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Myers v. Superintendent, Indiana State Prison

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

September 30, 2019

JOHN MYERS, Petitioner,
v.
SUPERINTENDENT, Indiana State Prison, Respondent.

          ORDER GRANTING PETITION FOR A WRIT OF HABEAS CORPUS

          JAMES R. SWEENEY II, JUDGE

         Petitioner John Myers filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this Court challenging his murder conviction. A jury convicted Mr. Myers of murder in Morgan County, Indiana in 2006. His conviction was affirmed by the Indiana Court of Appeals. He then challenged his conviction in state post-conviction proceedings but was unsuccessful. Mr. Myers now seeks a writ of habeas corpus, arguing that his counsel provided ineffective assistance during trial, the State presented false evidence, and the State withheld exculpatory evidence.

         The record presented in this case is massive, involving several thousand pages of grand jury proceedings, trial transcripts, state post-conviction transcripts, and exhibits from those proceedings. The parties’ briefing spans three hundred pages. The Court’s lengthy ruling is the product of this record.

         After reviewing the record and the parties’ briefs in detail, the Court concludes that Mr. Myers received ineffective assistance of counsel at trial in violation of his Sixth Amendment rights. Most notably, Mr. Myers’s counsel made false statements to the jury during opening arguments, which counsel admitted to the Indiana Supreme Court in a subsequent attorney disciplinary proceeding. He also failed to object to two significant categories of evidence that should not have been presented to the jury. In the end, these serious errors all but destroyed the defense that trial counsel presented to the jury and tainted the entire trial.

         In denying Mr. Myers’s ineffective-assistance-of-counsel claim, the Indiana Court of Appeals unreasonably applied clearly established Federal law as determined by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), and Wiggins v. Smith, 539 U.S. 510 (2003). When these standards are correctly applied, they reveal that Mr. Myers’s counsel’s errors “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686.

         A federal habeas court “will not lightly conclude that a State’s criminal justice system has experienced the ‘extreme malfunctio[n]’ for which federal habeas relief is the remedy.” Burt v. Titlow, 571 U.S. 12, 20 (2013) (alteration in original) (citation omitted). But this case presents a rare instance where this has occurred. Accordingly, Mr. Myers’s petition for a writ of habeas corpus is GRANTED. A writ of habeas corpus shall issue ordering Mr. Myers’s release from custody unless the State elects to retry Mr. Myers within 120 days of the entry of Final Judgment in this action.

         A new trial will likely come only at considerable cost-to the State, yes, but, more important, to the victim’s family and community still wounded by their tragic loss. Such costs do not enter into the constitutional analysis; and yet, the Court cannot help but express its empathy for those who must bear them for the sake of our Constitution and its protections.

         I. BACKGROUND

         The factual background necessary to understand Mr. Myers’s claims is extensive. The Indiana Court of Appeals summarized much of the factual and procedural background in its opinion denying Mr. Myers post-conviction relief. The Court will set out that background here in full and will discuss the factual background necessary to understand each of Mr. Myers’s claims in Part II below.

         On appeal from the denial of post-conviction relief, the Indiana Court of Appeals summarized the relevant factual and procedural history as follows:

         The facts underlying Myers’ conviction were set forth as follows in th[e] [Indiana Court of Appeals’] opinion arising out of his direct appeal:

In the spring of 2000, John Myers II lived approximately seven tenths of a mile from the intersection of North Maple Grove Road and West Maple Grove Road, at 1465 West Maple Grove Road, north of Bloomington in Monroe County. Myers was on vacation from work the week of May 29 through June 2.
On the morning of May 31, 2000, Jill Behrman, an accomplished bicyclist who had just completed her freshman year at Indiana University, left her Bloomington home to take a bicycle ride. She logged off of her home computer at 9:32 a.m. Behrman did not report to the Student Recreational Sports Center, where she was scheduled to work from noon to 3:00 p.m. that day, nor did she appear at a postwork lunch scheduled with her father and grandparents. Following nationwide search efforts, Behrman’s remains were ultimately discovered on March 9, 2003, in a wooded area near the intersection of Warthen and Duckworth Roads in Morgan County. The cause of her death was ruled to be a contact shotgun wound to the back of the head.
With respect to the events surrounding Behrman’s disappearance, one report indicated that a young woman matching Behrman’s description was seen riding her bicycle north of Bloomington on North Maple Grove Road at approximately 10:00 a.m. the morning of May 31. A tracking dog later corroborated this report. While another report placed Behrman south of Bloomington at 4700 Harrell Road at approximately 9:38 a.m., some authorities later discounted this report due to her log-off time of 9:32 a.m. and the minimum fourteen minutes it would take to bicycle to Harrell Road. The tracking dog did not detect Behrman’s scent trail south of Bloomington.
At approximately 8:30 a.m. on the morning of May 31, 2000, in the North Maple Grove Road area, a witness saw a white “commercial looking” Ford van without identification on its doors or sides drive slowly past his driveway on North Maple Grove Road, heading south. Two men were inside the van. This witness saw the van two additional times that morning by approximately 9:00 a.m. and later identified the van as “exactly like” a Bloomington Hospital van.
At some point before noon on May 31, 2000, another witness saw a bicycle later determined to be Behrman’s lying off of the east side of North Maple Grove Road near the intersection of North Maple Grove Road and West Maple Grove Road. The location of the bicycle was approximately one mile from Myers’ residence and ten and one-half miles from Behrman’s house.
On May 31, the date of Behrman’s disappearance, two witnesses separately noted that the windows in Myers’ trailer were covered, which was unusual. One of these witnesses also observed that Myers’ car was parked fifty yards from its normal location and remained out of sight from the road for approximately three days. Myers told this witness that he had parked his car in that secluded spot because he did not want anyone to know he was home.
Myers’ account of his activities during his vacation week of May 29 through June 2 was reportedly that he was “here and there.” Myers’ employer at the time was the Bloomington Hospital warehouse, where he had access to two white panel Ford vans. Besides being “here and there, ” Myers indicated that he had been mostly at home, that he had gone to a gas station, and that he had gone to Kentucky Kingdom but found it was closed. Myers additionally stated that he and his girlfriend, Carly Goodman, had cancelled their plans to go to Myrtle Beach, South Carolina, and to Kings Island, Ohio, that week. Phone calls made from Myers’ trailer on May 31 were at the following times: 9:15 a.m.; 9:17 a.m.; 9:18 a.m.; 10:37 a.m.; 10:45 a.m.; and 6:48 p.m. [Mr. Myers made these calls.] The calls were to drive-in theaters and various state parks.
Myers was reportedly almost hysterical on May 31 and spoke of leaving town and never coming back. Myers’ aunt, Debbie Bell, observed that Myers had been very depressed in the preceding month and believed that this was due to problems with his girlfriend. In late April 2000, Myers had called Bell because he had been having problems with his girlfriend and felt like “a balloon full of hot air about to burst.”
Carly Goodman was Myers’ girlfriend beginning in approximately late October 1999. In March of 2000, Myers took Goodman for a long drive through Gosport, “over a bridge where there was a creek and into some woods.” Myers pulled his car into a clearing in the woods where the two of them argued, which scared Goodman. Although it was nighttime, Goodman observed the appearance of this clearing from the car’s headlights. In late April or early May of 2000, Goodman broke off her relationship with Myers. Goodman denied that she and Myers had ever made plans to go to Myrtle Beach or to Kings Island the week of May 29.
On June 5, 2000, Bell again spoke with Myers. Myers mentioned that a girl had been abducted in the area, and he was afraid he would be blamed for it. Myers further stated that the girl’s bicycle had been found about a mile from his house and that “they blame [him] for everything.” Myers additionally asserted, “[T]hey haven’t found her body yet” and guessed that the girl was dead. In that same conversation, Myers indicated that he had been stopped by a roadblock and was “scared” of roadblocks, but he later changed his mind, laughed, and said he was not really “scared.”
Following a tip due to this conversation, on June 27, 2000, Detective Rick Crussen of the Bloomington Police Department interviewed Jodie [Myers] and Myers’ father, John Myers Sr., at their residence at 3909 West Delap Road. The following day, Detective Crussen interviewed Myers.
On June 27, 2000, immediately after Detective Crussen interviewed Myers’ parents and the day before he interviewed Myers, Myers called his grandmother, Betty Swaffard, and asked to borrow $200. Myers told Swaffard he was unable to come to her house for the money because there were roadblocks on Maple Grove Road, and he did not want to leave his home. Myers additionally stated that he was a suspect in the Jill Behrman disappearance. Myers did not come to Swaffard’s home for the money.
In July 2000, Bell noticed that John Myers Sr. was unusually nervous and agitated when in Myers’ presence. Sometime in approximately August of 2000, Myers’ brother, Samuel, who owned a twelve-gauge shotgun and had stored it at his parents’ house on Delap Road since approximately 1997, noted that the gun was missing.
Myers raised the topic of Behrman’s disappearance multiple times and in multiple contexts following her disappearance. Before Detective Crussen interviewed him, Myers falsely stated to his Bloomington Hospital supervisor that police had questioned him in connection with Behrman’s disappearance because her bicycle was found close to his home. Also in June of 2000, Myers stated to a co-worker that he wondered whether authorities had investigated a barn in a field located on Bottom Road off of Maple Grove Road. Additionally, some weeks after Behrman disappeared, Myers told another co-worker during a delivery run that Behrman’s bicycle was found in his neighborhood, and that Behrman was probably abducted near that site. Later in 2000 or 2001, while driving with his then-girlfriend, Kanya Bailey, Myers directed Bailey’s attention to a location a short distance from his mother’s residence and stated he had found Behrman’s bicycle there.
In the late spring to late summer of 2001, Myers again raised the topic of Behrman’s disappearance with another co-worker. As the two were driving on Bottom and Maple Grove Roads, Myers pointed out where he lived and stated that Behrman’s bicycle had been found close to where he used to live. A short time later, while on Maple Grove Road, Myers stated that if he was ever going to hide a body he would hide it in a wooded area up “this way, ” pointing north. On another occasion, Myers stated to this co-worker that he knew of someone in Florida who had Behrman’s identification card or checkbook.
Sometime in November or December of 2001, Myers raised the topic of Behrman’s disappearance with a family member, indicating his bet that Behrman would be found in the woods. During this conversation, Myers further indicated his familiarity with the Paragon area and with Horseshoe Bend, where he liked to hunt.
Also in 2001, Myers stated to his mother, Jodie, that he had been fishing in a creek and had found a pair of panties and a bone in a tree. Jodie suggested that this might be helpful in the Behrman case, and Myers agreed to call the FBI. FBI Agent Gary Dunn later returned the call and left a message. Myers told Jodie that they should save the answering machine tape in case they were questioned.
Sometime in 2002, Wendy Owings confessed to Behrman’s murder, claiming that she, Alicia Sowders-Evans, and Uriah Clouse struck Behrman with a car on Harrell Road, stabbed her with a knife in her chest and heart, wrapped her body in plastic tied with bungee cords, and disposed of her body in Salt Creek. In September 2002, authorities drained a portion of Salt Creek. They found, among other things, a knife, a bungee cord, and two sheets of plastic. Owings later recanted her confession.
On March 27, 2002, Myers, who at the time was in the Monroe County Jail on an unrelated charge, told Correctional Officer Johnny Kinser that he had found some letters in some food trays one morning that he believed Kinser should look at, apparently in connection with the Behrman disappearance. Myers said he felt bad about what had happened to that “young lady” and that he wished to help find her if he could. Myers additionally compiled a list of places potentially providing clues to Behrman’s location. Indiana State Police Trooper James Minton investigated the list, including gravel pits off of Texas Ridge Road between Stinesville and Gosport. A route from Gosport to the intersection of Warthen and Duckworth Roads in Morgan County passes by Horseshoe Bend.
On March 9, 2003, Behrman’s remains were discovered by a hunter in a wooded area near the intersection of Warthen and Duckworth Roads in Morgan County approximately thirty-five to forty yards from a clearing in the timber north of Warthen Road. Authorities recovered approximately half of the bones in Behrman’s skeleton. No. soft tissue remained. Six rib bones were among the bones missing from her skeleton. There was no evidence of stab or knife wounds, nor was there evidence of blunt force trauma. Investigators recovered a shotgun shell wadding from the scene, as well as 380 number eight shot lead pellets. The wadding found at the scene was typical of a twelve-gauge shotgun shell wadding. The cause of Behrman’s death was ruled to be a contact shotgun wound to the back of the head. Scattered skull fragments and the presence of lead pellets in a variety of places, together with certain soil stains consistent with body decomposition, suggested that after being shot, Behrman’s body had come to rest and had decomposed at the spot where it was found. No. clothing was found at the scene. There is nothing in the record to clarify whether Behrman’s clothing, if it had been left at the scene, would or would not have completely disintegrated prior to her body being found.
In March 2003, Myers told another co-worker, who had brought a newspaper to work announcing the discovery of Behrman’s remains, that the woods pictured in the newspaper article looked familiar to him, and that he had hunted there before. According to this co-worker, the woods pictured in the newspaper article did not appear distinctive. Myers also stated that it was good that Behrman had been found and that he was surprised that he had not been contacted because he knew the people who police thought had committed the crime. Myers knew Wendy Owings, who had falsely confessed to the crime, as well as Uriah Clouse and Alicia Sowders-Evans. Myers had a “cocky” tone of voice when he made these comments, according to the co-worker.
More than a year later, in November 2004, Myers called his grandmother, Swaffard. Myers, who was upset and stated that he needed time to himself, said to Swaffard, “Grandma, if you just knew the things that I’ve got on my mind. [I]f the authorities knew it, I’d be in prison for the rest of my life.” Myers further stated that his father, John Myers Sr., “knew” and had “[taken] it to the grave with him.” Subsequently, when Myers arrived at Swaffard’s house, he said with tears in his eyes, “Grandma, I wish I wasn’t a bad person. I wish I hadn’t done these bad things.”
Indiana State Police Detectives Tom Arvin and Rick Lang interviewed Myers again on May 2, 2005. During this taped interview, Myers denied having told anyone in his family that he was “scared” of the roadblocks or that he had talked to anyone besides the police about the case. Also in May of 2005, Myers, who was again in the Monroe County Jail on an unrelated charge, mentioned to his bunkmate that the state police were investigating him because Behrman’s bicycle had been found in the vicinity of his house. Myers made approximately three or four references to Behrman’s bicycle and was nervous and pacing at the time. During that conversation, Myers, who was also angry, made reference to the “bitch, ” and stated to this bunkmate, “[I]f she [referring to Behrman] wouldn’t have said anything, . . . none of this would have happened.”
On February 17, 2006, Detective Lang took Goodman on a thirty-six-mile drive north of Myers’ home on Maple Grove Road and into rural Morgan County. Goodman recognized a clearing in the woods near the corner of Warthen and Duckworth Roads, approximately thirty-five to forty yards from where Behrman’s remains were discovered, as the place that Myers had driven her in March 2000.
Myers v. State, 887 N.E.2d 170, 176-80 (Ind.Ct.App. 2008) [(“Myers I”)] (footnotes and citations to the record omitted), trans. denied.

