United States District Court, N.D. Indiana
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE
Orr, a pro se prisoner, filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254 challenging his
murder convictions and consecutive 55 year sentences by the
Lake County Superior Court on June 10, 2011, under cause
number 45G01-1001-MR-1. [ECF No. 1.]
deciding this habeas petition, the Court must presume the
facts set forth by the state courts are correct. 28 U.S.C.
§ 2254(e)(1). It is Orr's burden to rebut this
presumption with clear and convincing evidence. Id.
On appeal from the denial of post-conviction relief, the
Indiana Court of Appeals set forth the facts surrounding
Orr's offenses as follows:
At approximately 12:00 a.m. on December 31, 2009, Orr entered
an apartment building located at 3513 Guthrie in East Chicago
to visit a friend, and he walked past four people visiting in
a hallway. Approximately forty-five minutes later, Orr left
his friend's apartment and walked past the same four
people, Steven Williams, Joshua Hayward, LaTonya Burnett, and
Tyree Tolbert. As he passed by the group, Orr asked Williams,
“What's that smart remark you said.” Tr. at
223. Williams responded, “I don't know you to even
be saying anything about you.” Id. Orr then
left the building, met Billy Galloway, who was sitting in
Galloway's truck parked across the street, and got a
firearm from Galloway.
A few minutes later, Orr came back inside the apartment
building and said to the group, “Folks, let me holler
at you.” Id. at 225. In response, Tolbert
walked outside with Orr. Orr then asked Tolbert, “what
[Williams and Haywood were] on.” Id. at 226.
Tolbert interpreted that question to mean “like what
[are] they about[?]” Id. Tolbert responded,
“They ain't on nothing. They just moved out here
with they [sic] wife and kids.” Id.
Orr then said to Tolbert, “Don't worry about it.
I'm finna kill everybody in this building.”
Id. at 227. Orr then pulled out a gun and entered
the apartment building. After Orr entered the building,
Burnett ran outside, and she and Tolbert ran to a
friend's apartment inside a nearby building. As soon as
they were inside, Tolbert heard multiple gunshots from the
building where he had left Orr and the others.
A neighbor called 9-1-1, and officers arrived at the scene
approximately ten minutes after the shootings to find
Williams' and Haywood's dead bodies lying in pools of
blood inside the apartment building. Williams had been shot
seven times, and Haywood had been shot four times. There were
no eyewitnesses to the shootings, but, after an investigation
implicated Orr, police arrested him.
The State charged Orr with two counts of murder. A jury found
Orr guilty as charged and the trial court entered a judgment
of conviction accordingly. The trial court sentenced Orr to
two consecutive terms of fifty-five years, for an aggregate
sentence of 110 years.
Orr v. State, No. 45A04-1503-PC-87, slip op. pp. 2-3
(Ind.Ct.App. Oct. 7, 2015), [ECF No. 8-10].
his conviction, Orr appealed, arguing only that the trial
court committed reversible error in allowing the State to
impeach a witness with extrinsic evidence of a prior
inconsistent statement. [ECF No. 8-3 at 5; ECF No. 8-5 at 2.]
The Indiana Court of Appeals affirmed Orr's conviction
and sentence. [ECF No. 8-5.] Orr did not seek transfer to the
Indiana Supreme Court. [ECF No. 8-2.] He admits as much. [ECF
No. 1 at 1.]
February 7, 2013, Orr filed a petition for post-conviction
relief in State court. [ECF No. 8-1 at 1.] After a hearing,
the post-conviction court denied Orr's request for
post-conviction relief. Orr appealed, arguing that he was
denied the effective assistance of trial and appellate
counsel. [ECF No. 8-10 at 2; ECF No. 8-7.] The Court of
Appeals of Indiana denied Orr's appeal. [ECF No. 8-10.]
Orr sought transfer to the Indiana Supreme Court raising the
same issues he presented to the court of appeals. [ECF No.
8-11.] The Indiana Supreme Court denied transfer. [ECF No.
