# Baker v. Warden

> District Court, N.D. Indiana · March 22, 2021

URL: https://www.frixlaw.com/law-library/cases/10160677

## Case

- **Court:** District Court, N.D. Indiana
- **Decided:** March 22, 2021
- **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

ELMER DEAN BAKER,

Petitioner,

v. CAUSE NO. 3:19-CV-423-RLM-MGG

WARDEN,

Respondent.

OPINION AND ORDER
Elmer Dean Baker, a prisoner without a lawyer, filed a habeas corpus
petition to challenge his convictions for child molestation under Cause No.
17D01-607-FA-7. Following a jury trial, on February 6, 2009, the Dekalb
Superior Court sentenced Mr. Baker as a habitual offender to one hundred six
years of incarceration.

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). A habeas
petitioner must fully and fairly present his 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, 814–815 (7th Cir. 2006) (citing Boyko
v. Parke, 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 proceedings.” Lewis v. Sternes, 390
F.3d at 1025 (internal quotations and citations omitted). “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. “A
habeas petitioner who has exhausted his state court remedies without properly
asserting his federal claim at each level of state court review has procedurally
defaulted that claim.” Id.
Mr. Baker’s habeas petition presents thirty-seven claims for relief. He
raises eleven claims against the trial court and one claim against the Indiana
Supreme Court for its decision on direct appeal. His petition to transfer on direct

appeal raised only two claims: whether the trial court erred by not requiring jury
unanimity on a specific criminal incident and whether the statute allowing the
prosecution greater latitude in amending the charges violated the Ex Post Facto
Clause. Under Indiana law, “if an issue was known and available but not raised
on direct appeal, the issue is procedurally foreclosed.” Stephenson v. State, 864
N.E.2d 1022, 1028 (Ind. 2007). The claims against the trial court and the Indiana
Supreme Court that weren’t raised in the petition to transfer on direct appeal are
procedurally defaulted. Further, the Indiana Supreme Court found that Mr.

Baker waived the jury unanimity claim by not raising it at trial, so this claim is
also procedurally defaulted. The Indiana Supreme Court reviewed the jury
unanimity claim under the fundamental error doctrine, but such limited review
doesn’t allow this court to consider the claim in this habeas case. See Carter v.
Douma, 796 F.3d 726, 734 (7th Cir. 2015); Gray v. Hardy, 598 F.3d 324, 329
(7th Cir. 2010). The court will consider the remaining claim of whether the trial
court violated the Ex Post Facto Clause by allowing the prosecution to amend

the charges.
Mr. Baker raises fourteen claims of ineffective assistance of trial counsel.
Under Indiana law, “a Sixth Amendment claim of ineffective assistance of trial
counsel, if not raised on direct appeal, may be presented in postconviction
proceedings.” Woods v. State, 701 N.E.2d 1208, 1220 (Ind. 1998). “However, if
ineffective assistance of trial counsel is raised on direct appeal by a Davis petition
or otherwise, the issue will be foreclosed from collateral review.” Id. (referring to
mechanism to expedite review of post-conviction claims set forth in Davis v.

State, 368 N.E.2d 1149 (Ind. 1977)). Mr. Baker raised four claims of ineffective
assistance of trial counsel on direct appeal, asserting that trial counsel erred by
entering into a stipulation on uncharged crimes, by not objecting to the
instruction on the elements of child molestation, by not requesting an
instruction on unanimity, and by not presenting an expert witness. He didn’t
present of these claims in his petition to transfer to the Indiana Supreme Court,
so the ineffective assistance claims raised on direct appeal are procedurally
defaulted. Further, due to Indiana’s all-or-nothing approach on the presentation

of ineffective assistance of trial counsel claims, the ineffective assistance of trial
counsel claims that weren’t raised on direct appeal are also procedurally
defaulted.
Mr. Baker raises eleven claims of ineffective assistance of appellate
counsel. In the petition to transfer to the Indiana Supreme Court on post-
conviction review, Mr. Baker didn’t assert that appellate counsel rendered
ineffective assistance by asserting ineffective assistance of trial counsel claims

