# Giger v. Warden

> District Court, N.D. Indiana · July 20, 2020

URL: https://www.frixlaw.com/law-library/cases/10159661

## Case

- **Court:** District Court, N.D. Indiana
- **Decided:** July 20, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

MOSES GIGER,

Petitioner,

v. CAUSE NO.: 3:17-CV-262-JD-MGG

WARDEN,

Respondent.

OPINION AND ORDER
Moses Giger, a prisoner without a lawyer, filed a habeas corpus petition to
challenge his conviction and sentence for murder under Case No. 71D03-202-MR-2.
Following a jury trial, on May 15, 2003, the St. Joseph County Superior Court sentenced
Giger to sixty-five years of incarceration.
FACTUAL BACKGROUND
In deciding this habeas petition, the court must presume the facts set forth by the
state courts are correct unless they are rebutted with clear and convincing evidence. 28
U.S.C. § 2254(e)(1). The Court of Appeals of Indiana summarized the evidence
presented at trial:
On February 2, 2002, Giger went to the home of his neighbor, Angela
Husband. Husband was a prostitute and Giger paid her regularly with
either money or drugs for sexual services. When Giger arrived at
Husband’s, he had only a small amount of crack cocaine and told
Husband he would return later if he could get more cocaine with which to
pay her.

Giger called James Thorpe (also known as “Cash”), a drug dealer with
whom Giger had regular contact and from whom Giger had purchased
drugs within the preceding week. Thorpe asked Giger to drive him
somewhere and Giger picked him up. Giger drove Thorpe to a residence.
Giger remained in the car while Thorpe exited, presumably to approach
the house. Thorpe took Giger’s keys with him to make sure that Giger
would not leave him stranded at the house. Giger, in turn, held some of
Thorpe’s drugs to make sure Thorpe would return. Giger claims he saw
Thorpe running down the street and Giger chased him because Thorpe
had Giger’s car keys. Giger claims that he fell while chasing Thorpe. After
falling, Giger saw a knife on the ground and picked it up. He claims that
he found Thorpe’s body a few feet from the knife and was unable to rouse
him.

Giger took the knife with him and drove home. He left the knife by the
front door. After noting that he had blood on his hands and pants, he
washed his hands and changed his pants. He later returned to Husband’s
house with a handful of cocaine packets. Giger, Husband, and Husband’s
mother consumed the cocaine. After the cocaine was consumed, Giger left
and returned with more drugs.

Thorpe’s body was found in a pool of his blood on the morning of
February 3 at the corner of College and Sibley Streets in South Bend.
Thorpe had been stabbed twenty-one times with a knife, puncturing both
lungs, his aorta, and damaging his heart. The wounds included several
stabs to his back, stabs to his arms suggesting defensive wounds and a
cluster of stab wounds to the chest at least two of which the pathologist
classified as perimortem or postmortem wounds.

Husband contacted the South Bend police stating that she believed Giger
may have killed Thorpe. The police recovered several items from Giger’s
home including the knife and two pairs of Giger's jeans. Thorpe's blood
was found on Giger’s car, jeans, left shoe, and on the knife. Police officers
also recovered $359.95 in blood-covered currency in Giger’s possession.
The State performed DNA testing on items taken from Giger as well as
items recovered from the crime scene. The only recovered DNA
inconsistent with Giger or Thorpe was from the headband of Thorpe's
baseball cap and the outside of Thorpe’s pockets.

On February 5, Giger was charged with murder. While in prison, Giger
told another inmate that he had killed Thorpe and asked for advice
because he had heard that the inmate previously beat an attempted
murder charge. At trial, the inmate testified against Giger. A jury found
Giger guilty of murder.
ECF 9-5 at 2-4.

Giger argues that he is entitled to habeas corpus relief. He asserts that he
received ineffective assistance of trial and appellate counsel on numerous grounds.
PROCEDURAL DEFAULT
Before considering the merits of a habeas petition, the court must ensure that the
petitioner has exhausted all available remedies in state court. 28 U.S.C. § 2254(b)(1)(A);
Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). For a federal court to hear his or her
claims, a habeas petitioner must have fully and fairly presented his or her federal claims

to the state courts. Boyko v. Parke, 259 F.3d 781, 788 (7th Cir. 2001). Fair presentment
“does not require a hypertechnical congruence between the claims made in the
federal and state courts; it merely requires that the factual and legal substance remain
the same.” Anderson v. Brevik, 471 F.3d 811, 814–15 (7th Cir. 2006) (citing Boyko, 259 F.3d
at 788). It does, however, require “the petitioner to assert his federal claim through one

complete round of state-court review, either on direct appeal of his conviction or in
post-conviction proceeding.” Lewis, 390 F.3d at 1025. “This means that the petitioner
must raise the issue at each and every level in the state court system, including levels at
which review is discretionary rather than mandatory. Id.
Giger presented his claims that he received ineffective assistance of trial counsel

with respect to: (1) a conflict of interest with Demetric Johnson; (2) the investigation and
cross-examination of Angela Husband, George Greene; Mario Stewart, Adrian Vanison,
and Rebecca Tobey; (3) the admission of his interview of the police; (4) the jury
instructions; and (5) the cumulative effect of trial counsel error to the Court of Appeals
of Indiana and the Indiana Supreme Court at the post-conviction relief stage. ECF 9-8;
ECF 9-12. However, Giger did not present any other claim to the Indiana Supreme

Court. Therefore, Giger has procedurally defaulted his remaining ineffective assistance
of counsel claims.
A habeas petitioner can overcome a procedural default by showing both cause
for failing to abide by state procedural rules and a resulting prejudice from that failure.
Wainwright v. Sykes, 433 U.S. 72, 90 (1977); Wrinkles v. Buss, 537 F.3d 804, 812 (7th Cir.
2008), cert. denied, 129 S. Ct. 2382 (2009). Cause sufficient to excuse procedural default is

defined as “some objective factor external to the defense” which prevented a petitioner
from pursuing his constitutional claim in state court. Murray v. Carrier, 477 U.S. 478, 492
(1986).
To excuse procedural bar, Giger asserts that he had ineffective assistance of
counsel during the post-conviction relief stage. As a general rule, “[n]egligence on the

part of a prisoner’s postconviction attorney does not qualify as cause.” Maples v. Thomas,
565 U.S. 266, 280 (2012). An exception to this rule is that “[i]nadequate assistance of
counsel at initial-review collateral proceedings may establish cause for a prisoner’s
procedural default of a claim of ineffective assistance at trial.” Martinez v. Ryan, 566 U.S.
1, 9 (2012); Brown v. Brown, 847 F.3d 502 (7th Cir. 2017). The narrow Martinez exception

does not apply to “attorney errors in other kinds of proceedings, including appeals
from initial-review collateral proceedings, second or successive collateral proceedings,
and petitions for discretionary review in a State’s appellate courts.” Martinez, 566 U.S. at
16. Giger’s claims regarding appellate counsel and the claims presented to the St. Joseph
Circuit Court but abandoned on appeal do not qualify under the Martinez exception,
and the court will not further consider them. However, Giger’s claims asserting that

trial counsel failed to challenge false evidence and to timely depose witnesses were not
presented to the St. Joseph Circuit Court and thus may qualify, so the court will
consider below whether post-conviction counsel provided ineffective assistance by
declining to present them.
ANALYSIS
In the habeas petition, Giger asserts that the State court erred by denying him

post-conviction relief on his claims of ineffective assistance of trial counsel. “Federal
habeas review exists as a guard against extreme malfunctions in the state criminal
justice systems, not a substitute for ordinary error correction through appeal.” Woods v.
Donald, 135 S.Ct. 1372, 1376 (2015) (quotations and citation omitted).
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim—
(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 States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.

