United States District Court, S.D. Indiana, Indianapolis Division
ORDER GRANTING PETITION FOR A WRIT OF HABEAS
R. SWEENEY II, JUDGE
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.
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
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.
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.
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
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
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.
appeal from the denial of post-conviction relief, the Indiana
Court of Appeals summarized the relevant factual and
procedural history as follows:
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
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
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
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
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
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
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
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.
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.
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).
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;
(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).
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.”
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).
Myers raises three constitutional claims in his habeas
petition: (1) trial counselprovided 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
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).
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
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).
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.
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.
Presentation of Mr. Myers’s Interview with Law
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.
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. 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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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
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.
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. 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.’” Id. (quoting PCR Ex. 305A at
154); see also, e.g., PCR Ex. 305A at 186.
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.” 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
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
Failure to Object to Testimony and Arguments Regarding
the May 2, 2005 Interview That Inaccurately Describe the
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.
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.
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).
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.
Trial Counsel’s False Statements during Opening
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.
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.
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.
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
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.
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.
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
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). 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.
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. 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.”
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.
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).
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.
Failure to Sufficiently Challenge the State’s
Theory that Ms. Behrman Rode North and to Object to Improper
Testimony that She Rode South
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.
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. 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.
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.
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.
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
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.
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.
Failure to Challenge the State’s Northern Route
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.
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.
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-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.
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.
Failure to Object to Alleged Hearsay Regarding Ms.
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
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
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.
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
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
. . . .
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
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.
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.
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.
Failure to Challenge Bloodhound Evidence
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.
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.
See Trial Ex. 74; Trial Tr. 1094.
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
Id. at 988-89.
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.
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
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
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.
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
Indiana Court of Appeals’ Analysis of
Strickland’s Performance Prong
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.
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.
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.
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. See Id
. at 528 (“The Court of Appeals’ assumption
that the investigation was adequate . . . reflected an
unreasonable application of Strickland.).
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).
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.
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.
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 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.
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.
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.
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.
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.
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.
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.
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).
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
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.
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. 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.
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).
Appropriate Standard of Review
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
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)).
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”).
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 ...