Federal habeas review requires the Court to "presume that the state court's factual determinations are correct unless the petitioner rebuts the presumption by clear and convincing evidence." Perez-Gonzalez v. Lashbrook, 904 F.3d 557, 562 (7th Cir. 2018); see 28 U.S.C. § 2254(e)(1). In its opinion affirming denial of Mr. Whatley's petition for post-conviction relief, the Indiana Court of Appeals summarized the relevant facts as follows:
In the early morning hours of August 22, 2007, Whatley's girlfriend Debra Bigham drove Whatley and Ciera Pedrey to the Relax Inn in Indianapolis. The women waited in Whatley's car at the back of the motel while Whatley went to a room on the second floor to deliver crack cocaine. When he had not returned after about ten minutes, Bigham honked the horn. Apparently, Whatley had fallen asleep inside the motel room because he had been using cocaine and not sleeping for several days.
Shortly thereafter, Bharat Patel, the owner and manager of the motel, approached the women with a flashlight and angrily demanded that they leave. This was not the first time that Patel had ordered Bigham and/or Whatley to leave the premises, which they frequented for illegal purposes. As Bigham explained that she was waiting for a friend, Patel picked up a rock and threw it at her. Bigham then drove to the front of the motel and sent Pedrey to get Whatley. As Pedrey walked toward the motel, Patel came around, picked up a beer bottle, and threw it at her, chasing her back to the car. Patel then hit the hood of the car and the windshield before Bigham and Pedrey drove away. Patel called the police to report the trespass around 2:00 a.m.
Bigham drove to a nearby gas station and called Whatley. She indicated that Patel had attacked her again and that she would not return to the motel to pick up Whatley. Instead, she agreed to meet him in a drive-in parking lot next to the motel. Whatley showed up several minutes later out of breath. He hurriedly directed Bigham into the passenger seat and as he sat in the driver seat, he stated: "Baby, you don't have to worry about it no more. He's not...going to f*** with you no more." Whatley then asked Bigham and Pedrey to check on Patel.
The women went up an exterior stairway and found Patel lying motionless on his back on the second-floor balcony. Bigham shook Patel's leg but could not wake him. About this same time, IMPD Officer Conrad Simpson arrived at the motel in response to Patel's earlier call. As the women descended the stairs, they notified the officer that Patel needed help. Officer Simpson found Patel breathing but unresponsive with a laceration on the back of his head and blood coming out of one ear. Patel's right hand was clinched around a set of keys and a cordless phone and flashlight were near his body.
Patel suffered a large contusion to the back left-side of his head with an associated skull fracture and brain injury. He never regained consciousness and died in the hospital about a month later once life support was removed. An autopsy revealed that Patel's death was caused by a blunt force injury to the back of his head. In the opinion of the pathologist, Dr. Kent Harshbarger, the injury was consistent with Patel falling and striking his head on the ground.
On September 20, 2007, Bigham gave a statement to police regarding the events in question. In addition to providing many of the facts as set out above, she indicated that Whatley picked her and Pedrey up from the gas station after they were permitted to leave the scene. He then told Bigham that he had struck Patel in the head two times with his fist.
Shortly after Patel's death, Christina Wilson - a resident of the motel - came forward as an eyewitness in the case. On the night in question, Wilson came upon a heated confrontation between Patel and two individuals that were inside a vehicle, and then she hurried toward her room on the second floor on Patel's direction. Wilson watched from her doorway as Patel came upstairs and pounded on a door. She observed a black male come out of another room and walk up to and hit Patel, who immediately fell backward to the concrete floor. Wilson could not see whether the man used his fist or an object. After striking Patel, the man turned and walked down the stairs and around the building. Wilson could not identify the man but provided a general description.
On September 25, 2007, the State charged Whatley with murder. Specifically, the State alleged that Whatley knowingly killed Patel "by striking with his fists at and against [Patel], thereby inflicting mortal injuries upon [Patel]".