Myers v. State, 33 N.E.3d 1077, 1083-88 (Ind.Ct.App. 2015) (footnote omitted) (“Myers II”).[1]

         Various law enforcement agencies began investigating Ms. Behrman’s disappearance after she was reported missing, including the Bloomington Police Department and the Indiana State Police and agencies from surrounding counties. Agent Gary Dunn of the Federal Bureau of Investigation (“FBI”) became involved in the search for Ms. Behrman on June 4, 2000, and was the lead investigator until his retirement in January 2003. Ms. Behrman’s remains were discovered in March 2003. From this time through trial, Indiana State Police Detectives Rick Lang and Tom Arvin lead the investigation.

         Mr. Myers was indicted by a grand jury for murder in April 2006. A twelve-day jury trial began on October 16, 2006. Mr. Myers was found guilty and sentenced to sixty-five years’ imprisonment. Mr. Myers’s conviction was affirmed on direct appeal. See Myers I, 887 N.E.2d at 197.

         Mr. Myers petitioned for post-conviction relief in state court. The state post-conviction court denied relief. The Indiana Court of Appeals affirmed the denial of post-conviction relief. See Myers II, 33 N.E.3d at 1083. Mr. Myers filed a petition to transfer with the Indiana Supreme Court, and it denied transfer on November 10, 2015. See Myers v. State, 40 N.E.3d 858 (Ind. 2015). He then filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The parties have submitted five briefs, and Mr. Myers’s habeas petition is now ripe for ruling.

         II. LEGAL STANDARDS

         A 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 (“AEDPA”) of 1996 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).

         A federal habeas court cannot grant relief unless the state courts’ 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; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

         “The decision federal courts look to is the ‘last reasoned state-court decision’ to decide the merits of the case, even if the state’s supreme court then denied discretionary review.” Dassey, 877 F.3d at 302 (quoting Johnson v. Williams, 568 U.S. 289, 297 n.1 (2013)). “Deciding whether a state court’s decision ‘involved’ an unreasonable application of federal law or ‘was based on’ an unreasonable determination of fact requires the federal habeas court to train its attention on the particular reasons-both legal and factual-why state courts rejected a state prisoner’s federal claims, and to give appropriate deference to that decision[.]” Wilson v. Sellers, 138 S.Ct. 1188, 1191-92 (2018) (citation and quotation marks omitted). “This is a straightforward inquiry when the last state court to decide a prisoner’s federal claim explains its decision on the merits in a reasoned opinion.” Id. “In that case, a federal habeas court simply reviews the specific reasons given by the state court and defers to those reasons if they are reasonable.” Id.

         “For purposes of § 2254(d)(1), an unreasonable application of federal law is different from an incorrect application of federal law.” Harrington v. Richter, 562 U.S. 86, 101 (2011). “A state court’s determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court’s decision.” Id. “If this standard is difficult to meet, that is because it was meant to be.” Id. at 102. “The issue is not whether federal judges agree with the state court decision or even whether the state court decision was correct. The issue is whether the decision was unreasonably wrong under an objective standard.” Dassey, 877 F.3d at 302. “Put another way, [the Court] ask[s] whether the state court decision ‘was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.’” Id. (quoting Richter, 562 U.S. at 103). “The bounds of a reasonable application depend on the nature of the relevant rule. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” Schmidt v. Foster, 911 F.3d 469, 477 (7th Cir. 2018) (en banc) (citation and quotation marks omitted).

         III. DISCUSSION

         Mr. Myers raises three constitutional claims in his habeas petition: (1) trial counsel[2]provided ineffective assistance in violation of the Sixth Amendment; (2) the State violated his due process rights by presenting false evidence to the jury; and (3) the State violated his due process rights by failing to disclose all exculpatory evidence. The respondent maintains that Mr. Myers is not entitled to habeas relief on any of these claims. The Court concludes that Mr. Myers is entitled to relief on his ineffective-assistance-of-counsel claim, and thus the Court will not reach his other two claims.

         A criminal defendant has a right under the Sixth Amendment to effective assistance of counsel. See Strickland, 466 U.S. at 687. For a petitioner to establish that “counsel’s assistance was so defective as to require reversal, ” he must make two showings: (1) that counsel rendered deficient performance that (2) prejudiced the petitioner. Id. “This inquiry into a lawyer’s performance and its effects turns on the facts of the particular case, which must be viewed as of the time of counsel’s conduct.” Laux v. Zatecky, 890 F.3d 666, 673-74 (7th Cir. 2018) (citation and quotation marks omitted). “As for the performance prong, because it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight, Strickland directs courts to adopt a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 674 (citation and quotation marks omitted). “The prejudice prong requires the defendant or petitioner to ‘show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” Id. (quoting Strickland, 466 U.S. at 694).

         The Indiana Court of Appeals in Myers II resolved several of the instances where Mr. Myers asserted his counsel provided ineffective assistance by addressing only one of the two Strickland prongs. In these instances, this Court reviews the unaddressed prong de novo rather than through AEDPA’s deferential lens. See Harris v. Thompson, 698 F.3d 609, 625 (7th Cir. 2012) (“[When] the state courts address one prong of the two-prong Strickland v. Washington test for ineffective assistance of counsel[] but not the other[, ] . . . federal courts apply AEDPA deference to the prong the state courts reached but review the unaddressed prong de novo.”); Sussman v. Jenkins, 636 F.3d 329, 350 (7th Cir. 2011) (“[I]f a state court does not reach either the issue of performance or prejudice on the merits, then “federal review of this issue ‘is not circumscribed by a state court conclusion, ’ and our review is de novo.” (citation and quotation marks omitted)); see also Porter v. McCollum, 558 U.S. 30, 38 (2009); Rompilla v. Beard, 545 U.S. 374, 390 (2005).

         The Indiana Court of Appeals in Myers II assessed each allegation of ineffective assistance individually, denying it on either the performance prong, the prejudice prong, or both. But as discussed in further detail below, if counsel rendered deficient performance in multiple respects, the prejudice from each error cannot be adjudged in isolation. See Hooks v. Workman, 689 F.3d 1148, 1188 (10th Cir. 2012) (noting that resolving each allegation of ineffective assistance on prejudice grounds is “not . . . sufficient to dispose of [an ineffective assistance] claim because a further analysis of ‘cumulative prejudice’ [is] necessary”). The prejudice inquiry requires the Court to “evaluate the totality of the available . . . evidence-both that adduced at trial and the additional available evidence that adequate counsel would have procured.” Harris, 698 F.3d at 648. “The ‘predictive judgment’ [required by Strickland’s prejudice analysis] does not depend ‘on the notion that a single item of omitted evidence . . . would require a new hearing.’” Id. (quoting Williams v. Taylor, 529 U.S. 362, 397 (2000)). Instead, the Court “ must assess ‘the totality of the omitted evidence’ under Strickland rather than the individual errors, ” Washington v. Smith, 219 F.3d 620, 634-35 (7th Cir. 2000) (quoting Strickland, 466 U.S. at 695), and determine whether trial counsel’s unprofessional errors prejudiced the defense, id. (citation and quotation marks omitted).

