Canaan v. Davis, Cause No. IP 97-1847-C H/K (S.D. Ind. 1/10/2003)

• Decision Date: 10 January 2003
• Docket Number: Cause No. IP 97-1847-C H/K.
• Parties: KEITH BRIAN CANAAN, Petitioner, v. CECIL DAVIS, Superintendent, Respondent.<SMALL><SUP>1</SUP></SMALL>
• Court: U.S. District Court — Southern District of Indiana

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KEITH BRIAN CANAAN, Petitioner, v. CECIL DAVIS, Superintendent, Respondent.¹

Cause No. IP 97-1847-C H/K.

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

January 10, 2003.

ENTRY ON PETITION FOR WRIT OF HABEAS CORPUS

DAVID F. HAMILTON, District Judge.

Introduction

On December 29, 1985, Lori Bullock was brutally murdered with a knife in her apartment bedroom in Evansville, Indiana. Petitioner Keith Canaan was convicted of her murder, as well as burglary and attempted criminal deviate conduct. The State of Indiana sentenced him to death. In this action for a writ of habeas corpus, Canaan seeks relief from his convictions and death sentence.

Canaan was lawfully convicted of murder and of burglary. His petition for relief from those convictions must be denied, and the State of Indiana is entitled to imprison him for what amounts to a life sentence for those crimes. However, Canaan's petition must be granted with respect to the death sentence and the conviction for attempted criminal deviate conduct. As explained in detail below, Canaan's attorneys denied him effective assistance of counsel at the penalty phase of the trial by failing to counsel him about whether he should testify himself. Also, the trial court's instructions on attempted criminal deviate conduct denied Canaan due process of law because they failed to require the jury to find beyond a reasonable doubt the essential element of a specific or conscious intent to penetrate the sex organ of the victim with an object. The death sentence was based in part on the invalid verdict on attempted criminal deviate conduct. The court is issuing a writ of habeas corpus that will allow the State of Indiana to impose sentences of terms of years for murder and for burglary (including a habitual offender enhancement), and/or to retry Canaan for attempted criminal deviate conduct and/or to hold a new death penalty hearing.

The Facts and the State Proceedings

Canaan was charged in Vanderburgh County with murder, burglary, and criminal deviate conduct. The evidence at trial showed that Lori Bullock's body was found by a roommate late at night. Bullock was lying on her bed. She had suffered approximately 23 or 24 stab wounds, many of which would have been fatal by themselves. There were deep wounds in her chest around her heart, in her pubic area, and in her neck. The knife was still stuck in her neck. Bullock was nude, and there was water on the bathroom floor around the shower. Her bedroom door had been forced open. The front door of the apartment did not show signs of forced entry, though the evidence also showed that the doorknob lock did not work well and that Bullock and her roommates usually did not keep the apartment locked with a deadbolt unless all four were at home. The apartment had been ransacked and some items had been taken from it. See Canaan v. State, 541 N.E.2d 894, 898 (Ind. 1989) (Canaan I).

Canaan was later identified as having visited Bullock's apartment building late in the evening of her murder. He had previously visited the apartment Bullock shared with other women, but he had not met Bullock herself on those occasions. Later in the night of the murder, Canaan had much more cash than he had had earlier in the day, and he also asked a waitress in an all-night restaurant how to remove blood stains from his shirt. When Canaan, his brother, and a friend noticed a police officer near the brother's apartment the next afternoon, Canaan told his brother to get rid of some of his pants, and said "I've got to get out of here." Canaan's brother testified that Canaan told him that he had killed "a biker" at a bar the night before. There is no indication of any such killing that night. Further, a fingerprint on a box of spaghetti from Bullock's apartment was identified as Canaan's print.²

After a trial by jury, Canaan was convicted of murder, burglary, and attempted criminal deviate conduct. R. 845. After a separate post-verdict hearing, he was also found to be a habitual offender. R. 846-47. After a second post-verdict hearing on the prosecution's death penalty request, the jury recommended a sentence of death. R. 854. The trial judge agreed with that recommendation and decided to impose a sentence of death. R. 864. Canaan has not yet been sentenced to a term of years on the burglary and attempted criminal deviate conduct convictions. His death sentence was based on two aggravating factors: (1) intentional killing while committing burglary; and (2) intentional killing while committing attempted criminal deviate conduct. Canaan's convictions and sentence were affirmed on appeal in Canaan I, 541 N.E.2d 894. The Supreme Court of the United States denied certiorari. 498 U.S. 882 (1990).

