Karr v. Sevier
| Decision Date | 30 March 2022 |
| Docket Number | 21-2463 |
| Parties | Donald G. Karr, Jr., Petitioner-Appellant, v. Mark R. Sevier, Warden, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Argued February 9, 2022
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No l:19-cv-01973-JPH-TAB - James P. Hanlon, Judge.
Before Flaum, Brennan, and St. Eve, Circuit Judges.
An Indiana jury convicted Donald Karr of rape and domestic battery for his assaults on A. P., his former girlfriend. Karr then fired his attorney, hired a new one, and pursued two claims of ineffective assistance of trial counsel in state court. Those claims were rejected by the state trial court and on direct appeal. Karr then sought federal habeas relief under 28 U.S.C. § 2254, and the district court denied his petition.
His trial counsel was ineffective, Karr submits, because he failed to investigate A.P.'s history of medication use and he introduced no evidence about whether Karr used his cellphone during his second assault of A.P. If the trial attorney had procured and introduced this evidence, Karr contends, A.P.'s trial testimony could have been impeached. But the jury had an ample basis on which to find A.P. credible, and there is no reasonable probability that any evidence Karr references would have affected the trial's outcome. Karr thus fails to show he was prejudiced by his trial counsel's purported errors.
Also before us are six additional claims for ineffective assistance of trial counsel, which Karr raised for the first time in federal habeas proceedings. Ordinarily, federal courts are barred from considering defaulted claims when reviewing habeas petitions. Because Karr did not raise those claims in Indiana state court, he procedurally defaulted them. Karr concedes the procedural defaults but asserts they are excusable under a narrow equitable exception delineated by the Supreme Court. That exception does not apply to insubstantial defaulted claims such as the ones Karr presents, though, and it does not apply in this procedural posture. We therefore affirm the denial of habeas relief.
We recount the facts primarily as they were found by the Indiana Court of Appeals. In § 2254 cases, a state court's determination of a factual issue is "presumed to be correct" unless the petitioner rebuts it by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Powell v. Fuchs, 4 F.4th 541, 548 (7th Cir. 2021).
On the night of May 5, 2015, A.P., the victim, was living with Donald Karr and her three young children in Noblesville, Indiana. A.P. was putting her children to bed when Karr returned home and angrily accused her of sneaking a man into the house. Karr then hit A.P. in the face several times. Next, he grabbed her by her hair and ripped some of it out of her head. Karr then told A.P. that she had to perform oral sex on him every day and every night.
After confronting one of A.P.'s children and sending the child back to bed, Karr closed the blinds, approached A. P., and unbuckled his pants. A.P. tried to kick Karr away from her. At this point, A.P. began experiencing abdominal pains and feeling nauseous, which she believed was related to a previously diagnosed ovarian cyst. She convinced Karr to transport her to the hospital.
Upon arriving, A.P. told a nurse to contact a police officer because Karr had been hitting her. Officer Craig Denison was present in the ultrasound room, and A.P. told him that Karr had been hitting her and pulling her hair. The officer photographed A.P.'s hair, and her face which showed swelling. A clump of hair from A.P.'s scalp came loose, and she gave it to Denison. After photographing the clump of hair, Denison disposed of it in a trash can at the hospital.
Denison informed A.P. that he believed there was insufficient probable cause to arrest Karr. Because she could not prevent Karr from occupying the home they shared, A.P. left with him. A.P. and Karr drove home together without conflict.
Once home, Karr again became upset with A.P., this time about an unrelated minor topic. He told her they were "going to pick up where [they] left off." He then hit her in the face. Karr took off his clothes and ordered A.P. to perform oral sex on him. She refused, but he forced her to comply. Karr eventually stopped and began to lecture A.P. about his "rules" for the house.
A.P. testified that before going to bed, Karr began to search for a pornographic video to watch. Karr again told A.P. to perform oral sex on him. At first she refused, but she eventually relented "[o]ut of fear of what would happen if [she] said no." During that time A.P. noticed a light shining from Karr's phone and she "assumed he was taking a video."
