United States District Court, S.D. Indiana, Terre Haute Division
ORDER DENYING PETITION FOR A WRIT OF HABEAS
WILLIAM T. LAWRENCE, SENIOR JUDGE
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.
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
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
Flagg v. State, 2009 WL 4892533, at *1 and n.1
(Ind.Ct.App. Dec. 18, 2009) (“Flagg I”)
(record citations omitted).
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).
Mr. Flagg's conviction, the appellate court affirmed on
direct appeal, and the Indiana Supreme Court denied leave to
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
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.
Procedurally Defaulted Allegations (Grounds 1, 6, and
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.
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
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