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Hoglund v. Superintendent

United States District Court, N.D. Indiana, South Bend Division

August 22, 2018

KEITH HOGLUND, Petitioner,
v.
SUPERINTENDENT, Respondent.

          OPINION AND ORDER

          Philip P. Simon Judge

         Keith Hoglund was convicted of child molestation by a jury in Wells County Circuit Court and was sentenced to fifty years in prison. Hoglund says he stands wrongly convicted and he has filed a habeas corpus petition to vindicate his rights.

         Factual and Procedural Background

         In deciding this petition, I must presume the facts set forth by the state courts are correct unless they are rebutted with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). I have read the trial transcript and find that the Indiana Supreme Court’s summary description of the evidence was accurate but incomplete. Hoglund does not dispute the Supreme Court’s summary of the facts. Here’s how the Indiana Supreme Court described the evidence:

Keith Hoglund and Teresa Mallott were married in June 1998. At the time, Mallott was the mother of a four-year-old son from a prior relationship. Two daughters were born to the marriage, A.H. in 1998 and a sister in 2001. In June 2002 the family moved from Fort Wayne to a home in Wells County. A.H. was four years old at the time. When A.H. was about five years old, she told Mallott about an incident in which Hoglund had taken a shower with her. An upset Mallott confronted Hoglund; he denied the allegation and Mallott at first believed him. In February 2006 a tearful eight-year-old A.H. again told Mallott about possible sexual abuse. This time Mallott reported the incident to a detective with the Wells County sheriff's department. The detective questioned A.H. who told him, among other things, that Hoglund “put stuff on his penis and ha[d] her lick it off.” Hoglund was arrested and on May 4, 2006, he was charged with two counts of child molesting as Class A felonies. At trial, then twelve-year-old A.H. testified that Hoglund first began molesting her when she was four years old. Hoglund would cause her to fellate him approximately two or three times per week. And this lasted until after A.H.’s seventh birthday. Hoglund would rub flavored substances onto his penis and occasionally ejaculate into A.H.’s mouth. Hoglund also showed A.H. a pornographic movie depicting oral sex, told her that her mother viewed her with disgust and cared more for her siblings than her, promised to give her money and toys, and told her that she would be “covered in black and blue” and that he would go to jail if she told anyone. After A.H. told Hoglund that she no longer wanted to fellate him, she asked him if he would ever force her younger sister to fellate him, and Hoglund responded, “I don't know, maybe.”
The State called as expert witnesses pediatrician Carol Butler, clinical psychologist Amanda Mayle, and mental health counselor Christine Shestak. Each witness had treated or counseled A.H. In varying degrees of specificity, each witness essentially testified that A.H. was “not prone to exaggerate or fantasize” concerning sexual matters.
The jury found Hoglund guilty on both counts of child molesting as Class A felonies. Apparently due to double jeopardy concerns the trial court sentenced Hoglund to a term of fifty years on Count I only.

Hoglund v. State, 962 N.E.2d 1230, 1232 (Ind. 2012); ECF 20-9 at 2-3.

         As noted above, some important facts were left out of this description of the evidence by the Indiana Supreme Court - one category of facts being favorable to Hoglund, and the other being favorable to the State. The first category relates to the timing of the statements by A.H. about the sexual abuse by her father. The statements by A.H. to her mother, Teresa Mallot, that Hoglund was molesting her were made shortly after Mallot found out that Hoglund was having an affair. (Tr. 94-98). She was understandably angry upon hearing the news of her husband’s infidelity, and she sought a divorce a short time later. (Tr. 114). It was just a few days later that the allegations of sexual abuse of their daughter were made. The defense implied that this timing was suspicious, and that Mallot had a motive to fabricate the charge of molestation.

         The second category of evidence not recounted by the Indiana Supreme Court was decidedly not favorable to Hoglund. There was highly incriminating testimony concerning a statement that Hoglund made to the police when he was first questioned by them. (Tr. 149-152). Hoglund described an incident where he was masturbating and his daughter walked in on him just as he was ejaculating. This was Hoglund’s explanation of how his daughter knew about ejaculation, not that she learned it from performing fellatio on him. When asked point blank whether he ever had his daughter perform fellatio on him, his answer was an odd one: he offered that perhaps it happened when he had fallen asleep and she did it without him knowing about it. (Tr. 152).

