# Govan v. Warden

> District Court, N.D. Indiana · November 15, 2022

URL: https://www.frixlaw.com/law-library/cases/10163260

## Case

- **Court:** District Court, N.D. Indiana
- **Decided:** November 15, 2022
- **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

MARCUS T. GOVAN, SR.,

Petitioner,

v. CAUSE NO. 3:22-CV-291-MGG

WARDEN,

Respondent.

OPINION AND ORDER
Marcus T. Govan, Sr., a prisoner without a lawyer, filed a habeas corpus petition
to challenge his convictions for rape, attempted rape, domestic battery, and
strangulation under Case No. 02D05-1809-F3-56. Following a jury trial, on July 15, 2019,
the Allen Superior Court sentenced him to thirty 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:
In the early morning hours of August 30, 2018, C.B. and a friend, Harold
Johnson, were at a strip club to celebrate Johnson's birthday. Govan and
C.B. had been in a relationship many years prior and shared an eight-year-
old son. Govan met up with C.B. and Johnson at the strip club and later at
another bar. Around 3 a.m., C.B. and Johnson left. C.B. dropped Johnson
off at his apartment, which was a few units down from C.B.’s. C.B. then
went to her own apartment.
A few minutes after C.B. returned to her apartment, Govan
“aggressive[ly]” entered her unlocked apartment and began
“manhandling” her, saying he wanted to have sex with her and trying to
pull down her tights. C.B. told Govan no and “push[ed] his hands back.”
Govan grabbed C.B. by the neck, pushed her against the wall, and inserted
his penis into her vagina. C.B. attempted to fight him off, and after a few
minutes Govan stopped. He then pinned C.B. to the couch and attempted
to put first his finger, and then his penis, in her anus. When he was unable
to do so, he hit C.B. several times and left.

After Govan left, C.B. put on a robe and ran to Johnson's apartment. She
told Johnson's mother, Ednia, that Govan raped her and asked her to call
911. Officers from the Fort Wayne Police Department responded and
interviewed C.B., who was “crying” and “bleeding” from the mouth. C.B.
reported Govan attacked and raped her and smashed her cell phone so
she could not call 911. Officers went to C.B.’s apartment to collect
evidence and found “blood splattered on the floor [and] the couch.”
Officers arrested Govan, who denied even seeing C.B. that night.

Medical personnel transported C.B. to a local hospital, where she
presented with face, chest, neck, and genital pain, facial and knee
abrasions, and bruises to her arms. A “medical forensic exam” of C.B. was
conducted and revealed “she had several multiple small linear tears
throughout her perineum.” During the examination, the forensic examiner
collected internal and external genital swabs, as well as swabs of C.B.’s
buttocks, neck, ears, and breasts. Later DNA testing of the internal genital
swab revealed a DNA profile “at least one trillion times more likely [to
have] originated from [C.B.] and Marcus Govan, than if it originated from
[C.B.] and some unknown, unrelated individual.” Each of the other swabs
showed similar results, all indicating “very strong support for the
proposition that Marcus Govan is a contributor to the DNA profile” found
on the swabs.

The State charged Govan with two counts of Level 3 felony rape—one for
forcibly having “sexual intercourse” with C.B. and the other for forcibly
performing “other sexual conduct” with C.B.—Level 6 felony domestic
battery, Level 6 felony strangulation, and Class A misdemeanor
interference with the reporting of a crime.

A jury trial was held in June 2019.

* * *
The jury found Govan guilty of Level 3 felony rape, Level 3 felony
attempted rape, Level 6 felony domestic battery, and Level 6 felony
strangulation. The jury found Govan not guilty of Class A misdemeanor
interference with the reporting of a crime. The trial court sentenced Govan
to fifteen years each for the Level 3 felonies, to be served consecutively,
and two years for the Level 6 felonies, to be served concurrent with the
other sentences, for an aggregate sentence of thirty years.

ECF 10-11 at 2-6; Govan v. State, 182 N.E.3d 893 (Ind. App. 2022).