28 U.S.C. § 2254(d).
[This] standard is intentionally difficult to meet. We have explained that
clearly established Federal law for purposes of §2254(d)(1) includes only
the holdings, as opposed to the dicta, of this Court’s decisions. And an
unreasonable application of those holdings must be objectively
unreasonable, not merely wrong; even clear error will not suffice. To
satisfy this high bar, a habeas petitioner is required to show that the state
court’s ruling on the claim being presented in federal court was so lacking
in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.

Woods, 135 S. Ct. at 1376 (quotation marks and citations omitted). Criminal defendants
are entitled to a fair trial but not a perfect one. Rose v. Clark, 478 U.S. 570, 579 (1986). To
warrant relief, a state court’s decision must be more than incorrect or erroneous; it must
be objectively unreasonable. Wiggins v. Smith, 539 U.S. 510, 520 (2003). “A state court’s
determination that a claim lacks merit precludes federal habeas relief so long as
fairminded jurists could disagree on the correctness of the state court’s decision.”
Harrington v. Richter, 562 U.S. 86, 101 (2011) (quotation marks omitted).
On February 5, 2002, the prosecution charged Giger with murder. Direct Appeal
App. 6. On March 18, 2003, the jury trial commenced. Trial Tr. 1, 7. The prosecution
presented numerous witnesses, including George Green, who testified that he found the
body of the victim at the corner of College and Sibley on at around 8:00 a.m.1 on
February 3, 2002. Trial Tr. 323-26. He spent the night nearby at his sister’s house at 1808
Florence (“Jackson residence”) but left the residence on or around 2:15 a.m. to purchase

cocaine for himself and his girlfriend, Demetric Johnson. Id. at 301, 308-19. He received
a ride from a stranger passing through the neighborhood and returned with cocaine but
also with soiled pants due to his inability to reach a toilet in time. Id. Green and Johnson
consumed the cocaine, and, later in the early morning, Green left the Jackson residence

1 Throughout the trial, many of the fact witnesses, including Green, Johnson, and Husband,
struggled with their recollection specific times but offered broad estimates.
again for more and for a change of clothes at his residence at 1121 Campeau (“Green
residence”), about three miles away. Id. at 318-23. As he walked back to the Jackson

residence, he discovered the victim’s body and called emergency services from the
victim’s cellphone. Id. at 323-26.
The prosecution also presented Johnson, who corroborated Green’s account that
they stayed at the Jackson residence on the night of the incident and that Green left the
residence twice in the early morning to buy cocaine. Id. at 415, 423-27. She also testified
that, after the police had arrived in the neighborhood to investigate, she discovered

blood, down feathers, and a blue baseball cap in the back yard of the Jackson residence
and informed the police. Id. at 428-31.
Ronald Nowicki, a crime scene technician, testified that, upon his arrival at the
corner of College and Sibley, he observed the victim laying face up in a puddle of blood
near a cellphone and a dark, blood-stained down jacket. Id. at 511. After speaking with

Johnson, he also observed blood and down feathers scattered in the backyard of the
Jackson residence. Id. at 522-23. He found the telephone number for 1613 Florence
(“Giger residence”), where Giger lived, on the victim’s cellphone as one of the last
incoming calls at 2:10 a.m. Id. at 541-43. Nowicki discovered blood on the inside and
outside of the driver-side door on the blue Cadillac parked in front of that residence.

547-50. He found a knife inside the residence, which Giger’s niece had moved from the
flowerbed that morning. Id. at 568-69. He found a pair of blue jeans with blood stains on
the knees in Giger’s bedroom. Id. at 571-72. He obtained a white sneaker with blood
stains and $359.95 in blood-stained cash from Giger at about noon on February 4. Id. at
572-73. He found a pair of blue jeans at the Green residence with defecation but no
other apparent signs of bodily substances. Id. at 581-82.

Angela Husband testified that she lived at 1607 Florence (“Husband residence”)
and that she maintained a transactional relationship with Giger in which she would
provide sexual services in exchange for money or cocaine. Id. at 632. He had conveyed
his interest in pursuing a romantic relationship with her, but she did not reciprocate.2
Id. at 649-50. She observed Giger buy cocaine from the victim occasionally. Id. at 632-33.
The victim allowed Giger to buy cocaine on credit until Giger decided to stop paying

his debts. Id. About one week before the incident, she observed a meeting between the
victim and Giger near Giger’s garage in which the victim refused him credit. Id. at 636-
39. At about 10:00 p.m., on the night of the incident, Giger arrived at the Husband
residence. Id. at 641. He did not have enough cocaine or money to pay Husband but
told her that he would try to get more and then return. Id. at 642-44. At around 2:00

a.m., Giger returned to the Husband residence with a handful of small bags of cocaine,
appearing sweaty and out of breath. Id. at 650-53. As they consumed cocaine in her
mother’s bedroom, she observed Giger staring at the door as though he were
anticipating something. Id. at 656-57. Husband and Giger went to her bedroom briefly,
where she noticed scratches on his hand and that he got blood on her mattress. Id. at

664-65. On two occasions, he left and quickly came back with more cocaine, which she

2 Husband’s mother also testified, stating that Giger cared about Husband and that he expressed
that his feelings were hurt because “he was there . . . to see her” and “she wasn’t exactly being the best
host one could be” that night. Trial Tr. 729-30.
believed he retrieved from his nearby home. Id. at 666-67. She left her residence at about
7:00 a.m. to meet another client. Id. at 664. Later that morning, she learned that the

victim had died, suspected Giger’s involvement, and contacted the police. Id. at 671-74.
Dr. Joseph Prahlow, a forensic psychologist, testified that the victim had been
stabbed twenty-one times in the back, chest, and the arms, and had died as a result. Id.
at 751-52 ,780-81. He testified that, some of the wounds on the chest had yellow
discoloration, which suggested that they were incurred after or very shortly before the
time of death. Id. at 760-64. The amount of blood on the chest suggested that those

wounds were not incurred when the victim was standing or running. Id. at 778-79. The
wounds on the forearms reflected the victim’s efforts to defend himself. Id. at 780.
Nicole Inhat, a forensic serologist, testified that she obtained DNA samples from Giger
and the victim. Id. at 797-897. She gathered samples for DNA testing from the various
articles of evidence gathered by Officer Nowicki and also tested them for the presence

of blood. Id. Via video deposition, Rebecca Tobey, a forensic DNA analyst, testified that
her testing revealed, with a reasonable degree of scientific certainty, the presence of the
victim’s DNA on Giger’s jeans and shoe; and the presence of both the victim’s and
Giger’s DNA on the knife. Id. at 918; PCR Ex. III. She also noted the presence of DNA
that did not belong to the victim or Giger on the baseball cap and the front of the

victim’s pants pocket but found no other DNA that was not at least consistent with the
victim or Giger. Id.
Sergeant John Ciesiolka, a homicide investigator, testified that, during the course
of the investigation, he interviewed Green at the scene of the incident and observed no
indication that he was involved in a physical struggle, including injuries, scratches, torn
clothes, or blood stains. Trial Tr. at 976-81. He interviewed Green at the police station

later on the same day and took photographs of his face and hands, which did not show
any scratches. Id. He also interviewed Giger, who conceded that he was with the victim
near the time of the victim’s death, represented that he had driven him to Burger King
that night, but denied his involvement in the murder. Id. at 987-93; Trial Ex. 108.
John Griffin, the victim’s cousin, testified that he spent considerable time with
the victim prior to his death and was familiar with his habits and sales practices. Trial

