McCullough v. Butts

• Decision Date: 06 October 2015
• Docket Number: Case No. 1:13-cv-00496-TWP-MJD
• Parties: IAN McCULLOUGH, Petitioner, v. SUPERINTENDENT KEITH BUTTS, Respondent.
• Court: U.S. District Court — Southern District of Indiana

IAN McCULLOUGH, Petitioner, v. SUPERINTENDENT KEITH BUTTS, Respondent.

Case No. 1:13-cv-00496-TWP-MJD

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

October 6, 2015

ENTRY ON PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

This matter is before the Court on Petitioner Ian McCullough's Petition for Writ of Habeas Corpus. McCullough seeks habeas corpus relief with respect to his conviction in the Marion Superior Court for various counts of child molesting. Having considered the pleadings, the expanded record, and the parties' arguments, and being duly advised, the Court finds that McCullough has not shown his entitlement to relief, therefore, his Petition for Writ of Habeas Corpus must be DENIED. In addition, the Court finds that a certificate of appealability should not issue. These conclusions are based on the following facts and circumstances:

I. BACKGROUND

McCullough was convicted in Marion County in 2008 of three counts of child molesting—two as Class A felonies and one as a Class C felony. His convictions were affirmed in McCullough v. State, 2009 WL 69360 (Ind. Ct. App. Jan. 13, 2009) (McCullough I), and the denial of his action for post-conviction relief was affirmed in McCullough v. State, 973 N.E.2d 62 (Ind. Ct. App. 2012) (McCullough II). In this action, McCullough contends that he was denied the effective assistance of counsel both at trial and in his direct appeal. This is a continuation of certain arguments he presented in his action for post-conviction relief in the state courts.

"[I]n all habeas corpus proceedings under 28 U.S.C. § 2254, the successful petitioner must demonstrate that he 'is in custody in violation of the Constitution or laws or treaties of the United States.'" Brown v. Watters, 599 F.3d 602, 611 (7th Cir. 2010) (quoting 28 U.S.C. § 2254(a)). McCullough's petition is governed by provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The AEDPA amended 28 U.S.C. § 2254(d) to narrow the power of federal courts to grant habeas corpus relief to state prisoners. Under that AEDPA, the critical question on the merits of most habeas corpus petitions shifted from whether the petitioner was in custody in violation of the Constitution, laws, or treaties of the United States to a much narrower question: whether the decision of the state court keeping the petitioner in custody was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts . . . ." 28 U.S.C. § 2254(d). Avila v. Richardson, 751 F.3d 534, 535 (7th Cir. 2014).

A federal habeas court "presume[s] that the state courts' account of the facts is accurate, unless the petitioner rebuts this presumption 'by clear and convincing evidence.' 28 U.S.C. § 2254(e)(1)." Caffey v. Butler, 2015 WL 5559399, at *1 (7th Cir. Sept. 22, 2015) (citing Etherly v. Davis, 619 F.3d 654, 660 (7th Cir. 2010)). Here, McCullough asserts that the state courts' findings are deficient in this regard, but he fails to show by clear and convincing evidence any unreasonable account of the facts.

The facts underlying McCullough's convictions are set forth in the memorandum decision issued on direct appeal as follows:

The facts most favorable to the conviction are that L.D. (DOB 1/22/98) is the daughter of Sarah Calvert and Jason Dees. When L.D. was approximately one year old, [Sarah] began dating McCullough, and eventually moved in with him. During the next few years, the couple had two children together, E.M. (DOB5/14/2000) and M.M. (DOB 6/4/2002). However, in 2003 or 2004, the couple separated. Thereafter, L.D. lived with her mother, [Sarah], in Greenfield, while E.M. and M.M. lived with their father, McCullough, in Indianapolis. On weekends, L.D. would visit with McCullough, whom she referred to as "daddy," and her half-sisters. When she stayed overnight at McCullough's home, L.D. slept in bed with him or in a different room with E.M. and M.M.

At some time before L.D. entered pre-school, McCullough touched her vagina with his fingers. McCullough touched L.D. inappropriately more than once over the next few years. Twice he touched her vagina with his tongue while they were in his bed at his home. Another time, McCullough touched L.D.'s vagina with his finger while she sat in the seat next to him in his vehicle. In the fall [of] 2005, McCullough inserted his finger in L.D.'s vagina. McCullough referred to his actions as a "tickle" and instructed L.D. not to tell anyone lest he get in trouble.

