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Drake v. Superintendent

United States District Court, N.D. Indiana, South Bend Division

November 13, 2019




         Jermaine 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.


         In 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 television.
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 authorities.
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 (Ind.Ct.App. 2018).

         In the 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.


         A court 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 claim.” Id.

         Mr. 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.


         “Federal 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 (2015).

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; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

[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 fairminded disagreement.

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, 101 (2011).


         Mr. 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, 13.

         To 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 hindsight.” Id.

         The 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.” Id.

         Mr. 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.

         Mr. 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?
Williams: Yes.
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?
Williams: Yes.
Quirk: Two sets of tests?
Williams: Yes.
Quirk: One given by a Delaware County Police Officer?
Williams: Yes.
Quirk: And one given by a Private Investigator here in town?
Williams: Yes, ...

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