United States District Court, S.D. Indiana, Terre Haute Division
JOSHUA J. FAIRLEY, Petitioner,
RICHARD BROWN, Warden of the Wabash Valley Correctional Facility, Respondent.
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
AND DENYING A CERTIFICATE OF APPEALABILITY
WILLIAM T. LAWRENCE, SENIOR JUDGE
J. Fairley, an inmate incarcerated in the Indiana Department
of Correction, seeks a writ of habeas corpus by challenging
his conviction from the Vanderburgh Circuit Court in
Evansville, Indiana, case number 82C01-1008-MR-936.
Respondent filed a return and also filed the state court
transcripts and exhibits. Mr. Fairley did not file a reply.
For the reasons explained in this Order, the petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 is
denied. The Court also determines that a
Certificate of Appealability should not issue.
August 4, 2010, Mr. Fairley was charged with the murder of
sixteen-year-old H.G. in Vanderburgh County, Indiana. Public
defender Dennis Vowels was appointed to represent him.
Vowels negotiated a plea agreement with the State, and Mr.
Fairley pled guilty to the murder charge. The trial court
ordered a pre-sentence investigation. On March 17, 2011, Mr.
Fairley was sentenced to fifty years incarceration. There was
no direct appeal.
February 23, 2012, Mr. Fairley filed a pro se petition for
post-conviction relief in the trial court. The Indiana State
Public Defender entered an appearance for Mr. Fairley and
filed an amended petition on April 29, 2016. An evidentiary
hearing was held April 29, 2016. Mr. Vowels, Detective
Spencer, Detective Sides, and Dr. Fred Unverzagt testified.
The deposition of Dave Frank, Mr. Fairley's former
employer, and the tape recording of Mr. Fairley's August
2, 2010 statement to police were admitted as evidence. On
February 21, 2017, the trial court denied Mr. Fairley's
petition. Dkt. 2-1, pp. 1-26 (findings of fact and
conclusions of law).
represented by the State Public Defender, Mr. Fairley
appealed to the Indiana Court of Appeals. Mr. Fairley argued
that (1) he had received ineffective assistance of trial
counsel because (a) counsel failed to investigate Mr.
Fairley's competency to plead guilty, and (b) trial
counsel failed to file a motion to suppress the statement
given to police; (2) his guilty plea was not knowingly and
voluntarily made and there was an insufficient factual basis
for the plea; and (3) he was denied due process of law when
the trial court accepted his plea without first sua
sponte investigating whether he was competent to stand
December 29, 2017, the Court of Appeals held that the trial
court did not clearly err in concluding that Mr. Vowels
provided effective assistance of counsel, the trial court did
not clearly err in denying the claim that Mr. Fairley's
plea was not knowingly and voluntarily entered, and the trial
court did not clearly err in failing to sua sponte
investigate Mr. Fairley's competence. Dkt. 9-7.
Fairley petitioned the Indiana Supreme Court to accept
transfer of the case, presenting each of the claims presented
to the Court of Appeals. On March 22, 2018, transfer was
denied. On April 10, 2018, Mr. Fairley, proceeding pro
se, filed his petition for a writ of habeas corpus. Dkt.
Habeas Corpus Legal Standard
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). The Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) directs how the
Court must consider petitions for habeas relief under §
2254. “In considering habeas corpus petitions
challenging state court convictions, [the Court's] review
is governed (and greatly limited) by AEDPA.” Dassey
v. Dittmann, 877 F.3d 297, 301 (7th Cir. 2017) (en banc)
(citation and quotation marks omitted). “The standards
in 28 U.S.C. § 2254(d) were designed to prevent federal
habeas retrials and to ensure that state-court convictions
are given effect to the extent possible under law.”
Id. (citation and quotation marks omitted).
federal habeas court cannot grant relief unless the state
court's adjudication of a federal claim on the merits:
(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).
decision federal courts look to is the last reasoned
state-court decision to decide the merits of the case, even
if the state's supreme court then denied discretionary
review.” Dassey, 877 F.3d at 302.
“Deciding whether a state court's decision
‘involved' an unreasonable application of federal
law or ‘was based on' an unreasonable determination
of fact requires the federal habeas court to train its
attention on the particular reasons - both legal and factual
- why state courts rejected a state prisoner's federal
claims, and to give appropriate deference to that
decision[.]” Wilson v. Sellers, 138 S.Ct.