In the petition, Govan argues that trial counsel was ineffective for failing to lay a
foundation to impeach the victim with prior inconsistent statements and for
maintaining a defense strategy of consent rather a defense strategy consistent with his
statements to the police that he did not interact with the victim that night. He also
argues that appellate counsel was ineffective for failing to raise significant issues on
appeal, that the trial record lacked sufficient evidence to support a conviction, and that
the prosecution failed to disclose the forensic report, which was material exculpatory
evidence.
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 direct appeal, Govan presented a sufficiency of the evidence argument to the
Indiana Court of Appeals and the Indiana Supreme Court. ECF 10-3; ECF 10-6. On post-
conviction review, Govan presented to the Indiana Supreme Court only the claim that
trial counsel was ineffective for failing to lay a foundation to impeach the victim with
prior inconsistent statements. ECF 10-12. Consequently, Govan fairly presented only

these claims to the state courts, and the remaining claims are procedurally defaulted.
In the traverse, Govan refers to newly discovered evidence, which the court
construes as an assertion of actual innocence as a basis to excuse procedural bar. ECF 21
at 7. A habeas petitioner can overcome a procedural default by establishing that the
court’s refusal to consider a defaulted claim would result in a fundamental miscarriage

of justice. House v. Bell, 547 U.S. 518, 536 (2006). To meet this exception, the petitioner
must establish that “a constitutional violation has resulted in the conviction of one who
is actually innocent of the crime.” Schlup v. Delo, 513 U.S. 298, 324 (1995). “[P]risoners
asserting innocence as a gateway to defaulted claims must establish that, in light of new
evidence, it is more likely than not that no reasonable juror would have found
petitioner guilty beyond a reasonable doubt.” House v. Bell, 547 U.S. 518, 536–37 (2006).

In this context, the court may consider evidence only if it is reliable and was not
presented at trial. Gladney v. Pollard, 799 F.3d 889, 898 (7th Cir. 2015).
As new evidence, Govan offers the forensic report prepared by Robert Dilley
pertaining to his findings that the DNA samples obtained from the victim at the sexual
assault examination matched the sample obtained from Govan at his police interview.
He maintains that that this forensic report would have demonstrated that the DNA

samples obtained from the victim did not match any data from the CODIS system.
According to Govan, the lack of a match from the CODIS system suggests his innocence
because he had prior convictions and his DNA from the CODIS system would have
been a match if he had assaulted the victim as charged.
As discussed in greater detail below, the victim underwent a sexual assault

examination on the night of the incident, and Nurse Cook collected DNA samples from
her genitals, buttocks, neck, ears, and breasts. ECF 11-5 at 194-96. DNA testing of the
internal genital swab revealed a DNA profile “at least one trillion times more likely if it
originated from [the victim] and [Govan] than if it originated from [the victim] and
some unknown, unrelated individual. ECF 11-6 at 44-45. The results were substantially

similar for the other DNA samples and provided “very strong support for the
proposition that Marcus Govan [was] a contributor to the DNA profile.” Id. at 45-48.
At trial, Robert Dilley explained the CODIS system as follows:
Dilley: It’s a DNA database that contains a number of people that have
already been arrested or committed a crime or been convicted of a crime,
so their DNA profiles are already [inaudible.] However, there’s also case
profiles being searched in that database, and when I submit a DNA profile
from a case, it could hit to a person, it could hit to another case. So it’s
probative and relevant then that information would get passed along to
the agency of interest. So if we have a case-to-case match, it would go to
both agencies. However, if we have a case to a person of interest, then
they may not need a report to indicate that.

Id. at 56.
On this topic, trial counsel adduced the following testimony from Dilley.
Trial Counsel: I saw and read your report and everything about it, but I
have a couple quick questions I think. With regards to page 3 of 8, the
Item Number 001D, do you see where that’s at?

Dilley: Yes.

Trial Counsel: Okay. The last paragraph in it says portions of DNA
profile developed and the combined external genital swabs was entered
into the combined DNA index system CODIS and will be searched on a
routine basis. Was this sample that you received from the kit entered into
the CODIS system?

Dilley: Yes, it was.

Trial Counsel: Okay. And as a result in the event the database match
information regarding the matches will be provided separately. What was
the outcome of that?

Dilley: Actually, the CODIS hits if there is a match in the database. It’s
provided by another unit inside the [inaudible] section. However, to my
knowledge, there was no match at this point.

* * *

Trial Counsel: Just so I understood your last answer. You provided the
portion of the DNA profile developed to someone in ISP who does the
CODIS, right?

Dilley: Yes.
Trial Counsel: Okay. Not your responsibilities, not your duties. I’m not
trying to pick on you. I’m just asking.

Dilley: No, it’s fair, that somebody else has that responsibility where they
enter those profiles into CODIS.

Trial Counsel: Okay. And as a result you had never seen or obtained any
information that in the event there was a database match, that would be
provided separately, is that correct?

Dilley: Correct. Yes.

