Justise v. Warden

• Decision Date: 01 March 2022
• Docket Number: 3:21-CV-368-JD-MGG
• Parties: CHARLES E. JUSTISE, SR., Petitioner, v. WARDEN, Respondent.
• Court: U.S. District Court — Northern District of Indiana

CHARLES E. JUSTISE, SR., Petitioner,
v.
WARDEN, Respondent.

No. 3:21-CV-368-JD-MGG

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

March 1, 2022

OPINION AND ORDER

JON E. DEGUILIO, CHIEF UNITED STATES DISTRICT JUDGE

Charles E. Justise, Sr., a prisoner without a lawyer, filed a successive habeas petition challenging his 2008 child molestation conviction in Marion County. (ECF 2.) For the reasons stated below, the petition is dismissed.

I. BACKGROUND

In deciding the petition, the court must presume the facts set forth by the state courts are correct, unless Mr. Justise rebuts this presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). On direct appeal, the Indiana Court of Appeals set forth the facts underlying Mr. Justise's conviction as follows:

On June 21, 2006, twelve-year-old D.B. spent the night at the home of Justise, her father, and Shawna Winston, her father's girlfriend. Justise and D.B. watched a movie and D.B. fell asleep on a pallet on the floor in an upstairs bedroom. She awoke in the middle of the night when she felt Justise “feeling on her.” Justise had pulled up D.B.'s shirt and bra and was touching her breasts with his lips. Justise told D.B. to go downstairs with him, and she did. Justise bent D.B. over one of the living room couches, removed her pants, and rubbed his penis against the cheeks of her buttocks for two to three minutes. Justise then moved D.B. to another couch where he got on top of her and tried to place his penis inside her vagina. There was no penetration. Justise then placed D.B. on his lap

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placed his finger inside her vagina, and moved it around in circles. Justise told D.B. that it was going to “tingle a little bit.” Justise raised D.B. off of his lap and told her to “remember [that] this never happened.” D.B. went upstairs and cried

A few days later, D.B. told both her aunt, Ashley Jackson, and Winston what had happened. Winston informed D.B.'s mother about the molestation. When D.B. confirmed to her mother what had occurred, D.B.'s mother contacted the Indianapolis Metropolitan Police Department. D.B. was interviewed at Child Protective Services and examined by Methodist Hospital Sexual Assault Nurse Linda Kelley. Kelley noticed that D.B. showed notches or clefts on her hymen that could have been caused by something inserted into her vagina.

Detective Gregory Norris was assigned to the case. During his investigation, the detective downloaded recordings of telephone calls between Justise and Winston and Justise and D.B. while Justise was incarcerated in the Marion County Jail on other charges during June and July 2006. Many of the telephone calls made during that time period were not recorded. According to Buzz Michael, the keeper of inmate phone records at the Marion County Jail, the system failed to download approximately 90, 000 phone calls due to a system wide failure. The logs indicated that the calls had been made, but the recordings did not exist. Michael explained that there was “no rhyme or reason behind which calls were lost and which calls were kept.”

In October 2006, the State charged Justise with two counts of child molesting as class A felonies, three counts of sexual misconduct with a minor as class B felonies, child molesting as a class C felony, and two counts of sexual misconduct with a minor as class C felonies. Justise represented himself at the October 2008 trial. The State introduced into evidence recordings of telephone calls between Justise and D.B., which were recorded while Justise was incarcerated in the Marion County Jail. In one of the telephone calls, D.B. confronted Justise about touching her and placing his finger in her vagina. She told him that she was not lying and quoted his comment to her that his finger in her vagina would “tingle a little bit.”

Also during trial, Justise wanted to question Jackson about a phone conversation she had with D.B. According to Justise, D.B. told her aunt that she fabricated the molestation because she wanted to hide the fact that she had sexual intercourse with a boy name Jason. Justise wanted to introduce into evidence D.B.'s prior sexual history, but the trial court

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refused to allow him to do so because this evidence violated Indiana Evidence Rule 412 and was therefore inadmissible. Justise denied molesting his daughter.

A jury convicted Justise of the two counts of child molesting as class A felonies and one count of child molesting as a class C felony. At the sentencing hearing, the trial court merged the two class A felony convictions for double jeopardy purposes and sentenced Justise to forty-five years for the class A felony, and six years for the class C felony, with the sentences to be served consecutively, for an aggregate term of fifty-one years.

Justise v. State, 968 N.E.2d 868 (Table), 2012 WL 1854786, at *1-*2 (Ind.Ct.App. 2012) (internal citations omitted).

