Sutton v. Warden

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

CHRISTOPHER M. SUTTON,

Petitioner,

v. CAUSE NO. 3:21-CV-897-MGG

WARDEN,

Respondent.

OPINION AND ORDER

Christopher M. Sutton, a prisoner without a lawyer, filed an habeas corpus

petition to challenge his conviction for child molesting under Case No. 01C01-807-FA-9.

Following a jury trial, on January 29, 2010, the Adams Circuit Court sentenced him to

forty 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 Indiana Court of Appeals summarized the evidence presented

at trial:

Seven-year-old Z.H. lived with her mother S.C, her three-year old brother,

and thirty-two-year-old Sutton. S.C. and Sutton had lived together for

“about 2, 2 years,” and Z.H. called Sutton “daddy.” On July 8, 2008, Z.H.

and her brother were in bed with S.C. and Sutton. Z.H. had an issue with

wetting herself at night and wore a pull-up diaper. S.C, who is a sound

sleeper, did not hear Sutton leave the next morning.

S.C. woke up around 7:00 a.m., and Z.H. was already awake. Z.H. went

into the bathroom and her mother told her to take off her clothes so that

she could take a bath. Z.H. told S.C. that her vagina hurt. S.C. told Z.H.

that she “probably peed [her] pants, um go ahead and take your clothes

off you’ll be fine,” and Z.H. stated “no mom my vagina hurts because . . .

daddy stuck his penis in my vagina.”

Without talking to Z.H. about what had happened, S.C. called her mother.

S.C.’s mother and sister arrived, and her sister called the police. Later that

day, Danielle Goewert of the Fort Wayne Child Advocacy Center

interviewed Z.H. and the interview was recorded. Z.H. informed Goewert

that Sutton put his penis in her vagina the previous night. Z.H. stated that

Sutton was asleep because his eyes were closed. Z.H. stated that Sutton's

penis touched her pull-up diaper and that her pull-up diaper went into

her vagina. Z.H. also stated that her brother once smacked her in her

vagina.

After her interview, Z.H. was examined at the Fort Wayne Sexual Assault

Treatment Center by Sharon Robinson, the chief administrative officer and

a sexual assault nurse examiner. Robinson asked Z.H. what had happened

to her, and Z.H. stated that her “daddy put his penis inside [her] vagina

and that he pushed [her] pull up inside with his penis . . . .” Robinson

observed Z.H.'s “internal female sex organ” and “her labia minora,”

which she described as “beefy regnant” or “beefy like in red meat, so it's

really dark red . . . .” Robinson also observed petechiae, which is

“pinpoint bruising,” on Z.H.’s labia minora and above her urethra.

When Sutton arrived home, Berne Police Detective James Newbold

identified himself to Sutton and asked him if he would come to the police

department with him. Sutton said that he would and asked if he was

going to jail. During the interview, Detective Newbold told Sutton that the

interview related to the fact that Z.H. had told her mother that her vagina

hurt. Sutton stated that Z.H. had complained about her vagina hurting for

probably the last year. Detective Newbold asked Sutton if there was a

particular reason why Z.H.’s vagina would be hurting, and Sutton stated

that over the weekend Z.H. complained that she had been hurt on the

“swings or something,” but Z.H.’s aunt checked her and determined that

she was only scratched. Sutton denied placing his penis in Z.H.’s vagina.

When asked why Z.H. would say that he had placed his penis in her

vagina, Sutton stated that he is erect in the mornings and that he must roll

over Z.H. to exit the bed but that his penis did not touch her. Sutton also

indicated that he attempts to be sure that he is “clear” of the children and

is “careful” because he knows the children are usually in the bed.

At one point during the interview, Detective Newbold asked Sutton if

there was any reason why a pubic hair would be found inside of Z.H.’s

vagina, and Sutton stated that he was bald because he shaves his pubic

area. Detective Newbold indicated that he was not sure whether pubic

hairs were found or not, and Sutton indicated that it would not matter

because he shaves. At some point during the interview, Sutton pulled his

pants down to show Detective Newbold his pubic area, and Detective

Newbold observed that Sutton had pubic hair of “maybe a half inch to

three quarters” in length.

