United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
L. MILLER, JR. JUDGE
Drake, a prisoner without a lawyer, filed a habeas corpus
petition to challenge his conviction for murder under Cause
No. 18C02-410-MR-2. After a jury trial, the Delaware Circuit
Court sentenced Mr. Drake to 55 years of incarceration.
deciding this habeas petition, the court must presume the
facts set forth by the state courts are correct unless they
are rebutted with clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1); Caffey v. Butler, 802 F.3d 884
(7th Cir. 2015). The Court of Appeals of Indiana summarized
the evidence presented at trial:
Approximately one week before October 2, 2004, Drake informed
two of his friends-Jordan Williams and Jordan Quinn-that his
in-car television had been stolen. Drake instructed the men
to contact him if they learned the whereabouts of the
On October 2, 2004, David Adams contacted Chris Masiongale in
Yorktown and informed him that he had a television to sell.
Adams told Masiongale that he could keep any money over $150
if Masiongale could sell the television. Masiongale agreed
and called Quinn later that day regarding the television.
Quinn subsequently called Drake and informed him that
Masiongale had contacted him about a television. After
speaking with Drake, Quinn called Masiongale and arranged a
meeting between Masiongale and Drake.
After determining that Quinn would not be able to drive Drake
to the meeting, Drake called Williams and informed him that
“he knew who stole his tv and asked if Williams would
go with him to go get it.” Because Williams was at
Ronnie Haste's home when he received the call, he and
Haste both went to Drake's apartment to pick him up.
Williams drove his black Dodge Ram to the apartment because
Haste was too intoxicated to drive. After picking up Drake,
the three men drove to the arranged meeting place.
Masiongale, Adams, Kirt Trahan, and Masiongale's
girlfriend, Lyndsey Scott, were outside Adams's home when
a black Dodge Ram carrying three people arrived. Williams
stepped out of the vehicle and asked to see the television.
Drake also exited the vehicle, approached Masiongale and
said, “Give me my shit.” Before Masiongale could
answer, Drake shot him. Williams grabbed the television and
said, “I got it come on, ” and the men got back
into the vehicle and drove away. While fleeing from the
scene, Drake called his mother and “asked for two (2)
tickets to California because he thought he just killed
somebody.” Masiongale was taken to Ball Hospital, where
he was pronounced brain dead the next morning and died after
being removed from life support.
During the next few days, Williams, Scott, and Adams selected
Drake's picture from a police photo array. On October 10,
2004, Drake, who had fled to California, contacted Carlos
Kelly, a pastor in San Diego. Two days later, Kelly helped
Drake turn himself in to the local law enforcement
A jury trial was held in February 2006. Drake was represented
by two attorneys. Defense counsel's theory was that
although Drake was present at the scene, Williams was the
shooter. Tr. p. 649. The jury found Drake guilty of murder,
and the trial court sentenced him to fifty-five years.
ECF 19-11 at 2-3; Drake v. State, 110 N.E.3d 1190
amended petition, Mr. Drake argues that he is entitled to
habeas corpus relief because he didn't receive effective
assistance of trial or appellate counsel.
considering the merits of a habeas petition, the court must
first ensure that the petitioner has exhausted all available
remedies in state court. 28 U.S.C. § 2254(b)(1)(A);
Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir.
2004). To avoid procedural default, a habeas petitioner must
fully and fairly present his federal claims to the state
courts. Boyko v. Parke, 259 F.3d 781, 788 (7th Cir.
2001). Fair presentment “does not require a
hypertechnical congruence between the claims made in the
federal and state courts; it merely requires that the factual
and legal substance remain the same.” Anderson v.
Brevik, 471 F.3d 811, 814-815 (7th Cir. 2006) (citing
Boyko v. Parke, 259 F.3d at 788). The petitioner
must “assert his federal claim through one complete
round of state-court review, either on direct appeal of his
conviction or in post-conviction proceedings.”
Lewis v. Sternes, 390 F.3d at 1025 (internal
quotations and citations omitted). “This means that the
petitioner must raise the issue at each and every level in
the state court system, including levels at which review is
discretionary rather than mandatory.” Id.
“A habeas petitioner who has exhausted his state court
remedies without properly asserting his federal claim at each
level of state court review has procedurally defaulted that
Drake presented his claim that trial counsel was ineffective
with respect to the cross-examination of Jordan Williams to
the Court of Appeals of Indiana and the Indiana Supreme
Court. ECF 19-9; ECF 19-12. Mr. Drake didn't present his
other ineffective assistance of effective counsel claims in
the amended petition to the Indiana Supreme Court, and Mr.
Drake offers no basis to excuse the procedural default of
these claims. As a result, the court can consider only the
claims that pertain to the cross-examination of Mr. Williams.
habeas review . . . exists as a guard against extreme
malfunctions in the state criminal justice systems, not a
substitute for ordinary error correction through
appeal.” Woods v. Donald, 135 S.Ct. 1372, 1376
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim-
(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).