on direct appeal or that she mishandled any arguments presented to the Court
of Appeals of Indiana. Mr. Baker maintains that he presented these claims to the
Indiana Supreme Court by incorporating by reference his brief to the Court of
Appeals of Indiana, but Indiana law doesn’t let parties to present arguments that
way. Bigler v. State, 732 N.E.2d 191, 197 (Ind. App. 2000) (“[A] party may not
present an argument entirely by incorporating by reference from a source outside
the appellate briefs.”). Mr. Baker also says that appellate counsel didn’t properly
present the jury unanimity claim to the Indiana Supreme Court, but Mr. Baker

didn’t have a right to counsel at that stage of the proceedings. See Resendez v.
Smith, 692 F.3d 623, 626 (7th Cir. 2012) (“A criminal defendant enjoys a right
to counsel through his first appeal of right but once the direct appeal has been
decided, the right to counsel no longer applies.”). For these reasons, Mr. Baker
can’t proceed on these ineffective of assistance of appellate counsel claims.
Mr. Baker fairly presented claims that he received ineffective assistance of
appellate counsel based on these issues: (1) trial counsel should have objected
to a juror who had a disqualifying relationship with the prosecuting attorney’s

husband; (2) trial counsel should have objected to the addition of a third count
of child molestation in the amended information because it violated the statute
of limitations; (3) the trial court allowed trial counsel to waive his right to a jury
trial on the habitual offender enhancement in violation of Indiana’s personal
waiver requirement; (4) the trial court sentenced him in violation of Apprendi v.
New Jersey, 530 U.S. 466 (2000); (5) the prosecution improperly vouched for the
victim’s credibility and relied on vouching testimony; (6) trial counsel should

have objected to juror bias as a result of pretrial publicity; and (7) the trial court
should not have allowed the stipulation of evidence.
In consideration of Mr. Baker’s pro se status, the court construes the
ineffective assistance of appellate counsel claims as an assertion of cause-and-
prejudice for the underlying claims of trial error and deficient performance by
trial counsel. A habeas petitioner can overcome a procedural default by showing
both cause for not abiding 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). Cause sufficient to excuse procedural default
is defined as “some objective factor external to the defense” that prevented a
petitioner from pursuing his constitutional claim in state court. Murray v.
Carrier, 477 U.S. 478, 492 (1986). “Meritorious claims of ineffective assistance
can excuse a procedural default.” Richardson v. Lemke, 745 F.3d 258, 272 (7th
Cir. 2014). “But those claims must themselves be preserved; in order to use the
independent constitutional claims of ineffective assistance of trial and appellate
counsel as cause to excuse a procedural default, a petitioner is required to raise

the claims through one full round of state court review, or face procedural default
of those claims as well.” Id. As detailed above, Mr. Baker fairly presented seven
claims of ineffective assistance of appellate counsel. Therefore, the court will
consider whether appellate counsel error on those seven claims excuses
procedural default on the underlying claims involving the trial court and trial
counsel.

LEGAL STANDARD

“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 v. Donald, 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). “[I[n the cause-and-
prejudice context, we apply the same deferential standard as we would when
reviewing the claim on its own merits.” Richardson v. Lemke, 745 F.3d 258, 273
(7th Cir. 2014).

ANALYSIS
Ex Post Facto Clause

Mr. Baker argues that he is entitled to habeas relief because the trial court
violated the Ex Post Facto Clause by allowing the prosecution to amend the
charges. “The ex post facto prohibition forbids the Congress and the States to
enact any law which imposes a punishment for an act which was not punishable
at the time it was committed; or imposes additional punishment to that then
prescribed.” Weaver v. Graham, 450 U.S. 24, 28 (1981) (“[T[wo critical elements
must be present for a criminal or penal law to be ex post facto: it must be
retrospective, that is, it must apply to events occurring before its enactment, and