1188, 1191-92 (2018) (citation and quotation marks omitted).
“This is a straightforward inquiry when the last state
court to decide a prisoner's federal claim explains its
decision on the merits in a reasoned opinion.”
Id. “In that case, a federal habeas court
simply reviews the specific reasons given by the state court
and defers to those reasons if they are reasonable.”
purposes of § 2254(d)(1), an unreasonable application of
federal law is different from an incorrect application of
federal law.” Harrington v. Richter, 562 U.S.
86, 101 (2011). “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.” Id. “If
this standard is difficult to meet, that is because it was
meant to be.” Id. at 102. “The issue is
not whether federal judges agree with the state court
decision or even whether the state court decision was
correct. The issue is whether the decision was unreasonably
wrong under an objective standard.” Dassey,
877 F.3d at 302. “Put another way, [the Court] ask[s]
whether the state court decision ‘was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.'” Id. (quoting
Richter, 562 U.S. at 103). “The bounds of a reasonable
application depend on the nature of the relevant rule. The
more general the rule, the more leeway courts have in
reaching outcomes in case-by-case determinations.”
Schmidt v. Foster, 911 F.3d 469, 477 (7th Cir. 2018)
(en banc) (citation and quotation marks omitted).
Facts of the State Case
district court review of a habeas corpus petition presumes
all factual findings of the state courts to be correct,
absent clear and convincing evidence to the contrary. See
Daniels v. Knight, 476 F.3d 426, 434 (7th Cir. 2007).
The facts of Mr. Fairley's case, as taken from the
Indiana Court of Appeals' decision on post-conviction
appeal, are these:
On the night of June 23, 2010, Fairley was at his home in
Evansville with Summer Jones. . . . Jones had previously been
in a relationship with Fairley, and the two were in bed. At
some point late that night or early the next morning, someone
began to pound on the door and walls of Fairley's home.
Jones figured that the person causing the commotion was
Fairley's ex-girlfriend, as Fairley had told Jones that
he had recently broken up with his girlfriend, and she was
correct. Jones heard the sound of glass break and heard
Fairley tell the ex-girlfriend, later identified as
sixteen-year-old H.G., to leave. H.G. told the then
thirty-year-old Fairley that she wanted to resume their
relationship, but Fairley told her that their relationship
was over because H.G. had indicated that she desired to have
sex with another man. As Jones dressed and readied to leave
the house, she saw H.G. attempt to enter the home through a
window while Fairley was preventing her from doing so. Upon
seeing Jones, H.G. stated, “Who you got in here? A
sixteen year old? Is it a sixteen year old?” H.G.
eventually entered the house, apparently through the door,
and wanted to physically fight Jones. H.G. entered the
kitchen where Jones was and lunged at her, but was restrained
by Fairley, who told Jones to leave through the front door.
Jones did not see H.G. with any weapons, but knew that her
ire was directed toward Jones.
Jones left Fairley's home and walked to her father's
house nearby, forgetting that her own vehicle was parked
outside Fairley's home. She later woke her father up and
asked him to drive her back to Fairley's home so that she
could get her vehicle; she also wanted her father to be there
in case H.G. was still at Fairley's house and tried to
fight her. When Jones returned to her vehicle, she noticed
that the passenger side window had been broken. Jones called
the police to report the broken window, and an officer
arrived and took a statement from her. The officer then went
to Fairley's front porch and knocked on the door, but no
one answered. The officer found a purse and wallet on the
front porch, and found two pieces of identification. He
showed them to Jones, who identified one of the pieces of
identification as belonging to the girl she had seen enter
Fairley's home, H.G. Jones then left to get her vehicle
Later that day, June 24, Fairley failed to show up to work at
a local pizzeria. The owner of the establishment telephoned
Fairley but got no answer. He then sent another employee to
check on Fairley. This employee called back at around 5:00
p.m. and informed his boss that the front door was broken, a
window was broken, and that he could see blood on the floor
and a girl lying on the floor. The police were called to the
scene and discovered H.G. lying dead on the floor with a
gunshot wound to her head. They found Fairley in the
bathroom, sitting on the toilet with what appeared to be a
self-inflicted gunshot wound to the head. The bullet had
entered under his chin and exited the top of his head.
Miraculously, Fairley was still alive. Fairley was
transported to a local hospital then taken to Wishard
Hospital in Indianapolis. . . . .
