Boyko v. Parke

• Decision Date: 27 July 2001
• Docket Number: No. 99-3771,99-3771
• Citation: 259 F.3d 781
• Parties: (7th Cir. 2001) RODNEY L. BOYKO, Petitioner-Appellant, v. AL C. PARKE, Superintendent, Respondent-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 781

259 F.3d 781 (7th Cir. 2001)

RODNEY L. BOYKO, Petitioner-Appellant, v. AL C. PARKE, Superintendent, Respondent-Appellee.

No. 99-3771

In the United States Court of Appeals For the Seventh Circuit

ARGUED SEPTEMBER 18, 2000

DECIDED JULY 27, 2001

Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 97 C 424--Allen Sharp, Judge.

Before EASTERBROOK, RIPPLE and WILLIAMS, Circuit Judges.

RIPPLE, Circuit Judge.

At the age of fifteen, Rodney Boyko was convicted of the murder of Lester Clouse and sentenced to 35 years in prison. His conviction was affirmed on direct appeal by the Indiana Court of Appeals, see Boyko v. State, 566 N.E.2d 1060 (Ind. Ct. App. 1991), and he did not petition for transfer to the Indiana Supreme Court. Mr. Boyko then filed a petition for postconviction relief in which he alleged, inter alia, that his trial counsel was constitutionally ineffective in failing to consider and to raise certain defenses. After holding an evidentiary hearing on the matter, the Indiana trial court denied Mr. Boyko's petition. The Indiana Court of Appeals affirmed that denial, and the Indiana Supreme Court denied Mr. Boyko's petition for transfer.

Mr. Boyko subsequently filed a petition for habeas corpus in the district court. He then sought leave from the district court to expand the record to include a transcript of a hearing that was held before his case was waived from juvenile court; he alleged that this transcript supported his claim of ineffective assistance of counsel. He also sought leave to conduct discovery, primarily in order to depose his trial defense counsel. The district court denied Mr. Boyko's motions and denied his habeas petition on the merits. Mr. Boyko now appeals. For the reasons set forth in the following opinion, we reverse the judgment of the district court and remand for further proceedings.

I BACKGROUND

A. Facts

When he was fifteen years old, Mr. Boyko was involved in a homosexual relationship with twenty-one-year-old Lester Clouse. Mr. Boyko did not want to continue the relationship and came to learn that Clouse had told a mutual acquaintance that, if he [Clouse] could not have Mr. Boyko, no one could. Mr. Boyko, armed with a .22 caliber semiautomatic pistol, went to Clouse's apartment to confront him. During their conversation, Mr. Boyko asked Clouse to take a drive with him. Mr. Boyko had been acting strangely, and, before leaving the apartment, Clouse said to his roommates, "'If I'm not back by this evening you know what happened to me.'" Boyko v. State, 566 N.E.2d 1060, 1062 (Ind. Ct. App. 1991).

Mr. Boyko drove Clouse to a secluded area. The two men got out of the car. Mr. Boyko confronted Clouse with the "if I can't have you no one can" statement, and he shot the pistol into the air several times. Clouse grabbed the pistol from Mr. Boyko. The two men then returned to the car, and Clouse gave the pistol back to Mr. Boyko. Mr. Boyko reloaded the pistol and cocked it, placing a live round in the pistol's chamber. Clouse placed his hand on Mr. Boyko's leg, and Mr. Boyko discharged the pistol into Clouse's chest.

After he shot Clouse, Mr. Boyko put the body in the trunk of his car and asked several friends to help him dispose of it. He made plans to leave the state, but he was apprehended by the police following a high-speed chase seventeen hours after the shooting. Clouse's body was still in the trunk of the car when Mr. Boyko was apprehended.

B. Earlier Proceedings

1.

Mr. Boyko was placed on trial for the intentional killing of Clouse. Mr. Boyko's trial counsel defended the case on the ground that the shooting was accidental. The jury, however, found otherwise and convicted Mr. Boyko of Clouse's murder. The court sentenced Mr. Boyko to 35 years' imprisonment.

2.

Mr. Boyko appealed his conviction to the Indiana Court of Appeals. He raised three arguments: (1) the evidence introduced at trial was insufficient to support the jury's finding that he intentionally killed Clouse, (2) the trial court erred in allowing him to testify while he was still feeling groggy from antidepressants administered to him while he was incarcerated the night before his trial, and (3) the trial court erred in permitting the jury to view evidence that indicated that Mr. Boyko had a juvenile record. The Indiana Court of Appeals rejected all three of Mr. Boyko's arguments and affirmed his conviction. Mr. Boyko did not petition for transfer to the Indiana Supreme Court.¹

3.