A.P. returned to the hospital the next day, where she met with another police officer, Matthew Boudreau. A.P. reported Karr's assaults to Boudreau. A forensic nurse, Nakia Bowens, examined A.P. and observed that A.P. had redness and tenderness in her scalp area, tenderness on her jawbone, and redness on her chin. According to Bowens, A.P. also had petechiae-small, red dots that indicate blood has burst-on the roof of her mouth. Petechiae may be caused by blunt force trauma, Bowens opined, such as by a penis striking the roof of a mouth. Bowens took photographs of A.P.'s injuries, and some of those photographs were later introduced at trial.
Criminal charges and trial.
The State of Indiana charged Karr with domestic battery (Count 1), two counts of rape (Counts 2 and 3), strangulation (Count 4), and intimidation (Count 5). Attorney Joshua Taylor represented Karr at trial. The State presented the evidence of the assaults, discussed above. Taylor cross-examined A. P. on Karr's behalf. By challenging their authentication, Taylor successfully excluded text messages that would have damaged Karr's defense.
At the close of evidence, Taylor moved for a directed verdict on all counts, which he later amended to include only Counts 3, 4, and 5-the second rape charge and the strangulation and intimidation charges. The trial court granted Taylor's motion in part and entered a directed verdict of not guilty on Count 5, the intimidation charge. The remaining counts were submitted to the jury. Karr was found guilty on the domestic battery and rape counts, but not guilty on the strangulation count.
Posttrial proceedings.
Prior to sentencing, Karr discharged Taylor and hired Jane Ruemmele as his attorney. The defense moved for a new trial, alleging Taylor provided Karr ineffective assistance. The trial court held two evidentiary hearings on the motion, at which Ruemmele raised several issues and Taylor testified about various decisions he had made before and during trial.
One issue concerned A.P.'s medication history. When questioned A. P. admitted she had been prescribed hydrocodone at the time of the assaults, but she did not recall whether she was taking it at that time. She testified that any drug consumption during that period did not affect her ability to recall the assaults. Another issue that arose concerned a forensic audit of Karr's cellphone. Ruemmele called Officer Matt McGovern, of the Noblesville Police Department, who had conducted a forensic analysis of Karr's phone. McGovern testified he found no evidence of a pornographic video that was accessed or recorded on Karr's cellphone on either May 5, 2015, or early the following morning when the second assault occurred. Per McGovern, though, he could not exclude the possibility that content which had been deleted from the phone did not appear in his report.
Arguing for a new trial, Ruemmele asserted that if A.P.'s "prescription drug medication ... had been explored she could have been adequately impeached on her ability to observe and to report the events of the day." Ruemmele also contended the lack of evidence of a pornographic video on Karr's cellphone called into question A.P.'s credibility and the reliability of her testimony. The court was not persuaded and denied the motion for a new trial. According to the trial judge, Taylor had been "very successful" in excluding the inculpatory text messages that Karr sent to A.P. Karr was sentenced to 17.5 years in prison, with five years of the sentence suspended.
Karr's direct appeal and postconviction proceedings.
On Karr's behalf, Ruemmele pursued a direct appeal of the trial court's denial of her motion for a new trial. But then she received permission to stay the appeal and pursue postconviction relief in the trial court under Indiana's Davis-Hatton procedure (explained later in greater detail). In the petition for postconviction relief, Ruemmele alleged that Taylor had been ineffective as Karr's trial counsel for two main reasons. First, Taylor failed to impeach A.P. with evidence of her drug use. Second, Taylor failed to note the absence of pornographic or other evidence from Karr's cellphone. The State moved for summary denial of the petition, which the trial court granted. The trial court reasoned that claim preclusion barred the claims presented in the petition because they had been raised and denied on the merits in connection with the earlier motion for a new trial.
In a consolidated appeal, Ruemmele challenged Karr's convictions, his sentence, and the denial of postconviction relief. The Indiana Court of Appeals affirmed the trial court in every respect. According to the appeals court, Karr was not prejudiced by Taylor's decision not to investigate and potentially present evidence of A.P.'s medication use. The appeals court also concluded that Karr did not suffer prejudice from Taylor's decision not to present the cellphone evidence to the jury. The Indiana Supreme Court...
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