On July 14, 2008, the State charged Sutton with child molesting as a class

A felony.

* * *

The jury found Sutton guilty as charged. The court sentenced Sutton to

forty-five years in the Department of Correction with five years

suspended.

ECF 13-6; Sutton v. State, 939 N.E.2d 706 (Ind. App. 2010).

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

the trial court erred by admitting out-of-court statements from the victim through other

witnesses that amounted to drumbeat repetition and by admitting the recording of his

police interview. He argues that trial counsel erred by failing to object to out-of-court

statements attributed to the victim, by failing to object to the police interview recording

and the prosecution’s closing argument; by failing to move for a direct verdict based on

insufficiency of the evidence;1 and by failing to investigate the victim’s medical history.

1 As discussed below, the claims that counsel should have challenged the sufficiency of the

evidence were procedurally defaulted, but these claims also fail on their merits. Contrary to Sutton’s

assertion, trial counsel moved for a directed verdict at trial. ECF 14-7 at 18-19. Moreover, appellate

counsel could not have prevailed on a sufficiency of the evidence argument due to the victim’s testimony

or even under Indiana’s incredible dubiosity rule due to the presence of substantial circumstantial

evidence suggesting Sutton’s guilt as detailed below. See Hayes v. Battaglia, 403 F.3d 935, 938 (7th Cir.

2005) (“It is black letter law that testimony of a single eyewitness suffices for conviction even if 20 bishops

testify that the eyewitness is a liar.”); Moore v. State, 27 N.E.3d 749, 755 (Ind. 2015) (“A court will only

He further argues that appellate counsel erred by failing to raise arguments regarding

the prosecution’s closing arguments, the out-of-court statements attributed to the

victim, and insufficiency of the evidence.

Additionally, Sutton argues that he is entitled to habeas relief because the State

courts declined to authorize subpoenas to obtain the victim’s medical records on post-

conviction review. Because there is no constitutional right to post-conviction

proceedings, the claim that Sutton was denied discovery on post-conviction review

does not present a cognizable ground for habeas relief. See Flores-Ramirez v. Foster, 811

F.3d 861, 866 (7th Cir. 2016) (“It is well established that the Constitution does not

guarantee any postconviction process, much less specific rights during a postconviction

hearing.”).

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,

impinge upon the jury’s duty to judge witness credibility where a sole witness presents inherently

contradictory testimony which is equivocal or the result of coercion and there is a complete lack of

circumstantial evidence of the appellant’s guilt.”).

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 direct appeal, Sutton presented the habeas claims of trial court error to the

Indiana Court of Appeals but did not present any of his habeas claims to the Indiana

Supreme Court in a petition to transfer. ECF 13-3; ECF 13-7. On post-conviction review,

Sutton presented to the Indiana Supreme Court claims that trial counsel failed to object

to out-of-court statements attributed to the victim and failed to object to the

prosecution’s closing argument and his claims that appellate counsel failed to raise

arguments on the same grounds on direct appeal. ECF 13-21. Consequently, Sutton

fairly presented only the claims in the petition to transfer on post-conviction review,

and the remainder are procedurally defaulted.

Sutton does not clearly assert any valid basis to excuse procedural default in the

petition or traverse. However, these filings suggest that Sutton procedurally defaulted

his claims of trial court error due to ineffective assistance of trial and appellate counsel,

so the court will consider whether these serve as a basis to excuse procedural default for

these claims.2 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 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).

“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, Sutton fairly

presented his claims that trial counsel and appellate counsel failed to contest the

admission of out-of-court statements attributed to the victim through other witnesses.

