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Saylor v. Brown

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

June 18, 2018

JAMES SAYLOR, Petitioner,
v.
RICHARD BROWN, Respondent.

          ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY

          Hon. Jane Magnus-Stinson, Chief Judge

         Petitioner 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.

         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 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 together.
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).

         On 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.

         Mr. 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.

         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. 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).

         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, 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 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. 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.

         The 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.

         In reply, Mr. Saylor asserts he did not procedurally default his claim and reiterates his arguments that his trial counsel was ineffective.

         A. Procedural Default

         “Inherent 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. 1992).

         On 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 ...

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