McClung v. Warden

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

MAURICE McCLUNG, JR.,

Petitioner,

v. CAUSE NO. 1:21-CV-239-HAB-SLC

WARDEN,

Respondent.

OPINION AND ORDER

Maurice McClung, Jr., a prisoner without a lawyer, filed a habeas corpus petition

to challenge his conviction for attempted murder, robbery, and unlawful possession of a

firearm under Case No. 27C01-808-FA-155. Following a jury trial, on September 11,

2009, the Grant Circuit Court sentenced McClung to seventy 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 August 14, 2008, Darrell Hollins (“Hollins”) was in Marion, Indiana

with his friend, Matthew Dragoo (“Dragoo”), to buy Lortabs from Tina

Jones (“Tina”) for pain he experienced from a previous automobile

accident. Tina showed Hollins some marijuana she had and told Hollins

that her son, Ralph Jones (“Ralph”), could arrange for Hollins to buy

some. Because Hollins had lost his job ten months earlier, he was dealing

marijuana to make ends meet until he could find legitimate employment.

Hollins told Tina to give Ralph his contact information and left. Tina

called Ralph with Hollins's contact information, and Ralph made contact

with Hollins. After several calls between the two, Hollins arranged to buy

two pounds of marijuana from Ralph for $2,200. Ralph suggested that

they meet at the Greentree Apartments in Marion. At around 5:00 p.m.,

Hollins and Dragoo drove to the Greentree Apartments. Ralph had told

them where to find him in the complex and that he would be driving a

black Grand Am.

After arriving at the apartment complex, Hollins saw Ralph’s black Grand

Am backed into a parking spot and pulled in beside it. Hollins exited his

car, and Dragoo remained in the car. Ralph was waiting for Hollins with

another man, Joey Bolden (“Bolden”). The two approached Hollins and

introduced themselves. Hollins then followed Ralph into the “far foyer on

the right” side of the apartment building. Hollins entered the foyer behind

Ralph with Bolden following them. As he walked in, Hollins saw

McClung standing beside the stairs with Allen Horton (“Horton”). Hollins

did not expect to meet anyone other than Ralph at the Greentree

Apartments.

Hollins had not previously met Ralph or Bolden, but he had met McClung

and Horton prior to that date. Hollins’s cousin was a tattoo artist, and

Hollins had previously seen the work his cousin had done on McClung,

which included a panther and a grim reaper sitting on a throne. Hollins

had met McClung about seven years earlier, when Hollins was sixteen

years old. He had met Horton a year before encountering him in the foyer,

when they lived in the same apartment complex.

Earlier in the day, Ralph, McClung, Bolden, Horton, and Cletus Luster

had devised a plan to rob Hollins. They took mulch from Tina and placed

it inside some plastic grocery bags. They planned to rob Hollins when he

arrived to purchase the marijuana at the Greentree Apartments. When

Hollins walked into the foyer, he saw a duffle bag that contained two

knotted Wal–Mart plastic bags on the staircase. Hollins walked over to the

duffle bag and saw that the plastic bags contained mulch. He immediately

knew he was going to be robbed. As Hollins looked to his right, he saw

McClung give Ralph a “look” and then saw a gun in McClung's hand.

Without saying a word, McClung began shooting Hollins from

approximately two feet away. McClung shot Hollins once in the leg, twice

in the stomach, once above the heart, and once in the left arm. Hollins fell

back and tried to kick the door open behind him, while Ralph and Horton

tried to grab him and drag him back inside. As Hollins attempted to turn

and run away, McClung followed and shot him two more times. McClung

shot Hollins in the lower back, and Hollins grabbed his money and threw

it at McClung. Hollins fell to the ground, and McClung approached him

and shot him in the upper left shoulder.

Hollins lost consciousness, and as he awoke, he saw Ralph, McClung, and

Bolden picking his money up off of the ground. Hollins then jumped up

and grabbed his arm because it felt as if it was “barely attached.” He tried

to get to his car, but fell again. Dragoo helped Hollins into the car as

McClung, Ralph, Bolden, and Horton fled. Dragoo picked up the

remaining money at Hollins’s request. The next thing that Hollins

remembered was speaking to the paramedic and telling her that he was

shot “everywhere.”

