Ford v. Wilson

• Decision Date: 02 May 2014
• Docket Number: No. 12–3844.,12–3844.
• Citation: 747 F.3d 944
• Parties: Tommy D. FORD, Petitioner–Appellant, v. Bill WILSON, Superintendent, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

747 F.3d 944

Tommy D. FORD, Petitioner–Appellant,

v.Bill WILSON, Superintendent, Respondent–Appellee.

No. 12–3844.

United States Court of Appeals, Seventh Circuit.

Argued April 17, 2014.

Decided May 2, 2014.

Robert J. Palmer, May, Oberfell & Lorber, Mishawaka, IN, for Petitioner–Appellant.

Kelly A. Miklos, Office of the Attorney General, Indianapolis, IN, for Respondent–Appellee.

Before MANION, SYKES, and TINDER, Circuit Judges.

TINDER, Circuit Judge.

This is a habeas action brought under 28 U.S.C. § 2254, in which Petitioner Tommy Ford challenges his conviction for murder in an Indiana state court. On appeal, Ford maintains only one ground for relief: that his trial counsel was ineffective in failing to object when the state prosecutor commented on his failure to testify. Ford contends that an objection would have been sustained because the prosecutor's comments violated his Fifth Amendment privilege against compulsory self-incrimination. However, even assuming that to be true, Ford has failed to show prejudice resulting from his attorney's failure to object. Therefore, we affirm.

I. BACKGROUND

In § 2254 proceedings, factual determinations made by the state court are presumed to be correct. 28 U.S.C. § 2254(e)(1). Ford has made no attempt to rebut this presumption as it pertains to the facts relied upon by the Indiana Court of Appeals, which summarized the evidence at trial as follows:

On November 1, 2005, Ford visited Glen Park in Gary and encountered an acquaintance, James Grace. Ford talked with Grace and drank vodka with one of Grace's friends. Grace told Ford that he needed a place to store his vehicle. Ford offered to show Grace his garage as a possible storage location. Ford left his car at the park and rode with Grace to Ford's home. As the two men approached Ford's house, they passed fifteen-year-old Christian Hodge, who was seated on a front-yard retaining wall on the property next door. Ford and Hodge greeted each other. When Ford and Grace entered Ford's house, Ford said to Grace, “I can't stand that mother fucker. I'll be back.” Ford left the house, and Grace heard a popping sound shortly thereafter. He looked outside and saw Hodge lying in the street. Ford came back inside the house and said to Grace, “I got to get the fuck out of here, and meet me down—meet me at the end of the alley and pick me up.” Grace got into his truck and drove away. He soon located a police officer and led him back to the crime scene. Hodge had suffered one gunshot wound to the back of his head, and he died the next day.

At the crime scene, Gary Police Officer Daniel Quasney spoke with witness Ronell Simmons, who appeared to be “upset, in disbelief, and in a state of shock.” Simmons stated that he had seen the victim talking to a black male in a black hooded sweatshirt. He stated that the man pulled out a gun and shot Hodge in the head and then walked away.

Ford's first trial, in which Simmons testified, ended in a mistrial on May 18, 2006. During the second trial, the State alleged that Simmons was unavailable to testify and moved for admission of Simmons's prior testimony. The trial court denied the State's request. The State later moved to admit Officer Quasney's testimony recounting Simmons's statements at the crime scene. The trial court admitted this evidence pursuant to Indiana Evidence Rule 803(2), the excited utterance exception to the hearsay exclusion rule.

Ford v. State (Ford I), No. 45A03–0701–CR–20, 2007 WL 3071987, at *1 (Ind.Ct.App. Oct. 23, 2007) (citations omitted).

During closing arguments in Ford's second trial, his attorney argued that the state had failed to provide any reasonable explanation as to why Ford would shoot Hodge. In response, the state prosecutor argued as follows:

Sometimes we'll never know why crimes were committed. Someone who could—now, let me phrase this correctly, he never has to say a single word, a single word. It's the State's burden to prove that he committed this crime beyond a reasonable doubt, but what happens when you have crimes, when you have one or two people there who can possibly talk and tell you what happened and one of them's dead? One of them's dead. Who else are we going to get that information from? The next possible source is the person who committed the offense. If that person who committed the offense don't talk, how would we ever know? We would speculate. Does it mean the person wasn't shot and killed, it didn't happen?

It happened, and that's what we have to prove to you, not why it happened.