Mr. Boyko filed a petition for postconviction relief in the trial court after the Indiana Court of Appeals denied his direct appeal. He raised two arguments in his petition: (1) ineffective assistance of appellate counsel in failing to argue that trial counsel had been ineffective and (2) prosecutorial misconduct. The trial court initially denied Mr. Boyko's petition without a hearing, but it vacated its decision after Mr. Boyko filed a motion to correct error. The court then held a full evidentiary hearing on Mr. Boyko's petition.

The evidence Mr. Boyko presented at the hearing pertained mainly to his ineffective assistance of counsel claim. Prior to the hearing, Mr. Boyko had been interviewed by Kathleen Goudy, a certified clinical social worker. Goudy then testified at Mr. Boyko's hearing as to the content of the interview and the opinions she had formed from it. She opined that Mr. Boyko never had consented to his sexual relationship with Clouse; instead, Clouse repeatedly had raped and sexually abused Mr. Boyko, but Mr. Boyko was unable to recognize Clouse's conduct as abuse. Goudy also explained that, starting from the time he was nine years old, Mr. Boyko had been sexually abused by several other older men in addition to Clouse. In Goudy's opinion, at the time he shot Clouse, Mr. Boyko was suffering from post traumatic stress disorder ("PTSD"), the result of years of sexual abuse. In Goudy's opinion, when Clouse touched Mr. Boyko's leg on the night of the shooting, Mr. Boyko thought Clouse was about to molest him again or possibly kill him.² Mr. Boyko reacted to Clouse's touch in an uncontrolled manner because that touch triggered a panic attack as a result of the PTSD. Goudy's opinion was that Mr. Boyko shot Clouse in an attempt to protect himself.

Based on this testimony, Mr. Boyko argued at his evidentiary hearing that his trial counsel had been ineffective in presenting Mr. Boyko's relationship with Clouse to the jury as consensual rather than abusive, especially given Mr. Boyko's legal inability to consent to sexual relations with an adult under Indiana's child molestation laws.³ Mr. Boyko further argued that his trial counsel should have considered the possibility that Mr. Boyko was suffering from PTSD as a result of years of sexual abuse and should have presented this possibility to the jury as negating the necessary mens rea for murder or as establishing Mr. Boyko's perceived need for self-defense. At the very least, Mr. Boyko argued, this evidence could have been presented in mitigation at sentencing.

Mr. Boyko's trial counsel testified at the evidentiary hearing as well, and Mr. Boyko questioned him about his failure to consider PTSD as a possible defense. Trial counsel explained that he knew of Mr. Boyko's sexual encounters with Clouse and with the other men, but he thought these relationships were consensual rather than abusive. He further testified that he did not investigate whether Mr. Boyko was suffering from PTSD. He admitted, however, that he would have raised PTSD as a defense if he had realized that Mr. Boyko may have suffered from it, but he was not certain that it would have been an effective defense.

After hearing the evidence and the arguments, the trial court ruled that Mr. Boyko's trial counsel had not been constitutionally ineffective in failing to raise a PTSD defense. The court pointed out that Mr. Boyko himself did not recognize that he might have suffered from PTSD at the time of the shooting nor did he ever suggest to his attorney that he raise a PTSD defense at trial. The court concluded that, if Mr. Boyko's trial counsel had raised PTSD as a defense, it would have been an alternate theory to the accidental shooting theory, and the presentation of alternate defenses may have been ineffective with the jury. The court also noted that trial counsel presented evidence on behalf of Mr. Boyko, cross-examined the prosecution's witnesses, presented closing arguments to the jury, and successfully argued and obtained a jury instruction regarding the lesser-included offense of reckless homicide. In light of these considerations, the court concluded that the assistance provided by Mr. Boyko's trial counsel "was within the wide range of reasonable professional legal assistance and that it was not inadequate so as to render his legal representation ineffective." Record of Postconviction Proceedings, Vol. I at 57.

Mr. Boyko also made several contentions in his written petition for postconviction relief that he did not pursue at his evidentiary hearing. In particular, Mr. Boyko alleged that his trial counsel was ineffective in failing to investigate and present a theory of self-defense.⁴ Mr. Boyko indicated in response to the State's written interrogatories that, if his trial counsel had spoken to various witnesses, he would have learned that (1) Clouse was obsessed with Mr. Boyko, (2) Mr. Boyko feared Clouse, (3) Mr. Boyko did not want to have a relationship with Clouse, (4) Clouse repeatedly raped Mr. Boyko, (5) Mr. Boyko had tried to move out of the state to avoid Clouse, and (6) Clouse had threatened Mr. Boyko and was armed when he made the threat. Although Mr. Boyko made these assertions in writing, he made no attempt to support them through live testimony at his postconviction evidentiary hearing nor did he pursue these issues through argument. The trial court noted Mr. Boyko's failure to raise these issues at the evidentiary...