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Borders v. Superintendent

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

November 15, 2018

TOMMY BORDERS, Petitioner,



         Petitioner 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.

         I. 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 post-conviction relief, the Indiana Court of Appeals summarized the relevant facts and procedural history as follows:

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 day.
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.

         During 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.

         The 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. at 817.

         The prosecutor stated:

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.

         The 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.

         During 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 871.

         Following 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.

         During 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.

         The 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.

         Following 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.

         Following 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 ...

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