         Accordingly, the Court will not assess each allegation of ineffective assistance in isolation. Instead, the Court will first determine whether trial counsel’s performance was deficient in each of the ways alleged by Mr. Myers. The Court will then consider whether the cumulative impact of all trial counsel’s errors prejudiced Mr. Myers.

         A. Deficient Performance

         Mr. Myers contends that trial counsel provided deficient performance in thirteen different ways. Ultimately, the Court concludes that trial counsel’s performance was deficient in three respects: he made two false statements to the jury during opening, he failed to object to inadmissible bloodhound evidence, and he failed to object to evidence that Ms. Behrman was raped before she was murdered. In the end, the cumulative prejudice flowing from these errors is sufficient to entitle Mr. Myers to relief. Therefore, the Court need not definitively decide two of the allegations of deficient performance. Nevertheless, all thirteen allegations of deficient performance, including those not ultimately decided, are discussed in turn.

         1. Presentation of Mr. Myers’s Interview with Law Enforcement

          Mr. Myers first argues that trial counsel’s performance was deficient for failing to present a portion of his interview by law enforcement to the jury. The Court begins with how and what portions of Mr. Myers’s interview were presented to the jury.

         Mr. Myers was twice interviewed by law enforcement regarding Ms. Behrman’s murder on May 2, 2005, for a total of five hours. The first portion of this interview, conducted by Detective Lang and Detective Arvin, occurred before Mr. Myers was arrested for an unrelated offense (the “pre-arrest interview”). After he was arrested and booked into jail, the interview continued with those two detectives and Detective Heck (the “post-arrest interview”). The parties and trial judge discussed this interview and the redaction of it on several occasions throughout the trial. See, e.g., Trial Tr. 407-09, 1391-96, 1861-69, 2314-18.[3] Ultimately, a redacted portion of the pre-arrest interview was played for the jury. See Id . at 2390; Trial Ex. 96B. But the jury did not hear any portion of the post-arrest interview.

         During both the pre- and post-arrest interviews, Mr. Myers consistently denied any involvement in Ms. Behrman’s murder and disclaimed any knowledge of it. The jury heard many of these denials during the portions of the pre-arrest interview played during trial. For example, the jury heard Mr. Myers state he does not have “a clue” about the case, Trial Ex. 96B at 13; that he has “never . . . been around any of this, ” has “no knowledge of [it], ” and that if he did he “would be more than happy” to tell them about it, id. at 89; when asked about his DNA, that they would “not find any of [his] DNA anywhere because [he has] got nothing to do with [it], ” id. at 91; and, even though detectives pretended to have a letter from Mr. Myers’s father stating that Mr. Myers confessed to him, Mr. Myers denied confessing to his father because he “didn’t have anything to do with the Behrman case and [has] no knowledge other than what [he] ha[d] seen in the newspapers and what [he] ha[d] heard [as] street rumor, ” id. 91-92.

         Because trial counsel agreed not to submit any of the post-arrest interview to the jury, they did not hear any of Mr. Myers’s denials during that interview. Mr. Myers argues that trial counsel provided deficient performance by agreeing not to redact and present the post-arrest interview to the jury. He maintains that this was the “most exculpatory” portion of the interview because it contains “ten denials” of his involvement in Ms. Behrman’s murder. Filing No. 9 at 24.

         Mr. Myers indeed continued to assert his innocence throughout the post-arrest interview. For example, after the detectives told Mr. Myers they were going to test his DNA against evidence they had recovered, Mr. Myers asked if he would get to leave after the DNA “comes back and proves that I’m telling the truth here.” PCR Ex. 305A at 139. Later during the post-arrest interview, Mr. Myers continued to assert his innocence, stating “I didn’t kill Jill Behrman and I have no involvement with Jill Behrman . . . I don’t know how to convince you of that, ” id. at 204, and “I hate being a broken record for you all but I don’t . . . not only was I not involved but my knowledge is . . . at zero, ” id. at 229.

         The parties had multiple discussions about the May 2 interview and redacting it for the jury during the trial. These discussions provide necessary context for understanding the Indiana Court of Appeals’ decision on this allegation of deficient performance and Mr. Myers’s arguments as to why it was flawed. At the outset of trial, it appears trial counsel did not realize that certain statements the State attributed to Mr. Myers were from the May 2 interview. See Trial Tr. 407. This is supported by the State’s representation that trial counsel was instructed by the trial judge to redact the statement but had not yet done so. See Id . at 408. The trial judge asked Patrick Baker whether he had redacted the statement, and although he responded “[i]n part, ” he immediately clarified that he was referring to “what we addressed here today, ” which was very little, if any, of the statement. Id. at 409.

         On the morning of the fifth day of trial, Friday, October 20, 2006, the parties again discussed the redaction of the May 2 interview because the State had filed a motion to impose a deadline on trial counsel to redact the interview. See Trial Tr. 1391. After some initial confusion by trial counsel as to whether he had “the entire” statement, trial counsel acknowledged that he did. Id. at 1394-95. Trial counsel informed the trial court that the redaction would be complete on the following Monday morning, October 23. Id. at 1396.

         On the morning of October 23, Hugh Baker informed the trial court that he “spent all day yesterday reviewing the statement of . . . the defendant, ” and he would have the proposed redactions complete “by noon” or “certainly by the end of the day.” Id. at 1861. Hugh Baker forewarned the trial court that he found much of the interview objectionable; for example, he pointed out that “there are numerous numerous pages where the interrogator is not asking questions but is simply engaging in . . . psycho babble, attempting to extricate a confession.” Id. at 1862. After Hugh Baker said the interview was 246 pages, the State interjected that an agreement had been reached with Patrick Baker that they would stop at page 136 (i.e., the end of the pre-arrest interview). Id. at 1863. Patrick Baker stated that he made no such agreement. Id. The trial judge then questioned why they would spend time redacting the pages after page 136 if they were only presenting up through page 136, to which Hugh Baker responded, “we probably can live with that.” Id. at 1864.

         Hugh Baker elaborated on his decision to not present any of the post-arrest interview: “I’ve reviewed the [interview] carefully because I wanted to look at the number of times that the Defendant denied being involved in this and . . . the tactics used.” Id. He then explained that as long as he could question Detective Lang how long the entire interview lasted, he did not need to present the specific contents of the post-arrest interview. Id. at 1865-68; see also Id . at 2317 (trial counsel arguing to the trial court, “I don’t think it’s misleading that the exact questioning [during the post-arrest interview] is redacted. The time period is what is crucial here.”). The trial court suggested that if they only presented the pre-arrest interview, the length of the post-arrest interview was irrelevant. Id. at 1868-69. In the end, Hugh Baker agreed with the trial court that he would focus on the first 136 pages, and the trial court would “hear objections if you start drilling into other stuff.” Id. at 1869.

         Despite this conversation, trial counsel began its cross-examination of Detective Arvin by asking him the length of the full interview. Detective Arvin testified, “there were two interviews that I was present for. The first one was approximately an hour and a half maybe. And the other one was probably an hour, hour and fifteen minutes.” Id. at 2211. Although Detective Arvin underestimated the total length of the two interviews (which was approximately five hours), he alerted the jury to the fact that there were two interviews that together lasted substantially longer than the interview the jury would hear.

         Detective Arvin’s testimony led the State to file a motion in limine on the morning of October 25. The State moved to prohibit, among other things, references to the length of the interview since the post-arrest interview would not be presented to the jury. Id. at 2314-15. After some discussion, the trial court granted the motion, and instructed trial counsel to “frame your questions focusing on not specific time periods but the interview took [a] long time, ” thus allowing trial counsel to say that it went on for a “very long time, ” but “without specifying five hours.” Id. at 2318.

         Again, Mr. Myers maintains that trial counsel provided deficient performance by agreeing to not present the post-arrest interview to the jury. The Indiana Court of Appeals addressed this claim on the merits in Myers II, concluding that trial counsel’s performance was not deficient nor was Mr. Myers prejudiced by it. It found, in relevant part:

We have reviewed both the redacted and unredacted interrogation, and Myers has not established either deficient performance or prejudice stemming from the redaction of the post-arrest interview. The post-arrest interview contained several long monologues in which the interviewer attempted to appeal to Myers’ moral sensibilities, followed by relatively short responses from Myers. Some of these monologues spanned several pages of transcript and made specific reference to Myers’ past substance abuse and recovery process. The trial court described the post-arrest interview as largely filled with “a lot of irrelevant gibberish” that “add[ed] nothing to the factual determination in this case.” Trial Transcript at 26. We think this is a fair characterization. Although Myers continued to proclaim his innocence in the post-arrest interview, his denials of involvement were merely cumulative of his previous statements in the pre-arrest interview, which the jury heard. Myers also made statements in the post-arrest interview that the jury could have viewed as flippant under the circumstances. For example, at one point, Myers stated, “you know, as we’re sitting there talking, I’m thinking cigarettes, I’m thinking coffee[.]” PCR Exhibit 305A at 154. It was not deficient performance for trial counsel to agree to redact the post-arrest interview in its entirety because it could have harmed Myers and, in any event, would have added little, if anything, to the pre-arrest interview. For the same reason, Myers was not prejudiced by the redaction.

Myers II, 33 N.E.3d at 1090.

         Mr. Myers contends that the Indiana Court of Appeals’ decision is an unreasonable application of Strickland. As an initial matter, Mr. Myers appears correct that trial counsel did not review the entire interview until five days into trial. See Filing No. 33 at 20-23. This is, at minimum, troubling. But while this failure perhaps informs trial counsel’s approach to the post-arrest interview, it is not the core of Mr. Myers’s claim. Rather, his claim is that trial counsel provided deficient performance by failing to present the post-arrest interview to the jury. See Filing No. 9 at 24.

         As to this specific claim, the record reveals that trial counsel agreed to not present the post-arrest interview to the jury only after he had reviewed the entire interview. Id. at 1861. Trial counsel did so on the basis that he could still question law enforcement regarding the length of both interviews. Although the trial court ultimately ruled that such questions were inappropriate, id. at 2318, it did so only after trial counsel elicited from Detective Arvin that there were two interviews that together were significantly longer than the audio clip the jury would hear, id. at 2211. Thus, trial counsel’s objective was at least partially achieved.

         In light of the foregoing, it is difficult to see how Mr. Myers has carried his burden to establish that the Indiana Court of Appeals’ resolution of the performance prong was an unreasonable application of Strickland.[4] As correctly explained by the Indiana Court of Appeals, “the post-arrest interview contained several long monologues in which the interviewer attempted to appeal to Myers’s moral sensibilities, followed by relatively short response from Myers.” Myers II, 33 N.E.3d at 1090; see, e.g., PCR Ex. 305A at 219-27. Mr. Myers is correct that the post-arrest interview also contained several additional denials of his involvement with Ms. Behrman’s murder, but the Indiana Court of Appeals again correctly observed that “his denials of involvement were merely cumulative of his previous statements in the pre-arrest interview, which the jury heard.” Myers II, 33 N.E.3d at 1090. Finally, the Indiana Court of Appeals was correct that Mr. Myers made statements during the post-arrest interview that the jury may have viewed as flippant, such as his statement, “‘you know, as we’re sitting there talking, I’m thinking cigarettes, I’m thinking coffee.’”[5] Id. (quoting PCR Ex. 305A at 154); see also, e.g., PCR Ex. 305A at 186.