Ford v. State (Ford II), No. 45A05–1009–PC–610, 2011 WL 3476616, at *9 (Ind.Ct.App. Aug. 9, 2011). Ford was convicted and sentenced to fifty years' imprisonment.

Following his conviction, Ford filed an unsuccessful direct appeal. Later, he filed a petition for postconviction relief in Lake County Superior Court, presenting several grounds for relief, including the one we address today. However, the Superior Court denied Ford's petition, the Indiana Court of Appeals affirmed, and the Indiana Supreme Court denied his petition to transfer.

Having exhausted his state remedies, Ford filed this § 2254 petition in the U.S. District Court for the Northern District of Indiana. However, the district court dismissed his petition and denied him a certificate of appealability. Ford then filed a notice of appeal in this court, and we granted him a certificate of appealability.

II. TIMELINESS

Ford's notice of appeal was filed on December 4, 2012, thirty-two days after the district court's judgment. Thus, in its response brief, the state argued that the appeal should be dismissed as untimely. SeeFed. R.App. P. 4(a)(1). However, Ford is an inmate confined in an institution; therefore, he may benefit from the so-called “prisoner mailbox rule,” under which a notice is timely “if it is deposited in the institution's internal mail system on or before the last day for filing.” Fed. R.App. P. 4(c)(1). “If an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule.” Id. “If the prison lacks such a system: ‘Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 ... which must set forth the date of deposit and state that first-class postage has been prepaid.’ ” United States v. Craig, 368 F.3d 738, 740 (7th Cir.2004) (quoting Fed. R.App. P. 4(c)(1)).

After the state's response brief was filed in our court, Ford filed such a declaration, stating that he placed his notice of appeal in the prison's internal mailing system on November 28, 2012, twenty-six days after the district court's judgment, “with first class postage affixed.” Ford was not required to file this declaration simultaneously with his notice of appeal. See Ingram v. Jones, 507 F.3d 640, 642–44 (7th Cir.2007) (relying on declarations filed after the notice of appeal to establish compliance with Rule 4(c)(1)); Grady v. United States, 269 F.3d 913, 917–18 (8th Cir.2001) (holding that the declaration required by Rule 4(c)(1) need not accompany the notice of appeal). Moreover, he was required to “attest to ‘only two things': the date the notice was deposited into the prison mail system and that first class postage was prepaid.” ¹Hurlow v. United States, 726 F.3d 958, 964 (7th Cir.2013) (quoting Craig, 368 F.3d at 740). Ford's declaration satisfies these requirements, and it is corroborated by the certificate of service he included with his notice of appeal, which states that he served a copy on the Indiana Attorney General on November 28, 2012, “by depositing the same in the United States Mail, postage paid.” As a result, we find his notice timely, and we turn to the merits of his appeal.

III. DISCUSSION

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a state prisoner may obtain federal habeas relief based on a claim of legal error only if the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). In this case, the district court determined that Ford was not entitled to relief under that standard.

“Our review of the district court's decision to deny the habeas petition is de novo, and is governed by the terms of the AEDPA.” Bolton v. Akpore, 730 F.3d 685, 693 (7th Cir.2013). “Thus, although we technically hear this appeal from the district court, our inquiry focuses entirely on what occurred in the state court. In so doing, we look at ‘the decision of the last state court to rule on the merits of the petitioner's claim.’ ” McNary v. Lemke, 708 F.3d 905, 913 (7th Cir.2013) (quoting McCarthy v. Pollard, 656 F.3d 478, 483 (7th Cir.2011)). In this case, that was the Indiana Court of Appeals, when it affirmed the denial of Ford's petition for postconviction relief. Ford II, 2011 WL 3476616.

A. Constitutional Framework

In order to determine whether the Indiana Court of Appeals issued 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,” it is first necessary to understand what that law is. Thus, before turning to the state court's decision, we consider what the Supreme Court has said about the constitutionality of prosecutorial comments on a defendant's silence.

1. Griffin v. California and the Fifth Amendment Privilege

In Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), a state prosecutor commented on a murder defendant's failure to testify,² and the trial court instructed the jury that it was permitted to draw an adverse inference based on the defendant's failure to explain or deny facts within his knowledge.³ At the time, a California constitutional provision allowed both the prosecutor and the court to comment on the defendant's silence.

However, the Supreme Court held that the Fifth Amendment privilege against compulsory...