On direct appeal, Mr. Justise raised the following claims: he was denied due process because the state suppressed exculpatory evidence, namely, phone calls between he and D.B. that were not recorded in which she allegedly recanted; the trial court erred in not allowing him to impeach D.B. regarding her sexual history; and there was insufficient evidence of his guilt because D.B. was not a credible witness.^[1] Id. at *2-*3. The Indiana Court of Appeals rejected each of these arguments. As to the first argument, the court held that “there was no evidence for the prosecution to suppress because the phone calls about which Justise complains were simply not recorded . . . due to a system wide failure.” Id. As to the second argument, the court concluded that evidence about D.B.'s sexual history was properly excluded under Indiana Rule of Evidence 412, which “precludes the introduction of evidence of any prior sexual conduct of an alleged victim of a sex crime . . . unless that evidence would establish

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evidence of prior sexual conduct with the defendant[.]” Id. at *3. As to the sufficiency-of-the evidence claim, the court concluded that the testimony of D.B. was sufficient to support his conviction, and that his argument was “nothing more than an invitation for us to reweigh the evidence, which we cannot do.” Id. at *4. The court therefore affirmed his conviction in all respects. Id. Mr. Justise sought transfer to the Indiana Supreme Court, but his petition was denied. Justise v. State, 975 N.E.2d 361 (Ind. 2012).

Thereafter, Mr. Justise sought habeas relief in this District asserting the following claims: (1) his rights under Brady v. Maryland, 373 U.S. 83 (1963), were violated because the state destroyed recordings of phone calls in which D.B. allegedly admitted that she was not molested; (2) the state had an obligation to “make sure that the missing phone calls were recorded”; (3) he was prevented from adequately cross-examining Ashley Jackson, D.B.'s aunt, about “what exactly was told to her” by D.B.; (4) the evidence was insufficient to support his conviction because his daughter was not a credible witness; and (5) he was precluded from presenting a complete defense because of the missing phone calls in which D.B. allegedly admitted the allegation of molestation was false. Justise v. Superintendent, 3:12-CV-826-RL, 2014 WL 7272761, at *1-*5 (N.D. Ind. Dec. 18, 2014).

The court denied habeas relief on the merits. Id. As to his claims regarding the jail phone calls, the court held that he did not establish a constitutional violation because there was no evidence that any recordings existed that were not produced, or that the prosecution had otherwise engaged in misconduct with respect to the phone calls. Id. at *3. Rather, the record showed that the phone calls were never recorded due

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to a system-wide error. Id. As to his claim regarding the cross-examination of D.B.'s aunt, the court concluded that the transcript showed he was not precluded from asking her the questions he pointed to; rather, he just didn't ask them. Id. at *4. On the sufficiency-of-the evidence claim, the court concluded that D.B. was not unreliable as a matter of law. Id. Instead, the court observed that “[d]espite the fact that his 12 year old daughter had difficulty describing his penis and in recalling every detail about how he molested her, she was consistent in her assertion that he did so.” Id. The court concluded that Mr. Justise failed to establish that the state court's resolution of his claims was contrary to or an unreasonable application of Supreme Court precedent, or based on an unreasonable determination of the facts in light of the evidence presented. Id. Mr. Justise appealed, but the Seventh Circuit denied his request for a certificate of appealability. Justise v. Superintendent, 3:12-CV-826-RL, ECF 36.

In January 2016, Mr. Justise filed a pro se petition for post-conviction relief in state court. Justise v. State, 129 N.E.3d 839 (Table), 2019 WL 2707509, at *2 (Ind.Ct.App. 2019). He asserted a “broad array” of constitutional errors, including prosecutorial misconduct and ineffective assistance of counsel. (ECF 10-10 at 25, 29.) He also asserted that he was entitled to a new trial based on the fact that D.B. had recanted her trial testimony. (Id. at 25.) The trial court held an evidentiary hearing, at which D.B.-by this time an adult-testified. (ECF 10-8 at 6-15.) During the hearing, Mr. Justise asked her, “[H]ave you ever been inappropriately touched by me ever in life?” to which she replied, “No. No, sir.” (Id. at 9.)

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The trial court permitted the parties to file post-hearing briefs, and thereafter concluded that Mr. Justise had waived all of his claims other than his claim seeking a new trial based on D.B.'s recantation, due to his failure to develop them through evidence or arguments. (ECF 10-10 at 29-30.) As to the new trial claim, the court...