The paramedic was the last thing that Hollins remembered seeing. As a

result of the extreme blood loss from his gunshot wounds, Hollins had a

stroke, which disabled his optic nerve and rendered him blind. Hollins

suffered seven total gunshot wounds. Because of these wounds, his

intestines and bowels had to be rerouted and his gall bladder removed.

He breathed through a tracheotomy tube and had a feeding tube for six

months. One of the bones in Hollins’s left arm was shattered, and he had

to undergo surgery to regain use of the arm. Hollins was hospitalized for

four months after being shot and had continuous health problems as a

result of his injuries.

Marion Police Officer Jeff Wells (“Officer Wells”) responded to a dispatch

of the shooting and stopped Ralph and Bolden in the black Grand Am.

When they were stopped, both men had wadded-up money in their

possession. McClung’s forty-five caliber handgun, shirt, and hat were

found in a trash barrel a short distance from the Greentree Apartments.

Three bullets were left in the gun. Three bullet casings located at the crime

scene matched the gun found. The magazine of the gun would hold ten

rounds. Police officers located Horton the next day, and McClung

eventually turned himself in to the police.

The State charged McClung with attempted murder as a Class A felony,

armed robbery as a Class A felony, and unlawful possession of a firearm

by a serious violent felon as a Class B felony.

* * *

At the conclusion of the trial, the jury found McClung guilty of attempted

murder as a Class A felony and armed robbery as a Class A felony. In a

subsequent proceeding, the trial court found McClung guilty of unlawful

possession of a firearm by a serious violent felon, a Class B felony, after he

admitted he had the prior convictions listed in the charging information.

* * *

[T]he trial court sentenced McClung to fifty years for Count I, Class A

felony attempted murder, fifty years for Count II, Class A felony armed

robbery, and twenty years for Count III, Class B felony unlawful

possession of a firearm by a serious violent felon. The trial court ordered

the sentences for Counts I and II to be served concurrently to each other

and consecutively to Count III for an aggregate sentence of seventy years

executed.

ECF 9-5 at 2-7; McClung v. State, 925 N.E.2d 508 (Ind. App. 2010).

In the habeas petition, McClung argues that he is entitled to habeas relief because

trial counsel provided ineffective assistance by failing to investigate and present an alibi

defense and by failing to investigate a disinterested witness. In the traverse, McClung

includes arguments for other claims, but the court declines to consider these claims

because McClung did not include them in the petition. See Rule 2(c)(1) of the Rules

Governing Section 2254 Cases (“The petition must specify all the grounds for relief

available to the petitioner.”); Jackson v. Duckworth, 112 F.3d 878, 880 (7th Cir. 1997) (“[A]

traverse is not the proper pleading to raise additional 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). To avoid procedural default, 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, 814–15 (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

proceedings.” Lewis, 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.

On post-conviction review, McClung presented his claim that trial counsel failed

to investigate his alibi to the Indiana Court of Appeals and the Indiana Supreme Court.

ECF 9-9; ECF 9-12. The Warden argues that this claim was denied on independent and

adequate State ground because the Indiana Court of Appeals found that McClung

violated Ind. App. R. 46(a)(8) by failing to support his argument with appropriate

citations to legal authorities and the evidentiary record. “[Federal courts] will not

review a question of federal law decided by a state court if the decision of that court

rests on a state law ground that is independent of the federal question and adequate to

support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729 (1991). Specifically, the

Indiana Court of Appeals remarked, “In his argument, McClung does not assert what

additional information may have been gained from further investigation and how the

absence of that information prejudiced his case.” ECF 9-11 at 11. However, the appellate

court also appeared to conclude that McClung had failed to demonstrate that trial

counsel’s omission would have likely affected the outcome of his case as required to

prevail on an ineffective assistance claim under Strickland v. Washington, 466 U.S. 668

(1984). Given the substantial overlap between the State issue and the federal issue here,

the court cannot find that the Indiana Court of Appeals rejected this claim on a State

law ground that is independent of the federal question of whether McClung received

ineffective assistance of trial counsel. For purposes of this order, the court will assume

that this claim is properly exhausted.