it must disadvantage the offender affected by it.” Id. at 29. “The critical question
is whether the law changes the legal consequences of acts completed before its
effective date.” Id. at 31.
In July 2006, the prosecution charged Mr. Baker with two counts of child
molestation and a habitual offender enhancement accusing him of misconduct
with two minor children in June or July 2003. The omnibus date was in
December 2006. In June 2007, a jury trial on those charges resulted in a

mistrial. Shortly after the trial, the trial court allowed the prosecution to amend
the existing charges by expanding the timeframe to October 2000 to August 2003
for each of the two counts and to add a third count of child molestation involving
another minor in 2002. In August 2008, a second jury convicted Mr. Baker.
At the time of the crimes, the relevant statute required the prosecution to
notify a criminal defendant of substantive amendments at least thirty days before
the omnibus date. Ind. Code § 35-34-1-5(b)(1) (2003). That limitation didn’t apply
to amendments to cure immaterial defects, including “the failure to state the

time of place at which the offense was committed where the time or place is not
of the essence of the offense.” Ind. Code § 35-34-1-5(a) (2003). This statute was
amended effective May 8, 2007, to allow amendments at any time before trial “if
the amendment [did] not prejudice the substantial rights of the defendant.” Ind.
Code § 35-34-1-5(b)(2) (2008).
On direct appeal, the Court of Appeals of Indiana rejected Mr. Baker’s
claim of error on the basis that it had previously held that the revised statute
didn’t violate the Ex Post Facto Clause in Ramon v. State, 888 N.E.2d 244 (Ind.

App. 2008). In Ramon, the appellate court reasoned that the revised statute
“creates no new crimes, does not change the elements of any crime, and does
not alter the sentencing statutes.” Ramon v. State, 888 N.E.2d at 252. The
appellate court also found that even the previous version of the statute would
have allowed the expansion of the timeframes for the first two counts of child
molestation. It reasoned that time wasn’t of the essence in such cases given the
inability of children to remember specific dates.

After reviewing the state court record, the court cannot find that the state
court made an unreasonable determination with respect to the Ex Post Facto
Claim. The relevant statute would have allowed the prosecution to amend the
first two counts of child molestation by expanding the timeframe even before the
effective date of the revisions. At all relevant times, the statute allowed the
prosecution to amend the information to correct “the failure to state the time or
place at which the offense was committed where the time or place is not of the
essence of the offense.” Ind. Code. § 35-34-1-5 (a)(7). In other words, the change

in the law had no effect on these amendments, and so couldn’t have violated the
Ex Post Facto Clause.
The addition of third count of child molestation is a different matter. As
the state court noted, the revised statute didn’t criminalize previously legal
behavior or increase the severity of the sentence for child molestation. But the
reasoning can’t stop there, because the same line of reasoning could apply to the
statute challenged in Stogner v. California, 539 U.S. 607 (2003), which Mr. Baker
cited in his appellate brief. In that case, the Supreme Court of the United States

considered a statute that allowed prosecuting attorneys to pursue certain
criminal charges after the limitations period for those charges had expired. The
Supreme Court found that this statute violated the Ex Post Facto Clause for
criminal defendants whose limitations period had expired before its effective
date. Stogner v. California, 539 U.S. at 609. It likened the expiration of a
limitations period to a form of amnesty and reasoned that the new statute
imposed punishment for conduct that was, in essence, immunized from

punishment by the passage of time. Id. at 611-615.
Nevertheless, the deadline for substantive amendments to criminal
charges isn’t equivalent to a statutory limitations period. Before the statutory
revision, the amendment deadline was tied to the omnibus date, which, under
Indiana law, broadly serves as a point of reference for scheduling in criminal
proceedings. Ind. Code Ann. § 35-36-8-1(b). The trial court’s discretion to modify
the omnibus date is and was relatively constrained, particularly given the wide
latitude typically afforded to trial courts for setting deadlines. According to Ind.