         To summarize, Mr. Myers’s trial counsel decided that he need not present the post-arrest interview-even though he knew it contained additional denials of involvement that were generally helpful, see PCR Tr. 593-so long as he could put before the jury the length of the interrogation and the tactics used, which he at least did in part. This allowed him to attack the methods used to interrogate Mr. Myers, while not presenting the jury with cumulative denials that were mixed in amongst certain unfavorable statements by Mr. Myers and “several long monologues, ” id., or in trial counsel’s words, “numerous pages . . . [of] psycho babble.”[6] Trial Tr. 1862. The Indiana Court of Appeals relied on these factors to conclude that trial counsel’s performance was not deficient because his approach to the post-arrest interview was a reasonable trial strategy.

         The Supreme Court made clear in Strickland that “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable[.]” Strickland, 466 U.S. at 690-91; see United States v. Jansen, 884 F.3d 649, 656 (7th Cir. 2018) (“Generally when an attorney articulates a strategic reason for a decision, the court defers to that choice.” (citation and quotation marks omitted)). Because the record is not inconsistent with its assessment that trial counsel made a strategic decision not to present the post-arrest interview to the jury, the Indiana Court of Appeals did not unreasonably apply Strickland.

         2. Failure to Object to Testimony and Arguments Regarding the May 2, 2005 Interview That Inaccurately Describe the Interview

         Mr. Myers’s second allegation of deficient performance also relates to the May 2, 2005 interview. He argues that trial counsel failed to object to certain testimony and arguments by the State that were “inaccurate and inadmissible.” Filing No. 9 at 26. Specifically, Mr. Myers contends that trial counsel should have objected to the following: (1) the State argued during opening that Mr. Myers was “nonchalant” during the interview, Trial Tr. 460, and Detective Arvin testified that Mr. Myers was “cavalier, ” “nonchalant, ” and “rehearsed, ” during the interview, id. at 2207, 2244; (2) Detective Arvin testified that Mr. Myers “never adamantly denied” the crime and “never expressly denied it, ” id. at 2211-12; and (3) Detective Lang testified that he did not expect Mr. Myers to confess during the interview based on his “prior intelligence” and because “murder . . . is one of the least [sic] things somebody’s going to confess to, ” id. at 2380-81.

         The Indiana Court of Appeals addressed these arguments on the merits in Myers II. It “[a]ssum[ed] arguendo that the testimony was objectionable, ” but concluded that Mr. Myers could not establish prejudice from any of trial counsel’s alleged failures. Myers II, 33 N.E.3d at 1090. Because the Indiana Court of Appeals did not address trial counsel’s performance, this Court must review it de novo. See Porter, 558 U.S. at 38; Rompilla, 545 U.S. at 390.

         Mr. Myers fails to develop his arguments with respect to these allegations of deficient performance. To the extent he points to these statements as part of the prejudice flowing from trial counsel’s failure to admit the post-arrest interview, see Filing No. 9 at 26; Filing No. 33 at 25-26, trial counsel’s performance was not deficient for the reasons outlined above and thus prejudice need not be assessed. If Mr. Myers meant them to be standalone allegations of deficient performance, he has not attempted to explain why an objection to any of the above challenged statements would have been sustained. This is perhaps why the Indiana Court of Appeals thought it easier to resolve these allegations of ineffective assistance on the prejudice prong. Before doing so, it noted that the “sum total of [Mr.] Myers’ argument that this testimony was inadmissible is contained in . . . [one] conclusory statement in his appellant’s brief” that the “opinion evidence offered by [Detective] Arvin was objectionable, irrelevant and prejudicial.” Myers II, 33 N.E.3d at 1090 (quotation marks omitted).

         Without further development of these claims, Mr. Myers has failed to demonstrate that the challenged statements were objectionable even under de novo review. He does not explain on what legal basis trial counsel should have objected to these statements, nor explained why the objections would have been sustained under Indiana law. Hough v. Anderson, 272 F.3d 878, 898 (7th Cir. 2000) (“An ineffective assistance claim based on a failure to object is tied to the admissibility of the underlying evidence. If evidence admitted without objection was admissible, then the complained of action fails both prongs of the Strickland test[.]”). Without such development, Mr. Myers has failed to carry his burden to establish that trial counsel’s performance was deficient for failing to object to these statements.

         3. Trial Counsel’s False Statements during Opening Arguments

          Mr. Myers argues that trial counsel provided ineffective assistance by making two false statements to the jury during opening arguments. Trial counsel made the following statements that Mr. Myers contends were false: (1) shortly after Ms. Behrman disappeared a tracking dog went to the home of Ms. Behrman’s co-worker Mr. Hollars, but the police pulled the dog away; and (2) Mr. Hollars and Ms. Behrman were seen arguing days before she disappeared.

         Understanding this claim requires an understanding of trial counsel’s defense strategy. During opening, trial counsel offered two theories for who else may have murdered Ms. Behrman and an alibi defense. He referenced these theories throughout trial and during closing argument. The first theory (the “Owings theory”) was that Ms. Owings, Ms. Sowders, and Mr. Clouse hit Ms. Behrman with a vehicle when they were driving south of Ms. Behrman’s residence while high on drugs, then killed her to cover up their crime, placed her body in Salt Creek, and eventually moved it to where it was ultimately found three years later. Trial Tr. 471-72. This theory, trial counsel argued, was supported by several things, including Ms. Owings’s confession to law enforcement, portions of which were corroborated. Id. at 473. Trial counsel maintained that the corroborating evidence included that Ms. Behrman was last seen by a high school classmate riding on 4700 Harrell Road, which was several miles south of her residence, and a significant distance from Mr. Myers’s residence, which was several miles north of her residence. Id. at 471-73. This, trial counsel said, was “[t]heory number one.” Id. at 474.

         “Theory number two, ” trial counsel explained, was that Ms. Behrman’s supervisor at the Student Recreational Sports Center (“SRSC”), Mr. Hollars, killed Ms. Behrman. Id. at 474. This theory (the “Hollars theory”) was problematic for reasons that are explored in some detail below, as trial counsel’s pursuit of this theory pervades several of Mr. Myers’s claims and the Indiana Court of Appeals’ resolution of them. At this juncture, it is sufficient to explain that this theory was predicated on allegations that Mr. Hollars (who was married to someone else) and Ms. Behrman were in a romantic relationship, Ms. Behrman became pregnant, and Mr. Hollars killed her to cover it up.

         Lastly, trial counsel offered an alibi defense. The alibi defense was based on phone records showing that Mr. Myers was at his residence several miles north of Ms. Behrman’s residence during the timeframe Ms. Behrman disappeared. See D. Trial Ex. A. Trial counsel argued that if Ms. Behrman rode south, the phone records established that it was “absolutely impossible for [Mr. Myers] to be involved.” Trial Tr. 475. Establishing that Ms. Behrman rode south also aligned with the Owings theory, which alleged that Ms. Owings, Ms. Sowders, and Mr. Clouse hit Ms. Behrman with a vehicle when she was riding south of her residence on Harrell Road.

         Trial counsel’s false statements related to the Hollars theory. During opening, Patrick Baker introduced the Hollars theory as follows:

They sent dogs out. They sent dogs out right after the disappearance on May 31st. You’ll hear from [Detective] Tom Arvin that a dog followed a scent, went to a home of a coworker. Did he go inside? No. He pulled the dog off. Why did he pull the dog off? He goes up to the house where the coworker lives, and he calls the dog off. Did he question him? Yes. Questioned him about a gun, a 12-gauge shotgun. The man was a skeet shooter. Name’s Brian Hollars. Brian Hollars was seen arguing with Jill Behrman a day or two days before she disappeared. . . . Theory number two. Coworker who was possibly involved with her with a dog going up to his house was involved.

Id. at 474. Simply put, Patrick Baker introduced the jury to the Hollars theory by stating that evidence will show that Mr. Hollars and Ms. Behrman were in some sort of dispute immediately before she disappeared, and despite the fact that a bloodhound tracked Ms. Behrman’s scent to Mr. Hollars’s residence on the day she disappeared, law enforcement covered it up.

         Hugh Baker further explained the Hollars theory later during opening, arguing that Mr. Hollars may have been the older man rumored to have asked Ms. Behrman on a date, that his alibi was not solid, and that law enforcement failed to test Mr. Hollars’s shotgun. See Id . 481-82. He also repeated Patrick Baker’s false statements regarding the bloodhound. Id. at 481-82 (“[T]he police ruled [Mr. Hollars] out, ignored the fact that the dog went up to his house, ignored the fact that he worked with her . . . that they knew that there was a rumor that she had a crush on him. (emphasis added)). Finally, throughout trial, trial counsel attempted to show that Ms. Behrman may have been pregnant, that Mr. Hollars may have been in a relationship with her, and because Mr. Hollars was married, the pregnancy gave Mr. Hollars motive to murder Ms. Behrman.

         However, the two critical facts on which Patrick Baker relied to cast suspicion on Mr. Hollars were false: a bloodhound did not follow Ms. Behrman’s scent to Mr. Hollars’s residence, let alone was one purposefully pulled away by Detective Arvin, nor were Mr. Hollars and Ms. Behrman seen arguing a day or two before she disappeared. The parties both acknowledge that no evidence supported either of these contentions.[7]

         Several years after the trial had concluded, Patrick Baker was disciplined by the Indiana Supreme Court for, among other things, making the false statement regarding the bloodhound during opening. See In re Baker, 955 N.E.2d 729 (Ind. 2011).[8] Patrick Baker stipulated to the following facts during his attorney disciplinary proceeding: “During his opening statement, [Patrick Baker] stated that search dogs were sent out shortly after the victim’s disappearance and one dog ‘alerted’ at the home of [Mr. Hollars], but the dog was called off. These statements were false and [Patrick Baker] should have known that no evidence would be admitted at trial to support them.” Id. at 729.

         The Indiana Court of Appeals addressed Mr. Myers’s claim regarding trial counsel’s false statements on the merits in Myers II. Beginning with the performance prong, it agreed with Mr. Myers that “[t]rial counsel did not present evidence to support the[] claims” made during opening. Myers II, 33 N.E.3d at 1091. The Indiana Court of Appeals also acknowledged that Patrick Baker was disciplined by the Indiana Supreme Court, but noted that the disciplinary proceeding did not address whether his performance was deficient or whether Mr. Myers was prejudiced by it.[9] Id. Nevertheless, it “presume[d] . . . that an attorney who tells the jury that he will present evidence that he either knows or should know will not be presented has acted unreasonably for the purposes of the Strickland analysis.” Id. “Thus, ” the Indiana Court of Appeals concluded, “at least with respect to trial counsel’s statement that a search dog alerted to Hollars’s residence, we accept Myers’s argument that trial counsel’s performance was deficient. We are left to consider whether the statements prejudiced Myers within the meaning of Strickland.” Id.

