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Harman v. Zatecky

United States District Court, S.D. Indiana, Indianapolis Division

July 15, 2019

DAVID J. HARMAN, Petitioner,
DUSHAN ZATECKY Warden, Respondent.



         Petitioner David J. Harman was convicted of attempted murder in an Indiana state court. Mr. Harman now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Mr. Harman raises numerous instances of alleged trial and appellate counsel ineffectiveness in addition to an alleged due process error when the trial court denied his counsel the opportunity to make an offer of proof. The Court finds that none of Mr. Harman's claims entitle him to relief. Therefore, his Petition for a Writ of Habeas Corpus (Dkt. 2) 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 as follows:

In May 2011, Harman, who was nicknamed “Red, ” was dating Cathy Jenkins (“Cathy”), who had previously been married to J.R. Jenkins (“Jenkins”). Jenkins and Cathy, who divorced in 2007, had two sons, Joe and A. Jenkins, lived on Oakdale Avenue in Hammond, Indiana, and A. lived with him. Cathy and Joe lived with Cathy's mother in Illinois. At times, Cathy stayed with Harman, who lived with his mother in Illinois. Cathy and Harman also stayed sometimes with Cathy's friend, Lori Jones (“Jones”), and Jones's fiancé, Kevin Hanshew (“Hanshew”), who lived in Highland, Indiana.
On May 31, 2011, Harman was doing yard work for Hanshew and Jones at their house in Highland. That afternoon, while Jones was out running an errand, Harman asked Hanshew to drive him to Hammond. Harman directed Hanshew on where to drive and had him park in an alley near Jenkins's house. Harman told Hanshew that he would be gone “a couple of minutes.” (Tr. 135). Hanshew waited twenty minutes and then left because he was hot.
During this time, Harman went to Jenkins's house and asked to speak to him about Jenkins's older son, Joe. Jenkins invited Harman in, and they sat at the kitchen table. As they were talking, forty-seven- year-old Harman “sprung out with his left hand” and hit seventy- seven-year-old Jenkins in the face, knocking off Jenkins's glasses and toupee. (Tr. 313). Harman then started “beating” Jenkins. (Tr. 313). As Jenkins was “slumped down ... against the wall and the table, ” Harman “busted” a “heavy duty” wooden chair over Jenkins. (Tr. 314). When Jenkins tried to get off the ground, Harman repeated, “lay there and die, you son of a bitch, you're dead, you're dead” and “[l]ay there and die, you son of a bitch, you're worth more to us dead than you are alive.” (Tr. 314). Harman continued to hit and kick Jenkins. Then, as Jenkins was trying to get up, Harman “slic[ed]” Jenkins's throat with some sort of sharp object. (Tr. 315). Harman cut Jenkins's throat with such force that he cut “through skin, muscle and into [his] thyroid cartilage.” (Tr. 92). As Harman cut him, Jenkins asked Harman, “Red what the F are you doing[?]” (Tr. 315). Jenkins saw that his “blood was shooting everywhere” and heard Harman repeating, “you're dead, you son of a bitch, lay there and die.” (Tr. 315). Jenkins then lost consciousness.
Thereafter, Harman called Hanshew, who was “almost halfway home” to Highland, and asked Hanshew to pick him up. (Tr. 137). As Hanshew drove on Oakdale Avenue, Hanshew saw Harman “beating and kicking” an older man on a porch. (Tr. 138). When Hanshew saw that the man being beat had “blood all over” him, Hanshew kept driving and returned to his house. (Tr. 139). Harman then called Jones, yelling that Hanshew had left him, and asked her to pick him up in Hammond. After Jones dropped Harman back at the house, he took a shower, washed his clothes, and threw away his boots.
Meanwhile, Jenkins regained consciousness and was able to get up and eventually make his way to the house of Janet (a/k/a Jackie) Jenkins (“Jackie”), who lived a few houses down from him. When Jenkins went in Jackie's house, he was weak and “his neck was bleeding profusely.” (Tr. 416). Jackie sat him on the sofa, put a towel on his neck, and called the paramedics. When Jackie asked Jenkins who had hurt him, he responded, “Red, Cathy's boyfriend[.]” (Tr. 317). Jenkins then lost consciousness due to his blood loss.
Later in the evening, Cathy arrived at Jenkins's house to drop off A. When she arrived, she saw the police and police tape around Jenkins's house. Cathy then went to the police station to speak to the police. Thereafter, Cathy called Jones to tell her that she would be delayed in getting to Jones's house and informed Jones about what happened at Jenkins's house with the police. After Jones got off the phone, she went into the bedroom where Harman was sleeping, hit him on his feet, and asked “what did you do[?]” (Tr. 236). Harman responded, “I kicked the shit out of him, I should've fucking killed him.” (Tr. 236).
Jenkins was initially taken to a local hospital but was then airlifted to a hospital in Illinois due to the traumatic nature of his injuries. Jenkins suffered a subdural hematoma, a neck fracture, and an “extremely large and deep neck wound.” (Tr. 75). Jenkins's neck wound stretched “clear across his neck” and was so deep that his trachea was cut. (Tr. 79). Jenkins's neck laceration was so “extensive” that the trauma surgeon described it as “filleted.” (Tr. 79). Jenkins's injuries caused him to undergo a “traumatic arrest” where his loss of a large amount of blood caused his heart to stop. (Tr. 76). Jenkins spent a total of approximately two months in the hospital due to his injuries and complications from them. For a time, Jenkins was unable to talk and had to have a tracheostomy tube and a feeding tube.
On June 7, 2011, police officers went to the hospital to interview Jenkins. Jenkins, who was unable to speak because of his tubes, identified Harman as the perpetrator of the crime against him by writing the name “Red” on a piece of paper. Thereafter, the State charged Harman with Count I, Class A felony attempted murder; Count II, Class B felony aggravated battery; and Count III, Class C felony battery.
The trial court held a five-day jury trial from January 28, 2013 to February 1, 2013. Prior to trial, the State filed a motion in limine, seeking to exclude evidence of Jenkins's prior convictions, arrests, and charges pursuant to Evidence Rules 401, 404(b), 608, and 609. Specifically, the State sought to preclude evidence regarding: (1) Jenkins's convictions, in Illinois in September 1979, for conspiracy to commit murder, solicitation to commit murder, and attempted murder; and (2) Jenkins's guilty plea, “sometime prior” to May 2011, to threatening Cathy on the telephone in violation of a protective order issued by an Illinois court against him and in favor of Cathy. (App. 73).
Prior to the presentation of witnesses, the trial court heard argument regarding the State's motion in limine. The State argued that the prior convictions and the protective order, which was issued as part of Jenkins and Cathy's dissolution, were not relevant and would confuse the issues at trial. Harman's counsel stated that he was not planning on introducing any evidence regarding Jenkins's 1979 criminal convictions “due to the remoteness in time” but argued that Jenkins's violation of the protective order protecting his ex-wife Cathy was “extremely relevant” because Harman was dating Cathy. (Tr. 19). The trial court granted the State's motion in limine to exclude evidence of the prior convictions and the protective order.
Harman's defense at trial focused on identification, with him contending that there was no “scientific evidence” to link Harman to the crime. (Tr. 71). During trial, prior to cross-examining Jenkins, Harman renewed his objection to the trial court's pre-trial limine ruling that he was precluded from presenting evidence regarding Jenkins's violation of the protective order entered in favor of Cathy. Also, as part of an offer to prove, he sought to introduce a police report on the protective order violation. Harman did not renew his objection or make an offer to prove regarding the trial court's pre-trial limine ruling that he could not present evidence regarding Jenkins's 1979 convictions.
The jury found Harman guilty as charged. At sentencing, the trial court determined that there were no mitigating circumstances. The trial court found the following to be aggravating circumstances: (1) the injury suffered by the victim was greater than the elements necessary to prove the crime; (2) Harman's criminal history; (3) the age of the victim being over sixty-five years of age; (4) the nature and circumstances of the “brutal” attack against the victim; (5) Harman possessed “a violent and depraved nature[;]” and (6) Harman's lack of remorse. (App. 90). The trial court merged Counts II and III into Count I due to double jeopardy concerns, entered judgment of conviction on the attempted murder conviction only, and imposed a forty-five (45) year sentence in the Department of Correction.