[This] standard is intentionally difficult to meet. We have
explained that clearly established Federal law for purposes
of §2254(d)(1) includes only the holdings, as opposed to
the dicta, of this Court's decisions. And an unreasonable
application of those holdings must be objectively
unreasonable, not merely wrong; even clear error will not
suffice. To satisfy this high bar, a habeas petitioner is
required to show that the state court's ruling on the
claim being presented in federal court was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
Woods v. Donald, 135 S.Ct. at 1376 (internal
quotation marks and citations omitted). Criminal defendants
are entitled to a fair trial, but not a perfect one. Rose
v. Clark, 478 U.S. 570, 579 (1986). To warrant relief, a
state court's decision must be more than incorrect or
erroneous; it must be objectively unreasonable. Wiggins
v. Smith, 539 U.S. 510, 520 (2003). “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.” Harrington v. Richter, 562 U.S. 86,
Drake argues that he is entitled to habeas relief because
trial counsel was ineffective with respect to the
cross-examination of Jordan Williams. Mr. Drake specifically
asserts that trial counsel was ineffective cause they
didn't depose Mr. Williams, object to the admission of
and testimony about the voice stress tests, review or prepare
for the introduction of the stress tests at trial, or request
a recess or continuance after learning that Mr. Williams was
to testify. He further asserts that Mr. Williams was a
“pivotal witness” for the prosecution and that
his “credibility was certainly at issue and his
impeachment paramount for the defense.” ECF 16 at 9,
prevail on an ineffective assistance of counsel claim, a
petitioner must show (1) that counsel's performance was
deficient and (2) that the deficient performance prejudiced
him. Strickland v. Washington, 466 U.S. 668 (1984).
In determining whether counsel's performance was
deficient, there is “a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances,
the challenged action might be considered sound trial
strategy.” Id. at 689. This presumption is an
important tool to eliminate the “distorting effects of
test for prejudice is whether there was a reasonable
probability that “but for counsel's unprofessional
errors, the result of the proceeding would have been
different.” Strickland v. Washington, 466 U.S.
at 694. In assessing prejudice under Strickland
“[t]he likelihood of a different result must be
substantial, not just conceivable.” Harrington v.
Richter, 562 U.S. 86, 112 (2011). However, “[o]n
habeas review, [the] inquiry is now whether the state court
unreasonably applied Strickland.” McNary
v. Lemke, 708 F.3d 905, 914 (7th Cir. 2013).
“Given this high standard, even ‘egregious'
failures of counsel do not always warrant relief.”
Williams testified on the second day of trial. On direct
examination, he testified that the prosecution told him that
the prosecution wouldn't pursue criminal charges against
him if he testified truthfully. Trial Tr. 370-371. According
to his testimony, Mr. Williams drove to Mr. Drake's
apartment with Ronnie Haste on the day of the incident.
Id. at 375-376. While Mr. Williams was in Mr.
Drake's apartment, he saw Mr. Drake put a revolver in his
pants. Id. at 377. Mr. Williams then drove Mr. Drake
and Mr. Haste to retrieve a television that Mr. Drake had
stolen. Id. at 379-381.Upon arriving at the arranged
meeting place, Mr. Williams gut out of the vehicle, walked
around the front of the victim's truck, and looked at the
television in the driver's seat of the victim's
truck. Id. at 381-382. Mr. Williams discussed the
price of the television with the victim and then went to pull
the television out of the truck. Id. at 382. The
victim hesitated and asked Mr. Williams to put the television
back in the truck. Id. Mr. Williams then looked at
Mr. Drake, who was still inside the vehicle. Id. At
this point, Mr. Drake got out and shot the victim.
Id. Mr. Williams didn't see Mr. Drake pull the
gun, but he heard the shot and saw “fire” coming
from the gun. Id. at 382-383. Mr. Williams and Mr.
Drake jumped back in the vehicle and drove away. Id.
at 382. In the vehicle, Mr. Drake called his mother and asked
for two tickets to California “because he thought he
just killed somebody.” Id. at 385. Mr. Drake
called Mr. Williams several times after the shooting to ask
Mr. Williams what he had heard and to claim that “there
was no way a shell casing would be found because [Mr. Drake]
used a revolver.” Id. at 387. Mr. Drake also
asked Mr. Williams to plead the Fifth. Id. at 390.
Williams testified on cross-examination that he made his
initial statement to police three days after the shooting
occurred. Id. at 390-391. Mr. Williams made this
statement after the prosecution told him that he wouldn't
be charged if he told the truth. Id. at 393. Trial
counsel John Quirk then asked Mr. Williams about the voice
stress testing that took place at that time:
Quirk: And then after that, uh, sometimes in, uh, around
March or so the end of February, first of March of 2005, you
failed two voice stress tests, is that correct?
Quirk: And those are all regarding the events of this
evening, of that evening, is that correct?
Williams: No. I failed questions if I was male or female,
living in Indiana, my name is Jordan. I failed every question
there was to the test, sir.
Quirk: Every single question they asked you, you failed?
Quirk: Two sets of tests?
Quirk: One given by a Delaware County Police Officer?
Quirk: And one given by a Private Investigator here in town?
Williams: Yes, ...