Code § 35-36-8-1(d), “[o]nce the omnibus date is set, it remains the omnibus
date for the case until final disposition,” unless certain circumstances apply,
including the substitution of trial counsel, the prosecution’s failure to comply
with a discovery deadline, or the agreement of the parties. But these
circumstances, though limited in number, don’t arise infrequently and suggest
that extensions of omnibus dates are common enough occurrences. In sum, the
amendment deadline’s relationship to the omnibus date indicates that the
amendment deadline isn’t meant to afford criminal actors the degree of amnesty

afforded by a statutory limitations period.
Expiration of the amendment deadline does not make a criminal act
unpunishable, so an extension of an expired amendment deadline, through
statutory revision or otherwise, doesn’t violate the Ex Post Facto Clause. Mr.
Baker’s claim that the amendment of the charges violated his rights under the
Ex Post Facto Clause is not a basis for habeas relief.

Ineffective Assistance of Appellate Counsel
Mr. Baker asserts that he is entitled to habeas relief because he received
ineffective assistance of appellate counsel. He also asserts that he is entitled to
habeas relief due to trial error and ineffective assistance of trial counsel, but
these claims are procedurally barred. As a result, the court can’t grant habeas
relief based on these claims unless Mr. Baker demonstrates that the procedural
bar was caused by ineffective assistance of appellate counsel.
To prevail on an ineffective assistance of counsel claim, a petitioner must

show that counsel’s performance was deficient and that the deficient
performance prejudiced him. Strickland v. Washington, 466 U.S. 668 (1984). The
test for prejudice is whether there was a reasonable probability that “but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. A reasonable probability is a probability “sufficient to
undermine confidence in the outcome.” Id. at 693. In assessing prejudice under
Strickland, “[t]he likelihood of a different result must be substantial, not just
conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011). “On habeas review,

[the] inquiry is now whether the state court unreasonably applied Strickland.”
McNary v. Lemke, 708 F.3d 905, 914 (7th Cir. 2013). “Given this high standard,
even ‘egregious’ failures of counsel do not always warrant relief.” Id.
Mr. Baker argues that appellate counsel erred by declining to argue that
the publicity caused by local newspaper articles deprived him of the right to an
impartial jury. Trial counsel didn’t object on this basis, so appellate counsel
could present this claim only as an ineffective assistance of trial counsel claim,

which would have required a showing of prejudice, or to argue that it resulted in
fundamental error. See Baumholser v. State, 62 N.E.3d 411, 414 (Ind. App.
2016) (“Failure to object at trial waives the issue on review unless fundamental
error occurred.”). Under Indiana law, “[f]undamental error is an extremely
narrow exception that applies only when the error amounts to a blatant violation
of basic principles, the harm or potential for harm is substantial, and the
resulting error denies the defendant fundamental due process.” Id. The appellate
court rejected this claim on post-conviction review because Mr. Baker didn’t

show that the newspaper articles prejudiced him. He didn’t provide any evidence
that the jurors were aware of the newspaper articles or that the pretrial publicity
had any effect on the verdict. Given the lack of evidentiary support for this claim,
the court can’t find that this determination was unreasonable.
Mr. Baker argues that appellate counsel erred by declining to argue that
trial counsel should have moved for a mistrial after a juror’s conversation with
the prosecuting attorney’s spouse. Under Indiana law, “[d]efendants seeking a
mistrial for suspected jury taint are entitled to the presumption of prejudice only

after making two showings, by a preponderance of the evidence: (1) extra-judicial
contact or communications between jurors and unauthorized persons occurred,
and (2) the contact or communications pertained to the matter before the jury.”
Ramirez v. State, 7 N.E.3d 933, 939 (Ind. 2014). At trial, the prosecuting attorney
told the court that, at a fast food restaurant, a juror asked her spouse whether
he planned to play on a soccer team and that he replied that he would if he
asked. The prosecuting attorney represented that her spouse and the juror didn’t

