United States District Court, S.D. Indiana, Indianapolis Division
A. Flores, Jr., INDIANA ATTORNEY GENERAL.
A. Loy OFFICE OF THE INDIANA ATTORNEY GENERAL.
Small ATTORNEY AT LAW.
ORDER DENYING PETITION FOR A WRIT OF HABEAS
JANE MAGNUS-STINSON, CHIEF JUDGE.
Eqwan Garrett was convicted of several drug and
firearm-related charges in an Indiana state court. Mr.
Garrett now seeks a writ of habeas corpus pursuant to 28
U.S.C. § 2254.
Court previously denied his first four grounds for relief and
claims 3, 5, 7, 8, and 9 of his fifth ground for relief and
ordered the parties to brief claims 1, 2, 4, and 6, made in
his fifth ground for relief. Dkt. 23. The Court finds that
the four remaining claims of ineffective assistance of trial
lack merit even if they had not been procedurally defaulted.
Therefore, Mr. Garrett's petition for a writ of habeas
corpus is denied and a certificate of
appealability will not issue.
habeas review requires the Court to “presume that the
state court's factual determinations are correct unless
the petitioner rebuts the presumption by clear and convincing
evidence.” Perez-Gonzalez v. Lashbrook, 904
F.3d 557, 562 (7th Cir. 2018); see 28 U.S.C. §
2254(e)(1). On direct appeal, the Indiana Court of Appeals
summarized the relevant facts and procedural history as
In 2007, after a year-long surveillance operation of a
residence on North Pershing Avenue in Marion County, the
Indianapolis Metropolitan Police Department (IMPD) suspected
that the residence was used as a facility for the manufacture
of cocaine. IMPD observed Garrett, along with several other
individuals, frequent the residence approximately eight to
ten times over the course of the surveillance. While
conducting surveillance on July 24, 2007, Detective Jake Hart
observed Garrett and two others park near the residence and
carry a large duffle bag full of rifles.
On August 14, 2007, officers with IMPD's narcotic[s]
division executed a ‘no-knock' search warrant on
the residence. SWAT team members Detective Garry Riggs,
Sergeant Robert Stradling, and Officer Baker breached the
residence through the front door using a battering ram.
During this time, police officers loudly announced,
‘[P]olice, search warrant. Everybody get down on the
Upon entering the house, Detective Riggs and Sergeant
Stradling noticed Garrett repeatedly popping out of the
second bedroom, approximately ten to twelve feet away from
them. Garrett again and again pointed a semi-automatic
handgun at Detective Riggs and Sergeant Stradling. Each time,
he attempted to fire the handgun, but it misfired. A second
SWAT team entered the residence from the rear and secured
Garrett in the second bedroom. Three other individuals were
also in the house and arrested during the execution of the
The police then searched the residence for evidence. In the
kitchen, police recovered cocaine, digital scales, over $8,
000, and an assault rifle. In the second bedroom, where
police apprehended Garrett, they found a silver and black
Smith & Wesson .40 caliber semi-automatic handgun within
arm's length of Garrett. No other suspects were in the
second bedroom. In the living room, police recovered an
additional assault rifle, two handguns, and a magazine for
the handgun found near Garrett. The weapons in the living
room were within ten feet of where Garrett had stood in the
On August 22, 2007, the State charged Garrett under Cause
Number 49G20- 0708-FA-167078 (FA-167078) with: conspiracy to
commit dealing in cocaine, a Class A felony; dealing in
cocaine, a Class A felony; possession of cocaine, a Class C
felony; possession of a firearm by a serious violent felon
(possession of a firearm by a SVF), a Class B felony; and
pointing a firearm, a Class D felony. On January 22, 2009,
the State moved to dismiss the charges, and the trial court
granted the motion.
On August 22, 2009, the State charged Garrett, along with
four other defendants, with: Count I, conspiracy to commit
dealing in cocaine, a class A felony; Count II, dealing in
cocaine, a class A felony; Count III, possession of cocaine,
a class C felony; Count IV, possession of a firearm by a
serious violent felon (possession of a firearm by a SVF), a
class B felony; Count V, pointing a firearm, a class D
felony; and Count VI, possession of cocaine and a firearm, a
class C felony. After a two-day jury trial on Counts I, II,
III, V, and VI, the jury found Garrett guilty on Counts, I,
V, and VI. The jury convicted Garrett on a lesser included
offense on Count III and acquitted him on Count II.
