United States District Court, S.D. Indiana, Terre Haute Division
ENTRY DENYING PETITION FOR A WRIT OF HABEAS CORPUS
AND DENYING A CERTIFICATE OF APPEALABILITY
L. MILLER, JR. UNITED STATES DISTRICT JUDGE
Tommy Borders is serving an aggregate 45-year sentence for
his 2010 convictions in Clay County, Indiana, for two counts
of possession of methamphetamine, one count of maintaining a
common nuisance, and one count of possession of
paraphernalia. He brings this petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. For the reasons
explained in this Entry, Mr. Borders's petition for a
writ of habeas corpus must be denied and the
action dismissed with prejudice. In addition, the court finds
that a certificate of appealability should not issue.
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).
post-conviction relief, the Indiana Court of Appeals
summarized the relevant facts and procedural history as
In January 2009, Borders, Tabitha Golden, and her daughter
lived in a residence in Clay County. Borders and Golden were
unemployed and kept methamphetamine in a black vinyl bag.
On January 5, 2009, Clay County Sheriff's Narcotics
Detective Jerry Siddons went to Borders's residence
around 4:00 p.m. regarding a separate investigation. While
there, Detective Siddons detected the odor of burnt marijuana
as well as odors consistent with the use of methamphetamine,
and he ended his contact with Borders.
Around 9:00 p.m., Cassandra “Susie” McDaniel, who
had known Golden for years, went to Borders's residence.
Trial Transcript at 735. McDaniel had previously babysat for
Golden's child in return for methamphetamine, Borders and
Golden had previously provided methamphetamine to her, and
Golden and McDaniel used McDaniel's methamphetamine that
The same day, Officer Jeremy Mace conducted a traffic stop of
Borders's vehicle and requested the presence of Brazil
City Police Officer Kenny Hill. Officer Mace requested that
Officer Hill conduct a dog sniff around Borders's vehicle
because he said that he saw Borders and his passenger digging
around in the car. Officer Hill's dog gave a positive
indication on the vehicle.
Officer Hill detected a chemical smell around the car when he
walked his dog around and then could smell the odor of burnt
marijuana coming from Borders when he exited the vehicle.
Detective Siddons and Deputy James Switzer also responded to
the scene. While speaking with Borders, Detective Siddons
smelled the odor of burnt marijuana. Deputy Switzer also
detected the odor of burnt marijuana and a chemical odor he
had previously detected in the presence of either the
ingestion or manufacture of methamphetamine. The police
conducted a search of Borders's vehicle and did not find
any drugs but seized $2, 930.
At 1:45 a.m. on January 6, 2009, the police obtained a search
warrant for Borders's residence, and the police executed
the warrant at 2:19 a.m. They discovered Golden, her child,
and McDaniel within the residence. The search of the house
revealed scales and paraphernalia, including smoking pipes
and rolling papers, a hand- rolled marijuana cigarette,
hypodermic needles, Q-tips, a metal spoon, and two bags of an
off-white powder substance later determined to be
methamphetamine, weighing 29.02 grams.
The State charged Borders with Count I, possession of
methamphetamine as a class A felony; Count II, possession of
methamphetamine as a class C felony; Count III, maintaining a
common nuisance as a class D felony; Count IV, possession of
marijuana as a class A misdemeanor; Count V, possession of
paraphernalia as a class A misdemeanor; and Count VI, being
an habitual substance offender.
In November 2009, the court held a jury trial, at which the
State presented the testimony of Detective Siddons, Officer
Hill, Officer Mace, Golden, and McDaniel.
closing argument, the prosecutor stated without objection:
I told you at the beginning in opening statement what a pox
methamphetamine is on a community. You have seen victims of
that pox here. You have seen Susie (phonetic) McDaniel. That
was a woman who's 32 years of age. And you folks can see
what - have seen with your own eyes what 15 years of
methamphetamine use did to her. You've seen Tabitha
Golden. You've seen what methamphetamine use has done.
She's lost her child, and of course, that child is
another victim of methamphetamine. The families of the
defendant, the families of these witnesses, they're
victims, as is this community as a whole. You have citizen
law enforcement officers in this community who are out there
risking their lives to save the victims, save the community,
and actually to help and save those who violate the laws.
Id. at 806-808.
prosecutor stated that “there are certain defenses that
could be filed by a defendant that would cause us to have to
say it happened at a particular time.” Id. at
816. Borders's trial counsel objected, and the trial
court admonished the jury that statements of counsel were not
evidence, that the statements are simply an argument to
persuade them, and that they can judge the evidence and the
laws presented to them. The court then stated: “And
with that, I will overrule the objection.” Id.