discuss the case. Id. The appellate court rejected this claim on post-conviction
review for lack of deficient performance, reasoning that since this
communication didn’t relate to Mr. Baker’s trial, trial counsel had no basis for
requesting a mistrial. Mr. Baker didn’t show that the lack of an objection caused
him prejudice, so this determination was not unreasonable.
Mr. Baker argues that his appellate counsel erred by declining to argue
that trial counsel should have objected to the third count of child molestation in
the amended information for untimeliness. The applicable limitations period is

five years. Ind. Code § 35-41-4-2(a)(1). The prosecution added the third count on
June 18, 2007, asserting that, “in or about 2002,” Mr. Baker “did perform or
submit to fondling or touching with A.H.” Direct Appeal App. 80. At trial, the
three victims described an event in which Mr. Baker molested each of them. J.A.
testified that Mr. Baker began molesting her around the time of another trial that
occurred in October 2002. A.H. testified that all of the molestation incidents
involving Mr. Baker occurred within the year preceding her August 2003 police
report. On the basis of this testimony, the appellate court found that Mr. Baker

didn’t suffer prejudice as a result of trial counsel’s decision not to object on the
basis of timeliness. The court can’t find that this determination was
unreasonable. As detailed above, the record reflects that the prosecution had
evidence to support a timely count of child molestation with respect to A.H. Had
objected to the amended information on the basis of timeliness, it seems more
likely that such an objection would have resulted in another amendment rather
than the prosecution discontinuing their pursuit of it.

Mr. Baker argues that appellate counsel erred by declining to argue that
Mr. Baker didn’t knowingly, voluntarily, and intelligently waive his right to a jury
trial on the habitual offender enhancement. He maintains that a criminal
defendant can waive the right to a jury trial only bu=y personally communicating
it to the trial court, citing Horton v. State, 51 N.E.3d 1154 (Ind. 2016). The
appellate court rejected this claim on post-conviction review, reasoning that
Horton hadn’t been decided during trial proceedings and that it was unclear
whether its holding applied to habitual offender enhancements.

This court further adds that, in her appellate briefs, appellate counsel
focused on her arguments on jury unanimity, which resulted in the Indiana
Supreme Court agreeing to require more specific jury instructions in certain
circumstances, and on the Ex Post Facto Clause, a substantial, if ultimately
unsuccessful, constitutional argument as detailed above. Success on these
arguments would have resulted in a new trial or dismissal for all charges. By
contrast, the argument on personal waiver would have entitled Mr. Baker to a
new trial only on the habitual offender enhancement. Prior convictions, which

are a matter of public record, are difficult to contest, and Mr. Baker offers no
basis to suggest a jury would not have found him to be a habitual offender. Given
the substantial issues raised on direct appeal and the limited relief afforded by
a successful personal waiver argument, the court can’t find that the State court’s
determination that appellate counsel did not perform deficiently was
unreasonable.
Mr. Baker argues that appellate counsel erred by declining to argue that

his sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000), in which the
Supreme Court of the United States held that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” Id. at 490. The appellate court correctly determined that
Apprendi didn’t apply to Mr. Baker’s sentence. Apprendi, by its own terms,
doesn’t apply to prior convictions and so didn’t apply to the habitual offender
enhancement. The trial court found other aggravating factors without the

assistance of a jury, but didn’t impose a sentence beyond the prescribed
statutory maximum. See Ind. Code Ann. § 35-50-2-4 (2005) (fifty years for Class
A felony); Ind. Code Ann. § 35-50-2-6 (2005) (eight years Class C felony); Ind.
Code Ann. § 35-50-2-8 (2005) (thirty years for habitual offender enhancement).
Mr. Baker argues that appellate counsel erred by declining to argue that
the prosecution improperly introduced vouching testimony and improperly
vouched for the victims during closing arguments. In his appellate brief, Mr.
Baker referenced the testimony of a caseworker who explained her role in the

case and the investigatory process for her agency. wrote in her report that the
victim’s mothers believed the accusations and that she would not have submitted
the case to the prosecutor’s office if she and her supervisor didn’t agree that it
had merit. He referenced the testimony of the victim’s family members that they
believed the victims. He also referenced the testimony of a physician that she
performed certain medical procedures on a victim because she suspected sexual
abuse. According to Mr. Baker, at closing, the prosecution implied that the