McClung did not present his claim that trial counsel failed to investigate a

disinterested witness at any level of the State courts. ECF 9-9; ECF 9-12; ECF 10-3 at 14-

45, 126-35. Therefore, this claim is procedurally defaulted.

McClung asserts that the court should excuse procedural default because he

proceeded pro se during the post-conviction stage. 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). “Cause for a procedural default exists

where something external to the petitioner, something that cannot fairly be attributed to

him[,]… ‘impeded [his] efforts to comply with the State’s procedural rule.’” Maples v.

Thomas, 565 U.S. 266, 280 (2012). As a general rule, “[n]egligence on the part of a

prisoner’s postconviction attorney does not qualify as cause.” Id. The exception 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).

“[A] prisoner must also demonstrate that the underlying ineffective-assistance-of-trial-

counsel claim is a substantial one, which is to say that the prisoner must demonstrate

that the claim has some merit.” Id. at 14. McClung does not identify the disinterested

witness by name, nor does he offer any suggestion that investigating this witness would

have affected the outcome of the case. Because McClung has not demonstrated that this

claim is substantial, the Martinez exception does not apply to excuse the procedurally

defaulted nature of his claim.1

STANDARD OF REVIEW

“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

1 The court had previously denied McClung’s motion to amend his petition to add claims of

ineffective assistance of appellate counsel, reasoning that these claims were not presented to the Indiana

Supreme Court and that the amendment would thus be futile. ECF 18. The Martinez exception also would

not have applied to excuse the procedurally defaulted nature of these claims because it operates to excuse

only ineffective assistance of trial counsel claims and only at the initial review level. See Martinez, 566 U.S.

at 16 (“The holding in this case does not concern attorney errors in other kinds of proceedings, including

appeals from initial-review collateral proceedings . . . .”); Davila v. Davis, 137 S. Ct. 2058, 2063 (2017)

(declining to extend the Martinez exception to ineffective assistance of appellate counsel claims).

(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).

DISCUSSION

McClung argues that he is entitled to habeas relief because trial counsel failed to

investigate and present his alibi defense. He focuses on trial counsel’s performance with

respect to three purported alibi witnesses: Amber Burks-Goble, David Anderson, and

Michelle McClung, his mother. To prevail on an ineffective assistance of counsel claim

in the State courts, 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). There is “a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action might be considered

sound trial strategy.” Id. at 689. “[S]trategic choices made after thorough investigation

of law and facts relevant to plausible options are virtually unchallengeable; and

strategic choices made after less than complete investigation are reasonable precisely to

the extent that reasonable professional judgments support the limitations on

investigation.” Id. at 690–91.

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). However, “[o]n 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.

Before trial, trial counsel filed a notice of alibi asserting that McClung was at a

Boys and Girls Club location at the time of the robbery and listing Amber Burks-Goble

and David Anderson as witnesses. ECF 1-3 at 16-17. At trial, the evidence established

that the drug transaction had been scheduled to occur at about 5:00 p.m. and that the

first responders began to arrive shortly after 5:00 p.m. Trial Tr. 48, 100. The victim and

three co-defendants testified that McClung was present at the apartment building

during the robbery and shooting. Id. at 105, 268, 289, 311. The victim’s friend and a

neighbor were not able to identify McClung but testified that there were four assailants,

and their descriptions of the assailants, though vague, were consistent with McClung.

Id. at 156-58, 183-88. The prosecution also introduced evidence that McClung’s

fingerprints were found on a plastic bag in an apartment in the building where the

incident occurred. Id. at 399-400.

