OPINION AND ORDER
The Petitioner, Curtis Tyrone Love, a prisoner confined at the Indiana State Prison, filed a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody [ECF No. 1], challenging his 2006 conviction in the Elkhart Circuit Court for murder, for which he is serving a fifty-eight-year sentence. The Indiana Court of Appeals affirmed the Petitioner's conviction on April 10, 2007 (Mem. Decision, ECF No. 11-5), and the Petitioner did not seek transfer to the Indiana Supreme Court. The Petitioner filed a motion for post-conviction relief, which the Elkhart Circuit Court denied on April 28, 2009. (Order, ECF No. 1-1.) The Indiana Court of Appeals affirmed the denial of the post-conviction motion on November 18, 2009. (Mem. Decision, ECF No. 1-2.) The Indiana Supreme Court denied the petition to transfer on January 14, 2010 (Docket, ECF No. 11-6 at 4-5), and the Petitioner timely filed his Petition in this Court on October 13, 2010.
In reviewing a petition for federal collateral relief from a state court judgment of conviction, this Court must presume as correct the facts as found by the state courts. 28 U.S.C. § 2254(e)(1); Sumner v. Mata, 449 U.S. 539, 547 (1981); Ruvalcaba v. Chandler, 416 F.3d 555, 559-60 (7th Cir. 2005). Moreover, the Petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Ruvalcaba, 416 F.3d at559-60.
As stated by the Indiana Court of Appeals on direct appeal, the facts in the Petitioner's case are as follows:
[I]n February 2001, seventeen-year-old Vasani Cy Mankhwala (Cy) moved to Elkhart with his father, Ephraim Mankhwala, and Cy's two younger brothers. Living on Morton Avenue, Cy quickly became friends with Marvin Gates and Netfa Miller, and they spent a lot of time together making rap music. The three were also friends with Love, who lived next door to Gates on Morton Avenue.
In the late afternoon of June 29, 2001, Cy and his friends gathered in Gates's backyard. Cy, Gates, and Miller rapped while others, including Love, listened. At some point, a brief verbal argument erupted between Cy and Love. The argument ended when Gates's older brother told them to quiet down. Thereafter, Love became abnormally quiet, and he left on Cy's bicycle around 9:00 p.m. When Love failed to return, Cy, Gates, and Miller when to Miller's house to work on their music. Gates left Cy and Miller around 1:00, as Miller and Cy continued their music.
Around midnight, Miller and Cy walked through the neighborhood to Main Street on an errand for a friend. As they were walking back on Morton Avenue towards Miller's house, they encountered Love riding a bike. They greeted each other and exchanged "love and taps". Miller then proceeded to his house around 12:30 or 1:00 a.m., as Cy and Love went together towards Cy's house, which was about a block away.
Shortly after 1:00, Cy entered his house and ran upstairs to his twelve-year-old brother's room. He woke up his brother to ask if a friend could borrow his bike. His brother said no. When Cy came back downstairs, Ephraim told his son that it was late and he needed to stay in. Cy replied that he would be right back. Around this same time, Ephraim noticed movement outside the window. Ephraim pulled the window sheers back and saw Love trying to hide from Ephraim's view. Ephraim thought nothing of it at the time, as Love was a friend of Cy's. Soon thereafter, Ephraim went to bed.
At approximately 3:15 a.m., Elkhart Police Officer Norm Friend was on routine patrol in the area when he encountered a body, later identified as Cy's, lying in the middle of Chase Street, just off of Main Street. Cy was not wearing a shirt and was lying face down in a large pool of partially dried blood. It was apparent to OfficerFriend that Cy was dead and riga [sic] mortis had already begun to set in. A blood-covered knife blade with no handle was found a short distance from the body. And the blade, which appeared to be from a steak knife, was bent. In addition to having received multiple blunt-force injuries to the head and face, Cy had been stabbed twenty-one times about the head, face, neck, back, arms, and legs. Of particular note, Cy's lungs had been punctured five separate times, causing "relatively rapidly lethal" injuries. Cy also received a stab wound to the back of his neck, which punctured the spinal cord and would have rendered him paralyzed.