January 26, 2016, Orr signed and submitted this federal
habeas petition challenging his convictions and sentence,
arguing that: (1) the trial court improperly admitted
extrinsic evidence of a witness's prior inconsistent
statement; (2) he received ineffective assistance of trial
and appellate counsel because they both failed to challenge
the voluntary manslaughter instructions; and (3) he received
ineffective assistance of trial counsel because his attorney
failed to adequately impeach Antonio Foster. [ECF No. 1 at 3,
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). AEDPA allows
a district court to issue a writ of habeas corpus on behalf
of a person in custody pursuant to a state court judgment
“only on the ground that he is in custody in violation
of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). The court can grant
an application for habeas relief if it meets the requirements
of 28 U.S.C. § 2254(d), which provides:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim-
(1) 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;
(2) resulted in a decision that 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] standard is intentionally difficult to meet. We have
explained that clearly established Federal law for purposes
of §2254(d)(1) includes only the holdings, as opposed to
the dicta, 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. To satisfy this high bar, a habeas petitioner is
required to show that the state court's ruling on the
claim being presented in federal court was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
Woods v. Donald, 135 S.Ct. 1372, 1376 (2015)
(quotation marks and citations omitted).
Ineffective Assistance of Counsel
prevail on an ineffective assistance of counsel claim in the
State courts, Orr had to show that counsel's performance
was deficient and that the deficient performance prejudiced
him. Strickland v. Washington, 466 U.S. 668 (1984).
The test for prejudice is whether there was a reasonable
probability that “but for counsel's unprofessional
errors, the result of the proceeding would have been
different.” Id. at 694. A reasonable
probability is a probability “sufficient to undermine
confidence in the outcome.” Id. at 693. In
assessing prejudice under Strickland “[t]he
likelihood of a different result must be substantial, not
just conceivable.” Harrington v. Richter, 562
U.S. 86, 112 (2011). However, “[o]n habeas review,
[the] inquiry is now whether the state court unreasonably
applied Strickland . . . .” McNary v.
Lemke, 708 F.3d 905, 914 (7th Cir. 2013). In addition,
“because the Strickland standard is a general
standard, a state court has even more latitude to reasonably
determine that a defendant has not satisfied that
standard.” Id. (citing Youngblood v.
Alvarado, 541 U.S. 652, 664 (2004)). This creates a
“doubly deferential” standard of review here.
Id. “Given this high standard, even
‘egregious' failures of counsel do not always
warrant relief.” McNary, 708 F.3d at 914.
The Indiana Courts reasonably found that trial counsel was
not ineffective for not objecting to the jury
conclusion of Orr's trial, the trial court instructed the
jury regarding murder and voluntary manslaughter. The
voluntary manslaughter instruction included a definition of
sudden heat. In Indiana, “once a defendant presents
evidence of sudden heat, the State bears the burden of
disproving its existence beyond a reasonable doubt.”
Eichelberger v. State, 852 N.E.2d 631, 636
(Ind.Ct.App. 2006). The voluntary manslaughter instructions
tendered in Orr's case were erroneous because they did
not instruct the jury that the State must disprove sudden
heat beyond a reasonable doubt before they could convict him
of murder. [ECF No. 8-10 at 8.] Orr argues that his
trial counsel was ineffective for not objecting to the trial
court's voluntary manslaughter jury instructions or
tendering correct instructions. The Indiana Court of Appeals
disagreed. (Id.) In rejecting Orr's claim, the
Indiana Court of Appeals properly identified
Strickland as the governing standard. (Id.
at 5.) Though the court acknowledged that the tendered
voluntary manslaughter jury instructions were incorrect, the
court found that Orr was not entitled to the instructions and
he could not show that he was prejudiced by them.
(Id. at 5-12.)
There is simply no evidence, let alone a serious evidentiary
dispute, to show that sudden heat was a factor in the
shootings. Orr was not entitled to a voluntary manslaughter
instruction, and he cannot show that he was prejudiced by his
trial counsel's failure to object to the trial
court's erroneous instructions and to tender a proper
instruction. Massey, 955 N.E.2d at 257.
(Id. at 11-12.)
conclusion was reasonable. Under Indiana law, a voluntary
manslaughter instruction is not warranted unless there is a
serious evidentiary dispute regarding evidence of sudden
heat. Massey v. State, 955 N.E.2d 247 (Ind.Ct.App.
Sudden heat is characterized as anger, rage, resentment, or
terror sufficient to obscure the reason of an ordinary
person, preventing deliberation and premeditation, excluding
malice and rendering a person incapable of cool reflection.
Anger alone is not sufficient to support an instruction of
sudden heat. Nor will words alone constitute sufficient
provocation to warrant a jury instruction on voluntary
manslaughter, and this is especially true when the words at
issue are not intentionally designed to provoke the
defendant, such a fighting words.
In addition, to the requirement of something more than mere
words, the provocation must be sufficient to obscure the
reason of an ordinary man, an objective as opposed to a
subjective standard. Finally, Voluntary ...