Trial Counsel: Okay. Thank you.

Dilley: As far as I’m aware, there has not been a notification made to the
agency that a match has occurred.

Id. at 52-54. Trial counsel also referenced this line of questioning at closing, stating, “We
spent a great deal of time on cross examination regarding CODIS, and how it functions
and what it works, even though it’s not his department, it’s still under the Indiana State
Police, but did you see any evidence that says CODIS confirmed that it was Mr. Govan’s
DNA?” Id. at 106.
To Govan’s point, the forensic report was not admitted into evidence at trial and
may technically qualify as “new evidence.” However, according to Govan, the forensic
report is exculpatory specifically because it would have shown that the DNA samples
obtained from the victim did not match any data from the CODIS system. At trial, trial
counsel read this portion of the forensic report into the record, and Dilley, who
prepared the report, confirmed its accuracy. Consequently, the purportedly exculpatory
portion of the forensic report would have amounted to cumulative evidence that would
have added no significant advantage with respect to credibility or persuasive force.
Trial counsel placed further emphasis on the match with the CODIS system by raising it
again during closing argument. As a result, the court cannot find that it is more likely

than not that no reasonable juror would have found Govan guilty beyond a reasonable
doubt in light of this newly discovery evidence. Therefore, the assertion of actual
innocence does not excuse the procedurally defaulted claims.
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
(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

Sufficiency of the Evidence
Govan argues that he is entitled to habeas relief because the trial record lacked
sufficient evidence to support his convictions. For sufficiency of the evidence claims,
“the relevant question is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). “[A]
federal habeas corpus court faced with a record of historical facts that supports
conflicting inferences must presume—even if it does not affirmatively appear in the
record—that the trier of fact resolved any such conflicts in favor of the prosecution, and
must defer to that resolution.” Id. at 326.

At trial, Govan faced the following charges: (1) rape based on allegations that he
forcibly engaged in sexual intercourse with the victim; (2) rape based on allegations that
he forcibly placed his finger and attempted to place his penis in the victim’s anus; (3)
domestic battery based on allegations that he physically struck the victim; and (4)
strangulation based on allegations that he grabbed the victim’s neck and impeded her
ability to breathe.1 ECF 11-5 at 19-20. At trial, the victim testified that she had an eight-

year old son with Govan but had ended her relationship with Govan more than five
year earlier. Id. at 43-66. At midnight on August 30, 2018, she took Harold Johnson, her
godson, to a strip club to celebrate his twenty-first birthday. Id. She agreed by telephone
that Govan would join them at the strip club and paid his entry fee. Id. After ninety
minutes, she and Harold Johnson went to a local bar, where Govan joined them again.
Id. The victim had one alcoholic drink at the strip club but drank only water at the bar.

Id. Thirty minutes later, she took Harold Johnson home, and Endia Johnson, her
neighbor and Harold Johnson’s mother, assisted with carrying Harold Johnson, who
was quite drunk, into the apartment. Id.
Afterwards, the victim returned to her apartment and heard a knock on her door
ten minutes later. Id. She anticipated that Endia Johnson had arrived to discuss her son’s

birthday, but instead Govan came into her apartment and told her that he wanted to
have sex. Id. He pulled her clothes off, including her tights, despite her physical and
verbal efforts to stop him, and placed his penis into her vagina. Id. As she tried to
escape, Govan pinned her to the couch from behind, spit on his hands, and pressed his
finger and his penis into her anus but did not achieve full penetration. Id. When she told

him to stop, he hit her. Id. At some point, Govan kissed her neck and breasts. Id. He also

1 At trial, Govan also faced a charge of interference with reporting a crime based on allegations
that he destroyed the victim’s cellphone with the intent of preventing her from calling 911. ECF 11-5 at 20.
However, the jury acquitted him of this charge, so it is not relevant for purposes of analyzing the
sufficiency of evidence claim. ECF 11-6 at 116.
grabbed her neck and made it so that she could barely breathe. Id. When Goven stopped
assaulting the victim, she told him that she intended to call the police. Id. He grabbed

her cellphone, went outside, threw it down on the concrete, and left. Id.
Following Govan’s departure, the victim went to the Johnson residence and told
Endia Johnson to call the police because Govan had raped her. Id. She was transported
by ambulance to the hospital and later went to the Sexual Assault Treatment Center,
where a nurse examined her. Id. Her injuries included a bruised arm and neck and a
bloody nose. Id. On cross-examination, the victim testified that Endia Johnson have

