class A felony child molesting (both involving B.D.), Class B
felony vicarious sexual gratification (based on Saylor
forcing B.D. to engage in sexual intercourse with M.D.),
Class D felony intimidation (based on Saylor's threats to
B.D. if she told anyone), and being a habitual offender.
A jury trial began in August 2007. The trial was bifurcated,
with the first phase addressing the child-molesting,
vicarious-sexual gratification, and intimidation charges, and
the second phase addressing the habitual-offender charge.
During the first phase of trial, B.D., M.D., and J.S. all
testified that Saylor had sexual intercourse with B.D. and
forced M.D. to have sexual intercourse with B.D. Mardello
testified about B.D.'s initial disclosure to her, and
Scifres testified about her physical examination of B.D.,
which revealed a healed vaginal tear and hymenal thinning
that was consistent with the penetration of her vagina by a
blunt or round object, such as a penis. Scifres also
testified that B.D. told her that she had sexual intercourse
with Saylor but that B.D. did not tell her that she had
sexual intercourse with anyone else.
During closing argument, defense counsel argued that the
State's medical evidence did not prove that Saylor
molested B.D. because B.D. had sexual intercourse with other
people, and they could have caused her injuries. As part of
defense counsel's lengthy argument on this point, he
said, “Mr. Saylor was not the only person that was
having sex with [B.D.].” Tr. p. 908.
The jury found Saylor guilty of the child-molesting,
vicarious-sexual gratification, and intimidation charges.
While the jury was in the jury room waiting for the
habitual-offender phase of trial to begin, Saylor's trial
counsel requested a brief recess to discuss the
habitual-offender charge with Saylor. At the end of the
recess, defense counsel told the trial court that Saylor had
decided to plead guilty.
At sentencing, the trial court merged Saylor's conviction
for intimidation with his conviction for vicarious sexual
gratification and sentenced Saylor to 45 years for each of
his child-molesting convictions, 18 years for his vicarious
sexual-gratification conviction, and 30 years for the
habitual-offender enhancement, for an aggregate term of 138
years. [On direct appeal, Petitioner argued: 1) the trial
court erred in permitting the State to amend the charging
information; 2) the trial court erred in permitting
photographs of the victim taken during the forensic
examination; 3) admitting B.D.'s video statement about
her having been abused by Saylor; 4) the trial court
committed error when it allowed evidence regarding B.D.'s
simulating or having sex with a dog, or when it admitted the
eyewitness testimony of J.S. that Saylor sexually abused B.D.
and M.D.; and 5) whether Petitioner's sentence was
appropriate. Ex. I.]. We affirmed on direct appeal.
Saylor v. State, No. 39A01-0712-CR-574 (Ind.Ct.App.
Sept. 17, 2008), trans. denied [on October 29, 2008. Ex. C].
Saylor filed a petition for post-conviction relief [on April
20, 2009, which was amended by counsel] ¶ 2014.
Following a hearing, the judge entered findings of fact and
conclusions of law denying relief.
Saylor v. State, No. 39A05-1503-PC-113, 55 N.E.3d
354, 357-58 (Ind.Ct.App. 2016).
appeal from the denial of post-conviction relief, Mr. Saylor
argued that his trial counsel was ineffective for: (1) not
objecting to the trial court's failure to administer an
oath to B.D. before she testified at trial; (2) not objecting
to the prosecutor's alleged impermissible vouching during
closing argument; (3) allegedly admitting his guilt to both
counts of Class A felony child molesting during closing
argument; (4) failing to advise him of his Boykin
rights before pleading guilty to being a habitual offender;
(5) failing to inform the jury that a number of the
State's witnesses received immunity for their testimony;
(6) failing to inform the jury of the victim's prior
sexual acts; 7) failing to move to dismiss because he should
have allegedly been charged with incest as opposed to child
molesting and vicarious sexual gratification; and (8) the
cumulative effect of defense counsel's errors amounted to
ineffective assistance of counsel. On May 23, 2016, the
Indiana Court of Appeals affirmed in part the denial of
post-conviction relief, but remanded the case for a new trial
with respect to the habitual offender portion of the case.
Id. at 367. His habitual offender charge is still
pending trial court.
Saylor sought review from the Indiana Supreme Court,
specifically addressing three claims in detail: (1) whether
trial counsel was ineffective for not objecting to the trial
court's failure to administer an oath to B.D. before she
testified at trial; (2) whether trial counsel was ineffective
for not objecting to the prosecutor's alleged
impermissible vouching during closing argument; and (3)
whether trial counsel was ineffective for allegedly admitting
Petitioner's guilt to both counts of Class A felony child
molesting during closing argument. He also incorporated, by
reference to his brief on post-conviction review, the other
claims of ineffective assistance of counsel he had raised to
the Indiana Court of Appeals, but for which the Indiana Court
of Appeals allegedly did not address in its opinion. On
November 3, 2016, the Indiana Supreme Court denied transfer.
On March 17, 2017, Mr. Saylor filed this petition for a writ
of habeas corpus.
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. Saylor'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).
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, 102 (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
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
Saylor raises six claims of ineffective assistance of trial
counsel in his petition: (1) failing to administer oath to
B.D.; (2) filing to object to prosecutorial misconduct; (3)
conceding guilt during closing argument; (4) failing to
inform the jury about witness immunity agreements; (5)
failing to inform the jury about the victim's prior
sexual history; and (6) the cumulative impact of his errors.
respondent argues that claims four through six are
procedurally defaulted, and that the Indiana Court of Appeals
reasonably applied clearly established federal law in
concluding that Mr. Saylor's trial counsel was effective.
reply, Mr. Saylor asserts he did not procedurally default his
claim and reiterates his arguments that his trial counsel was
in the habeas petitioner's obligation to exhaust his
state court remedies before seeking relief in habeas corpus,
see 28 U.S.C. § 2254(b)(1)(A), is the duty to
fairly present his federal claims to the state courts.”
Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir.
2004). To meet this requirement, a petitioner “must
raise the issue at each and every level in the state court
system, including levels at which review is discretionary
rather than mandatory.” Id. at 1025-26. In
Indiana, that means presenting his arguments in a petition to
transfer to the Indiana Supreme Court. Hough v.
Anderson, 272 F.3d 878, 892 (7th Cir. 2001). A federal
claim is not fairly presented unless the petitioner
“put[s] forward operative facts and controlling legal
principles.” Simpson v. Battaglia, 458 F.3d
585, 594 (7th Cir. 2006) (citation and quotation marks
omitted). Procedural default “occurs when a claim could
have been but was not presented to the state court and
cannot, at the time that the federal court reviews the habeas
petition, be presented to the state court.”
Resnover v. Pearson, 965 F.2d 1453, 1458 (7th Cir.
appeal from the denial of post-conviction relief, Mr. Saylor
argued that his trial counsel provided ineffective assistance
of counsel on eight different grounds. See Dkt. No.
15-17 at 5. On May 23, 2016, the Indiana Court of Appeals
affirmed the denial of post-conviction relief, but only
allegedly addressed three of the grounds. Saylor, 55
N.E.3d at 359-365. In his petition to transfer to the Indiana
Supreme Court, Mr. Saylor presented two questions for review:
I. This Court should grant transfer and issue a revised
opinion because this Court failed to rule on multiple issues
properly before ...