Tr. 1025, 1032-33. The victim sold to a certain group of people, including Giger and
Husband, but did not sell to strangers. Id. The victim did not sell to Giger in the month
preceding his death because Giger owed him money. Id. at 1034-35. On a few occasions,
Giger drove the victim to Taco Bell, but the victim did not eat at Burger King because he
was tired of the food after working there. Id. at 1037. On the day of the incident, the

victim had moved into a new apartment at the corner of Huey and Orange. Id. at 1038-
39. At around 1:00 a.m., Griffin left the victim at his apartment with Adrian Vanison, a
friend of the victim. Vanison testified that he left the apartment a short time later with
the victim’s key because he intended to return and went to a nearby residence. Id. at
1100-01. Sometime later, the victim arrived at that residence, took the key from Vanison,

and told him that he was going to sell cocaine “to a junkie he knew.” Id. at 1126. He saw
the victim lock his apartment and walk down the street. Id. at 1103-04.
The parties stipulated that Mario Stewart and Giger were located in the same
part of the St. Joseph County Jail from March 12, 2002, to April 10, 2002. Id. at 1145-46.
Stewart testified that Giger sought legal advice from him during that time and told him
that he bought counterfeit cocaine from the victim and that, when the victim refused to

give him a refund, Giger grabbed a knife and started stabbing him. Id. at 1151-54. He
told him that the victim cried as he stabbed him and that he intended to kill Husband
because he knew she reported him to the police. Id. Stewart felt perturbed by the jovial,
excited manner in which Giger told his story, which motivated him to report Giger to
the police. Id. at 1148, 1154.
In his defense, Giger testified that he occasionally bought cocaine from the victim

but saw him in the neighborhood daily. Id. at 1202-03. He considered the victim to be a
friend and would occasionally drive the victim to restaurants or to conduct drug
transactions. Id. He arrived at the Husband residence at about 9:00 p.m. on the night of
the incident. Id. at 1204. Husband was his friend, and he would buy her cocaine to
dissuade her from continuing to meet with other clients. Id. at 1201-02. He left to buy

cigarettes and a glass pipe for Husband and to buy liquor and cocaine. Id. at 1208. He
bought the liquor, glass pipe, and cigarettes. Id. at 1210. He went back home and then
returned to the Husband residence. Id. at 1211. Husband was not there, but Giger
consumed cocaine with Husband’s mother. Id. At about 11:00 p.m., Husband returned,
but Giger went home shortly thereafter because he did not have much cocaine left and

because she had other company. Id. at 1212. He later decided that he wanted to go back
to the Husband residence but that he needed more cocaine. Id. at 1212-13. At about 2:00
a.m., he called the victim, though he had not bought cocaine from him in three or four
months. Id. at 1213-15. During the call, the victim asked him to pick him up for a quick
errand. Id.

Giger and the victim met at the corner of Huey and Orange. Id. at 1216. The
victim told him that his key was stuck in the apartment door, so Giger removed it. Id.
The victim asked him to drive to the Jackson residence for a drug transaction and to
watch out for him and gave him two small packages of cocaine. Id. at 1220-24. He
parked in the alley behind the house. Id. He told the victim that he wanted to move his
vehicle from the alley to avoid police scrutiny. Id. He gave his car keys to the victim and

saw him walk toward the side door, and Giger moved the vehicle to the front of the
house on Florence Street.3 Id.
As he waited and smoked more cocaine, he saw the victim running on College
Street toward Sibley Street, where his relatives lived. Id. at 1224. He thought the victim
was running from the police, though he did not see anybody in pursuit. Id. at 1225-26.

He got out of the car and ran to find the victim and fell, scraping his hands and knee. Id.
at 1226-27. He got up and continued walking toward the street corner. Id. As he
approached the corner of College and Sibley, he became concerned for his safety. Id. at
1228. He searched for a weapon and found a knife, which he did not recognize as the
murder weapon, on the ground and picked it up. Id. After a few more steps, Giger saw

the victim on the ground. Id. at 1229. He did not immediately know that the victim was
dead so he shook the victim to get him up. Id. After realizing that the victim was dead,

3 Giger testified that the vehicle would continue to operate when he removed the key from the
ignition but that he could not start the vehicle without it. Trial Tr. 1272-73.
he took his keys from the victim’s pocket. Id. at 1230. He did not call the police because
he did not trust them based on a past experience when he reported a murder. Id. He

returned to his car and moved it to his residence. Id. at 1231-32. He dropped the knife
outside the house to avoid alarming his mother. Id. at 1232-33.
He changed his pants and washed his hands. Id. at 1234-35. He went to the
Husband residence to discuss what he had seen but changed his mind due to his
uncertainty regarding the identity of the culprit. Id. at 1236. He brought cocaine that he
had obtained before meeting with the victim. Id. at 1237. He went upstairs with

Husband to her bedroom. Id. at 1238. They went back downstairs to smoke cocaine with
her mother and went back to his house to get more cocaine. Id. at 1239. He left the
Husband residence at about 9:00 a.m., and he left with his niece and sister for Chicago.
Id. at 1239-41.
Giger also testified that he shared a pod with Stewart but did not discuss his case

with him and that inmates at the St. Joseph County Jail learned about it from the
newspaper. Id. at 1242-43. On cross-examination, the prosecution highlighted numerous
inconsistencies from his police statement. In his initial statement, he represented that he
saw the victim running on Florence toward College rather than just on College toward
Sibley and that the victim did not trust him. Id. at 1249-52. In that statement, he

suggested that he had injured his hands and knee by falling on the stairs at his house or
by performing plumbing work. Id. at 1257-58. He had also conceded to the police that
he was in love with Husband. Id. at 1259. During cross-examination, Giger maintained
he had ample cash at the time of the incident from work and that he never considered
Husband to be more than a friend. Id. at 1244-63.