visited her apartment briefly before Govan arrived. Id. at 73.
Endia Johnson’s testimony was largely consistent with the victim’s narrative,
except that she denied visiting the victim’s apartment before Govan arrived. Id. at 92-
106. Harold Johnson testified that he saw Govan at the strip club and at the local bar. Id.
at 107-13. He testified that the victim had drank some Hennessy prior to the strip club

and drank more than one alcoholic drink at the strip club. ID.
Austin Jett testified that he served as the emergency medical technician who
transported the victim to the hospital. Id. at 115-20. She reported that she had been
punched and raped, that Govan had placed his penis in her vagina and his fingers
inside her anus, and that she felt pain, including genital pain. Id. Jett did not observe the

scent of alcohol or any other signs of intoxication. Id. She appeared upset and had blood
from the inside of her upper lip. Id. Dr. Tyler Johnson testified that he served as the
emergency physician. Id. at 124-31. The victim appeared very distressed and that she
had extreme pain on the left side of her face as well as pain on the left side of her neck,
her right arm, her right leg, vaginal region, and anal region. Id. He observed contusions
to her face and referred her to the sexual assault resource team. Id.

Leslie Cook testified that she served as a nurse at the sexual assault treatment
center and has conducted about 1,100 sexual assault examinations. Id. at 161-204. She
explained that few of her patients have physical injuries. Id. Genital injuries are not
common because the genital area has robust blood flow, which facilitates faster healing,
and elasticity, which reduces the risk of injury. Id. She estimated that only thirty percent
of her patients presented with genital injuries. Id. The victim’s injuries included two

forehead contusions, a cut on the inside of the upper lip, a bruise on her inner right arm,
and multiple small tears on her perineum. Id. The victim also reported tenderness near
the top of her anus. Id. Nurse Cook collected DNA samples from the victim. Id. A
follow-up examination six days later revealed latent bruising on the left arm. Id.
Police officers testified that they served as first responders and took photographs

of the victim’s residence, which had blood spatter on the floor and a couch cushion and
appeared to be in disarray, and collected the broken cellphone and a bloody pillow. Id.
at 131-55. They also went to Govan’s residence for the purpose of interviewing him. Id.
Detective Roddy interviewed Govan, who denied any involvement with the victim
during the prior night and represented that he had spent the night with his cousin,

Raymond Britt, at his cousin’s girlfriend’s house. ECF 11-6 at 4-21. Detective Roddy
could not locate the cousin or the girlfriend because Govan did not provide enough
information for him to do so. Id. Govan also provided a DNA sample. Id.
Robert Dilley testified that he performed tests on the DNA samples collected
from the victim’s genitals, buttocks, neck, ears, and breasts and compared them to the

DNA sample collected from Govan by Detective Roddy. Id. at 29-59. DNA testing of the
internal genital swab revealed a DNA profile “at least one trillion times more likely if it
originated from [the victim] and [Govan] than if it originated from [the victim] and
some unknown, unrelated individual.” Id. The results were substantially similar for the
other DNA samples. Id. To Dilley’s knowledge, the DNA profiles did not match with
any data from the CODIS system, but entering data into the CODIS system was not part

of his job responsibilities. Id.
On direct appeal, Govan’s argument focused on contradictions between the
victim’s testimony and the testimonies of Endia Johnson and Harold Johnson on the
issues of how much alcohol she drank that night and whether Endia Johnson had
visited her apartment that night prior to the rape incident. ECF 10-4. The Indiana Court

of Appeals rejected the argument, finding that it amounted to no more than an
invitation to reweigh the credibility of the victim. ECF 10-5.
After reviewing the record, the court cannot find that the State court made an
unreasonable determination on the insufficiency of the evidence claim. A rational jury
could have credited the victim’s testimony over the testimonies of Endia Johnson and

Harold Johnson to the extent those testimonies were in conflict. Further, the precise
number of drinks and whether Endia Johnson briefly visited the victim’s apartment
were not dispositive issues, and a rational jury could have also credited Endia Johnson
and Harold Johnson on these issues while also crediting the victim’s broader narrative
that Govan assaulted her in her apartment.