Garrett waived his right to a jury trial on Count IV,
possession of a firearm by a SVF and, on November 24, 2010,
the trial court found Garrett guilty. At the sentencing
hearing, the court entered convictions on conspiracy,
possession of a firearm by a SVF, and pointing a firearm.
Because of double jeopardy, the court found that the lesser
included offense for possession of cocaine merged with the
conspiracy conviction, and that possession of cocaine and a
firearm merged with conspiracy and possession of a firearm by
a SVF. The trial court sentenced Garrett to forty years for
conspiracy and twelve years for possession of a firearm by a
SVF, both to run concurrently. For pointing a firearm, the
court sentenced Garrett to three years to run consecutively
to the sentences for conspiracy and possession of a firearm
by a SVF, for a total executed term of forty-three years in
the Department of Corrections.
Garrett v. State, 953 N.E.2d 676 (Ind.Ct.App. 2011).
Garrett's convictions were affirmed on direct appeal and
the Indiana Supreme Court denied transfer. Dkts. 17-7, 17-12.
On May 10, 2012, Mr. Garrett filed a petition for
post-conviction relief. During the evidentiary hearing, Mr.
Garrett's post-conviction counsel raised two claims of
ineffective assistance of counsel. First, he argued
ineffective assistance of trial counsel for the following
reasons: failing to file a motion to suppress evidence;
failing to make proper objections at trial; failing to
effectively cross-examine the State's witness at trial;
and failing to file a motion to dismiss under Criminal Rule
4. Dkt. 17-9, p. 34. Second, he argued ineffective assistance
of appellate counsel for the following reasons: failing to
argue that the criminal charges should have been discharged
pursuant to Criminal Rule 4; and failing to argue sufficiency
of the evidence. Dkt. 17-9, p. 36.
post-conviction court denied the petition. Dkt. 17-9, pp.
29-39. With respect to trial counsel's performance, the
post-conviction court found that Mr. Garrett failed to meet
his burden of proof to show that counsel made errors so
serious they resulted in a denial of the right to counsel
guaranteed under the Sixth Amendment. Dkt. 17-9, pp. 35-36.
Similarly, as to appellate counsel, the post-conviction court
found that Mr. Garrett failed to meet his burden of proof to
show that counsel made errors so serious they resulted in a
denial of the right to counsel guaranteed under the Sixth
Amendment. Dkt. 17-9, p. 37.
appeal from the denial of post-conviction relief, Mr. Garrett
claimed that: 1) his trial counsel was ineffective for
failing to move to suppress evidence obtained as a result of
an allegedly illegal search and failing to file a proper
motion to dismiss and/or discharge for the violation of
Indiana Criminal Rule 4; and 2) he was denied a procedurally
fair post-conviction relief hearing. Dkt. 17-9; dkt. 17-12,
pp. 5-6. Mr. Garrett also argued that his direct appeal
counsel rendered ineffective assistance by failing to raise
the Indiana Criminal Rule 4 issue on appeal and for failing
to challenge the “sufficiency of the evidence for his
conviction of conspiracy to commit dealing in cocaine.”
Dkt. 17-12, p. 18. Finally, Mr. Garrett argued that his
post-conviction counsel was ineffective because he
“should have amended his petition for post-conviction
relief to add other claims, submitted additional evidence at
the hearing, and submitted proposed findings of facts and
conclusions thereon.” Dkt. 17-9, pp. 6, 24-27; dkt.
17-12, p. 24.
November 5, 2015, the Indiana Court of Appeals affirmed the
denial of post-conviction relief. Dkt. 17-12. On transfer to
the Indiana Supreme Court, Mr. Garrett raised only two
issues: 1) the Indiana Court of Appeals erred when it
incorrectly applied the law with respect to his argument that
his criminal charges should have been dismissed pursuant to
Indiana Criminal Rule 4; and 2) whether his direct appeal
counsel was ineffective for failing to challenge the
sufficiency of the evidence with respect to his conviction
for conspiracy to commit dealing in cocaine. Dkt. 17-13, pp.
6-7. On March 31, 2016, the Indiana Supreme Court denied
transfer. Dkt. 17-2, p. 7. Mr. Garrett filed this action on
November 29, 2016. Dkt. 1. The Court previously denied ...