At closing, the prosecuting attorney argued that Giger had romantic interest in
Husband but could not afford her sexual services, which he sought for his own
gratification and to keep her away from other clients. Id. at 1289-1319; 1356-72. She
argued that Giger met with the victim to obtain payment for Husband and that he
stabbed the victim in the side and in the back in the backyard of the Jackson residence.
He chased him to the corner of College and Sibley and continued to stab the victim until

his death. He took the victim’s cash and cocaine and returned to the Husband residence
after cleaning himself up. He also removed the knife from the scene of the crime due to
its incriminating nature.
Trial counsel argued that the prosecution based their case entirely on
circumstantial evidence. Id. at 1319-56. He argued that the police investigation focused

exclusively on Giger and on no other suspects. He argued that there was no evidence to
corroborate Green’s testimony regarding his whereabouts at the time of the murder. He
noted Green’s convictions for automobile theft and larceny as well as Johnson’s
testimony that she knew that sometimes he carried a knife. He noted that the police did
not collect Green’s DNA for testing and that the victim received two other telephone

calls from unknown sources near the time of the murder. The jury deliberated and
found Giger guilty of murder, and the Court of Appeals of Indiana affirmed the verdict
on direct appeal. Id. at 1390; ECF 9-5.
Conflict of Interest
Giger argues that he is entitled to habeas relief because trial counsel was

ineffective with respect to trial witness Demetric Johnson. He argues that trial counsel
had a conflict of interest because she was his former client and that he failed to discredit
her and to implicate her in the murder. “[A] defendant who raised no objection at trial
must demonstrate that an actual conflict of interest adversely affected his lawyer's
performance.” Cuyler v. Sullivan, 446 U.S. 335, 348 (1980).
On February 13, 2002, trial counsel entered his appearance in Giger’s criminal

case. Direct Appeal App. 2. On May 21, 2002, trial counsel entered his appearance on
behalf of Johnson in two unrelated criminal cases for forgery and theft. PCR Ex. P, Q.
On November 20, 2002, four months before Giger’s trial, Johnson entered guilty pleas in
those cases, and trial counsel did not further represent her. PCR Ex. S, T. At the post-
conviction stage, trial counsel testified that he informed Giger of his prior

representation of Johnson but did not perceive it as a conflict because her testimony
served to implicate Green as another suspect. PCR Tr. 231-32 For the same reason, it
was not in his interest to discredit her at trial. Id. at 238-39, 348. Before trial, Johnson
represented at her deposition that she was related to the victim, knew that he was a
drug dealer, saw the victim frequently, including the previous night, and that he was a

good person. Ex. R at 16-17. At trial, trial counsel introduced no evidence regarding
Johnson’s close relationship with the victim and did not otherwise suggest any prior
connection. Trial counsel testified that he did not recall why he did not elicit such
testimony from her at trial. PCR Tr. 237.
On appeal, the Court of Appeals of Indiana found that the prior representation of
Johnson did not pose a conflict of interests because Johnson’s cases were unrelated and

ended long before trial and that the decision to use her testimony to implicate Green
was a reasonably strategy. ECF 9-11 at 6-9. The appellate court also found that Giger
suffered no adverse impact, reasoning that the record contained no evidence to suggest
that Johnson was involved with the murder. Id. `
After reviewing the record, the court cannot conclude that the State court’s
determination with respect to the conflict of interest issue was objectively unreasonable.

The record contains no evidence that trial counsel had a conflict of interests due to his
prior representation of Johnson. Further, it is unclear how discrediting Johnson would
have benefitted Giger at trial. Her testimony did not incriminate Giger; rather, the
prosecution presented her as context for their investigation of the Jackson residence,
and trial counsel used her testimony to further his theory that Green committed the

murder. Nor is there compelling evidence to suggest that she participated in or was
otherwise criminally responsible for murdering the victim. To the contrary, her
deposition testimony indicated that she viewed her relationship with the victim as close
and on good terms.
Giger argues that trial counsel had an ongoing duty of loyalty to Johnson, citing

Rule 1.9 of the Indiana Rules of Professional Conduct:
(a) A lawyer who has formerly represented a client in a matter shall not
thereafter represent another person in the same or a substantially related
matter in which that person’s interests are materially adverse to the
interests of the former client unless the former client gives informed
consent, confirmed in writing.
* * *

(c) A lawyer who has formerly represented a client in a matter or
whose present or former firm has formerly represented a client in a matter
shall not thereafter:

(1) use information relating to the representation to the disadvantage
of the former client except as these Rules would permit or require with
respect to a client, or when the information has become generally
known; or

(2) reveal information relating to the representation except as these
Rules would permit or require with respect to a client.

In light of these provisions, it is true that trial counsel had a limited duty of loyalty to
Johnson at the time of Giger’s trial, but the record does not suggest that this duty
created a conflict of interests. Rule 1.9(a) does not apply because Johnson’s criminal
cases and Giger’s criminal case were not substantially related. Similarly, Rule 1.9(c)
does not apply because there is no indication that trial counsel obtained information
from representing Johnson that would have been beneficial to Giger’s defense.
Giger also cites to Shepherd v. State, 924 N.E.2d 1274 (Ind. Ct. App. 2010). In that
case, trial counsel represented a State witness in a pending unrelated criminal case. Id.
at 1286-87. The appellate court found a conflict of interest because trial counsel did not
cross-examine the witness regarding controlled substances discovered in a house where
she was present because it could have incriminated her. Id. at 1288. The court also noted
that it was in the witness’s best interest to provide testimony favorable to the
prosecution given her tentative plea agreement. Id. This case is distinguishable from
Shepard because the Shepard witness’s criminal case remained pending, and counsel’s
duty of loyalty with respect to current clients is significantly broader than it is for
former clients. See Ind. Rules of Professional Conduct 1.7(a)(1) (“A concurrent conflict of

interest exists if the representation of one client will be directly adverse to another
client.”). Stated otherwise, trial counsel was not prohibited from incriminating Johnson
at Giger’s trial unless it involved the use of information obtained during his
representation of her, and there is no evidence to suggest that trial counsel had such
information. Further, the outcome of Johnson’s criminal cases could not have been
affected by her testimony because these cases had concluded months before trial.

Moreover, the prosecution elicited testimony regarding the nature of her convictions of
these cases, and, even if they had not, trial counsel would not have been prohibited
from doing so given that convictions are public information. See Ind. Rules of
Professional Conduct 1.7(c)(1). Therefore, the claim that trial counsel had a conflict of
interest with respect to Johnson is not a basis for habeas relief.

Investigation and Cross-Examination
Giger argues that he is entitled to habeas relief because trial counsel rendered
ineffective assistance by failing to adequately investigate and cross-examine Husband,
Green, Stewart, Vanison, and Tobey. In the amended habeas petition, his specific
arguments include:

With respect to Husband, trial counsel should have impeached her by
noting that; (1) she did not discuss the victim’s refusal to extend credit to
Giger in her initial police statement; (2) she testified that the victim
refused to extend credit to Giger about a month before his death at
deposition; and (3) she testified that the victim refused to extend credit to
Giger within a week of his death at trial.
Trial counsel also should have impeached Husband’s testimony that she
saw Thorpe walking across a field from inside Giger’s garage through
holes in the walls with evidence that the garage did not have holes in the
walls at that time.

Trial counsel should have objected to Husband’s testimony that crack
“obviously” did not affect her ability to observe or recall relevant events
because “[w]hen they investigated, the evidence was there” on the basis
that it was a conclusion of guilt.

Trial counsel should have objected on the basis of hearsay to Husband’s
testimony that Giger could not afford her services on the night of the
incident because, at deposition, she testified that she had heard that Giger
was broke from a third party.

At her deposition, trial counsel should have asked Husband whether she
was aware that her cousin had been arrested when she reported Giger to
the police.

With respect to Green, trial counsel should have introduced his criminal
conviction for an attempted assault with a knife from 1998.