While in the Marion County Jail, Whatley spoke about his case with another inmate, Lonnie Carson, in the spring of 2008 and showed him related documents. Carson sent a letter to the prosecutor in early May 2008. According to Carson, Whatley indicated he struck Patel once in the back leftside of the head with a hammer and then went through Patel's pockets. Whatley also told Carson that there were three female witnesses that he wanted to "disappear if at all possible." Further, Whatley told Carson that he was concerned he left a footprint at the scene so he burned the shoes along with the hammer.
Whatley's two-day jury trial commenced on August 25, 2008. Wilson, Bigham, and Carson were among the witnesses for the State. Despite Carson's reference to a hammer, the State proceeded under the theory that Whatley approached his unsuspecting victim and forcefully struck him once or twice with his fist, knocking Patel backward to the concrete ground. At trial, the State used Carson's testimony to show that Whatley admitted striking Patel and characterized the reference to the hammer as bragging by Whatley. In addition to aggressively cross examining the witnesses in an attempt to discredit them, Whatley's trial counsel also requested an instruction on involuntary manslaughter, a lesser included offense.
Whatley v. State, 86 N.E.3d 236, 2017 WL 2291328, *1-2 (Ind. Ct. App. May 25, 2017) (Whatley II) (record citations omitted).
Mr. Whatley was convicted of murder and sentenced to sixty years. Id. On direct appeal, he challenged the sufficiency of the evidence and the admission of evidence regarding drug use and dealing. Whatley v. State, 908 N.E.2d 276 (Ind. Ct. App. 2009) (Whatley I). The Indiana Courtof Appeals affirmed Mr. Whatley's murder conviction, and the Indiana Supreme Court denied his petition for transfer. Dkt. 14-2 at 4.
Following his direct appeal, Mr. Whatley filed a petition for post-conviction relief in state court. He asserted that both his trial and appellate counsel provided ineffective assistance in several respects. See generally Whatley II, 2017 WL 2291328. The trial court denied Mr. Whatley's petition following a hearing, and the Indiana Court of Appeals affirmed. Id. at *9. The Indiana Supreme Court denied Mr. Whatley's petition to transfer. Dkt. 14-3 at 10.
Mr. Whatley filed the instant petition for a writ of habeas corpus on February 9, 2018. He alleged that (1) the evidence was insufficient to support his conviction of murder; (2) trial counsel was ineffective for failing to object to three jury instructions, parts of Carson's testimony, and the prosecutor's statements during closing argument; and (3) appellate counsel was ineffective for failing to raise those issues on appeal and failing to adequately present the sufficiency argument. Dkt. 2.
After reviewing the record and the parties' briefs here, the Court concluded it was in the interests of justice to appoint counsel pursuant to 18 U.S.C. § 3006A(a)(2). Dkts. 27, 30. On June 2, 2020, appointed counsel filed an amended petition. The amended petition incorporated Mr. Whatley's previous arguments and added additional allegations: that trial counsel was ineffective for failing to present a plea offer to Mr. Whatley, for failing to adequately investigate his case, and for preventing Mr. Whatley from testifying at trial. Dkt. 45. The respondent filed a return to the amended petition, dkt. 47, and Mr. Whatley responded, dkt. 48.
A federal court may grant habeas relief only if the petitioner demonstrates that he is in custody "in violation of the Constitution or laws . . . of the United States." 28 U.S.C. § 2254(a). The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") directs how the Court must consider petitions for habeas relief under § 2254. "In considering habeas corpus petitions challenging state court convictions, [the Court's] review is governed (and greatly limited) by AEDPA." Dassey v. Dittmann, 877 F.3d 297, 301 (7th Cir. 2017) (en banc) (citation and quotation marks omitted). "The standards in 28 U.S.C. § 2254(d) were designed to prevent federal habeas retrials and to ensure that state-court convictions are given effect to the extent possible under law." Id. (citation and quotation marks omitted).
A federal habeas court cannot grant relief unless the state court's adjudication of a federal claim on the merits:
(1) resulted in 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
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