         Based on this evidence, Hoglund was convicted by a jury of child molestation and was sentenced to a fifty year term of incarceration. After exhausting his appeals through the Indiana court system, he filed the present motion for habeas corpus under 28 U.S.C. § 2254.

         Discussion

         Hoglund argues that he is entitled to habeas corpus relief, and his claims can be divided into errors allegedly made by the trial court, on the one hand, and claims of ineffective assistance of counsel, on the other. As to the first category, Hoglund claims 1) that the trial court violated his due process rights by admitting expert testimony that served to vouch for the credibility of the victim; 2) that the trial court violated his right to a jury trial by sentencing him based on aggravating factors that had not been found by a jury; and 3) that the trial court violated his right to a jury trial and his right against self-incrimination by issuing a more severe sentence for Hoglund’s assertion of those rights.

         As to the second category of alleged error - all of which are claims of ineffective assistance of counsel - Hoglund raises fourteen separate grounds. He alleges that his trial counsel: 1) failed to keep Hoglund informed of the pending trial; 2) failed to conduct an independent investigation; 3) failed to depose or interview any of the State’s expert witnesses; 4) failed to procure expert witnesses to contradict the State's expert witnesses; 5) failed to object to the trial court's lack of jurisdiction; 6) failed to object to improper jury instructions; 7) failed to utilize remaining strikes to remove biased jurors; 8) failed to object to duplicate charges; 9) failed to object to leading questions; 10) failed to object to an “evidentiary harpoon”; 11) failed to object when the trial court failed to state a claim upon which relief could be granted; 12) failed to object to testimony on the basis of hearsay and lack of foundation; 13) failed to object to expert testimony that served to vouch for the victim's credibility; and 14) failed to request a mistrial after the introduction of overt and direct vouching testimony.

         Exhaustion and Procedural Default

         Before considering the merits of a habeas petition, I must ensure that the Hoglund has exhausted all available remedies in state court. 28 U.S.C. § 2254(b)(1)(A); Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). This involves navigating a byzantine world full of procedural traps for the petitioner. Fall into one, and your case is over. To get to the merits of a case a petitioner must fully and fairly present his federal claims to the state courts. Boyko v. Parke, 259 F.3d 781, 788 (7th Cir. 2001). Fair presentment “does not require a hypertechnical congruence between the claims made in the federal and state courts; it merely requires that the factual and legal substance remain the same.” Anderson v. Brevik, 471 F.3d 811, 814–15 (7th Cir. 2006) (citing Boyko, 259 F.3d at 788). It does, however, require “the petitioner to assert his federal claim through one complete round of state-court review, either on direct appeal of his conviction or in post-conviction proceedings.” Lewis, 390 F.3d at 1025 (internal quotations and citations omitted). “This means that the 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. “A habeas petitioner who has exhausted his state court remedies without properly asserting his federal claim at each level of state court review has procedurally defaulted that claim.” Id. at 1026.

         Applying the rules of procedural default to this case, I’ll start with his claims of trial error. Hoglund presented the claim that the trial court violated his right to a jury trial by sentencing him based on aggravating factors that had not been found by a jury to the Court of Appeals of Indiana (ECF 20-4 at 27-29) but abandoned the claim when he petitioned for transfer to the Indiana Supreme Court (ECF 20-8). Additionally, Hoglund never presented to any State court the claim that the trial court violated his right to a jury trial and his right against self-incrimination by issuing a more severe sentence for Hoglund’s assertion of those rights. Because he did not fully and fairly present these claims through one full round of state court review, he has procedurally defaulted these claims.

         Hoglund did present a claim that the trial court erred by admitting expert testimony that served to vouch for the credibility of the victim to the Indiana Supreme Court and Court of Appeals. (ECF 20-4 at 16-26; ECF 20-8 at 11-14.) But Respondent argues that Hoglund based this claim on state evidentiary rules rather than federal law.

         This is another trap in the habeas corpus process that I referenced above. In determining whether a claim has been fairly presented to the State courts as a federal claim, courts consider:

1) whether the petitioner relied on federal cases that engage in a constitutional analysis; 2) whether the petitioner relied on state cases which apply a constitutional analysis to similar facts; 3) whether the petitioner framed the claim in terms so particular as to call to mind a specific constitutional right; and 4) whether the petitioner alleged a pattern of facts that is well within the mainstream of constitutional litigation.