With respect to Vanison, trial counsel should have impeached him by
noting that; (1) he did not discuss watching the victim leaving his
apartment in his initial police statement; (2) he testified that he watched
the victim leave his apartment through the side window at deposition;
and (3) he testified that he watched the victim through the backdoor at
trial.

With respect to Stewart, trial counsel should not have stipulated that
Stewart resided at the St. Joseph County Jail from March 12, 2002, to
September 29, 2002, because he was held at the Laporte County Jail from
April 11, 2002, to July 30, 2002.

Trial counsel also should have impeached Stewart’s testimony that he did
not hear or read anything about the case before meeting Giger by
demonstrating that he had access to a newspaper article regarding his
case.

With respect to Tobey, trial counsel should have deposed her about the
presence of “possible alleles” that could not be attributed to Giger or the
victim.
At the post-conviction stage, trial counsel testified that his strategy was to
implicate Green as another suspect and that he did not seek to impeach witnesses on

immaterial matters because doing so would have alienated the jury. 227-28, 405. Judge
Jerome Frese, who presided over the trial and post-conviction proceedings, represented
that he would not have admitted evidence of Green’s prior conviction to demonstrate
habit or the newspaper article regarding Giger’s case due to its attenuated relevance.
391-94, 428-32. The post-conviction record included an affidavit from Tobey noting the
presence of possible alleles not attributable to the victim or Giger but also includes her

deposition testimony that she uses the term “possible allele” for indicators found
during the course of her DNA testing process that resemble alleles4 but were too faint
and unreliable to include in the results of her report. PCR Ex. GGG; PCR Ex. III at 38, 78.
Throughout her testimony, Tobey repeatedly informed trial counsel that she could not
draw conclusions from possible alleles. PCR Ex. III at 40-41, 58, 66.

On appeal, the Court of Appeals of Indiana found that trial counsel’s
performance was not deficient because his decisions to focus on implicating Green and
to limit his impeachment efforts were strategic. ECF 9-11 at 10-15. The appellate court
further found no prejudice given the overwhelming nature of the evidence. Id. It also
noted the reasoning of the St. Joseph Circuit Court, which found that Giger did not

meet his burden with respect to prejudice because he did not address what would have

4 An allele is “any one of a series of two or more different genes that may occupy the same locus
on a specific chromosome.” STEDMANS MEDICAL DICTIONARY 22750.
happened if trial counsel had asked the questions or made the objections suggested by
Giger. Id.

After reviewing the record, the court cannot find that the State court’s
determination regarding the investigation and cross-examination of Husband, Green,
Stewart, Vanison, and Tobey was error. As noted by the State courts, many of Giger’s
suggestions are trivial and would not have meaningfully advanced his defense. For
instance, it is unclear how Giger would have benefited from trial counsel impeaching
Husband by showing that the garage did not have holes in the wall given that Husband

could have overhead his conversation with the victim with or without such holes. It is
also unclear why Giger suggests that trial counsel should not have agreed to the
Stewart stipulation given that, even now, Giger does not dispute the material fact that
he and Stewart were housed in the same location at the St. Joseph County Jail for four
weeks. Similarly, Tobey heavily downplayed the significance of “possible alleles,” so it

seems unlikely that further questioning on that topic would have been beneficial to
Giger.
Other suggestions would have been futile; for example, trial counsel could not
have successfully objected to Husband’s unquestionably true statement of fact that
“[w]hen they investigated, the evidence was there” on the basis that it was a legal

conclusion, and Judge Frese would not have allowed Green’s conviction or the
newspaper article regarding Giger’s case to come into evidence. For other suggestions
still, the extent of their effect is unclear because Giger did not investigate it during State
post-conviction proceedings and thus did not satisfy his burden of proof with respect to
prejudice. For instance, the suggestion that trial counsel should have questioned
Husband regarding her cousin’s arrest is a reasonable one, but the record lacks any

evidence to suggest that such questioning would have produced material information.
Therefore, the argument that trial counsel failed to adequately investigate and cross-
examine witnesses is not a basis for habeas relief.
Police Interview
Giger argues that he is entitled to habeas relief because trial counsel provided
ineffective assistance with respect to his interview with the police. He argues that trial

counsel should have sought redaction of the police interviewers’ statements or an
instruction informing the jury that the statements were not evidence.
At trial, the trial court admitted a video recording and a transcript of Giger’s
interview with the police into the record. During the interview, the police expressed
skepticism of Giger’s narrative on numerous occasions, including:

How is it that something that seems to be the most important part of this,
the goddamn murder weapon, and you don’t remember to tell us! How is
it that important piece of evidence, that important piece of information
you forgot to tell us! You see what I’m saying? How are we supposed to
sell this story to somebody and believe your story when the most
important things about this, you left out!

You know what I see, you think I want to sell this story to somebody else!
I’ll tell you what story I’m gonna sell to you, you put yourself in this, and I
ain’t got… I’m convinced that you ain’t telling me the truth. Okay. You
didn’t take nothing but the keys out of his pocket but the money laying up
on the god damn dresser’s got blood all over it for Christ sakes.

This is a hard one man. Serious, I want to believe you. I really do. But it’s
just not adding up.

Trial Ex. 108.
At the post-conviction stage, trial counsel testified that he believed that the police
statements were standard interrogation techniques and that Giger’s steadfast denials in

response to these statements bolstered his credibility. PCR Tr. 467. The appellate court
found that trial counsel’s decision to allow the police statements was a reasonable
strategy. ECF 9-11 at 17-20. It further concluded that the failure to request a limiting
instruction was not prejudicial because the police statements merely challenged Giger’s
credibility or were consistent with other evidence at trial, including Husband’s
testimony and the presence of blood. Id.

After reviewing the record, the court cannot find that the State court’s
determination regarding the police statements was objectively unreasonable. The
interview transcript reveals that Giger maintained his innocence under significant
police scrutiny, and it was thus reasonable for trial counsel to believe that the police
statements would bolster Giger’s credibility. Giger suggests that trial counsel’s strategy

wrongly assumed that the jury knew that the police statements were not evidence of
guilt. While the jury may not have had a comprehensive understanding of State
evidentiary rules, they heard substantial testimony regarding the investigation.
Consequently, it would be reasonable to assume that a jury would understand the
context of police statements, including the scope of the officers’ personal knowledge,

their reliance on circumstantial evidence, and the general purpose of the police
interview, which occurred shortly after Giger’s arrest. Moreover, it is unclear how such
statements could have prejudiced Giger given that the prosecution made many of the
same arguments based on the same evidence and that the trial itself presupposed the
investigators’ belief that Giger had committed the crime and had lied during his
interview. Therefore, the claim trial counsel should have redacted or submitted a

limiting instruction on the police statements is not a basis for habeas relief.
Jury Instructions
Giger argues that he is entitled to habeas relief because trial counsel failed to
object to the trial court’s jury instructions on circumstantial evidence and on witness
credibility. At trial, the trial court issued jury instructions on these issues that deviated
from the Indiana pattern jury instructions. On circumstantial evidence, the trial court

instructed:
Circumstantial evidence means evidence that proves a fact from which an
inference of the existence of another fact may be drawn. An inference is a
deduction of fact that may logically and reasonably be drawn from
another fact or group of facts. You are entitled to draw reasonable
inferences from the evidence. It is not necessary that facts be proved by
direct evidence. Both direct evidence and circumstantial evidence are
acceptable as a means of proof. The State is not required to prove the
essential elements of murder by eyewitness observation. Circumstantial
evidence may establish the guilt of the defendant beyond a reasonable
doubt. However, in a case such as this where the evidence is entirely
circumstantial, in order to convict, such circumstantial evidence must be
so conclusive [in] character and point so surely and unerringly to the guilt
of the accused as to exclude every reasonable hypothesis of innocence.

