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Flagg v. Warden, Wabash Valley Correctional Facility

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

June 24, 2019

JUAN FLAGG, Petitioner,
v.
WARDEN Wabash Valley Correctional Facility, Respondent.

          ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS

          HON. WILLIAM T. LAWRENCE, SENIOR JUDGE

         Petitioner Juan Flagg was convicted in an Indiana state court of one count of murder, one count of attempted murder, one count of robbery, one count of aggravated battery, and one count of dealing in cocaine. Mr. Flagg now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging everything but the conviction for dealing in cocaine. He alleges that trial counsel was ineffective on seven grounds. Three of those grounds are procedurally defaulted, and the other four are barred by 28 U.S.C. § 2254(d), without merit, or both. Therefore, Mr. Flagg'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 direct appeal, the Indiana Court of Appeals summarized the relevant facts and procedural history:

During the early morning hours of December 16, 2007, Lamonica Radford and Anthony Graves were sleeping on their living room couch in their Indianapolis home. Six children and Lamonica's uncle, Kevin Radford, were sleeping in the home's two bedrooms. At approximately 6:30 a.m., Flagg, whose nickname is ‘Boy Boy,' and another man kicked in the door of the home. Flagg was wearing a mask over part of his face and carrying a gun. Flagg shot Graves in the chest, killing him. Flag also shot Lamonica in the knee. Flagg said to Lamonica, “B****, give me the s*** or I'm going to kill you.” Lamonica thought Flagg was referring to money from several paychecks that Graves had recently cashed. Lamonica ran from the living room to one of the bedrooms, where her daughter had been sleeping. Lamonica and her daughter held the door shut. Flagg threatened to shoot Lamonica's nephew if she did not open the door. Flagg shot through the bedroom door and struck Kevin, who had been sleeping on the bedroom floor, in the leg. During the incident, Flagg said to Lamonica, “Remember Boy Boy did this.”
On December 19, 2007, Flagg was arrested outside of his girlfriend's apartment.1 During a search of Flagg's girlfriend's apartment, a 9 mm handgun was discovered under a mattress. This handgun was later determined to be the weapon used in the shooting.
* * *
1 When Flagg was arrested, he had twenty-seven grams of cocaine and another handgun in his possession. In a separate charging information, Flagg was charged with Class A felony dealing in cocaine [and several related counts]. Flagg was tried on these allegations along with the December 16, 2007 allegations and was convicted of the Class A felony dealing charge.

Flagg v. State, 2009 WL 4892533, at *1 and n.1 (Ind.Ct.App. Dec. 18, 2009) (“Flagg I”) (record citations omitted).

         On post-conviction review, the Indiana Court of Appeals added more factual summary:

[T]he State introduced expert testimony regarding DNA testing performed upon four swabs taken from the murder weapon. Forensic scientist Tanya Fishburn (“Fishburn”) testified that there were more than two contributors of DNA and Flagg was “not eliminated” as a contributor. Fishburn estimated that the probability of an unrelated individual being a contributor was 1 in 1, 000 Caucasians, 1 in 200 African Americans, and 1 in 2, 000 Hispanics. DNA samples from the shell casings produced inconclusive results, as was expected. During testing, Fishburn learned that DNA belonging to a crime lab employee was present on a sample; the sample was discarded. She denied using any contaminated sample in obtaining admissible results. Fishburn summarized her ultimate conclusion, that is, “nothing tested” led her to “say with any level of certainty” that Flagg's DNA was present.

Flagg v. State, 2018 WL 2144364, at *5 (Ind.Ct.App. May 10, 2018) (“Flagg II”) (record citations and footnote omitted).

         Following Mr. Flagg's conviction, the appellate court affirmed on direct appeal, and the Indiana Supreme Court denied leave to transfer.

         Mr. Flagg next filed a post-conviction petition in the state trial court. See Flagg II, 2018 WL 2144364, at *2. Appointed counsel withdrew from representation, and the trial court denied the post-conviction petition following a hearing. Dkts. 6-13, 6-14. Mr. Flagg appealed, arguing (as relevant here) that trial counsel was ineffective for failing to (a) impeach Ms. Radford with a prior inconsistent statement regarding her marijuana use, (b) investigate and call Ms. Radford's nine-year-old nephew, S.C., (c) move to sever the dealing in cocaine charge, and (d) move to suppress all DNA evidence. Dkt. 5-9 at 16-33. The appellate court affirmed, and the Indiana Supreme Court denied leave to transfer.

         Mr. Flagg filed a habeas corpus petition in this Court on August 2, 2018. Dkt. 1. Read in the light most favorable to petitioner, the petition alleges that trial counsel was ineffective for failing to (1) impeach Ms. Radford with a prior inconsistent statement about details of what she saw, (2) impeach Ms. Radford with a prior inconsistent statement regarding her marijuana use, (3) investigate and call S.C., (4) move to sever the dealing in cocaine charge, (5) move to suppress DNA evidence, (6) retain an expert to perform a voice analysis on the 9-1-1 call, and (7) allow Mr. Flagg to testify in his own defense. Id. at 9-25.

         II. Procedurally Defaulted Allegations (Grounds 1, 6, and 7)

         Before seeking federal habeas corpus review, “a petitioner must assert his federal claim through one complete round of state court review, either on direct review or in post-conviction proceedings.” Bolton v. Akpore, 730 F.3d 685, 694 (7th Cir. 2013); see also Baldwin v. Reese, 541 U.S. 27, 29 (2004) (“[T]he prisoner must fairly present his claim in each appropriate state court . . . thereby alerting that court to the federal nature of the claim.” (quotation marks omitted)). If a petitioner has failed to present his claim through one complete round of state court review and there is no remaining opportunity for him to do so, the claim is procedurally defaulted. Bolton, 730 F.3d at 696. Where a petitioner alleges that counsel was ineffective in multiple ways, “the failure to alert the state court to a complaint about one aspect of counsel's assistance will lead to a procedural default” of that complaint. Stevens v. McBride, 489 F.3d 883, 894 (7th Cir. 2007).

         Ground 1 alleges that trial counsel was ineffective for failing to impeach Ms. Radford with a prior inconsistent statement about details of what she saw. Ground 6 alleges that counsel was ineffective for failing to retain an expert to perform a voice analysis on the 9-1-1 call. Ground 7 alleges that trial counsel prevented Mr. Flagg from testifying at trial. Mr. Flagg did not present any of these complaints about counsel's performance to the Indiana Court of Appeals. See generally Dkt. 5-3 (raising no ineffective assistance arguments on direct appeal); dkt 5-9 (raising other complaints about counsel's performance on post-conviction appeal). They are therefore defaulted. Bolton, 730 F.3d at 694; Stevens, 489 F.3d at 894.

         A petitioner can salvage a procedurally defaulted claim by showing “either (1) ‘cause for the default and actual prejudice' or (2) ‘that failure to consider the claims will result in a fundamental miscarriage of justice.'” Thomas v. Williams, 822 F.3d ...


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