United States District Court, S.D. Indiana, Terre Haute Division
BRIAN E. GRAVES, Petitioner,
RICHARD BROWN, Respondent.
R. DRUM INDIANA ATTORNEY GENERAL
ORDER DENYING PETITION FOR A WRIT OF HABEAS
WILLIAM T. LAWRENCE, SENIOR JUDGE
Brian Graves was convicted of escape, resisting law
enforcement, and classified as a habitual offender in an
Indiana state court. Mr. Graves now seeks a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. He argues that both
his trial and appellate counsel provided ineffective
assistance, and he raises three other constitutional claims.
The Indiana Court of Appeals reasonably applied
Strickland v. Washington, 466 U.S. 668 (1984), in
ineffective-assistance-of-counsel claims, and his remaining
claims are procedurally defaulted. Therefore, Mr.
Graves'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 facts underlying Mr. Graves's convictions
[O]n the cold and snowy evening of February 7, 2010 Indiana
State Police Trooper Christopher Howell began to patrol
Interstate 74 looking for drivers who might be stranded due
to the inclement weather. The trooper observed Graves's
truck parked in the emergency pull-off lane on the
interstate. Graves was standing at the front of the vehicle.
When Trooper Howell stopped to investigate, he asked Graves
what he was doing. Graves replied that he was scraping ice
from his windshield. Trooper Howell, who observed that there
was nothing in Graves's hands, noted that Graves's
words were slurred and he was unsteady on his feet. At this
point, Howell was standing in front of his police cruiser,
which in turn was stopped behind Graves's truck. He asked
Graves to come to him. Graves initially refused and told the
trooper he was going to “take off”. Transcript at
34. In response, Trooper Howell issued a “loud
command” to Graves to walk to the trooper. Id.
This time, Graves complied. The trooper patted down Graves
and asked where he had been and where he was going. When
Graves responded, Trooper Howell detected the odor of alcohol
on his breath. He asked if Graves had been drinking and
Graves said he had not. Trooper Howell asked for Graves's
identification and registration and was informed that they
were in the truck. He escorted Graves to the vehicle and
watched as Graves retrieved his wallet and began looking
through its contents. He noted that Graves had an Indiana
identification card, which signified to the trooper either
that Graves did not have a driver's license, or that his
license was suspended. He asked Graves about the status of
his license and Graves responded that it had been suspended
for nonpayment of parking tickets. Graves was not able to
produce any of the other requested documentation. At that
point, because of the weather and conditions, Trooper Howell
asked Graves to sit in the front passenger seat of his police
cruiser while he verified Graves's information.
After the two were seated inside the cruiser, Trooper Howell
began running Graves's information on a laptop computer
located between the two of them such that both Howell and
Graves could see the information displayed on the screen.
When the laptop began to emit audible alert tones and display
Graves's information, Graves was looking at the screen
and reading the information along with Trooper Howell. Among
the information on the screen was an indication that Graves
was wanted on four open warrants. After a few seconds, Graves
“turned his head and said sorry, I gotta go.”
Id. at 39. He then opened the door and, according to
Howell, “out he went.” Id. Trooper
Howell at first just sat there, “dumbfounded.”
Id. at 40. He saw Graves start toward his truck, and
then the trooper exited his car and ran to intercept Graves.
During the ensuing scuffle, the trooper repeatedly commanded
Graves to “stop resisting” and told him,
“You need to stop.” Id. at 74. He
grabbed Graves while they were between the vehicles, but
Graves slipped from his grasp and continued to the front
passenger side of his truck. Trooper Howell decided to run
around the driver's side of the truck and intercept
Graves from that direction. He caught Graves near the front
of the vehicle. Graves pushed Howell, who fell backward and
hit his head and was stunned for a moment. By the time Howell
recovered, Graves had climbed into the driver's seat of
the truck, but the door was still open when Howell got to him
and began pulling on Graves, attempting to extricate him from
the truck. He continued pulling Graves by the coat and
ordering him to get out of the truck and to quit resisting.
At some point, Graves managed to get his truck into gear,
stepped on the gas, and began driving away. When he did, the
forward motion caused the door to shut on Trooper
Howell's left hand, injuring one of his fingers badly
enough that it later required stitches. Trooper Howell hung
on “for a little bit” but soon let go.
Id. at 42. He called the State Police Post and gave
them Graves's description and a description of his truck.
That description was relayed to law enforcement officials in
Approximately ten minutes later, Deputy Joseph Mohr of the
Shelby County Sheriff's Department observed Graves
driving on I-74. After ascertaining that the truck matched
the description of the subject vehicle, Deputy Mohr initiated
a traffic stop. Graves sped away and threw several items out
of the window before he eventually stopped after a chase. He
was ultimately convicted of escape as a class B felony,
resisting law enforcement as a class D felony, [which were
merged at sentencing], and found to be a habitual offender.
Graves v. State, 978 N.E.2d 759, 2012 WL 5458116,
*1-2 (Ind.Ct.App. 2012) (“Graves I”).
The Indiana Court of Appeals affirmed his convictions.
Graves then pursued state post-conviction relief. The state
post-conviction court vacated his adjudication as a habitual
offender, but left intact his escape conviction. See
Graves v. State, 94 N.E.3d 357, 2017 WL
4343051, *1 n.1 (Ind.Ct.App. 2017) (“Graves
II”). The Indiana Court of Appeals affirmed the
denial of relief on Mr. Graves's escape conviction.
See Id. After the Indiana Supreme Court denied
transfer, Mr. Graves filed the instant petition for a writ of
habeas corpus on June 22, 2018.
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