Trial Tr. 1378.
On witness credibility, the trial court stated:
You are the only judges of the weight of both the physical evidence and
the testimony—believability, or “credibility”—of each of the witnesses. In
considering the testimony of a witness—including the testimony of the
defendant, who is a competent witness in his own behalf—you may take
into account the witness’s ability and opportunity to observe those things
he or she testified to, the witness’s memory, manner and conduct while
testifying, any interest the witness may have in this case, any bias the
witness may have for or against any party to this suit, any relationship
with other witnesses or interested parties, and the reasonableness of the
witness’s testimony when viewed with all of the other evidence in the
case. The credibility of the defendant’s testimony should be evaluated by
you according to the same criteria that you use for any other witness. You
should try to fit the evidence to the presumption that the defendant is
innocent. Each witness in a trial takes an oath to testify truthfully.
Therefore, you should not disregard the testimony of any witness without
a reason, and then only after careful consideration. The testimony of a
witness does not have to be corroborated by other evidence for you to
believe that witness. However, if you find so much conflict between the
testimony of two or more witnesses that you cannot believe each of them,
then you must decide which witnesses you will believe and which you
will disbelieve. Or, if you decide that any witness’s testimony is so
unreasonable as to be unworthy of belief, you may disbelieve that witness.

Furthermore, you should evaluate the testimony of each witness in light of
all relevant physical evidence, and the reasonable inferences drawn from
such physical evidence. If you have drawn reasonable conclusions about
the physical evidence that prove inconsistent with the testimony of any
witness, then you should reconsider both the physical evidence and that
witness’s testimony in order to resolve such apparent inconsistency. In
other words, you must decide in such a case whether your conclusions
drawn from the physical evidence are invalid, or whether you disbelieve
the witness, or whether you are unable to draw any conclusion.

In weighing the evidence to determine what or whom you will believe,
you should use your own knowledge, experience and common sense
gained from day to day living. You may find that your determination of
the truth is not controlled by the number of witnesses who testify to a
particular fact, or on one side or the other, or the quantity of evidence on a
particular point. You should give the greatest weight to that evidence
which convinces you most strongly of its truthfulness.

Id. at 1378-81.
At the post-conviction stage, Judge Frese prevented post-conviction counsel from
questioning trial counsel regarding the jury instructions. PCR Tr. 472-73. He reasoned
that the jury instructions spoke for themselves and that their adequacy was a matter of
law. Id. On appeal, the Court of Appeals of Indiana found no deficient performance or
prejudice, reasoning that the instructions merely expounded on the concepts of
circumstantial evidence and evidence weighing and that there was no indication that

they misstated the law or affected the outcome. ECF 9-11 at 21-24.
After reviewing the record, the court cannot find that the State court made an
unreasonable determination with respect to the jury instructions. Giger argues that the
trial court overemphasized the jury’s ability to convict him based on circumstantial
evidence. However, even if the trial court was excessive in this regard, the final
sentence of the instruction countered any potential prejudice by emphasizing that the

evidentiary standard to convict based on circumstantial evidence remained quite high.
Giger further argues that the instruction on witness credibility did not allow the jurors
to both acknowledge that the inculpatory nature of the physical evidence and credit
Giger’s testimony. This argument is based on a misinterpretation of the instruction,
which broadly asks the jury to recognize conflicts between physical evidence and

testimony and to resolve them if possible. Under this instruction, the jury could have
found that there was no significant conflict between the physical evidence and Giger’s
testimony as trial counsel argued at closing or that there was such a conflict but that
their initial beliefs regarding the incriminating nature of the physical evidence were
erroneous. Therefore, the argument regarding the jury instruction is not a basis for

habeas relief.
Cumulative Error
Giger argues that he is entitled to habeas relief due to the cumulative nature of
trial counsel’s errors. “Trial errors which in isolation are harmless might, when
aggregated, alter the course of a trial so as to violate a petitioner's right to due process
of law.” Alvarez v. Boyd, 225 F.3d 820, 824 (7th Cir. 2000) “The cumulative effect of two

or more individually harmless errors has the potential to prejudice a defendant to the
same extent as a single reversible error.” Id. “To prevent the synergistic effect of these
errors from escaping review, courts attempt to determine whether the whole is greater
than the sum of its parts.” Id. “The cumulative effect analysis requires a petitioner to
establish two elements: (1) at least two errors were committed in the course of the trial;
(2) considered together, along with the entire record, the multiple errors so infected the

jury’s deliberation that they denied the petitioner a fundamentally fair trial.” Id.
At the post-conviction stage, the appellate court considered the cumulative effect
argument and found that, “[f]or the most part, however, Giger had failed to
demonstrate that his trial counsel’s performance was deficient.” ECF 9-11 at 28. It
further found that, “given the overwhelming evidence against Giger, any alleged

deficiency did not result in prejudice to Giger.” Id. The court agrees on both points. As
discussed above, the court cannot find that the State court’s determination regarding
trial counsel’s performance was unreasonable.
The court also cannot find that the State court’s determination that the evidence
was overwhelming was unreasonable. To start, Husband’s testimony established that

Giger had romantic interest in her, wanted her attention on the night of the incident, but
did not have the money or cocaine to pay her. It also established that Giger would not
have been able to obtain crack from the victim on credit, which Griffin later confirmed.
It established that Giger returned to the Husband residence with cocaine and cash with
minor injuries and a paranoid demeanor. The victim’s cellphone displayed a telephone
call from Giger on the night of the incident, and the victim died due to multiple stab

wounds. At the Giger residence, investigators discovered a knife as well as the blood on
the interior and exterior of his vehicle and on the knees of his jeans found in his
bedroom. DNA testing revealed the victim’s DNA on Giger’s jeans and the DNA of
both Giger and the victim on the knife. On the day of his police interview, Giger had
blood on his shoe and blood-stained cash in his possession. Though much of this
evidence is circumstantial, it is nevertheless extremely compelling.