Consequently, the court will assume without deciding that cause-and prejudice applies

to the related claim of trial court error and will consider its merits.3

STANDARD OF REVIEW

2 By contrast, neither the petition nor the traverse suggest that Sutton can demonstrate his actual

innocence based on newly discovered evidence, that he received ineffective assistance of counsel before

the Adams Circuit Court on post-conviction review, or that the State otherwise caused him to

procedurally default his claims. See e.g., Martinez v. Ryan, 566 U.S. 1, 9 (2012) (ineffective assistance of

post-conviction counsel at initial level); House v. Bell, 547 U.S. 518, 536–37 (2006) (actual innocence);

Weddington v. Zatecky, 721 F.3d 456, 466 (7th Cir. 2013) (confiscation of legal materials).

3 Notably, federal courts have the discretion to consider claims for habeas relief under certain

circumstances even if such claims are procedurally barred. 28 U.S.C. § 2254(b)(2).

“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).

DISCUSSION

Trial Court Error -- Evidentiary Ruling

Sutton argues that he is entitled to habeas relief because the trial court erred by

admitting out-of-court statements from the victim through other witnesses that

amounted to drumbeat repetition. “To be of constitutional import, an erroneous

evidentiary ruling must be so prejudicial that it compromises the petitioner’s due

process right to a fundamentally fair trial.” Howard v. O’Sullivan, 185 F.3d 721, 723–24

(7th Cir. 1999). “This means that the error must have produced a significant likelihood

that an innocent person has been convicted.” Id. “Indeed, because of this high standard,

evidentiary questions are generally not subject to review in habeas corpus

proceedings.” Id.

Under Indiana law, “[t]he court may exclude relevant evidence if its probative

value is substantially outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue delay, or needlessly

presenting cumulative evidence.” Ind. R. Evid. 403.

One danger of prejudice arises in the “drumbeat repetition” of an out-of-

court assertion. Indeed, in light of a proffered non-hearsay purpose,

exclusion might not be warranted where there is a mere isolated reference

to an assertion. However, as additional testimony about the assertion

“beats the drum,” there is increasing danger the jury will use the

testimony for an improper purpose. For example, the jury might use the

testimony as proof of the matter asserted. Or, the jury could treat the

repetitive testimony as a form of vouching for the credibility of the

declarant. As to the latter risk, this type of problematic vouching is not the

blatant type prohibited by Evidence Rule 704(b)—where a witness directly

opines about “the truth or falsity of allegations” or “whether a witness has

testified truthfully.” Rather, the risk is insidious. That is, the repeated

references might eventually inundate the jury, leading them toward an

inference that witnesses are vouching for the credibility of the declarant.

Kress v. State, 133 N.E.3d 742, 747 (Ind. App. 2019).

The concern regarding drumbeat repetition arose in the context of Stone v. State,

536 N.E.2d 534 (Ind. App. Ct. 1989), and Modesitt v. State, 578 N.E.2d 649 (Ind. 1991). In

Stone, the mother of the victim testified twice about what the victim had told her about

incidents of child molestation. Id. at 536. The mother’s testimony was followed by the

victim’s testimony. Id. Thereafter, four other witnesses testified as to what the victim

told them about the incidents, and no physical evidence corroborated the victim’s

account. Id. The Indiana Court of Appeals reversed the conviction, reasoning that the

verdict turned on the victim’s credibility and that the repetition of his account by five

adult witnesses likely bolstered his credibility to the point of nullifying the criminal

defendant’s presumption of innocence. Id. at 540.

In Modesitt, three adult witnesses testified as to what the victim told them about

the incidents of child molestation. 578 N.E.2d at 650. The victim provided her account

only after the adult testimony. Id. The Indiana Supreme Court observed that this

sequence of events allowed the prosecution to present the victim’s account three times

without providing the criminal defendant with an opportunity to challenge the victim’s

account through cross-examination. Id. at 651-52. The appellate court found that this

sequence amounted to unfair prejudice because “[p]rior to putting the victim on the

stand, the victim's veracity had been, in essence, vouchsafed by permitting the three

witnesses to repeat the accusations of the victim.” Id.