Detective Jack Spencer . . . of the Evansville Police
Department was lead investigator on the case. He, along with
crime scene investigators, spent many hours going over the
scene of the crime. They also learned that Jones had reported
vandalism to her vehicle outside Fairley's house the
morning of the day H.G. was found dead. The police
transported Jones from her home across the Ohio River in
Owensboro, Kentucky and interviewed her. Jones told them of
the events of the night as recounted above.
During the investigation, the police found no evidence
indicating the involvement of a third party in the shootings.
Forensic evidence also ruled out the possibility of an
accidental shooting, as H.G.'s body had no indication
that she had held the gun. Instead, the police believed that
Fairley and H.G. had gotten into an argument, that Fairley
had shot H.G. in the head, and then shot himself.
On July 13, 2010, Detective Spencer and Detective Michael
Sides . . . drove to Wishard Hospital to talk to Fairley.
Although the police did not read Fairley his Miranda rights,
Fairley was not communicative. Detective Spencer told Fairley
that he would be charged with murder but did not arrest
Fairley at the time.
That Fairley was non-communicative was not a surprise, as he
had suffered a severe head wound and a brain injury. Fairley
had to undergo several surgeries and medical procedures,
including a frontal lobectomy, the removal of his left eye,
and repair to his skull and jaw. Fairley was also sedated for
a long period. But he began to receive physical and speech
therapy in July 2010 and began to stabilize. Reports from
mid-July indicate that Fairley suffered from somnolence. And
a clinical specialist diagnosed Fairley in mid-July with
dementia, disorientation as to place, and an inability to
recall the names of family members and identify objects in
the room. Later that month, Fairley was given a mental acuity
test in which 30 is a perfect score; Fairley scored only 12.
Fairley had difficulty following instructions and could not
recall some of his own personal information, e.g., he could
recall his date of birth, but not his age.
Indianapolis police contacted Detective Spencer in late July
and informed him that the hospital was preparing to release
Fairley. Detective Spencer spoke with one of Fairley's
nurses, who informed him that Fairley had progressed mentally
and physically but still suffered from problems with his
memory. On August 2, 2010, Detectives Spencer and Sides drove
to Indianapolis to take Fairley into custody and return him
to Evansville. At the hospital, Detective Spencer asked
Fairley where he was, what the date was, what was his date of
birth, and who was the President of the United States.
Fairley answered the questions about his whereabouts
correctly. Although he could not remember the name of the
current President, he did recall that he was
African-American. When Detective Spencer asked Fairley if he
knew why he was in the hospital, he replied that he did not.
But Fairley then pointed to the wound on his chin and asked
when it had occurred. Detective Spencer replied that he had
hoped that Fairley could tell him about the gunshot wound.
Detective Spencer also asked Fairley if he knew where H.G.
was. Fairley responded that he thought she was in Evansville,
but knew that he had not heard from her while in the
Detective Spencer's questioning of Fairley was summarized
in his police report as follows:
I asked Fairley if he remembered the night [H.G.] came to his
house while Summer Jones was there and he stated he did.
Fairley stated that he and Summer were about to have sex when
[H.G.] came over. Fairley stated he remembered that [H.G.]
broke the window and eventually came in through the front
door. Fairley told me that [H.G.] had a key to his house.
Fairley stated that he told Summer to leave out the back door
and also told [H.G.] to leave. Fairley stated that [H.G.] was
angry because Summer was there and he thought she was going
to beat up Summer. Fairley stated he held [H.G.] down on the
floor so Summer could leave. Fairley stated he did not know
what door she left out of. Fairley stated he could not
remember anything after that. I told Fairley that [H.G.] had
been shot and was dead. Fairley looked at me puzzled and told
me that he had just seen her recently. I told Fairley that we
believed based on evidence at the scene that he had shot
[H.G.] and then shot himself and I needed to know why.
Fairley stated he could not remember and never stated he did
not shoot [H.G.] or himself.
Fairley was discharged and Det. Sides and I handcuffed
Fairley and explained that he was under arrest for
[H.G.]'s murder, and he was going back to Evansville with
us. He stated he understood, but asked no questions of me. I
asked no more questions of Fairley regarding the case until
we left the hospital.