The investigation soon revealed Cy's bicycle lying in a nearby alley that ran perpendicular to Chase Street and parallel to Main Street. The bike was approximately 340 feet from the body. A shirt was lying next to the bike. Officers also discovered a trail of blood drops along a quarter-block area. The blood trail began at a picket fence that was partially knocked over at 1909 S. Main Street, one of the residences behind which the bike was found. The trail continued south on the sidewalk along Main Street and then west onto the sidewalk along Chase Street, where the body was found. In addition to the sidewalk and street, blood was discovered on the back of a white pickup truck parked just off of Chase Street at 1919 S. Main Street. Detectives recovered random samples of blood found at the scene. Many of the samples revealed Cy's DNA, such as on the fence, along the sidewalks, and on the knife blade. Love's blood and DNA, however, were also discovered within a short distance of the body, on the tailgate of the pickup truck and the sidewalk along Chase Street.
In the beginning of July, Love's uncle, John David Love, received a phone call from Love's mother who lived in California. As a result, John immediately left a family barbecue to locate Love "to find out what was going on." He found Love a while later, and the two drove around and talked. John informed his nephew that he had been "hearing some stuff," and Love then confided in John. Love told his uncle that he had gotten into a "misunderstanding with a friend" that resulted in an argument. Love said that his friend pulled a knife and, after a scuffle, Love got possession of the knife and stabbed his friend with it. Love indicated to his uncle that this occurred "in an alley off of Main." Love further explained that he did not think he had killed his friend but that he felt it was "his life or the guy['s] life."
On July 4, 2001, police executed a search warrant at the home where Love was living with his aunt. Two steak knives were recovered from the kitchen, the blades of which matched that found at the murder scene.
The State charged Love, on June 3, 2005, with murder. Love's three-day jury trial concluded on May 17, 2006, with the jury finding him guilty as charged.
(Mem. Decision 2-5, ECF No. 11-5 (internal record citations and footnote omitted).) Duringclosing argument at trial, the Petitioner's counsel argued that voluntary manslaughter happens if you commit the elements required for murder "but you're doing it under sudden heat. In other words, you're mad as hell. And if somebody drew a knife on you, you might be mad as hell too." (Mem. Decision 4, ECF No. 1-2 (citing to the record).)
I. Ineffective Assistance of Trial Counsel In ground one of his Petition, the Petitioner asserts that his trial counsel was ineffective "for failing to ensure that the jury was properly instructed as to the burden of proof for murder and voluntary manslaughter." (Petition 6.) The final jury instructions at trial informed the jury that it could only find the Petitioner guilty of voluntary manslaughter if the State proved that the Petitioner killed the victim while acting in a sudden heat. The final instructions also failed to inform the jury that the State had the burden to disprove sudden heat in order to secure a conviction for murder. Both of these instructions were erroneous under Indiana law. See Sanders v. Cotton, 398 F.3d 572, 581-82 (7th Cir. 2005) (discussing Indiana murder and voluntary manslaughter jury instructions). In its Response, the Respondent argues that the Indiana Court of Appeals reasonably applied federal law when it denied the Petitioner's claims, and therefore habeas relief is inappropriate under 28 U.S.C. § 2254(d). Specifically, the Respondent argues that no facts in evidence at the Petitioner's trial raised sudden heat as a mitigating factor. Therefore, because an instruction on voluntary manslaughter was not appropriate, the Petitioner's trial counsel was not ineffective for failing to object to the erroneous instructions, and the Petitioner could not have been prejudiced by counsel's failure to object to instructionsconcerning an issue not raised by the evidence. The Petitioner insists, in his Reply, that the facts at trial "clearly raise[d] and support[ed] the defense of sudden heat." (Reply 10, ECF No. 19.)
"[T]he Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case." Mullaney v. Wilbur, 421 U.S. 684, 704 (1975). See Sanders, 398 F.3d at 581 ("Indiana law . . . requires the prosecution to prove the absence of sudden heat to convict a defendant of murder . . . once the defendant has introduced some evidence that he or she committed the crime under sudden heat.") (citing McBroom v. State, 530 N.E.2d 725, 728 (Ind. 1988)); Harrington v. State, 516 N.E.2d 65, 66 (Ind. 1987) (stating that a defendant is "entitled to a jury instruction explaining that the State must negate the presence of sudden heat beyond a reasonable doubt" where some evidence at trial suggests sudden heat). Further, sudden heat is not an element of voluntary manslaughter in Indiana. Sanders, 398 F.3d at 582; Palmer v. State, 553 N.E.2d 1256, 1259 (Ind. Ct. App. 1990)....