At Sutton’s trial, trial counsel said the following as part of his opening statement:

You will hear testimony that [the victim] told the interviewer at the child

advocacy center that her brother Preston hit her in the vagina. You will

hear testimony that a nurse found slight bruising on [the victim’s] genital

area in addition to other bruises and marks. You will hear [the victim]

state that at the time of the allegation that she and [Sutton] were back to

back in bed when this occurred. Recent, in her later interview, she stated

she was lying face down with her legs together and her knees straight.

You will hopefully apply your common sense to the evidence and find the

Defendant not guilty.

ECF 14-5 at 117.

The prosecution presented Danielle Goewert, a forensic interviewer at the Child

Advocacy Center in Fort Wayne. Id. at 123- 31; ECF 14-6 at 1-10. She testified that she

interviewed the victim who told her that she had been sexually assaulted. Id. She

testified that the victim had demonstrated the position of her and Sutton in an

ambiguous manner. Id. It could have meant that she and Sutton were lying back-to-back

or lying face-to-face, but Interviewer Goewert believed she meant face-to-face. Id.

Interviewer Goewert did not relay the entirety of what the victim told her but

authenticated a video recording of the interview, which was then presented to the jury.

Id. The prosecution also presented a recording of a court hearing in which the

prosecution and trial counsel each questioned the victim regarding her account of the

child molestation incident. Id.

The prosecution presented the victim’s mother, who testified about what the

victim had told her on the morning after the child molestation incident occurred. ECF

14-6 at 21-36. The prosecution also presented Sharon Robison, a sexual assault nurse

examiner. Id. at 80-100; ECF 14-7 at 1-8. Nurse Robison testified briefly about what the

victim had told her during the examination. Id. Specifically, Nurse Robison testified, “ I

asked her what had happened to her and she stated to me that my daddy put his penis

inside my vagina and that he pushed my pull up inside with his penis.” Id. On cross-

examination, trial counsel questioned Nurse Robison about alternate explanations,

including the victim’s three-year old brother hitting her in her vagina. Id. On redirect,

Nurse Robison testified that the victim’s injuries were consistent with the victim’s

account. Id.

On direct appeal, the Indiana Court of Appeals considered whether the evidence

at trial amounted to drumbeat repetition. ECF 13-6 at 19-21. The appellate court

distinguished Stone from Sutton’s case based on the number of witnesses and the brief

nature of their accounts of what the victim had told them. Id. The appellate court

further observed that adult witnesses were permitted to testify as to the victim’s

account only after the presentation of the victim’s recorded statements and testimony.

Id.

After reviewing the record, the court cannot find that the State court made an

unreasonable determination on whether the evidence at trial amounted to drumbeat

repetition. Though Investigator Goewert and Nurse Robison conveyed some of what

the victim had told them about the child molestation incident, they relayed no more

than necessary to rebut the defenses raised by Sutton at trial. Notably, the video

recording of the victim’s testimony at the court hearing was a substitute for her

appearance at trial in which trial counsel subjected her to cross-examination. ECF 14-4

at 76-96. Indiana courts expressed concerns regarding drumbeat repetition due to the

effect of adults repeatedly testifying to the victim’s account without allowing an

opportunity to hear from and to cross-examine the victim, a sequence of events that did

not occur here. While the admission of both the video recording of the interview at the

Child Advocacy Center and the victim’s mother’s testimony may have been redundant,

no objections were raised, and, even if they were, these recordings, by themselves,

would not qualify as drumbeat repetition under Stone or Modesitt.

Moreover, the court is not persuaded that the cumulative nature of this evidence

result in a substantial likelihood that an innocent man has been convicted because the

record contains substantial independent evidence of Sutton’s guilt. Sutton testified at

trial that he and the victim had shared the same bed and that he had an erection during

that time, which establishes that he had the opportunity to the commit the crime. ECF

14-7 at 25. Nurse Robison testified that she found that the bruising on the victim’s

genitals and the onset of the victim wetting her pants during daytime were consistent

with the victim’s account. ECF 14-6 at 93-100. The record also contained a recording in

which Sutton falsely told the police that he had shaved his pubic area when asked about

the presence of pubic hair in the victim’s diaper, which suggests consciousness of guilt.

Id. at 65-77. Therefore, this claim is not a basis for habeas relief.