Harman v. State, 4 N.E.3d 209, 212-15 (Ind.Ct.App. 2014) (“Harman I”).

         Mr. Harman was represented by Adam Tavitas at trial and by Mark Smalls on direct appeal. Mr. Harman exhausted one claim on direct appeal-that the trial court violated Mr. Harman's right to due process by not letting him make an offer to prove that Jenkins violated Cathy's protective order. The Indiana Court of Appeals found the issue waived because it was not raised at trial and that the trial court had allowed Mr. Harman to make an offer of proof. Harman I, 4 N.E.3d at 215-17 & n.6. The Indiana Supreme Court denied Mr. Harman's petition to transfer. (Dkt. 7-2.)

         Mr. Harman's petition for post-conviction relief was denied on July 7, 2018. (Dkt. 7-8.) On appeal, he raised three grounds for relief. First, he argued that the post-conviction court erred when it failed to subpoena witnesses. Second, he raised fourteen instances of deficient performance by his trial counsel. Third, he raised seven instances of deficient performance by his appellate counsel. (Dkt. 7-10.) The Indiana Court of Appeals affirmed the post-conviction court on all grounds. Harman v. State, 2018 WL 1278769 (Ind.Ct.App. 2018) (“Harman II”). Mr. Harman's petition to transfer to the Indiana Supreme Court was denied.[1] (Dkt. 7-9.)

         Mr. Harman filed the instant Petition for Writ of Habeas Corpus on June 5, 2018. In it, he raises the following grounds for relief:

         1. Due process error when the trial court failed to allow his counsel to make an offer of proof.

         2. Ineffective assistance of trial counsel:

a. not investigating Jenkins's criminal history, a protective order, and an anonymous phone call;
b. not calling character witnesses;
c. not objecting to the battery charges;
d. making a comment at the motion in limine hearing;
e. not calling Harman as a witness;
f. eliciting testimony from Jenkins;
g. not presenting expert witnesses;
h. not moving to exclude the voicemail message recording;
i. not objecting to leading questions and hearsay;
j. not objecting to an excited utterance;
k. not objecting to the note that Jenkins wrote in the hospital;
l. not objecting to a juror question;
m. not objecting to prosecutorial ...

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