         Arguably, the Indiana Court of Appeals “accepted” only that trial counsel’s false statement that a dog alerted at Mr. Hollars’s residence was false and thus constituted deficient performance, which leaves this Court to analyze de novo whether trial counsel’s false statements regarding Mr. Hollars and Ms. Behrman arguing the day before she disappeared also amount to deficient performance. See Harris, 698 F.3d at 625; Sussman, 636 F.3d at 350. The respondent, understandably, does not advance an argument that it was not deficient performance for trial counsel to make this false statement during opening. No. strategic or other reason has been suggested at any stage of this case as to why trial counsel made these false statements.

         Of course, failing to follow through on statements during opening does not always amount to deficient performance, such as when “unforeseeable events” or “unexpected developments . . . warrant . . . changes in previously announced trial strategies.” United States ex rel. Hampton v. Leibach, 347 F.3d 219, 257 (7th Cir. 2003) (citations and quotation marks omitted). But this is not such a case, since the statements at issue were nothing more than false representations about what the evidence would show, and trial counsel should have known these statements were false when he made them. These false statements served no purpose but to undermine the defense offered and diminish trial counsel’s credibility with the jury. See Id . (“[L]ittle is more damaging than to fail to produce important evidence that had been promised in an opening.” (citation and quotation marks omitted)); id. at 259 (“Promising a particular type of testimony creates an expectation in the minds of jurors, and when defense counsel without explanation fails to keep that promise, the jury may well infer that the testimony would have been adverse to his client and may also question the attorney’s credibility.”). Such harmful conduct constitutes deficient performance. See id.; see also English v. Romanowski, 602 F.3d 714, 728 (6th Cir. 2010) (“[I]t was objectively unreasonable for [the defendant’s] trial attorney to decide before trial to call . . . a [certain] witness, make that promise to the jury, and then later abandon that strategy, all without having fully investigated [that witness] and her story prior to opening statements.”); McAleese v. Mazurkiewicz, 1 F.3d 159, 166 (3d Cir. 1993) (“The failure of counsel to produce evidence which he promised the jury during his opening statement that he would produce is indeed a damaging failure sufficient of itself to support a claim of ineffectiveness of counsel.”); Harris v. Reed, 894 F.2d 871, 879 (7th Cir. 1990) (holding counsel’s performance deficient and prejudicial where counsel promised the jury evidence that another suspect committed the crime and then failed to call any defense witnesses without explaining why to the jury).

         Accordingly, the Court concludes that it was deficient performance for trial counsel to make the above false statements during opening. The Court will consider the prejudice flowing from this deficient performance, along with the other aspects of trial counsel’s performance that were deficient, in the prejudice analysis below.

         4. Failure to Sufficiently Challenge the State’s Theory that Ms. Behrman Rode North and to Object to Improper Testimony that She Rode South

         Mr. Myers next contends that trial counsel provided deficient performance by failing to adequately challenge the State’s evidence that Ms. Behrman rode north on the day she disappeared. Whether Ms. Behrman rode her bicycle north or south of her house on the day she disappeared was important for investigators when they were attempting to solve Ms. Behrman’s murder. It was also critical at trial. Ms. Behrman logged off her home computer at 9:32 a.m. the morning she disappeared. She was scheduled to work at the SRSC at noon. Mr. Myers’s phone records show that he was at home-several miles northwest of Ms. Behrman’s residence-during the timeframe when Ms. Behrman disappeared. Specifically, Mr. Myers called several Indiana State Parks at 9:15, 9:17, and 9:18 a.m., and he called nearby movie theaters at 10:37 and 10:45 a.m. See D. Trial Ex. A. Given this, if Ms. Behrman had ridden south on the day she disappeared, Mr. Myers had a solid alibi. Establishing that Ms. Behrman rode south would have also corroborated the Owings theory-that Ms. Owings, Ms. Sowders, and Mr. Clouse hit Ms. Behrman with a vehicle when she was riding south of her residence, killed her, dumped her bike, and hid her body.

         Trial counsel recognized how beneficial establishing that Ms. Behrman rode south would be for Mr. Myers’s alibi defense. Indeed, trial counsel highlighted on several occasions during both opening and closing that the evidence showed Ms. Behrman rode south. During opening, trial counsel pointed out that Ms. Behrman was last seen south on Harrell Road by her former high school classmate, Maral Papakhian.[10] Trial Tr. 472. Trial counsel then argued that Mr. Myers’s phone records make it impossible for him to have murdered Ms. Behrman: “This man’s at home making telephone calls at the exact time when she’s last seen [south on Harrell Road].” Id. at 475. During closing, trial counsel again argued that the phone records establish Mr. Myers’s innocence given that Ms. Behrman was last seen south on Harrell Road. Id. at 2781. Trial counsel argued further that Agent Dunn “worked this case for three years” and “believed that theory because it matches as to where Jill Behrman was last seen, 4700 South [Harrell] Road.” Id. at 2781-82. This southern route theory, trial counsel continued, was “corroborated by the Wendy Owings statement.” Id. at 2782.

         The State presented evidence that Ms. Behrman rode north-in the direction of Mr. Myers’s residence-and attempted to undermine the evidence that she rode south. As discussed further below, the State presented evidence that six days after Ms. Behrman disappeared, Deputy Charles Douthett handled a bloodhound that tracked Ms. Behrman’s scent along the northern route. See Id . at 957-91. The State called Robert England, who testified that he saw a female cyclist in her early twenties on North Maple Grove Road who matched Ms. Behrman’s description either on Wednesday (the day Ms. Behrman disappeared) or Thursday. See Id . at 1019-26. Dr. Norman Houze-the leader of a bicycle group Ms. Behrman was in-testified that Ms. Behrman could have ridden the northern route to where her bicycle was found and back in time to make her noon shift at the SRSC. See Id . at 1265-71.

         Detective Arvin offered testimony attempting to undermine Ms. Papakhian’s sighting of Ms. Behrman. Detective Arvin testified that he interviewed Ms. Papakhian and disagreed with Agent Dunn’s original conclusion that Ms. Papakhian saw Ms. Behrman on the Wednesday morning she went missing. Id. at 2228. Instead, after interviewing her and five other individuals who were at the same party as Ms. Papakhian the night before she saw Ms. Behrman, id. at 2203, Detective Arvin concluded that it was “more likely Tuesday that she saw Jill Behrman, ” id. at 2228; see also Id . at 2230-32.

         During the post-conviction hearing, Patrick Baker was asked about his strategy with respect to whether he wanted to establish that Ms. Behrman rode north or south the morning she went missing. Patrick Baker answered as follows:

Q. What did you want the jury to believe about where Jill rode her bike the morning of May 31st?
A. I didn’t want her going north. I think . . . our strategy was to show that she was going on a southern route from her home. There were two theories, a southern route and a northern route, Judge.
Q. But you wanted the jury to believe that she had ridden south.
A. Yes.
Q. Do you recall that part of the evidence . .
A. Well, I . . no. I . . can I explain, Judge? We wanted the jury to believe that she couldn’t have made it to [Mr. Myers’] house and back in time for work. So I don’t know if we differentiated between the southern route and maybe partially of the northern route but we wanted the jury to believe that she couldn’t have ridden to his house and back.

PCR Tr. 598-99.

         Mr. Myers sets forth two allegations of deficient performance with respect to how trial counsel handled the issue of whether Ms. Behrman rode north or south the morning she disappeared. The Court will address each in turn.

         a. Failure to Challenge the State’s Northern Route Theory

         Mr. Myers argues that trial counsel provided deficient performance by failing to use readily available evidence to show that Ms. Behrman rode south on the day she disappeared. See Trial Tr. 2746. He points to three specific ways in which trial counsel should have undermined the State’s northern theory: (1) cross-examining Ms. Behrman’s parents regarding their prior belief that she would not have ridden north; (2) impeaching Dr. Houze’s timed reconstruction of the northern route; and (3) presenting evidence that Ms. Behrman hated riding through traffic, including crossing Highway 37, which she was required to do on the northern route. See Filing No. 33 at 48.

         The Indiana Court of Appeals addressed these contentions on the merits in Myers II:

Myers’ arguments on this issue presume that the only reasonable strategy trial counsel could have pursued was one that depended heavily on establishing that Behrman rode south rather than north on the date of her disappearance. But trial counsel were not limited to presenting a single theory of defense. Indeed, in a case such as this, based solely on circumstantial evidence, the most advantageous approach may be to establish reasonable doubt by presenting multiple possible alternative theories of the crime that point away from the accused’s guilt. As the U.S. Supreme Court has explained, “[t]o support a defense argument that the prosecution has not proved its case it sometimes is better to try to cast pervasive suspicion of doubt than to strive to prove a certainty that exonerates.” Harrington v. Richter, 562 U.S. 86, 109 (2011).
At the PCR hearing, when asked what he wanted the jury to believe concerning Behrman’s bicycle route, Patrick Baker initially stated that he “didn’t want her going north.” PCR Transcript at 598. He went on to clarify, however, that he had “two theories, a southern route and a northern route”. Id. Specifically, he testified as follows:
We wanted the jury to believe that she couldn’t have made it to [Myers’] house and back in time for work. So I don’t know if we differentiated between the southern route and maybe partially of the northern route but we wanted the jury to believe that she couldn’t have ridden to his house and back.
Id. at 598–99. Thus, it was not trial counsel’s strategy to eliminate the possibility that Behrman had ridden north-rather, trial counsel sought to establish that Behrman would not have followed the north route all the way to Myers’ residence in light of her schedule that day.
We cannot conclude that trial counsel’s decision to pursue a defense theory that allowed for the possibility that Behrman had ridden north was unreasonable. As an initial matter, we note that trial counsel presented evidence supporting the theory that Behrman had ridden south. Trial counsel elicited testimony that Maral Papakhian, a high school classmate of Behrman’s, had reported seeing Behrman riding her bike on Harrell Road, i.e., the southern route, on the morning of her disappearance. The jury was also presented with evidence of Owings’ confession, in which she stated that she and Sowders[] had been passengers in Clouse’s vehicle when he struck Behrman and abducted her on Harrell Road. Additionally, in both opening statements and closing arguments, trial counsel argued that the evidence presented supported a conclusion that Behrman had ridden south.
We also note, however, that trial counsel’s Hollars theory was premised in part on the fact that a bloodhound had scented Behrman on the northern route near Hollars’ residence. Thus, presenting a theory of defense that depended on proving to a certainty that Behrman had ridden south would have undermined this alternative theory. Moreover, there was other evidence that Behrman had ridden north. Robert England testified that he saw a cyclist matching Behrman’s description riding north on Maple Grove Road either at 10:00 a.m. on the day Behrman disappeared or at 9:00 a.m. the next day. Moreover, Behrman’s bike was discovered on the north route, less than one mile from Myers’ residence. Although it has been suggested that Behrman could have taken the south route, been abducted and subdued there, and her bike dumped on the north route, the timeline for such a scenario is tight. Behrman logged off of her computer at 9:32 a.m. and her bike was spotted near Myers’ residence “before noon.” Trial Transcript at 1226. Additionally, evidence from the bloodhound tracking search was consistent with Behrman having ridden the bike to its final location as opposed to being driven there in a vehicle. Thus, although it is not impossible for the bike to have been dumped, we cannot conclude that it was unreasonable for trial counsel to decline to pursue a theory of defense that was wholly dependent on the jury reaching such a conclusion. While it might have been helpful to the defense to conclusively eliminate the possibility that Behrman had ridden north that morning, the evidence simply did not allow for such certainty.