Anderson, 471 F.3d at 815. Hoglund relied exclusively on State cases and evidentiary rules when presenting this claim to the State courts. Therefore, he did not “alert the state courts to the federal underpinnings of his claim.” Perruquet v. Briley, 390 F.3d 505, 519 (7th Cir. 2004). Moreover, even though the Indiana Supreme Court’s fundamental error analysis (ECF 20-9 at 13) resembles a federal due process analysis, see Howard v. O’Sullivan, 185 F.3d 721, 723–24 (7th Cir. 1999), this does not remove the procedural bar, see Willis v. Aiken, 8 F.3d 556, 567 (7th Cir. 1993). Nevertheless, because the claim is closely related to one of Hoglund’s properly exhausted claims, I will consider whether the trial court’s admission of the vouching testimony violated Hoglund’s due process right to a fundamentally fair trial. Federal courts may consider claims for habeas relief under certain circumstances even if such claims are procedurally barred. 28 U.S.C. § 2254(b)(2).

         As for the claims of ineffective assistance of counsel, although Hoglund raised some of his claims regarding his trial counsel before the Court of Appeals of Indiana, he raised only the following claims before the Indiana Supreme Court: (a) that his trial counsel failed to object to testimony on the basis of hearsay and lack of foundation for a hearsay exception; and (b) that his trial counsel failed to object to expert testimony that served to vouch for the victim’s credibility and failed to request a mistrial after the introduction of overt and direct vouching testimony. (ECF 20-18 at 2.) Therefore, I will consider the merits of these claims. However, Hoglund has procedurally defaulted all of his other claims regarding his trial counsel.

         Having decided that some of Hoglund’s claims are procedurally defaulted, the next question is whether there is any way for Hoglund to avoid the procedural default on those claims. A habeas petitioner can overcome a procedural default by showing both cause for failing to abide by state procedural rules and a resulting prejudice from that failure. Wainwright v. Sykes, 433 U.S. 72, 90 (1977); Wrinkles v. Buss, 537 F.3d 804, 812 (7th Cir. 2008), cert. denied, 556 U.S. 1239 (2009). Cause sufficient to excuse procedural default is defined as “some objective factor external to the defense” which prevented a petitioner from pursuing his constitutional claim in state court. Murray v. Carrier, 477 U.S. 478, 492 (1986). A habeas petitioner can also overcome a procedural default by establishing that the Court’s refusal to consider a defaulted claim would result in a fundamental miscarriage of justice. House v. Bell, 547 U.S. 518, 536 (2006). To meet this exception, the petitioner must establish that “a constitutional violation has resulted in the conviction of one who is actually innocent of the crime.” Schlup v. Delo, 513 U.S. 298, 324 (1995). Hoglund does not argue that he was prevented from pursuing the procedurally defaulted claims in State court or that he is actually innocent. He thus cannot overcome procedural default.

         Standard of Review

         Having worked our way through the procedural thicket that plagues habeas corpus litigation, it is now on to the merits of the claims that survive. But first, some basics about the standards that govern the decision making. Habeas corpus is an important error correction tool that helps to ensure the proper functioning of the criminal justice system. But the available relief is very limited. “Federal habeas review ... exists as a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.” Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (quotations and citation omitted). Habeas relief can only be granted in one of two ways: if it is shown that the adjudication of the claim by the state court resulted “in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;” or if the state court decision was 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).

         This is a demanding standard that has been described by the Supreme Court as being “intentionally difficult to meet. We have explained that clearly established Federal law for purposes of §2254(d)(1) includes only the holdings . . . of this Court’s decisions. And an unreasonable application of those holdings must be objectively unreasonable, not merely wrong; even clear error will not suffice.” Woods, 135 S.Ct. at 1376 (quotation marks and citations omitted). What this means is that to succeed on a habeas claim the petitioner must show that the state court’s ruling “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id.

         Criminal defendants are entitled to a fair trial but not a perfect one. Rose v. Clark, 478 U.S. 570, 579 (1986). To warrant relief, a state court’s decision must be more than incorrect or erroneous; it must be objectively unreasonable. Wiggins v. Smith, 539 U.S. 510, 520-21 (2003). “A state court’s determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quotation marks omitted).

         With these standards in mind I will now finally turn to the difficult claims raised by Hoglund that have not been procedurally defaulted.

         1. Failure to Object to Hearsay and for Lack of Foundation ...


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