The one thing we know is - about Susie McDaniel is this: We
know that in the morning following her arrest, she gave a
statement to Detective Siddons that was videotaped. And you
heard testimony that a copy of that videotape was provided to
the defense counsel. If she had given any information in that
video statement that she contradicted in her testimony before
you, you surely would have heard about it. There was no such
evidence that she had given any prior inconsistent statement
to the statement she testified to before you.
Secondly, if there was any independent evidence that anything
that she had said in that video statement given to the
defendant's counsel was wrong or incorrect, that evidence
should have been presented to you. So, in other words, is -
was there anyone who contradicted what [McDaniel] testified
to? They have her statement, they knew what she said, yet no
evidence was presented to contradict what she had told
Detective Siddons either on the night following the arrest or
in regard to the testimony she presented here.
Id. at 833-835.
prosecutor later stated:
Finally, we presented evidence of motive. Why did we not
introduce the money, hundred dollar bills? To show the
defendant's motive for having this methamphetamine. His
motive was to use it and sell it. The evidence of using it
and having it to sell it is the money and the electronic
scales that was used to measure it out. If he were just a
user, he wouldn't need that in his little black bag.
That's why we introduced evidence of his unemployment,
and that's why we introduced Susie's testimony that
she had seen it, the black bag of Tommy's, lots of times.
Id. at 837-838.
defense counsel's closing argument, the prosecutor
objected, and the court again told the jury that statements
of counsel were not evidence, that they are simply arguments
to attempt to persuade them, that “you have observed
the evidence by the testimony and the exhibits given, and you
should consider on that evidence and not on the statements of
counsel.” Id. at 867. Defense counsel later
stated: “Mr. Borders is not of the - he's not some
scourge of your community. He's a fellow citizen.
He's a part of your community.” Id. at
defense counsel's closing argument, the court again
admonished the jury and stated:
And before [the prosecutor] finishes his closing statement,
ladies and gentlemen of the jury, I'm going to admonish
you at this time that closing statements, there has - go
ahead. In closing statements by counsel to this point, there
may have been an inference made that the defendant was
dealing methamphetamine. You will be given instructions as to
the exact five charges that you are to consider and all the
elements thereof. And I would admonish you and tell you that
he is not charged with dealing methamphetamine and you should
not consider any inference, if there has been any such
inference made. And further, you are to judge this case based
upon the evidence that's been presented. You may make any
inferences therefrom for the charges that have been filed
against the defendant.
Id. at 872-873.
the prosecutor's rebuttal, he stated: “It's not
fair to have methamphetamine in the community doing the
things that it's doing to children and families
affected.” Id. at 876-877. Defense counsel
objected, and the court overruled the objection.
prosecutor later stated:
[Golden] was in here not wanting to have to say the things
she had to say, but she'd already testified before Judge
Akers to these odd questions. She didn't want to, but
that doesn't mean they're untruthful. And was there
any evidence introduced by the defendant that those
statements were untruthful? Not an iota. It wasn't just
Detective Siddons that smelled it. It was Officer Hill at the
traffic stop that smelled the meth and the marijuana. It was
Clay County's drug recognition expert, Deputy Switzer,
who smelled these drugs. And you know who was never mentioned
by defense counsel? Onya (phonetic), the certified drug
testing dog. Silence.
Did you hear counsel ever address whether there was
methamphetamine at that residence? Silence. We know it's
meth. We knew it was an ounce of meth. We know it's at
his residence. Now, the question is, based on the inferences
and evidence, did he know it was there? The inferences and
evidence, two persons who testify, the smells. Did you ever
hear of any syringes and paraphernalia in the house? Did you
ever hear them mentioned? Silence. This is a tragic story.
This isn't we're on a wild goose chase to persecute
people. Our life experiences tell us what methamphetamine
does and does to a community.
Id. at 879-881.
the closing arguments, the court instructed the jury that
statements made by the attorneys were not evidence, that
their verdict should be based on the law and the facts as
they find them, that Borders was not required to present any
evidence, and that no defendant may be compelled to testify.
the court's instructions and outside the presence of the
jury, the court stated that during closing argument, defense
counsel approached the court, and the court instructed her
that it would reserve her right to make a motion prior to the
jury beginning its deliberations. Borders's counsel then
asked the court to declare a mistrial based on the
prosecutor's statements in closing that the charges were
appropriate because the prosecutor was duly elected, that