We stopped south of Terre Haute to get gas, and I took the
opportunity to continue my questioning of Fairley. I
retrieved two copies of the Miranda Waiver form and put one
in his hand. I sat next to Fairley in the back seat and
explained Miranda to him. He stated he understood what was
said. I slowly read the form out loud and Fairley stated he
understood his rights. He was unable to sign, due to the fact
he was handcuffed to a leather belly belt, limiting his
I again went over the events of June 24, 2010 with Fairley,
and it was digitally recorded. I showed a crime scene photo
to Fairley of the front of the house and asked him if it
looked familiar. He stated that it was his house. I showed
another photo of a handgun lying on the carpet in a pool of
blood. Fairley seemed taken back by the photo and stated that
it was his gun. I asked Fairley about his relationship with
[H.G.] and he stated he did not remember how they met, but
they had been in a sexual relationship for at least a year.
Fairley stated that Jeff Phillips and [H.G.]'s aunt Angie
knew of the relationship and [H.G.] would come to his house
often while she was supposed to staying at Angie's house.
Fairley stated he thought [H.G.] was nineteen years old. I
asked Fairley if anyone else was with [H.G.] when she came to
his house that night Summer was there. He stated [H.G.] was
alone, and he and Summer were alone until [H.G.] arrived. I
asked Fairley if he saw [H.G.] with any weapon and he stated
no. I asked Fairley if he had a sword collection and he
stated he did. I asked him if he ever saw [H.G.] with one of
his swords that night and he stated he did not remember her
I asked Fairley about his gun and what type it was. He stated
he believed it was a 9mm and he had bought it from Tony
Mattingly some time ago. I asked him low long ago and he
stated it probably was longer than one year. I asked Fairley
where he kept his gun, and he stated that it was kept in a
locked closet in his bedroom and he had the only key, which
was kept on his keyring. Fairley stated he kept a loaded
magazine in the gun, but not one in the chamber. I asked
Fairley if [H.G.] knew he had a gun and he stated she did,
but did not have access to it.
Detective Spencer later stated that, during this interview,
Fairley had provided him with little information that he did
not already know. On August 4, 2010, the State charged
Fairley with murder.
In jail, Fairley's recovery continued. On August 5, 2010,
he asked a jail officer if he could “go sweep, ”
which he did not understand. Eventually, he understood that
Fairley meant that he wanted to shower. Approximately one
week later, a clinical social worker evaluated Fairley as
part of the suicide watch procedure and noted that he was
oriented as to the time and date. Fairley told the social
worker that he did not recall shooting himself or H.G.
Dkt. 9-7, ¶¶ 3-12 (Ind.Ct.App. memorandum opinion)
(internal record citations and footnote omitted).
Court of Appeals made other fact determinations, both as to
the murder and to Mr. Fairley's trial court
representation. Such facts will be discussed as necessary in
the following sections of this Order.
Habeas Corpus Claims
grounds for relief are presented in Mr. Fairley's
petition, which the Court summarizes:
Ground One: Guilty plea was not knowing, intelligent, or
Ground Two: Ineffective assistance of trial counsel.
Ground Three: Trial court's failure to evaluate his
competency and hold a hearing.
Each of these grounds, and their sub-components, are
Mr. Fairley's guilty plea was not knowingly,
intelligently, or voluntarily given in violation of his right
to due process, “due course of law, ” equal
protection, and privileges guaranteed by the Fifth, Sixth,
and Fourteenth Amendments.
Mr. Fairley's argument
Fairley argues that he sustained a traumatic brain injury
during the crime and was later unable to accurately recall
the events that resulted in his being charged with murder. He
argues that this raised an issue of competency. Mr. Fairley
also argues that his statement to the police was taken in
violation of his Miranda rights, see Miranda v.
Arizona, 384 U.S. 436 (1966), and was not challenged by
his trial counsel, and had it been, the state's case
would have been significantly weaker and he would not have
pled guilty. Dkt. 2, p. 5.
respondent argues that Mr. Fairley did not present any
federal constitutional claims to the Indiana courts
concerning his guilty plea. Rather, he argues, Mr. Fairley
challenged his guilty plea solely on state law grounds.
Specifically, when Mr. Fairley argued that his guilty plea
should not have been accepted because he had professed his
innocence in a subsequent pre-sentence report, he cited only
to state law and did not invoke federal constitutional law.
Because Mr. Fairley did not fairly present his federal claim
to the state courts, the respondent ...