Canaan then sought post-conviction relief in the state courts. The trial court denied relief after an evidentiary hearing. The denial of post-conviction relief was affirmed on appeal in Canaan v. State, 683 N.E.2d 227 (Ind. 1997) (Canaan II). The Supreme Court of the United States again denied certiorari. 524 U.S. 906 (1998). Canaan sought leave to file a second or successive petition for post-conviction relief, but the state courts denied that request. Canaan then filed his petition for a writ of habeas corpus in this action.

Canaan's Federal Claims for Relief

At present, therefore, Canaan is under a sentence of death for the murder of Lori Bullock, and he has been convicted of, though not sentenced for, the felonies of burglary and attempted criminal deviate conduct. He filed his federal habeas corpus petition on June 25, 1998.

Canaan presents six claims in this proceeding: (1) he was denied the effective assistance of counsel in several respects, including his attorneys' failure to counsel him about whether he should testify at the penalty phase, their failure to investigate, discover and present material evidence of mitigation, and their failure to object to the defective instruction for attempted criminal deviate conduct; (2) the evidence was insufficient to sustain his conviction for attempted criminal deviate conduct, which was a predicate for the death penalty; (3) the evidence was insufficient to sustain his conviction for burglary, which was also a predicate for the death penalty; (4) he was denied due process of law when the trial court gave erroneous jury instructions on the intent requirement for the crime of attempted criminal deviate conduct; (5) he was denied due process because the police intentionally destroyed physical evidence; and (6) the trial court erred in denying his motion for mistrial based on allegations of prosecutorial misconduct during the final argument of the death penalty hearing. Canaan has also requested an evidentiary hearing and an opportunity to conduct discovery regarding his due process claim based on destruction of evidence.

Standard of Review

Canaan seeks relief pursuant to 28 U.S.C. § 2254(a), under which a federal court may grant relief only if the petitioner shows that he is in custody "in violation of the Constitution or laws or treaties of the United States." Because Canaan filed his habeas corpus petition after enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA) in 1996, the AEDPA's restrictions on federal review of state court rulings apply here. See Williams v. Taylor, 529 U.S. 362 (2000); Lindh v. Murphy, 521 U.S. 320, 322-23 (1997). Canaan therefore must show that the state courts' adjudication of a claim on the merits either "(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).

There are two distinct prongs in § 2254(d)(1); relief may be granted if the decision is "contrary to" or involves an "unreasonable application" of clearly established federal law. A state court decision is "contrary to" Supreme Court precedent "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law" or "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [that reached by the Supreme Court]." Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision will be deemed an "unreasonable application" of clearly established federal law "if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.

The Seventh Circuit has explained:

When faced with the task of determining whether a particular application of Supreme Court precedent is unreasonable, we have often taken a more pragmatic approach to answering the question, scrutinizing the practical operation and effect of the principles at issue in the particular facts of the case. See, e.g., Miller v. Anderson, 255 F.3d 455, 456-59 (7th Cir. 2001); Redmond v. Kingston, 240 F.3d 590, 591-92 (7th Cir. 2001); Washington v. Smith, 219 F.3d 620, 627-35 (7th Cir. 2000). We ask whether the decision is "at least minimally consistent with the facts and circumstances of the case" or "if it is one of several equally plausible outcomes," Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir. 1997); Hall v. Washington, 106 F.3d 742, 749 (7th Cir. 1997), granting a writ of habeas corpus if the determination is "at such tension with governing U.S. Supreme Court precedents, or so inadequately supported by the record, or so arbitrary" as to be unreasonable. Hall, 106 F.3d at 749.

Boss v. Pierce, 263 F.3d 734, 741-42 (7th Cir. 2001) (granting relief where state court unreasonably applied Brady v. Maryland). And more recently, the Seventh Circuit has explained:

An incorrect...