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Boyd v. Warden

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

June 5, 2019

DABIAN BOYD, Petitioner,
v.
WARDEN, Respondent.

          ORDER DENYING PETITION FOR A WRIT OF HABEAS CORUPUS

          Hon. William T. Lawrence, Senior Judge

         Petitioner Dabian Boyd was convicted of two counts of murder in an Indiana state court. Mr. Boyd now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He argues that both trial and appellate counsel provided ineffective assistance. The Indiana Court of Appeals concluded that, although his counsel's performance was deficient, Mr. Boyd was not prejudiced by their errors. Because the Indiana Court of Appeals reasonably applied Strickland v. Washington, 466 U.S. 668 (1984), in reaching this conclusion, Mr. Boyd is not entitled to habeas relief. Accordingly, Mr. Boyd's petition for a writ of habeas corpus is denied and a certificate of appealability will not issue.

         I. Background

         Federal 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 appeal from the denial of Mr. Boyd's state petition for post-conviction relief, the Indiana Court of Appeals summarized the facts and procedural history as follows:

On the night of May 5, 2012, a woman saw Kalyn Farmer staggering down a street in South Bend. Farmer asked her for help, telling her that he had been shot. Farmer had been shot three times in the back, “with one bullet entering his lower back to the right and lodging into his spine, another traversing through his upper right arm and through his right forearm, and the third entering in the lower right portion of the back, and travelling through the abdominal cavity, liver, and right lung.” Boyd v. State, No. 71A04-1304-CR-174, slip op. at 2 (Ind.Ct.App. Dec. 10, 2013) [(“Boyd I”)]. Farmer was taken to a hospital, where he later died from his injuries. The South Bend Police Department was notified of the shooting, but officers were unable to get a statement from Farmer before he died.
On the same night, Cheryl Holt, who is Boyd's cousin, was sitting on the front porch of their grandmother's house after attending a party that was hosted by their uncle. Boyd approached the house, asked Holt if she had seen all the police cars in the neighborhood, and stated that he had a warrant out for his arrest and needed to leave the area. Boyd then went inside the house. Holt had not seen any police cars up to that point but saw multiple officers patrolling the neighborhood just after Boyd arrived at the house.
After being notified about Farmer's shooting, the South Bend Police Department began searching for the scene of the shooting but were unsuccessful. The next morning, Officer Ken Ryan located a car parked oddly in an alley. He noticed that the driver's side window was shattered and had a bullet hold through the safety glass. Inside the car, he found a second victim, Mercedes Newbill; Newbill and Boyd were also cousins. Newbill was dead with a gunshot wound to his head. Newbill and Farmer had been together the night of the shooting.
Crime-scene technicians were called to the scene to process the car.
Crime scene technicians arrived at the scene and took pictures of Newbill and the car, and searched for fingerprints and DNA evidence. . . . The technicians noticed that the driver's side window was shattered, and it was evident that the source of the shot was inside the car. The technicians were unable to find any shell casings at the scene, which led them to believe they might be looking for a revolver as the murder weapon. They were able to find a bullet lodged in the driver's side door that was fired from the rear passenger seat, and had narrowly missed Newbill's chest before going through the armrest of the door and getting stuck inside. Another shot passed through the front passenger seat belt. Based upon Farmer's injuries, the technicians believed that one of the wounds to Farmer's lower back could have occurred as a result of being shot while exiting the car. The wound to Farmer's upper back likely did not occur inside the car, but after Farmer had already exited the car.
Crime scene experts were successful in lifting twenty-two latent prints from the exterior of the car on the side where the murders took place. Out of those prints, some were matched to three individuals. Newbill's fingerprints were found around the outside of the driver's side door, and Rashondra Blake's fingerprints were found just under the window of the front passenger side door. Rashondra Blake is [Michele] Brown's sister. The third set of prints belonged to Boyd and those fingerprints were found exclusively on the outside of the rear passenger side door. Investigators determined that the shooter was sitting in the rear passenger seat. Id. at 5-6 (emphasis added).
One month later, Boyd was arrested on an unrelated charge, and police questioned him about the murders. He told officers that on the night of the murders he was at his uncle's party and when he left the party he went to his grandmother's house where he ran into Holt. Boyd claimed that he had not seen Newbill in weeks. Boyd also denied ever seeing, let alone being near, the car where Newbill died, despite being shown fingerprint evidence placing him at the car.
Before Boyd was charged with the murders of Farmer and Newbill, Jermon Gavin approached detectives with information about Boyd.