Ten years after the trial, at a post-conviction evidentiary hearing, Amber Burks-

Goble described her relationship with McClung at the time of the incident by testifying,

“ Um, he was my best friend. We, um, were together a lot. We had physical relations

also.” ECF 10-2 at 10-12. She testified that, on the day of the incident, she first

encountered McClung between 5:30 p.m. and 6:00 p.m. when she picked him up at the

Boys and Girls Club. Id. When a police officer attempted to contact her in connection

with the case, she left him a voicemail but made no further efforts to follow up or to

share her account with law enforcement or at trial. Id.

David Anderson, a friend of McClung, testified that he spoke with McClung at

the Boys and Girls Club at about 5:10 p.m. or 5:15 p.m. Id. at 15-19. He gave a statement

to the police and attempted to testify at trial, but trial counsel declined to present him as

a witness. Id. Michelle McClung, McClung’s mother, testified that, on the day of the

incident, she picked up McClung at his house at 4:30 p.m. and dropped him off at the

Boys and Girls Club at 5:00 p.m. Id. at 22-29. She had extensive communication with

trial counsel regarding McClung’s alibi defense. Id. McClung testified that he provided

trial counsel with a list of all the names present on the notice of alibi filed in his criminal

case and also informed trial counsel that his mother could establish his alibi. Id. at 34-37.

Trial counsel testified that he discussed an alibi defense with McClung and filed

a notice of alibi. PCR Ex. A. He spoke with McClung’s mother for assistance with

investigating the alibi defense. Id. He ultimately decided not to pursue the alibi defense

at trial because, based on what McClung had told him, they had seen McClung at the

Boys and Girls Club on the day of the burglary but could not provide a specific time. Id.

He also testified that no alibi witnesses had reached out to him and that as a general

rule, he was reluctant to force any witnesses to testify on behalf of the defense due to

the risk that such witnesses might also offer testimony that was harmful to the defense.

Id.

The Grant Circuit Court determined that neither Burks-Goble nor Anderson

were technically alibi witnesses as they could not place him at the Boys and Girls Club

at the time the shooting occurred. ECF 10-3 at 73-96. The Grant Circuit Court found that

Burks-Goble’s testimony was not credible given her close relationship to McClung and

her lack of effort in contacting trial counsel about her account. Id. It also found that the

testimony of McClung’s mother was not credible given the level of assistance she

provided to trial counsel with the alibi defense and that her account was raised for the

first time in a post-conviction hearing nearly a decade after trial. Id. The Grant Circuit

Court further concluded that McClung could not demonstrate prejudice given the

strength of the prosecution’s case, including numerous eyewitnesses and fingerprint

evidence. Id. On appeal, the Indiana Court of Appeals affirmed the decision of the lower

court, finding that McClung had not demonstrated clear error warranting reversal. ECF

9-11.

After reviewing the record, the court cannot conclude that the State courts made

an unreasonable determination with respect to this claim. The State courts determined

that the testimonies of Burks-Goble and McClung’s mother were not credible and found

that the Burks-Goble and McClung’s mother did not have material information with

respect to an alibi defense. McClung does not explain how these credibility

determinations were unreasonable, nor does he rebut the determinations with clear and

convincing evidence to the contrary. Therefore, the court must presume their

correctness pursuant to 28 U.S.C. § 2254(e)(1). Given their lack of material information,

trial counsel’s decision not to interview them about the alibi defense could not have

affected the outcome of the case. While the State courts did not question Anderson’s

credibility, they reasonably found that his testimony that he saw McClung at 5:10 or

5:15 p.m. did not establish an alibi because the crime occurred before 5:00 p.m.

Finally, the court agrees that the evidence at trial indicating McClung’s presence

at the scene of the crime was overwhelming. The victim and three co-defendants

testified directly to his presence; a neighbor and the victim’s friend testified that they

saw four men in pursuit of the victim, though they were unable to identify McClung at

trial; and McClung’s fingerprints were identified on a plastic bag discovered in the

apartment building where the crime occurred. Therefore, the claim that trial counsel

failed to investigate the alibi defense 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 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 McClung to proceed further.

For these reasons, the court DENIES the habeas corpus petition (ECF 1); 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 February 2, 2022.

s/ Holly A. Brady

JUDGE HOLLY A. BRADY

UNITED STATES DISTRICT COURT