Myers II, 33 N.E.3d at 1095-96.

         Mr. Myers contends that the Indiana Court of Appeals’ decision was an unreasonable determination of the facts as well as an unreasonable application of Strickland. For example, Mr. Myers argues that the “two theories” to which Patrick Baker referred were actually two arguments supporting the same theory. See Filing No. 33 at 50. As Patrick Baker testified during the post-conviction hearing, he did not differentiate between two theories at trial, he was simply trying to prove that Ms. Behrman could not have ridden near Mr. Myers’s residence and back in time to show up to work at the SRSC. If trial counsel could show this-either by showing that she rode south or by showing she only “partially” rode north, see PCR Tr. 598-then Mr. Myers’s alibi that he was home making phone calls would be very persuasive. To posit that such a strategy would lead trial counsel to withhold evidence that Ms. Behrman rode south-even if it undermined trial counsel’s Hollars theory[11]-is perplexing at best. More important, the notion that trial counsel strategically withheld evidence that Ms. Behrman rode south is contrary to trial counsel’s actual conduct at trial. During both opening and closing, and throughout trial more generally, trial counsel repeatedly argued and attempted to prove that Ms. Behrman rode south. See, e.g., Trial Tr. 472, 475-76, 2780-81.

         For these reasons, and reasons similar to those set forth below regarding the Indiana Court of Appeals’ resolution of Mr. Myers’s claim regarding the bloodhound tracking evidence, the Indiana Court of Appeals’ resolution of this claim may well be an unreasonable application of Strickland and Wiggins. Despite the Court’s concern, it need not ultimately decide this question. As discussed below, the three instances of deficient performance identified by the Court are more than sufficient for Mr. Myers to establish prejudice and be entitled to habeas relief. Accordingly, the Court need not resolve whether trial counsel’s performance was deficient for not presenting the additional evidence that Ms. Behrman rode south.

         b. Failure to Object to Alleged Hearsay Regarding Ms. Papakhian

         Mr. Myers next argues that trial counsel failed to object to Detective Arvin’s testimony undermining Ms. Papakhian’s sighting of Ms. Behrman riding south the Wednesday morning she disappeared. Specifically, Mr. Myers argues that Detective Arvin concluded the timeline did not fit for Ms. Papakhian to have seen Ms. Behrman on Wednesday morning based at least in part on statements of other individuals he interviewed and that, without objection, Detective Arvin placed the hearsay statements of those individuals before the jury. The Indiana Court of Appeals addressed this claim on the merits in Myers II as follows:

Myers also argues that trial counsel were ineffective for failing to object to hearsay testimony discrediting Papakhian’s sighting of Behrman on Harrell Road on the morning of her disappearance. Hearsay is an out-of-court statement offered in court to prove the truth of the matter asserted. Boatner v. State, 934 N.E.2d 184 (Ind.Ct.App. 2010). As a general rule, hearsay is inadmissible unless the statement falls within one of the established hearsay exceptions. Yamobi v. State, 672 N.E.2d 1344 (Ind. 1996).
Detective Arvin testified that Papakhian told police she believed she saw Behrman on the 4700 block of Harrell Road on the morning of Wednesday, May 31, but that she could not be one hundred percent certain that she had not seen her on Tuesday. Detective Arvin testified further that when he interviewed Papakhian, she recalled having an argument with her boyfriend at a small party the night before the sighting, and she named several other people who had attended the party. Detective Arvin testified that he interviewed five people as a result of his interview with Papakhian, and that he ultimately reported to Detective Lang “that the timeline that [Papakhian] had presented did not fit.” Trial Transcript at 2203. He testified further that based on his investigation, he believed that it was more likely that Papakhian had seen Behrman on Tuesday, the day before her disappearance. Detective Arvin explained that Papakhian told him that she regularly left her house forty-five minutes before her 10:20 a.m. class (i.e., at 9:35 a.m.) and Detective Arvin determined that it would take her only three minutes to drive to the 4700 block of Harrell Road. Because Behrman had logged off of her computer at 9:32 a.m., and it would take a minimum of fifteen minutes for her to bike from the Behrman residence to Harrell Road (not including additional time to change clothes, put on cycling shoes, fill a water bottle, etc.), Detective Arvin believed that Behrman could not have made it to the 4700 block of Harrell Road in time for Papakhian to have seen her there on the date of her disappearance.
Myers argues that Detective Arvin testified to statements made to him by the other partygoers Papakhian identified, and that a hearsay objection to this testimony would have been sustained. But Myers has not directed our attention to a single out-of-court statement made by these unnamed individuals and admitted into evidence through Detective Arvin’s testimony. Instead, Detective Arvin testified that after interviewing Papakhian and five other witnesses, he came to the conclusion that Papakhian’s timeline did not fit and she had probably seen Behrman on Tuesday. When giving a further explanation of why he reached the conclusion, Detective Arvin referred not to any statements or information gathered from the partygoers, but to the timeline he had worked out based on Papakhian’s statements and Behrman’s computer logoff time. Because Myers has not established that Detective Arvin testified to any out-of-court statements made by the unnamed witnesses he interviewed, Myers has not established that trial counsel were ineffective for failing to object based on hearsay.

Myers II, 33 N.E.3d at 1097-98. The Indiana Court of Appeals also noted that Mr. Myers did not argue that trial counsel should have objected to the out-of-court statements of Ms. Papakhian “and for good reason. Because Papakhian did not testify at trial, the only way to get evidence of her sighting before the jury was through the testimony of others.” Id. at 1098 n.6.

         Mr. Myers argues that this was an unreasonable application of Strickland in two respects. First, he argues that Detective Arvin’s testimony “clearly suggests that his conclusions were based on his interview with partygoers.” Filing No. 33 at 45 (citing Trial Tr. 2203, 2226-28). Second, he argues that even though Detective Arvin “also testified at trial, on redirect, that the timeline did not fit based on his estimates of the time it would have taken Jill to ride from her home to the approximate location Papakhian saw Behrman (4700 South Harrell Road), and the driving time from Papakhian’s residence to that location, there are problems with this testimony as well.” Id. at 46 (citation omitted).

         As to Mr. Myers’s first argument, the Court agrees that Detective Arvin’s testimony suggests his conclusion that the timeline “did not fit” was reached at least in part due to what the partygoers told him. During direct examination, Detective Arvin testified that he interviewed five other people while investigating Ms. Papakhian’s sighting and ultimately concluded that the “timeline that she had presented did not fit.” Trial Tr. 2203. Trial counsel pressed Detective Arvin about this during cross-examination:

Q. . . . [The FBI] had focused on Wednesday, the day . . . she disappeared as the day that . . . Papa[khian] . . . saw her. Correct?
. . . .
A. She had stated that she believed that she’d seen Jill on that date, but then . . . when I re-interviewed her, she told me that she recalled that the night before she had seen Jill she had attended a party and that she had forgotten to mention that to the . . . FBI. So I set out to find out . . . when the party was . . . . When I asked her about the party, she named several people that were present at the party.
Q. . . . [B]ut the FBI believed that she had seen her on Wednesday and conducted a three-year investigation based upon that belief, didn’t they?
A. I’m thinking the FBI may have thought that she saw her on Wednesday, but based on my investigation, I believe that it was more likely Tuesday that she saw Jill Behrman.

Id. at 2227-28.

         Although Detective Arvin’s testimony shows he relied in part on what the other partygoers told him about the date of the party in reaching his conclusion, he never shared what any of the five partygoers he interviewed told him. Simply put, Detective Arvin’s testimony included no out-of-court statements of the partygoers. This is the basis on which the Indiana Court of Appeals rejected Mr. Myers’s assertion that his counsel should have raised a hearsay objection. It began by defining hearsay as “an out-of-court statement offered in court to prove the truth of the matter asserted.” Myers II, 33 N.E.3d at 1097 (citing Boatner, 934 N.E.2d 184). Then it ultimately concluded that “[b]ecause Myers has not established that Detective Arvin testified to any out-of-court statements made by the unnamed witnesses he interviewed, Myers has not established that trial counsel were ineffective for failing to object based on hearsay.” Id. at 1098.

         This is a reasonable application of Strickland. Notably, Mr. Myers has again not identified a specific out-of-court statement offered through Detective Arvin. Without a specific hearsay statement about which an objection would have been sustained, it cannot have been deficient performance for trial counsel to fail to raise such an objection. See Hough, 272 F.3d at 898. This failure dooms Mr. Myers’s claim.[12]

         5. Failure to Challenge Bloodhound Evidence

          Mr. Myers maintains that trial counsel provided deficient performance by failing to exclude or otherwise impeach the bloodhound evidence offered by Deputy Douthett. The Indiana Court of Appeals summarized the factual background of this claim in Myers II as follows:

At trial, Porter County Sheriff’s Deputy and canine handler Charles Douthett testified concerning a search he performed with his bloodhound, Sam. Deputy Douthett testified that he had been working with Sam for over ten years, and that he and Sam had attended numerous seminars and trainings and worked homicide investigations in six states. Deputy Douthett testified further that he and Sam had conducted numerous real-world tracking searches, including some cases involving tracking bicyclists. Deputy Douthett went on to describe the process used to present a bloodhound with a scent and to track that scent.
Deputy Douthett testified further that the FBI contacted him and asked him to come to Bloomington to conduct a tracking search in the Behrman case. An exhaustive description of the tracking search is not necessary here. It suffices for our purposes to note that Deputy Douthett and Sam were taken to a spot on North Maple Grove Road roughly one-half mile southwest of where Behrman’s bike had been discovered. Sam tracked Behrman’s scent to the spot the bike had been found and continued tracking the scent northward briefly before losing the scent and doubling back to the starting point of the search. At that point, Deputy Douthett and Sam got into a vehicle and were driven southward along the path Sam had been following. They stopped and got out of the vehicle at an intersection a few hundred yards away from Highway 37. Hollars’ residence is very close to this intersection. Sam was able to pick the scent back up at that point and she followed it across Highway 37 before turning south on Kinser Pike.

Myers II, 33 N.E.3d at 1098.

         The following map is a representation of a larger map that was admitted during trial. The blue lines represent the relevant locations where the bloodhound tracked according to Deputy Douthett’s testimony, the red dot (just south of the “2”) is where Ms. Behrman’s bike was found, the black dot (just north of the “3”) is Mr. Hollars’s residence, and the blue dot (east/northeast of the “2”) is Mr. Myers’s residence. The bloodhound tracked from the “1” to the “2, ” before being dropped at the “3” and tracking along the blue line.

         (Image Omitted)

See Trial Ex. 74; Trial Tr. 1094.