Ineffective Assistance of Counsel

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

object to hearsay statements attributed to the victim and failed to object to the

prosecution’s closing argument. He further argues that appellate counsel failed to raise

arguments regarding improper hearsay statements attributed to the victim and

regarding the prosecution’s closing argument.

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.

Generally speaking, the performance of appellate counsel is assessed using the

same standards applied to trial counsel under Strickland. Mason v. Hanks, 97 F.3d 887,

892 (7th Cir. 1996). “Effective advocacy does not require the appellate attorney to raise

every non-frivolous issue under the sun, of course.” Id. at 893. “But when appellate

counsel omits (without legitimate strategic purpose) a significant and obvious issue, we

will deem his performance and when that omitted issue may have resulted in a reversal

of the conviction, or an order for a new trial, we will deem the lack of effective

assistance prejudicial.” Id. Generally, only when ignored issues are clearly stronger than

those presented, will the presumption of effective assistance of counsel be overcome.

Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986).

At Sutton’s trial, the victim’s mother testified as follows:

Prosecution: Let’s talk about July 9, 2008. Do you remember that

morning?

Victim’s Mother: Yes.

Prosecution: About what time was it you woke up?

Victim’s Mother: I’d say around seven.

Prosecution: And when you woke up who was in the home?

Victim’s Mother: Me and my two children.

Prosecution: Was anyone else awake?

Victim’s Mother: My daughter was.

Prosecution: That would be [the victim]?

Victim’s Mother: Yes.

Prosecution: Okay. Just tell them what happened.

Victim’s Mother: Um, I woke up and I usually woke up about seven. We

did the morning medicine. She takes it in the morning and we get ready

for school or whatever we have planned to do that day. And when I woke

up she had already been awake and she had told me . . . um, she had gone

in the bathroom, and I said you need to get your clothes off, let’s get in the

bath, and she said that her vagina hurt. And I said, well you probably

peed your pants, go ahead and take your clothes off, you’ll be fine. And

she said no mom my vagina hurts because daddy stuck his penis in my

vagina.

ECF 14-6 at 29-30.

Sharon Robison, the sexual assault nurse examiner testified:

Prosecution: And why don’t you explain to the jury then once you got

[the victim] back what you did, what happened?

Robison: Okay.

Prosecution: And whenever you feel necessary, if helpful, if you want to

use the easel and drawing please go ahead.

Robison: Okay. Alright. [The victim] and I went back to the exam room

and I explained to her that I was a nurse even though I was in nursing

scrubs so that she understood that I was a nurse and that I was there to

make suer she’s okay. I explained the room to her, I explained the

equipment to her, and then I asked her what had happened to her, and

she stated to me that my daddy put his penis inside my vagina and that he

pushed my pullup inside with his penis and so at that point I asked her to

change into a little hospital gown and then I collected her vitals and I told

her that I was going to look from head to toe and that I was also going to

look at her genital area as well. She called it a vagina so whatever the child

uses is the term that I use so I told her I was going to look at her vagina

and so I started with my head-to-toe assessment. I looked at the front of

her and the back of her from the top of her head down to her toes. Asked

her if anything hurt, she said no. And then I told her I was going to look at

her vagina.

Id. at 93-94. On cross-examination, trial counsel suggested that the victim’s three-year

old brother caused the bruising on her genital area. ECF 14-7 at 1. On redirect, Robison

testified that, while the bruising could have had other causes, she found that Sutton

caused the bruising through penetration based on the victim’s account and her physical

examination. Id. at 1-5.

At closing, the prosecution commented on the credibility of Sutton and of the

victim.

You know that Chris Sutton will lie. In his interview at the Berne Police

Station. Newbold: is that something you do all the time? This is a man

who is being interrogated about molesting his step-daughter. Ok. So this

is his out as he thinks, it might be his out. Is it something you do all the

time? Yeah. That’s news to his fiancé who he lived with for two years.