Giger maintains that he fully explained why this evidence was not incriminating
during his testimony at trial. To Giger’s point, his testimony is consistent with some of
the physical evidence, but there remain significant inconsistencies. The record indicates
that the bulk of the attack took place on the corner of College and Sibley, including the
removal of the victim’s jacket and the infliction of nineteen stab wounds. The distance

between the Jackson residence, near where Giger was parked, and the corner of College
and Sibley was about a tenth of a mile, and the crime occurred in a residential
neighborhood in the early morning. Giger testified that he saw the victim running but
did not testify that he saw anyone in pursuit. He also testified that he got out of his
vehicle and began running toward College. It is unclear how long he remained on the

ground after he fell, but it seems highly unlikely that he would not have heard the
victim as he was stabbed or caught a glimpse of the attacker under these circumstances.
Further, portions of Giger’s testimony are not convincing. Considering Giger’s
testimony that he accompanied the victim to the Jackson residence for protection, it
seems unlikely that the victim would run away from Giger’s vehicle near the front of
that residence, where Giger told him he would move it. Similarly, Giger’s testimony

that he did not recognize the knife as the murder weapon after seeing the nearby corpse
and the nature of the injuries is implausible and also contradicted by his statements to
the police. Trial Ex. 108 at 19. It is also notable that Giger’s reaction to discovering the
violent murder of his friend was to immediately change clothes, to visit Husband, to
spend time with her on her bed, to consume crack with her and her mother until nine in
the morning, and then to attempt to resume spending time with Husband the following

night.
As trial counsel argued, Green’s connection to the events of that evening could
have raised some doubt as to Giger’s guilt. Green, a convicted felon, left the Jackson
residence twice to buy crack that night and may have been out of the house at some
unverifiable location during the time of the murder. The attack of the victim began in

the backyard of the Jackson residence where he was staying. Green, unlike Giger,
reported the murder to the authorities, but this fact cuts in both directions as the report
is another unusual connection to the case.5 However, when considering the record, the
theory of Green as the murderer does not withstand scrutiny. For example, there no
indication that Green or Johnson had ever purchased cocaine from the victim; instead,

Griffin, who spent “all day every day” with the victim, testified that he did not know

5 At closing, the prosecution offered the theory that Giger had given Green a ride for his first
crack transaction of the night and attacked the victim in the backyard of the Jackson residence in an
attempt to frame him. Trial Tr. 1304-05. While this theory would explain the victim’s presence in the
backyard of the Jackson residence, it is speculative as Green declined to identify Giger as the driver when
the prosecution prompted him to do so at trial. Id. at 314-15.
Green or Johnson, and Green had just bought cocaine from another individual across
town a short time before his second trip of the night. Further, when the police searched

Green’s home, they did not find bloody articles of clothing but instead found soiled
pants consistent with his unflattering admission during his testimony. The police
examined him for injuries or torn clothing consistent with the commission of the
murder but found none, and the prosecution introduced photographs of his unscathed
hands into the trial record. Green also lacked a compelling motive--unlike Giger, he had
a girlfriend who lived with him and was on good terms with the victim and who had

given him money to buy her cocaine.
Taken as a whole, the evidence presented at trial strongly pointed toward Giger
as the murderer. Further, the court remains unconvinced that Giger’s suggestions, in
isolation or in aggregate, would have likely affected the outcome even if it were a close
case. To recap, Giger suggested that trial counsel should have: impeached witnesses

who testimony facilitated trial counsel’s strategy and was consistent with Giger’s
testimony; impeached witnesses on immaterial matters; attempted to introduce
evidence that the trial court would not have allowed; declined to stipulate that Stewart
remained at the St. Joseph County Jail after Stewart had already reported Giger’s
confession; questioned an expert witness on trace results she believed to be insignificant

for purposes of DNA analysis, her area of expertise; redacted or provided a limiting
instruction on police statements during the Giger interview; and objected to
superfluous language in the jury instructions on circumstantial evidence and witness
credibility. Considering the weight of the evidence and the absence of prejudice, the
argument regarding cumulative error is not a basis for habeas relief.

POST-CONVICTION COUNSEL
Giger asserts that his procedurally defaulted claims regarding trial counsel’s
failure to challenge false evidence and to timely depose witnesses are excused due to
the ineffective assistance of post-conviction counsel, citing Martinez v. Ryan, 566 U.S. 1
(2012). In that case, the Supreme Court of the United States held, “Where, under state
law, claims of ineffective assistance of trial counsel must be raised in an initial-review

collateral proceeding, a procedural default will not bar a federal habeas court from
hearing a substantial claim of ineffective assistance at trial if, in the initial-review
collateral proceeding, there was no counsel or counsel in that proceeding was
ineffective.” Id. at 11.
Search Warrant

Giger asserts that post-conviction counsel should have argued that trial counsel
was ineffective for failing to challenge the search of his residence, which he alleges
would have resulted in the exclusion of incriminating evidence. He alleges that
Sergeant Ciesiolka falsely attested that his mother consented to a search of his home,
relying solely on an affidavit from his deceased mother.6 ECF 38-1 at 60-61, 63. A

criminal defendant may challenge a probable cause determination on the basis that it
includes “allegations of deliberate falsehood or of reckless disregard for the truth,” but

6 According to the local newspaper, Giger’s mother died on September 5, 2007. Clara Lee Giger-
Davis, South Bend Tribune, Sept. 12, 2007, at E3.
may not proceed on that challenge “if, when material that is the subject of the alleged
falsity or reckless disregard is set to one side, there remains sufficient content in the

warrant affidavit to support a finding of probable cause.” Franks v. Delaware, 438 U.S.
154, 171–72 (U.S. 1978).
According to the probable cause affidavit, Sergeant Ciesolka entered the Giger
residence at Giger’s mother’s invitation, where he questioned her and observed the
knife that was later determined to be the murder weapon. ECF 38-1 at 60-61. Based on
this probable cause affidavit, the St. Joseph Circuit Court issued a search warrant, and

the police seized evidence from the residence, including the knife and Giger’s blood-
stained jeans. Trial Tr. 569-72. On February 6, 2006, Giger’s mother signed an affidavit,
attesting that:
1. On 2-2-02, four men identifying themselves as South Bend Police
Officers came to my home, located at 1613 Florence Street, in South Bend,
asking to speak to my son Moses Giger.

2. When I told the officers Moses was not home, he was in Chicago; the
officers asked me if they could come in and ask me a few questions.

3. The officers asked me where Moses resided in the home, I told them
Moses had his own private area upstairs and I never go up there.

4. While the officers were asking me questions about events which took
place the night before at least two of the police officers entered the
upstairs area without my permission.

5. Officers walked around my home looking into things, including the
washing machine located in the kitchen.

6. At no time on the [sic] 2-2-02, did I give police permission to search my
home, which they did.

ECF 38-1 at 63.
While the affidavit suggests that police officers may have conducted an unlawful
search, it does not establish that the jeans or the knife should have been excluded from

trial, even accepting its attestations as true. To start, the affidavit indicates that Giger’s
mother consented to the entry of the home for the purpose of questioning. Sergeant
Ciesolka observed the knife in plain view during the course of this questioning, so no
unlawful search occurred to this point. See Horton v. California, 496 U.S. 128, 133 (U.S.
1990) (“If an article is already in plain view, neither its observation nor its seizure would
involve any invasion of privacy.”). The police officers may have exceeded the scope of

consent by searching around the house, but the affidavit lacks sufficient detail
regarding the exchange between Giger’s mother and the police for meaningful
assessment of this issue. See United States v. Thurman, 889 F.3d 356, 368 (7th Cir. 2018)
(“Whether a search extends beyond the scope of consent is a question of fact to be
determined from the totality of all the circumstances.”). Moreover, even if the police

exceeded the scope of consent by searching other areas of the house, there is no
indication that they found any evidence that could have been excluded and affected the
outcome of trial.
At base, further assistance from Giger’s mother would have been required for
post-conviction counsel to effectively pursue this claim. However, post-conviction

counsel entered this case only after Giger’s mother’s death in October 2007 and thus
had no opportunity to interview Giger’s mother or to present Giger’s mother at the
evidentiary hearings, which took place in 2015 and 2016. ECF 9-8 at 10. Because
pursuing this claim would have been futile without assistance from Giger’s mother, the
court finds that post-conviction counsel was not ineffective for declining to do so.

