Collier v. Davis

• Decision Date: 29 August 2002
• Docket Number: No. 01-1742.,01-1742.
• Citation: 301 F.3d 843
• Parties: Ernest C. COLLIER, Petitioner-Appellant, v. Cecil DAVIS, Superintendent of the Indiana State Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

301 F.3d 843

Ernest C. COLLIER, Petitioner-Appellant, v. Cecil DAVIS, Superintendent of the Indiana State Prison, Respondent-Appellee.

No. 01-1742.

United States Court of Appeals, Seventh Circuit.

Argued April 3, 2002.

Decided August 29, 2002.

Rehearing and Rehearing En Banc Denied September 26, 2002.^*

R. John Kuehn (argued), Boveri, Murphy, Rice, Ryan & Ladue, South Bend, IN, for Petitioner-Appellant.

Stephen R. Creason (argued), Office of Attorney General, Indianapolis, IN, for Respondent-Appellee.

Before COFFEY, DIANE P. WOOD, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Ernest T. Collier, after unsuccessful direct and post-conviction appeals of his murder and criminal recklessness convictions in Indiana state court, seeks federal habeas corpus relief pursuant to 28 U.S.C. § 2254. After the district court denied Collier's petition and declined to issue a certificate of appealability, we issued a certificate of appealability to determine whether the State's alleged failure to disclose an understanding or informal agreement of leniency in exchange for the key witness's testimony violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Because Collier has failed to produce sufficient evidence to support his Brady claim, we affirm the district court's judgment.

I. BACKGROUND

A. Facts

More than thirteen years ago, Frederick McGuire was shot in the head at close range in front of his home in Indianapolis, Indiana. He died three days later. Although nobody saw the shooting, the State's key witness, James Merrill, testified that Collier was at the McGuire home and possessed a gun at the time of the shooting. The relevant portion of his testimony follows.

After a full day of drinking and driving around Indianapolis, Merrill went with Collier to a local fast-food restaurant, where Collier's ex-girlfriend worked. While they were there, Collier got into an argument with his ex-girlfriend, and then left with Merrill. They drove for a couple of miles and stopped when they reached a house on 40th and Webster in Indianapolis. Chris Hollins, Jr. ("Junior"), Collier's ex-girlfriend's brother, was in front of the house. Junior was also a friend of Frederick McGuire, the victim. Collier got out of the car, began arguing with Junior, and apparently threatened to shoot him. While they were arguing, Chris Hollins, Sr. came outside and told Collier, "You're not the only one who has a gun." The elder Hollins went back inside the house and then Collier returned to the car. At this point Merrill noticed Collier was carrying a gun. Collier placed the gun in the car console.

According to Merrill, he and Collier left Junior's home and headed North to 42nd and Catherwood in Indianapolis. Collier asked Merrill to drive and the two changed positions. When they got to 42nd and Catherwood, Collier asked Merrill to slow down as they approached a house. Collier got out of the car and asked Merrill to turn the car around. Merrill complied and heard a gunshot. At that point, he also noticed that the car's open console, where Collier had originally laid his handgun, was empty. Merrill drove back to the house on 42nd Street, where he saw Collier waiting in the yard. Collier returned to the car, sat down and said, "That's the way I like to play." Merrill's testimony linked Collier to the murder and directly contradicted Collier's claim at trial that Merrill was the shooter.

Merrill was the only witness who linked Collier, in possession of a gun, to Frederick McGuire's home at the time of the shooting. But other witnesses provided testimony that was consistent with Merrill's. Michael Johnson, who lived across the street from McGuire, saw Collier's car approach, then saw someone he was later unable to identify exit the car and shoot McGuire. Another witness, Cory Wills, testified that he saw Collier in a beige car in the vicinity of the McGuire house on the afternoon of the shooting. According to Wills, Collier was sitting in the passenger's seat. A third witness, Junior, stated that he saw Collier with a gun on the afternoon of the shooting.

The police caught Collier the evening of the murder. At the time of his arrest, Collier was in the passenger's seat of a two-door brown car. Collier did not have a gun, and the results of a gunshot residue test performed on his hands shortly after the arrest were negative. But after a search, the police found a slip of paper on Collier with Merrill's contact information. Merrill was apprehended three days later. Although Merrill had been driving in the car with Collier on the afternoon of the shooting and was placed and identified in a lineup, he was never charged with the shooting.