         Toward the end of Deputy Douthett’s testimony, he was explicitly asked by the State, “at any time during your track did Samantha [the bloodhound] take you . . . to any houses, ” and Deputy Douthett responded, “[n]o.” Trial Tr. 986. In summation, Deputy Douthett testified that what the bloodhound

show[ed] us was possibly the bicycle route that the person had taken from Bloomington up to the point where the field entrance was because there was no scent. The dog did not show signs of a scent trail from that position anywhere farther north. The fact that we were running a nose down trail on the sidewalk which was 15 feet from the roadway was a strong indicator to me that we were following either a walking or bicycle trail.

Id. at 988-89.

         As discussed above, whether Ms. Behrman rode north or south of her residence on the day she disappeared featured prominently at trial. To undermine Mr. Myers’s alibi and the Owings theory, the State attempted to prove that Ms. Behrman rode north to where her bicycle was found. The State did so primarily via the testimony of Deputy Douthett. His testimony, if credited, showed that Ms. Behrman rode north to the field where her bicycle was found and stopped there. This not only undermined Mr. Myers’s alibi, given that the field was very close to his residence, but it also undermined the Owings theory, which depended on Ms. Behrman being hit while riding south of her residence and her bike being dumped in the field where it was found.

         Mr. Myers argued during state post-conviction proceedings that trial counsel’s performance was deficient for failing to object to or otherwise impeach Deputy Douthett’s bloodhound evidence. Mr. Myers pointed out that Indiana common law deems bloodhound tracking evidence too unreliable to be admissible, and thus trial counsel should have objected to Deputy Douthett’s testimony regarding his bloodhound track.

         The Indiana Court of Appeals in Myers II briefly mentioned the common-law authorities on which Mr. Myers relied to argue the evidence was inadmissible, and it also noted that the question may now be governed by Indiana Evidence Rule 702(b). See Myers II, 33 N.E.3d at 1099. But it ultimately concluded that it “need not address whether the bloodhound tracking evidence in this case was admissible or subject to impeachment” because “[a]n objection to inadmissible evidence may be waived as part of reasonable trial strategy, which will not be second-guessed by this court, ” and “[t]rial counsel may also choose to forego opportunities to impeach evidence when doing so serves a reasonable strategic purpose.” Id. (citations and quotation marks omitted). It then explained its conclusion that trial counsel’s failure to object or impeach Deputy Douthett’s bloodhound tracking evidence was a strategic decision:

At the PCR hearing, Patrick Baker testified that he could not recall whether he considered objecting to the bloodhound tracking evidence. Likewise, he could not recall whether he considered consulting with an expert on bloodhounds or researched the admissibility of such evidence, although he believed he or someone in his office had probably done some research on the issue. He noted on cross-examination that the bloodhound evidence put Behrman within a reasonable proximity of Hollars’ house around the time of her disappearance.
It is Myers’ burden to overcome the presumption that there were strategic reasons for the decisions trial counsel made. If Myers cannot satisfy that burden, he cannot establish deficient performance. Patrick Baker’s inability to recall at the time of the PCR hearing whether he researched bloodhound evidence or considered objecting to its introduction at trial over six years earlier is insufficient to overcome the presumption in this case. This is so because we judge counsel’s performance “by the standard of objective reasonableness, not his subjective state of mind.” Woodson v. State, 961 N.E.2d 1035, 1041 (Ind.Ct.App. 2012) (citing Harrington v. Richter, 562 U.S. 86), trans. denied. “Although courts may not indulge ‘post hoc rationalization’ for counsel’s decisionmaking that contradicts the available evidence of counsel’s actions, neither may they insist counsel confirm every aspect of the strategic basis for his or her actions.” Harrington v. Richter, 562 U.S. at 109 (internal citat ion omitted).
Judging trial counsel’s performance by an objective standard of reasonableness, as we must, we conclude that there were valid strategic reasons for declining to object to or impeach the bloodhound tracking evidence irrespective of Patrick Baker’s inability to recall his thoughts on the subject. One of trial counsel’s tactics throughout trial was to cast suspicion on Hollars, and the bloodhound tracking evidence supported that strategy because it placed Behrman near Hollars’ residence. Indeed, trial counsel relied on the bloodhound tracking evidence and its link to Hollars in both opening statements and closing arguments. We will not speculate on the ultimate wisdom of trial counsel’s strategic decisions on this issue. Because Myers has not overcome the presumption that trial counsel acted competently in declining to object to or impeach the bloodhound tracking evidence, he has not established ineffective assistance in this regard.

Id. at 1099-1100.

         The Court first explains why the foregoing is an unreasonable application of Strickland and Wiggins. While doing so, the Court also explains why, had the Indiana Court of Appeals reasonably applied Strickland and Wiggins, it would have concluded that trial counsel’s investigation of the bloodhound evidence was deficient. The Court also explains why an adequate investigation of the bloodhound evidence would have led trial counsel to object to it. Given that the Indiana Court of Appeals’ decision was based on an unreasonable application of Strickland and Wiggins, the Court must turn next to whether the Court’s own de novo review governs or whether the Court must consider what other grounds could have supported the Indiana Court of Appeals’ decision. Although the Supreme Court’s decision in Wilson suggests this Court should simply review this allegation of deficient performance de novo, the Court applies currently controlling Seventh Circuit precedent requiring an analysis of what other grounds could have supported the Indiana Court of Appeals’ decision. Ultimately, neither the state post-conviction court’s alternative basis nor the respondent’s proposed resolution could have supported the Indiana Court of Appeals’ decision. This leaves the Court’s de novo conclusion that trial counsel’s performance was deficient for failing to object to the bloodhound evidence.

         a. Indiana Court of Appeals’ Analysis of Strickland’s Performance Prong

          Mr. Myers contends that the Indiana Court of Appeals’ decision constitutes an unreasonable application of clearly established federal law as set forth by the Supreme Court in Strickland and Wiggins for two related reasons. First, he argues that the Indiana Court of Appeals engaged in the post-hoc rationalization it foreswore. Trial counsel’s actual conduct and statements at trial, contends Mr. Myers, clearly show both that he wanted to prove that Ms. Behrman rode south, and that trial counsel did not make a strategic decision to let in the bloodhound evidence to support the Hollars theory.

         Second, Mr. Myers argues that, even assuming trial counsel made a strategic decision not to object to the bloodhound evidence “because it placed Behrman near Hollars’ residence, ” Myers II, 33 N.E.3d at 1100, trial counsel failed to reasonably investigate the evidence before deciding to pursue this strategy. Mr. Myers maintains that it was contrary to Strickland and Wiggins for the Indiana Court of Appeals to defer to trial counsel’s purported strategy without assessing the reasonableness of trial counsel’s investigation before deciding on that strategy.

         The Indiana Court of Appeals’ decision was unreasonable on both bases for reasons that significantly overlap. This Court will focus primarily on Mr. Myers’s second argument because the Indiana Court of Appeals completely failed to consider whether trial counsel conducted a reasonable investigation before deciding on the purported strategy. While explaining this conclusion, this Court will also discuss how trial counsel’s actual conduct both undermines the notion that he made a strategic decision regarding the bloodhound evidence, as well as bolsters the conclusion that trial counsel’s investigation was deficient. In the end, this analysis shows not only that the Indiana Court of Appeals unreasonably applied Strickland and Wiggins, but also that trial counsel’s performance was deficient.

         The Indiana Court of Appeals reasoned that trial counsel made a strategic decision not to object to Deputy Douthett’s bloodhound testimony “because it placed Behrman near Hollars’ residence, ” Myers II, 33 N.E.3d at 1099, and thus that evidence supported trial counsel’s Hollars theory. Identifying a strategy counsel may have been pursuing and then deferring to it should not have been the entirety of the Indiana Court of Appeals’ analysis. To apply Strickland and Wiggins, it had to examine whether trial counsel’s strategic decision was made after a reasonably competent investigation of the facts and law underlying that strategic choice. See Wiggins, 539 U.S. at 527 (“[A] reviewing court must consider the reasonableness of the investigation said to support [the asserted] strategy.”). The Indiana Court of Appeals did not do this analysis at all, and, as explained further below, such a failure constitutes an unreasonable application of Strickland and Wiggins.[13] See Id . at 528 (“The Court of Appeals’ assumption that the investigation was adequate . . . reflected an unreasonable application of Strickland.).

         “The Supreme Court held in Wiggins . . . that ‘the deference owed to . . . strategic judgments’ depends on ‘the adequacy of the investigations supporting those judgments.’” Jordan v. Hepp, 831 F.3d 837, 848 (7th Cir. 2016) (quoting Wiggins, 539 U.S. at 521). “[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Strickland, 466 U.S. at 690-91. Thus, labelling a decision as strategic, as the Indiana Court of Appeals did here, does not automatically insulate it from review. See Jansen, 884 F.3d at 656 (“[A]n attorney’s decisions are not immune from examination simply because they are deemed tactical.” (citation and quotation marks omitted)). Instead, the Indiana Court of Appeals had to examine whether the strategic decision was made after a reasonable investigation into the law and facts was performed. See Id . (“A strategic choice based on a misunderstanding of law or fact . . . can amount to ineffective assistance.” (citation and quotation marks omitted)). “In assessing counsel’s investigation, ” a court must engage in a “context-dependent consideration of the challenged conduct as seen ‘from counsel’s perspective at the time.’” Wiggins, 539 U.S. at 523 (quoting Strickland, 466 U.S. at 689).

         Had the Indiana Court of Appeals considered trial counsel’s investigation, it would have recognized that trial counsel did not adequately investigate the bloodhound evidence in the case, including Deputy Douthett’s bloodhound search, before deciding to not object to or meaningfully impeach Deputy Douthett’s testimony. Several related factors lead to this conclusion.

         First, and most important, trial counsel failed to take basic steps to investigate the bloodhound evidence even though he knew of the bloodhound searches in May 2005, long before trial. See PCR Tr. 600. Although trial counsel reviewed the grand jury transcripts, Deputy Douthett did not testify during grand jury proceedings, nor did trial counsel depose him, even though he was on the State’s witness list. See, e.g., Trial Tr. 990. Patrick Baker could not recall what, if any, steps he took to investigate the bloodhound evidence as a factual or legal matter. See Myers II, 33 N.E.3d at 1099 (noting that Patrick Baker could not recall “whether he considered objecting to the bloodhound tracking evidence[, ] . . . [or] whether he considered consulting with an expert on bloodhounds or researched the admissibility of such evidence.”); see also PCR Tr. 599-600. Critically, Patrick Baker admitted to the Indiana Supreme Court that his investigation regarding the bloodhound evidence was inadequate. Patrick Baker stipulated to the Indiana Supreme Court that he “should have known” that no evidence would be admitted at trial to support his statements during opening regarding what the bloodhound evidence would show. See In re Baker, 955 N.E.2d at 729.

         It is clear trial counsel’s investigation was wholly deficient because he did not know even basic information about what occurred during the bloodhound searches in this case. Had trial counsel conducted a reasonable investigation-for example, by deposing Deputy Douthett-he would have known that neither Deputy Douthett nor Detective Arvin[14] would testify that a bloodhound tracked to any residence, let alone to Mr. Hollars’s. Trial counsel also would have learned, more generally, that Deputy Douthett’s testimony would completely undermine Mr. Myers’s alibi.