Gavin described his relationship with Boyd as very close, “like brothers.” [Trial] Tr. at 228. Gavin stated that while he and Boyd shared the same pod, or section, of the jail, Boyd had made some statements about the murder of Newbill and Farmer. Gavin indicated that Boyd seemed very cocky about the murders and told him that other people did not understand what it was “like to wake up every day with a body” on their conscience. Id. at 231. Gavin further provided officers with details about Boyd's police interrogation including the fact that they had served him Barnaby's pizza during the interrogation, an uncommon occurrence known only by Boyd and the officers.
Gavin also told the officers that Boyd believed Newbill had been shot in the head and the chest, and that five shots had been fired. Although police officers had released information that Newbill had been shot in the head, none of the other information, such as that a gunshot had appeared to have been fired in the direction of Newbill's chest, was released to the public. Because Gavin was in jail at the time of the murders, he could not have been suspected of committing the murder.
Boyd admitted to Gavin that he, Newbill, and Farmer planned to commit a robbery that evening at a house on Laurel Street and Jefferson Boulevard. Farmer had brought along his .38 special revolver, and gave it to Boyd before they went to case the house they intended to rob. They parked the car down the road on Laurel Street, but returned to the car after casing the house. On the way back to the car and out of Farmer's earshot, Boyd and Newbill argued about whether Boyd could just take the gun from Farmer. Newbill told Boyd that if he were to “get into it” with Farmer, Boyd would have a problem with Newbill, too. [Id.] at 232.
When the three men returned to the car, Newbill was in the driver's seat, Farmer was in the front passenger seat, and Boyd was in the rear passenger seat behind Farmer. An argument ensued after which Newbill grabbed the “do-rag” off of Boyd's head. [Id.] at 233. Boyd shot Newbill in the head and fired another shot toward Newbill's chest. Newbill died almost immediately as a result of the gunshot wound to his head. Farmer got out of the car and attempted to escape. Boyd shot Farmer three times until the gun clicked. Farmer then fell to the ground, but did not immediately die from his injuries. Boyd then ran back to his house stating that the police were “everywhere.” [Id.] at 234. Boyd then told Gavin that he sold the gun to Javon Thomas (“Thomas”).
Id. at 6-8. Boyd was charged with two counts of murder.
During Boyd's jury trial, the State called Gavin to testify. Gavin's testimony was similar to the statement he had given police before the trial. An officer confirmed that Boyd was given Barnaby's pizza during his interview and that this was the only investigation where that had occurred. Thomas also testified that he bought a revolver from Boyd a few days after May 5. Thomas stated that after he was arrested he told his mother to get rid of the gun. The gun was later found in Robert James's possession during a routine traffic stop.
During Gavin's testimony, the State introduced a letter from the deputy prosecutor to Gavin's attorney regarding the terms of Gavin's plea deal in exchange for his truthful testimony against Boyd. The letter included the following statement: “Investigators and I have found Mr. Gavin's statement to be accurate and trustworthy.” Ex. 40. Defense counsel objected to the admission of the letter, arguing that the statement was vouching, but the objection was overruled. Defense counsel did not request that the statement be redacted, and the full letter was published to the jury.
Holt also testified on behalf of the State. She said that Boyd approached her grandmother's house from the opposite direction of her uncle's party-the direction where Newbill and Farmer were shot. Months earlier, police had questioned Holt about the night of the murders. At that time, Holt told officers that she did not remember what direction Boyd approached the house. Defense counsel did not question Holt about her prior inconsistent statement. Rather, counsel reemphasized her direct-examination testimony that she did not go inside at her uncle's party (implying that she did not know if Boyd was at the party) and that she could not remember what time Boyd arrived at her grandmother's house.
The jury found Boyd guilty of both murders. Boyd, represented by his trial attorney, filed a direct appeal challenging the sufficiency of the evidence against him. This Court found that there was sufficient evidence to support the convictions. See Boyd, No. 71A04-1304-CR-174. Boyd then filed a petition for post-conviction relief, arguing that his attorney was ineffective for failing to impeach Holt, for failing to request that the language vouching for Gavin's truthfulness be redacted from the letter, and for failing to raise the vouching issue on direct appeal.
Boyd's attorney testified at the fact-finding hearing that he remembered Holt being very unsure of her answers. “What I recall about her testimony is something that may not be reflected in the black and white transcript. What I recall about her testimony is that she was very hesitant about a lot of her answers. She went back and forth.” P-C Tr. p. 11. He went on to say, “A lot of times I get people who change their stories, can't remember things. You know, I have to make a judgment call ...

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