B. Procedural History

1. Trial

The critical issue at Collier's trial was Merrill's testimony linking Collier to a firearm and placing him at the scene of the murder. During cross-examination, Collier's counsel did not ask Merrill whether he had an agreement with the State to testify against Collier in exchange for leniency or other benefits. When the prosecutor asked Merrill on redirect if he had entered into any agreements in exchange for his testimony, Merrill responded, "I don't know, [the detective], just said he talked to my mom...."

Collier took the stand after Merrill testified. Collier agreed with much of Merrill's version of that day's events. Their testimony began to diverge when recounting the incidents relating to the shooting. Collier claimed that he had only a baseball bat in the car and did not possess a gun. Collier testified that he was driving the car and dropped Merrill off at the victim's house. When Merrill returned to the car, Merrill had a gun in his hand. Merrill grabbed Collier and said urgently, "Let's go, man." Although Merrill's and Collier's testimony were diametrically opposed, Merrill was never questioned about the possibility of his being Frederick McGuire's murderer. Ultimately, the jury found Collier guilty of murder, criminal recklessness, and carrying a handgun without a license.

2. Post-conviction proceedings

Collier appealed his convictions directly to the Indiana Supreme Court. He claimed there was insufficient evidence to support the verdict and that the verdict was contrary to law. The Indiana Supreme Court affirmed the convictions. Collier v. State, 562 N.E.2d 722 (Ind.1990).

Six years later, Collier claimed that he discovered that a week after the McGuire shooting, Merrill had pled guilty to a lesser charge in a burglary case in which he testified against his co-defendant. Collier also said that he discovered Merrill had a disorderly conduct case pending during Collier's murder trial which was dismissed shortly after Collier's conviction and that a criminal recklessness case also pending against Merrill was dismissed a year after Collier's conviction. With this information in hand, Collier filed a post-conviction petition arguing that his defense counsel had been ineffective, the State had withheld Brady material, and the State induced Merrill to testify falsely in order to obtain Collier's conviction.

Three post-conviction hearings were held; only two are relevant here. During one post-conviction hearing, Merrill testified that although he was arrested in connection with the McGuire murder he was never charged. Merrill also testified that based on the detective's statements during the post-arrest interview, it was his understanding that he had to "either testify or confess."

During another post-conviction hearing, Collier's former trial counsel, Frederick J. Frosch, testified that although he never spoke to Merrill before trial, he had a conversation with one of the prosecutors.¹ Although Frosch never spoke with lead prosecutor Plath about any alleged understandings or agreements with Merrill, Frosch claimed that he did speak with the first prosecutor, who told him that the investigating detectives made a "verbal statement to [Merrill] that he would not be charged if he was cooperative." Frosch also acknowledged that at the time of the trial he knew that Merrill had received, pursuant to a plea agreement, a sentence of two years' probation for his burglary conviction. After Frosch testified, arresting detective Prater testified and said that he never made any promises to Merrill in connection with the McGuire murder and that any agreements made with Merrill did not involve the Collier case.²

After considering the evidence presented at these post-conviction hearings, the superior court found that the State complied with the rules of discovery and the evidence "convince[d] the court that no promise was made to Merrill in return for his testimony." The superior court also concluded that Merrill's testimony was not perjurious and that Collier's appellate counsel was not ineffective for failing to pursue this issue during Collier's direct appeal. In the Indiana Court of Appeals, Collier argued that Merrill had an informal agreement or understanding that the State would be lenient in exchange for his testimony against Collier and that the nondisclosure of this informal agreement or understanding violated rights guaranteed by state and federal law. See Wright v. State, 690 N.E.2d 1098, 1113-14 (Ind.1997) (citing Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)). The court of appeals affirmed the decision below and rejected Collier's main argument. Collier v. State, 715 N.E.2d 940 (Ind.Ct.App.1999).³ Collier then filed a petition to transfer to the Supreme Court of Indiana, which was denied.

With his Indiana remedies exhausted, Collier filed a petition for a writ of habeas corpus in the District Court for the Northern District of Indiana, pursuant to 28 U.S.C. § 2254. The district court, after finding that the Indiana courts' rulings were not contrary to Giglio or Brady, dismissed the petition and denied a certificate of appealability. Collier requested that we grant him a certificate of appealability on...