caseworker, the detective, and the prosecution believed the victims by observing
that these individuals didn’t abandon the case and directed the jury to review
the exhibits, which included the caseworker’s reports. The prosecution also
made references to the victims’ testimony, including that they had cried and that
they had taken an oath “to tell the truth as they remembered it today.”
The appellate court found that the prosecution didn’t improperly vouch or
elicit sympathy for the victims but instead fairly commented on the trial
evidence. Under Indiana law, “a prosecutor may not state his or her personal

opinion regarding the credibility of a witness during trial,” but “a prosecutor may
comment as to witness credibility if the assertions are based on reasons arising
from the evidence presented in the trial.” Thomas v. State, 965 N.E.2d 70, 77
(Ind. App. 2012). After reviewing the prosecution’s closing argument, the court
doesn’t find that the state court’s determination on this issue was unreasonable.
The prosecution referenced and made observations about witness testimony but
stopped short of expressing a personal opinion on the credibility of the victims.
The bulk of the testimony cited by Mr. Baker is not attributable to the

prosecution but was instead elicited on cross-examination by trial counsel. This
testimony doesn’t support the claim of prosecutorial misconduct.
Additionally, under Indiana law, “to properly preserve a claim of
prosecutorial misconduct for appeal, a defendant must not only raise a
contemporaneous objection but must also request an admonishment; if the
admonishment is not given or is insufficient to cure the error, then the defendant

must request a mistrial.” Neville v. State, 976 N.E.2d 1252, 1258 (Ind. App.
2012). In other words, this is another claim that appellate counsel could have
presented only as an ineffective assistance of trial counsel claim, which would
have required a showing of prejudice, or to argue that it resulted in fundamental
error. Given that appellate counsel would have faced the more difficult task of
demonstrating prejudice and given her focus on other, more substantial claims,
the claim of prosecutorial misconduct is not a basis for habeas relief.
Mr. Baker argues that appellate counsel should have argued that the trial

court abused its discretion by allowing the parties to stipulate on the
admissibility of evidence. On May 14, 2008, the parties stipulated to the
following:
1. Evidence regarding all allegations of sexual activity between the
victims and the defendant is admissible, including but not limited
to when those activities began.

2. Evidence regarding the opportunities for the victims to complain
about that alleged sexual activity, including but not limited to the
Loren Wilkins investigation, is admissible.

Direct Appeal App. 229.
The appellate court held on post-conviction review that the trial court
didn’t abuse its discretion by accepting a stipulation with the consent of both
parties. Review of the pretrial motions indicates that trial counsel’s decision to
stipulate was a reasonable strategic decision. The prosecution sought to exclude
evidence of the victims’ past sexual activity, including their involvement as
victims of child molestation by another individual, while trial counsel sought to
use such evidence as part of the defense. Direct Appeal App. 161-63, 194-97. By

entering into the stipulation, trial counsel obtained a benefit for Mr. Baker, and
the trial court might have allowed evidence of prior sexual activity between the
victims and Mr. Baker without the stipulation. See Beasley v. State, 452 N.E.2d
982, 984 (Ind. 1983) (“The general rule is that evidence of criminal activity other
than that which is charged is inadmissible on the question of guilt; however,
such evidence may be admitted if it is relevant to show intent, motive, purpose,
identification or common scheme or plan.”). Therefore, this claim is not a basis
for habeas relief.

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 reasonable jurists 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 opinion for denying habeas corpus relief, there
is no basis for encouraging Mr. Baker to proceed further.
For these reasons, the court DENIES the habeas corpus petition (ECF 1),
DENIES the certificate of appealability, and DIRECTS the clerk to enter judgment
in favor of the Respondent and against the Petitioner.
SO ORDERED on March 22, 2021

s/ Robert L. Miller, Jr.
JUDGE
UNITED STATES DISTRICT COURT

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10160677. Public record. Not legal advice.