Maybe twice in the two years they lived together he shaved. Newbold:

well I don’t know if there was a pubic hair found there or not. The

response, it doesn’t matter, I shave, if there’s a pubic hair, it came from

somebody else. And then at the end Newbold comes back in after

spending time with Dean Amstutz and Jim Newbold revisits the claim

that he shaves himself and basically says prove it, we want to see. And the

response is, now when he has to prove it, I’m not completely bald right

now, I don’t think. I’ve got a little bit of hair. It’s what it’s worth to you,

but it’s a lot. He will lie to clear himself.

* * *

She called Sutton daddy. I mean he had developed a trust and everything

else and he got to the point where he was her daddy. She liked him. You

don’t call somebody you don’t like daddy. Sutton even said . . . He said

today, he said it in the interview and he said it today, he doesn’t know

why she said it. I’ll suggest why: because it’s true. That’s why. She’s only

seven years old. Kids don’t lie to get somebody else in trouble; they lie to

get themselves out of trouble. There is no reasonable explanation for the

lie. Why would he lie. Conviction. Molester is not a good thing to be

tagged with the rest of your life and any punished that will go with it.

There’s a lot of reasons to lie. There’s a lot of good things to lie.

* * *

And that’s what I’m going to ask you to do cause [the victim] did what

every kid is told to do and do what’s right and to tell on people. Even

though she didn’t even know it, she did the right thing. I’m asking you to

do the right thing and I’m asking you to return a verdict of child

molesting.

Id. at 36-42, 46-48. The prosecution also commented that there was no evidence that the

victim had been coached or had merely dreamed the molestation incident. Id.

On direct appeal, appellate counsel challenged the admission of the recorded

statements of the victim, testimony of hearsay statements attributed by the victim as

drumbeat repetition, and the recorded statements of Sutton during a police interview.

Id. at 13-3. At the post-conviction stage, appellate counsel testified that she did not

ordinarily raise arguments that were not raised by trial due to their low likelihood of

success. ECF 14-14 at 42-43. According to appellate counsel, appellate courts consider

such arguments under the fundamental error standard, which is a more demanding

standard. Id. She testified that she believed the better route was to challenge such issues

through an ineffective assistance of trial counsel claim on post-conviction review. Id.

On appeal, the Indiana Court of Appeals rejected the claim that trial counsel

provided ineffective assistance by failing to object to the hearsay statements attributed

to the victim. ECF 13-20 at 7-14. The appellate court found that Nurse Robison’s

testimony about what the victim had told her was not unfairly prejudicial because it

was necessary to rebut the alternative explanations offered by the defense. Id. The

appellate court further found that Interviewer Goewert and Nurse Robison’s testimony

about what the victim had told them were not inadmissible hearsay because the victim

made the statements for the purpose of obtaining medical diagnosis or treatment. Id.

The appellate court agreed that the mother’s testimony regarding what the victim had

told her constituted inadmissible hearsay but disagreed that the failure to object on this

basis amounted to prejudice. Id. The appellate court reasoned that the mother’s

testimony was cumulative of other evidence presented at trial. Id. Additionally, the

appellate court found that, while some witnesses repeated what the victim had told

them or made clinical assessments, none of the witnesses impermissibly vouched for

the victim by commenting on her truthfulness. Id. Consequently, any objections on this

basis would have been futile. Id.

The Indiana Court of Appeals also rejected the claim that trial counsel provided

ineffective assistance by failing to object to the prosecution’s closing arguments. Id. at

14-21. The appellate court found that much of the prosecution’s statements credibility

were fair comments on the evidence, including the recording of Sutton’s police

interview, the victim’s testimony on her feelings towards Sutton as a father figure, and

the absence of evidence suggesting that the victim had fabricated her account. Id. The

appellate court found two of the prosecution’s statements amounted to improper

vouching: (1) the statement that children do not lie to get others in trouble; and (2) the

statement that the victim did the right thing by reporting Sutton’s abuse. Id. However,

the appellate court found that objections to these statements would have been unlikely

to change the outcome of the case, noting the trial court’s explanation that the

arguments of counsel were not evidence and that the evidence against Sutton was

strong. Id.