In early December 2005, Judy Calvert ("Judy"), L.D.'s maternal grandmother, with whom she was living at the time, said that L.D. would be visiting with McCullough for the weekend. L.D. became upset, and questioned if she had to go. Moved by L.D.'s tears and pleading, Judy told her she did not have to go but asked why L.D. was reluctant. L.D. replied that she had been masturbating, that she had taught E.M. how to do it, and that she worried that it was wrong. When Judy attempted to assure L.D. that her behavior was not bad per se, L.D. inquired whether it was okay for McCullough to be touching her private parts. Shaking and crying, L.D. confided in her grandmother that McCullough would stop if L.D. asked him to; L.D. made Judy promise not to tell anyone else.

Upon [Sarah's] return home, Judy immediately shared L.D.'s statements with her, and they took L.D. to Riley Children's Hospital that same night. Riley employees and/or [Sarah] reported the allegations to Child Protective Services ("CPS").

McCullough I, *1-2.

II. ANALYSIS

As noted, the claim in this action is that McCullough was denied the effective assistance of counsel. This is hardly surprising, because complaining about a lawyer's performance after the fact is "a favorite tactic of an unsuccessful criminal defendant." Ford v. Israel, 701 F.2d 689, 692 (7th Cir. 1983).

The Sixth Amendment guarantees a criminal accused the right to assistance of counsel, and "the right to counsel is the right to the effective assistance of counsel." McMann v. Richardson,397 U.S. 759, 771 n.14 (1970). This guarantee exists "in order to protect the fundamental right to a fair trial." Strickland v. Washington, 466 U.S. 668, 684 (1984). Strickland provides the clearly established Federal law, as determined by the Supreme Court of the United States that governs McCullough's claim.

Strickland recognized that the Sixth Amendment's guarantee that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense" entails that defendants are entitled to be represented by an attorney who meets at least a minimal standard of competence. Id., at 685-687. "Under Strickland, we first determine whether counsel's representation 'fell below an objective standard of reasonableness.' Then we ask whether 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Padilla v. Kentucky, 559 U.S. 356, 366 (2010) (quoting Strickland, supra, at 688, 694).

Hinton v. Alabama, 134 S. Ct. 1081, 1087-88 (2014) (parallel citations omitted).

The foregoing outlines the straightforward features of Strickland's two-prong test. In the context of the claim that McCullough presents, however, AEDPA raises the bar. "The standards created by Strickland and § 2254(d) are both 'highly deferential,' and when the two apply in tandem, review is 'doubly' so." Harrington v. Richter, 131 S. Ct. 770, 788 (2011) (internal and end citations omitted). When the AEDPA standard is applied to a Strickland claim, the following calculus emerges:

The question is not whether a federal court believes the state court's determination under the Strickland standard was incorrect but whether that determination was unreasonable--a substantially higher threshold. And, because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.

Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (internal citations and quotations omitted). The emphasis on deferential review could not have been clearer:

Federal habeas review thus exists as "a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal." This is especially true for claims of ineffective assistance of counsel, where AEDPA review must be "doubly deferential" in order to afford "both thestate court and the defense attorney the benefit of the doubt.

Woods v. Donald, 135 S. Ct. 1372, 1376 (2015) (citations and some quotations omitted). A state court unreasonably applies clearly established federal law only if "no fairminded jurist could agree with the state court's" decision. Davis v. Ayala, 135 S. Ct. 2187, 2203 (2015). This standard is both mandatory and difficult to meet. White v. Woodall, 134 S. Ct. 1697, 1702 (2014).

In addition to the substantive principles just noted, "[i]t is the rule in this country that assertions of error in criminal proceedings must first be raised in state court in order to form the basis for relief in habeas. Claims not so raised are considered defaulted." Breard v. Greene, 523 U.S. 371, 375 (1998) (citing Wainwright v. Sykes, 433 U.S. 72 (1977)); see also Johnson v. Foster, 786 F.3d 501, 504 (7th Cir. 2015) ("federal courts will not review a habeas petition unless the prisoner has fairly presented his claims 'throughout at least one complete round of state-court review, whether on direct appeal of his conviction or in post-conviction proceedings.'") (quoting Richardson v. Lemke, 745 F.3d 258, 268 (7th Cir. 2014), and citing 28 U.S.C. § 2254(b)(1)).

Although ineffective assistance of counsel is a single claim, Pole v. Randolph, 570 F.3d 922, 934 (7th Cir. 2009) (citing People v. ...