Giger also argues that, in the same affidavit, Sergeant Cielsiolka falsely stated
that he found a bloody knife in the Giger residence. The record reflects that the knife
was not bloody, but the affidavit is rife with other facts that would support a probable
cause finding. Specifically, Sergeant Cieslioka attested that he observed the victim who
had apparently died of numerous stab wounds. Id. at 60-61. Near the time of his death,
the victim had received a telephone call from the Giger residence, which was near the

scene of the crime. Id. Sergeant Ciesiolka attested that he saw blood on the exterior of
the door of the vehicle in Giger’s driveway and blood on the exterior of the door of his
residence. Id. He further attested that Giger’s mother told him that Giger was the last
person to drive the vehicle and that he saw a knife (even if it was not bloody) laying on
a table in the residence. Id. These facts, by themselves, would be sufficient to support a

probable cause finding. In sum, Giger has not demonstrated that his post-conviction
counsel was ineffective for declining to raise this claim, but, even if the court excused
procedural default on that basis, Giger could not demonstrate a lack of probable cause.
Police Misconduct
Giger asserts that post-conviction counsel should have argued that trial counsel

was ineffective for failing to investigate whether the police intended to frame him. He
alleges that he told trial counsel that he heard police officers say that they intended to
“railroad Giger’s ass all the way to prison” during a break in his interview. He
maintains that this failure to investigate allowed the police to engage in systemic fraud
in numerous respects. First, he alleges that the police tampered with the blood on the
jeans found in his residence under the search warrant. He highlights the discrepancy

between the investigator’s description of blood only on the knees and the serologist’s
more expansive findings of blood on the legs, seat, and waist. This discrepancy is
resolved by a cursory look at the photograph exhibits of jeans, where the knees are the
only location where blood is clearly visible to the naked eye, and by recognizing the
serologist’s expertise and use of scientific techniques in identifying the presence of
blood. See Trial Tr. 798-800, 821-23; Trial Ex. 99, 100, 101, 102.

Giger further maintains that, “[d]uring the interview Giger was emphatic that
the blood evidence on the knee of his pants was from him falling down twice” and that
the serologist’s findings were inconsistent with this narrative. However, Giger greatly
mischaracterizes his narrative during the interview, when he said, “I had blood all over
me,” represented that he had blood on him “from trying to see what was wrong with

[the victim],” and only discussed falling down once to explain the blood on his clothes
after he had gone home and changed. Trial Ex. 108 at 9, 21, 23. At base, there is no
discrepancy between the investigator’s description, the serologist’s findings, and
Giger’s narrative that would suggest police misconduct.
Giger asserts that Sergeant Ciesolka’s testimony regarding the bloody knife at

the Giger residence is also evidence of the intent to frame him. Sergeant Ciesolka
testified that, after he had entered the Giger residence, he saw “a knife, a large knife
sitting on the table two feet from [him] that [appeared] to have blood stains on it.” Trial
Tr. 1007. He later clarified that he had never picked the knife up to examine it or
otherwise. Id. at 1009. The serologist, photograph exhibits, and the prosecution’s closing
argument undermined Sergeant Ciesolka testimony regarding the visible presence of

blood on the knife. Id. at 843, 1363; Trial Ex. 9, 80. This testimony was thoroughly
discredited, and it was also immaterial given that DNA analysis revealed the presence
of DNA on the knife from both Giger and the victim, so it is unclear what prejudice
Giger suffered as a result of it. Consequently, the court cannot fault post-conviction
counsel for declining to pursue this line of inquiry.
Giger further asserts that the prosecution tampered with the jail logs to show that

he and Stewart were housed in the same location in the St. Joseph County Jail, which
allowed Stewart to testify as follows:
Trial Court: Okay, now, what I want to know is this stipulation says from
March 12 to April 10, you and Mr. Giger were in the same jail location.

Stewart: We was in the same pod and the same bunks you know.

Trial Court: And people can freely go between and talk to everybody in
their section of the pod?

Stewart: Yes.

Trial Tr. 1173.
Significantly, the jail logs were not admitted at trial, and the court is unconvinced
that the prosecution would tamper with jail logs merely to prevent trial counsel from
impeaching Stewart’s testimony in response to the trial court’s questions. Giger
specifically objects to the implication that he and Stewart shared the same cell, which he
denies, but whether the two inmates shared the same cell or whether they shared the
same pod in an arrangement that permitted a similar level of inmate socialization is not
particularly material to assessing Stewart’s credibility. Moreover, to the extent that the
stipulation and Stewart’s testimony implied that he and Giger shared the same cell,

Giger clarified it in his testimony, which the prosecution did not challenge:
Trial Counsel: Do you know Mario Stewart?

Giger: Vaguely. He was in the same pod I was in.

Trial Counsel: All right. By pod, what do you mean?

Giger: There are twenty-four people in a pod. Well, one pod can
accommodate twenty-four people. Usually, there’s twenty-four people in
our pod.

Trial Tr. 1242. In sum, the allegations regarding police misconduct are unsupported
and, even assuming that they could be proven, such misconduct would have had little,
if any, effect on the jury verdict. The court cannot fault post-conviction counsel for
declining to pursue this claim and thus finds that the Martinez exception does not
excuse its procedural default.
Depositions
Giger argues that post-conviction counsel should have argued that trial counsel
was ineffective for deposing witnesses two weeks before trial and not receiving
transcripts until the day of trial. He maintains that this lack of preparation caused trial
counsel to provide ineffective assistance in several ways, including failing to investigate
witnesses, failing to investigate police misconduct, and failing to object to tainted
evidence. This claim is too broad for meaningful analysis, though the court has
addressed Giger’s more specific claims in the same vein above. Given the unwieldy
breadth of this claim and its redundancy with other claims, the court cannot fault post-
conviction counsel for declining to pursue it and thus finds that the Martinez exception

does not excuse its procedural default.
CERTIFICATE OF APPEALABILITY
Pursuant to Section 2254 Habeas Corpus Rule 11, the court must grant or deny a
certificate of appealability. To obtain a certificate of appealability under 28 U.S.C. §
2253(c), the petitioner must make a substantial showing of the denial of a constitutional
right by establishing “that a reasonable jurist could debate whether (or, for that matter,

agree that) the petition should have been resolved in a different manner or that the
issues presented were adequate to deserve encouragement to proceed further.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). For the reasons explained in this order, there is no
basis for encouraging Giger to proceed further.
For these reasons, the court DENIES the habeas corpus petition; DENIES a

certificate of appealability pursuant to Section 2254 Habeas Corpus Rule 11; and
DIRECTS the clerk to enter judgment in favor of the Respondent and against the
Petitioner.
SO ORDERED on July 20, 2020
/s/JON E. DEGUILIO
CHIEF JUDGE
UNITED STATES DISTRICT COURT

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10159661. Public record. Not legal advice.