United States District Court, S.D. Indiana, Indianapolis Division
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND
DENYING A CERTIFICATE OF APPEALABILITY
R. SWEENEY II JUDGE
George King is serving a 50-year sentence for his 2002 Marion
County, Indiana, conviction of two counts of attempted
murder. He brings this petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. For the reasons that
follow, Mr. King's petition for a writ of habeas corpus
is denied. In addition, the Court finds that
a certificate of appealability should not issue.
and Procedural Background
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 direct appeal, the Indiana Court of
Appeals summarized the relevant facts of the case:
King and Kay King (“Kay”) are brother and sister.
Their father, George King (“George”), was a
multimillionaire. In 1999, Kay worked for George's
investment company, and he gave Kay power of attorney. King
lived with George at his residence in Indianapolis. Kay and
King had a strained relationship and often quarreled over who
would control George's multimillion-dollar estate after
In the summer of 2000, Kay and King clashed. King yelled,
“I'm going to kill you.” Dana Miller,
George's nursing aid, witnessed part of the fight. Miller
heard Kay ask King, “Are you going to shoot me?”
Miller saw King nod his head affirmatively and respond,
“Yeah.” In October 2001, Kay saw King remove mail
from her mailbox. During the same timeframe, one of Kay's
neighbors saw King's car stop at Kay's mailbox on
numerous occasions. Later, Kay learned that change-of-address
orders had been executed with the post office that changed
the delivery of her investment and trust accounts to
George's address, where King lived.
On the evening of November 14, 2001, Kay's
fifteen-year-old son, C.K. drove her car home from his
confirmation class. C.K. pulled into their garage and turned
off the car. As C.K. and Kay sat talking, a man wearing a ski
mask and trench coat appeared on the passenger side of the
car. He had his right hand covered with a fast-food sack. The
man removed the sack and fired a revolver at Kay and C.K.
through the passenger window. C.K. was shot twice, in his
neck and shoulder. Kay was shot five times; she sustained
injuries to her face, shoulder, and hand. C.K. restarted the
car and backed out of the garage. The assailant pursued them
and continued to fire at Kay and C.K. as they drove away.
Kay's neighbors reported seeing a thin man with a stature
similar to King's, wearing dark clothing and running away
from Kay's garage that night.
C.K. sought help at a nearby fire station. Firefighters
administered medical aid to Kay and C.K. before they were
transported to the hospital. When firefighters questioned Kay
and C.K. as to the identity of their attacker, they both
identified King as the assailant. Marion County Sheriff's
Deputy Bradley Beaton interviewed C.K. at the fire station.
C.K. told Deputy Beaton that King had shot him and his
mother. C.K. said that he recognized King as the assailant
because of his eyes, mouth, and build. Later at the hospital,
Marion County Sheriff's Department Detective John Maloney
interviewed Kay and C.K. separately; both identified King as
King v. State, 799 N.E.2d 42, 45 (Ind.Ct.App. 2003);
see also dkt. 13-6.
King was charged with two counts of attempted murder,
aggravated battery as a Class B felony, battery as a Class C
felony, and carrying a handgun without a license as a Class A
misdemeanor. The case proceeded to a jury trial on August
19-22, 2002, and the jury found Mr. King guilty on all
charges. On November 20, 2002, the trial court sentenced Mr.
King to concurrent terms of 50 years for the attempted murder
convictions and vacated all other convictions based on
double-jeopardy principles. Dkt. 13-1.
King appealed to the Indiana Court of Appeals. He raised
several claims, including that the evidence was insufficient
to support his convictions because Kay's and C.K.'s
identifications were dubious. He also claimed that his right
to cross-examination and due process were violated when the
trial court allowed Kay's recorded statement to be
presented to the jury despite having been taken after Kay
supposedly underwent hypnosis.
November 24, 2003, the Indiana Court of Appeals affirmed Mr.
King's convictions. King, 799 N.E.2d at 42. Mr.
King petitioned the Indiana Supreme Court to assume
jurisdiction over his case and raised the same claims he had
raised to the Indiana Court of Appeals. Dkts. 13-7, 13- 8. On
February 4, 2004, the Indiana Supreme Court denied transfer.
Dkt. 13-9. Mr. King then filed a petition for a writ of
certiorari in the United States Supreme Court. Dkt. 13-10. On
October 6, 2004, the writ was denied. Dkt. 13-11.
September 29, 2005, Mr. King filed a petition for
post-conviction relief in the trial court (“PCR
court”), which was dismissed by the PCR court due to
Mr. King's refusal to be transported for hearing. The
petition was reinstated by the Indiana Supreme Court on
August 22, 2008. Dkt. 13- 19.
evidentiary hearing was held in the trial court on October
21, 2014 (PCR App. Vol. II 18-19). On April 12, 2016, the PCR
court issued findings of fact and conclusions of law denying
relief (PCR App. Vol. II 20, 43-71). Mr. King appealed to the
Indiana Court of Appeals claiming that trial and appellate
counsel were ineffective. Dkts. 13-21, 13-22, & 13-23. On
January 17, 2017, the Indiana Court of Appeals issued its
decision affirming the PCR court's denial of relief. Dkt.
13- 25. Mr. King petitioned the Indiana Supreme Court to
assume jurisdiction over his case. Dkts. 13-25, 13-26. On
April 20, 2017, the Indiana Supreme Court denied transfer.
April 25, 2017, Mr. King filed this petition for a writ of
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. King'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).
Supreme Court has described the 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, 571
U.S. 12, 19-20 (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).
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 ...