         Only with this information could trial counsel have made an appropriate strategic judgment regarding whether he should challenge the admissibility of the bloodhound evidence. Trial counsel would have had adequate information to make the strategic decision whether (1) he should move to exclude the bloodhound evidence in order to keep out by far the best evidence undermining his alibi defense (and evidence that also undermined his Owings theory); or (2) even though it harmed these defenses, the bloodhound evidence was worth admitting because it supported the Hollars theory by showing that Ms. Behrman rode near, but long past, Mr. Hollars residence. When one considers that the latter evidence hardly cast suspicion on Mr. Hollars since the nearly undisputed evidence shows Mr. Hollars was working at the SRSC and no evidence was presented showing Mr. Hollars was home, trial counsel’s choice would have been objectively clear. But because trial counsel failed to investigate, he, at minimum, thought the bloodhound evidence cast significantly more suspicion on Mr. Hollars than it did-namely, he thought the bloodhound tracked directly to Mr. Hollars’s door and was pulled away by law enforcement.

         Second, trial counsel’s handling of Deputy Douthett’s testimony shows that his “failure to investigate thoroughly resulted from inattention, not reasoned strategic judgment.” Wiggins, 529 U.S. at 526. Deputy Douthett testified early during trial regarding the bloodhound tracking. As noted above, Deputy Douthett concluded his testimony by explaining that his bloodhound showed that Ms. Behrman rode to the field where her bike was found and stopped there-that is, Ms. Behrman rode to the field near Mr. Myers’s residence where she was abducted. Trial Tr. 988-89.

         Despite this detailed testimony that Ms. Behrman’s ride ended very near Mr. Myers’s residence, Patrick Baker did not ask Deputy Douthett any questions about it during cross-examination. Nor did he ask any questions about the proximity of the bike route to Mr. Hollars’s residence. Instead, Patrick Baker asked Deputy Douthett five questions during cross-examination, all of which related to a bloodhound track south of Bloomington that Deputy Douthett performed more than two weeks later, on June 23, 2000. Deputy Douthett testified that he was called back to perform a bloodhound track on that date because “they had a possible witness that observed . . . Ms. Behrman riding her bicycle south of Bloomington.” Id. at 989. Neither party asked Deputy Douthett more questions.

         Patrick Baker, however, asked the trial judge for an opportunity to compare Deputy Douthett’s trail log, which he had just received, to Deputy Douthett’s testimony because his testimony was “very confusing.” Id. at 990. After the trial judge asked if he wanted to compare it to Deputy Douthett’s grand jury testimony, the State explained that Deputy Douthett did not testify during grand jury proceedings, but that he was listed as a witness and Patrick Baker “could have deposed” him. Id. Patrick Baker then asked that Deputy Douthett remain under subpoena so Deputy Douthett could be recalled if necessary, but he was not recalled during trial. Id. at 990-91.

         In the end, trial counsel’s conduct during and immediately after Deputy Douthett’s testimony supports the conclusion that his conduct was the result of a lack of investigation and preparation rather than a strategic choice. See Wiggins, 539 U.S. at 526 (“The record of the . . . proceedings underscores the unreasonableness of counsel’s conduct by suggesting that [the] failure to investigate thoroughly resulted from inattention, not reasoned strategic judgment.”). He failed to ask any questions regarding the northern route even though, according to the Indiana Court of Appeals, he made the strategic decision to let this testimony in to show the northern route’s proximity to Mr. Hollars’s residence. The lack of questions by trial counsel regarding the northern route, combined with his admitted confusion and desire to consider recalling Deputy Douthett, point to counsel’s unawareness of what Deputy Douthett would testify to, not to his exercise of strategic judgment.

         Third, trial counsel’s pivot from his arguments during opening to those made at closing shows his fundamental misunderstanding of the bloodhound evidence-a misunderstanding that would not have occurred had he properly investigated the evidence before trial. Again, trial counsel promised during opening that Detective Arvin would testify that a bloodhound tracked to Mr. Hollars’s residence on the day Ms. Behrman disappeared, May 31, 2000, but was pulled away. See Trial Tr. 474. By the end of trial, no evidence had been produced of a bloodhound tracking to Mr. Hollars’s residence or evidence that Detective Arvin at all participated in bloodhound searches.

         As trial counsel must have anticipated, during closing the State pointed out trial counsel’s unfulfilled promise made during opening. See Id . at 2817 (“[The bloodhound] never tracked at Brian Hollars’ front door as you heard the Defense [during] opening.”). It is therefore unsurprising that trial counsel no longer argued that Detective Arvin pulled a bloodhound away that had tracked Ms. Behrman’s scent to Mr. Hollars’s residence. Instead, trial counsel argued the most the evidence showed-that “Samantha [tracked] . . . near the house of Mr. Hollars, but the trail was stopped.” Id. at 2792 (emphasis added).

         Thus the bloodhound evidence that trial counsel maintained supported the Hollars theory at closing was completely different from the evidence promised during opening: it was Deputy Douthett’s bloodhound tracking (not Detective Arvin’s) on June 6 (not May 31) that tracked “near” Mr. Hollars’s residence (not to his door then pulled away) that supported the Hollars theory. This change can only be explained by trial counsel’s unawareness of what the bloodhound evidence would show before trial, discovering that whatever he thought it would show before trial was incorrect, and then significantly changing his argument in closing to tailor it to what the evidence revealed.

         These three related factors show that trial counsel’s handling of the bloodhound evidence was caused by a lack of investigation and preparation rather than a strategy. The Court thus agrees with Mr. Myers that the purported strategic decision on which the Indiana Court of Appeals relied appears to be more a “post hoc rationalization of counsel’s conduct [rather] than an accurate description” of what occurred. Wiggins, 539 U.S. at 526-27.

         But, more important, even if it was trial counsel’s strategy to not object to Deputy Douthett’s bloodhound evidence because it would show Ms. Behrman rode near Mr. Hollars’s residence, he chose this strategy without having first reasonably investigated the evidence.[15] The Indiana Court of Appeals did not at all discuss trial counsel’s investigation of the bloodhound evidence before deferring to trial counsel’s purported strategy regarding this evidence. Contrary to Wiggins, the Indiana Court of Appeals “merely assumed that the investigation was adequate.” 539 U.S. at 528. A court cannot defer to trial counsel’s strategic judgment without assessing “‘the adequacy of the investigations supporting th[at] [strategy].’” Jordan, 831 F.3d at 848 (quoting Wiggins, 539 U.S. at 521). The Indiana Court of Appeals-despite recognizing earlier in its opinion that trial counsel should have known its representations about the bloodhound evidence were false-ignored this fact and its implications when analyzing this claim. It concluded that there was an objectively reasonable strategy supporting trial counsel’s failure to object without assessing whether trial counsel could have settled on such a strategy given trial counsel’s lack of investigation and misunderstanding of the evidence-an analysis that Strickland and Wiggins mandate before deferring to a proposed strategic justification. Wiggins, 539 U.S. at 527 (“[A] reviewing court must consider the reasonableness of the investigation said to support th[e] strategy.”); see Strickland, 466 U.S. at 690-91.

         For these reasons, the Indiana Court of Appeals’ decision with respect to this allegation of deficient performance “involved an unreasonable application of[] clearly established Federal law.” 28 U.S.C. § 2254(d)(1). It did so by failing to analyze whether a reasonable investigation supported the purported strategy, as clearly required by Strickland and Wiggins. See Wiggins, 539 U.S. at 528 (“The Court of Appeals’ assumption that the investigation was adequate . . . reflected an unreasonable application of Strickland.”). Indeed, the Indiana Court of Appeals noted that this analysis was necessary when evaluating ineffective-assistance-of-counsel claims earlier in its opinion, but simply failed to consider it when analyzing this allegation of deficient performance. Failing to properly apply these aspects of Strickland and Wiggins constitutes an “‘error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.’” Ward, 835 F.3d at 703 (quoting Richter, 562 U.S. at 103).

         b. Appropriate Standard of Review

         The Court has concluded that the Indiana Court of Appeals unreasonably applied Strickland and Wiggins to this allegation of deficient performance, but the Court’s inquiry cannot end there. Federal courts have debated whether, even after concluding that a state court unreasonably applied clearly established federal law as determined by the Supreme Court, the federal habeas court then reviews the issue de novo or if deferential review under § 2254(d) is still required. This debate centers on the “could have supported” framework set forth by the Supreme Court in Richter:

Under § 2254(d), a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court’s decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.

Richter, 562 U.S. at 102. “Prior to Richter, if a state court offered a rationale to support its decision denying habeas relief, [the federal habeas court] assessed the actual reason offered by the state court to determine whether the decision was the result of an unreasonable application of federal law.” Whatley v. Zatecky, 833 F.3d 762, 774 (7th Cir. 2016). But after Richter, the Seventh Circuit questioned:

first, whether Richter (a) applies only to cases in which the state court offers no reasoning, or instead (b) holds in effect that federal courts should always entirely disregard the state court’s rationale and decide independently if the bottom line is justifiable; and second, if Richter applies only to summary dispositions, how a federal court should evaluate a case in which the state court offers a reason, but that reason is either wrong as a matter of law or patently irrational.

Id. (quoting Brady v. Pfister, 711 F.3d 818, 824-25 (7th Cir. 2013)).

         In other words, unlike in Richter but like this case, “[t]he problem is . . . not silence; it is what to do if the last state court to render a decision offers a bad reason for its decision.” Brady, 711 F.3d at 826. “At that point, ” the Seventh Circuit held, “we concluded that although we would no longer attach significance to the state court’s expressed reasons, we would still apply AEDPA deference to the judgment.” Whatley, 833 F.3d at 775 (citing Brady, 711 F.3d at 827). Thus, even “[i]f a state court’s rationale does not pass muster under . . . Section 2254(d)(1) . . ., the only consequence is that further inquiry is necessary.” Brady, 711 F.3d at 827. To conduct this inquiry, “the federal court should turn to the remainder of the state record, including explanations offered by lower courts.” Id.; see Whatley, 833 F.3d at 775. In other words, the federal court should apply Richter’s “could have supported” framework. See Whatley, 833 F.3d at 775 (noting that a petitioner is not “entitle[d] . . . to de novo review simply because the state court’s rationale is unsound”).

         Whether these holdings remain the law-that is, whether Richter’s “could have supported” framework applies when the last state court provides a reasoned decision-was cast into doubt by the Supreme Court’s decision in Wilson v. Sellers, 138 S.Ct. 1188 (2018); see Thomas v. Vannoy, 898 F.3d 561, 568 (5th Cir. 2018) (noting without deciding that Wilson may have undermined the “continued viability” of the Fifth Circuit’s application of Richter’s “could have supported” framework even when the state court provided a reason for its decision). In Wilson, the Supreme Court stated that application of AEDPA deference is “a straightforward inquiry when the last state court to decide a prisoner’s federal claim explains its decision on the merits in a reasoned opinion. In that case, a federal habeas court simply reviews the specific reasons given by the state court and defers to those reasons if they are reasonable.” 138 S.Ct. at 1192. In so stating, it cited to three pre-Richter cases where the Supreme Court did not ...


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