Additionally, the Indiana Court of Appeals rejected the claims that appellate

counsel failed to raise arguments regarding improper hearsay statements attributed to

the victim and regarding the prosecution’s closing argument. Id. at 23-24. The appellate

court reasoned that, if trial counsel did not render ineffective assistance by failing to

object on these grounds, then appellate counsel did not render ineffective assistance by

declining to raise them on appeal. Id.

After reviewing the record, the court cannot find that the State court made an

unreasonable determination on the ineffective assistance of trial counsel claims. As

noted by the Indiana Court of Appeals, most of these objections would have been futile,

and the failure to make futile objections is insufficient to demonstrate a claim of

ineffective assistance of trial counsel. See e.g., Carter v. Douma, 796 F.3d 726, 735 (7th Cir.

2015) (“His performance was not deficient by failing to make a futile objection.”); U.S. v.

Neeley, 189 F.3d 670, 684 (7th Cir. 1999) (“Obviously, counsel cannot be considered

ineffective for failing to make an objection to the introduction of evidence that was

properly admitted.”). Sutton asks the court to reevaluate the appellate court’s findings

regarding the futility of the evidentiary objections, but “[b]ecause that conclusion rests

on an interpretation of state law, it is iron-clad on habeas review.” Washington v.

Boughton, 884 F.3d 692, 701 (7th Cir. 2018); see also Sennholz v. Strahota, 722 Fed. Appx.

569 (7th Cir. 2018) (“That is a determination of state law by the state court and therefore

is not subject to our review.”); Harper v. Brown, 865 F.3d 857 (7th Cir. 2017) (“[O]n § 2254

habeas review, we cannot disagree with a state court’s resolution of an issue of state

law.”); Miller v. Zatecky, 820 F.3d 275 (7th Cir. 2016) (“A federal court cannot disagree

with a state court’s resolution of an issue of state law”); Earls v. McCaughtry, 379 F.3d

489 (7th Cir. 2004) (“[B]ecause it is not our place to second-guess state courts in

interpreting state law we must find that the State court did not make an unreasonable

application of Strickland when it found counsel's failure to object to testimony.”).

The court also cannot find the State court’s determination on the prejudicial

effect of the meritorious objections was unreasonable. Based on the State court analysis,

trial counsel could have prevailed on objections to the victim’s mother’s testimony as to

what the victim told her and the prosecution’s comments that children do not lie to get

others in trouble and that the victim did the right thing by reporting Sutton’s abuse. The

court agrees that, considering the arguments, the evidence, and the jury instructions in

their entirety, these missteps were unlikely to have affected the outcome of the trial. The

victim’s mother only briefly relayed what the victim told her, and the jury had already

heard this account from the victim herself. Moreover, the trial court expressly instructed

the jury that arguments were not evidence, and the record contained no suggestion,

from Sutton, trial counsel, or otherwise, that the victim’s account was motivated by her

desire to get anyone in or out of trouble. ECF 14-5 at 110-11, ECF 14-7 at 22-27, 43-46,

Further, the court cannot find that the State court’s determination on the claims

regarding appellate counsel was unreasonable. It follows that, if Sutton cannot prevail

on his ineffective assistance of trial counsel claim, he also cannot prevail on his claim

that appellate counsel was ineffective for failing to raise the same arguments on appeal.

This is particularly true given that the more exacting fundamental error standard would

have applied to these arguments due to trial counsel’s failure to object at trial. See

Benefield v. State, 945 N.E.2d 791, 801 (Ind. App. 2011) (“The fundamental error

exception is extremely narrow, and applies only when the error constitutes a blatant

violation of basic principles, the harm or potential for harm is substantial, and the

resulting error denies the defendant fundamental due process.”). Therefore, Sutton’s

claims of ineffective assistance of counsel are 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 Sutton to proceed further.

For these reasons, the court DENIES the habeas corpus petition (ECF 2); 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 May 17, 2022

s/Michael G. Gotsch, Sr.

Michael G. Gotsch, Sr.

United States Magistrate Judge