In the traverse, Govan’s argument regarding insufficient evidence focuses on
purported contradictions between the victim’s testimony and the sexual assault
examination and DNA evidence. The medical examinations revealed facial injuries,
bruising to the neck and arms, tears on the perinium, and reports of pain in the vaginal
and anal regions were thus consistent with the victim’s testimony that Govan had
assaulted her. Though Nurse Cook did not find any injuries to the vaginal or anal

regions, these findings were not inconsistent with the victim’s narrative given Nurse
Cook’s testimony that, in her substantial experience, the majority of sexual assault
victims did not have such injuries.
Moreover, Govan places undue weight on lack of a match in the CODIS system
mentioned in the forensic report. To start, Govan assumes that, because he had prior

convictions, his DNA had necessarily already been entered into the CODIS system. See
Ind. Code Ann. § 10-13-6-10(a) (requiring certain classes of felony convicts to provide
DNA for entry into the CODIS system). However, even assuming that Govan’s prior
convictions required him to provide DNA for entry into the CODIS system, he does not
affirmatively indicate that he provided such DNA or that such entry occurred. Further,

Govan relies on Robert Dilley’s statement to demonstrate the lack of a match, but
Dilley’s testimony indicated merely that interfacing with the CODIS system was not his
responsibility and that he did not have personal knowledge of whether there was
match. Most significantly, while the DNA collected from the victim may not have
matched with data from the CODIS system for any number of reasons, it did match
with the DNA collected directly from Govan by Detective Roddy, and Govan does not

contest this compelling forensic result. Therefore, the insufficiency of the evidence claim
is not a basis for habeas relief.
Ineffective Assistance of Trial Counsel
Govan argues that trial counsel was ineffective for failing to lay a foundation to
impeach the victim with prior inconsistent statements. He maintains that trial counsel
should have asked the victim whether she had said she wanted to “get even” with

Govan and wanted to get him ”out of the way” in connection with the custody battle
over their son. He maintains that, if trial counsel had done so, Virgil Smith, Zelma
Petrie, and Morris Govan would have been able to testify that the victim made such
statements for the purpose of impeachment.
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, the trial court heard the following argument with respect to motions
in limine:

Prosecution: And also the custody issue. This is a criminal trial. We want
to make sure that the custody issue is not brought into this.

Trial Court: [Trial counsel]?

Trial Counsel: We have issues with that in regard because once again that
flows back then the issue of the health care. She has told everyone that the
reason that the custody issue has ensued was because had all these kidney
problems, when actually that is not the case. The State doesn’t take
children away for health issues.

Prosecution: Your Honor, any reason why if the children were taken
away, which we don’t believe that they were. We believe that because of
her health issues she gave the children away, but, at any rate, that’s not
relevant to what we’re here for today, which is rape, domestic battery,
strangulation, and interfering with reporting of a crime. That is a side
issue, and it will unduly influence the jury, confuse them, frankly.
Trial Counsel: In response, Your Honor, it’s her motive. You’ll hear
testimony that says she would do whatever she needed to to get that child
back.

Prosecution: I guess that’s kind of a moot point because she doesn’t have
the child currently. That child is currently with his mom.

Trial Court: Yeah, I don’t like to dabble in family law issues in criminal
court, so let’s keep that our of evidence unless somewhat she opens the
door for [trial counsel]. But I don’t like the idea of doing family law court
in criminal court.

ECF 11-5 at 12-13.
At trial, trial counsel attempted to ask Zelma Petrie, Govan’s mother, about the
nature of the victim’s relationship with Govan in recent years, but the trial court
sustained the prosecution’s objection that such testimony would violate the ruling on
the motion in limine. Id. at 231-33. Trial counsel presented Virgil Smith, the victim’s
cousin, as a witness in an apparent effort to introduce hearsay statements attributed to
the victim on the topic of her children, but the trial court sustained the prosecution’s
hearsay objection. ECF 11-6 at 70-77. Trial counsel also presented Morris Govan,
Govan’s father, as a witness in an apparent effort to introduce the opinion that the
victim fabricated the rape incident against Govan to regain custody of her son. Id. at 78-
87. However, the trial court sustained the prosecution’s objection that the opinion
testimony invaded the province of the jury. Id.
At the post-conviction stage, Govan presented an affidavit from Zelma L. Petrie,
attesting that she believed that the victim fabricated the rape accusation to regain
custody of her son. ECF 12 at 2. He presented an affidavit from Virgil Smith, attesting
that he was aware of the custody proceeding and “became aware through [the victim]”
that she wanted Govan “out of the way”. Id. at 5. He also presented an affidavit from

Morris Govan, attesting that the victim told him that she intended to “get even” with
Govan for obtaining custody of her son. Id. at 4.
The Indiana Court of Appeals rejected the ineffective assistance of counsel claim,
finding a lack of deficient performance on the basis that none of the proposed testimony
would have been inadmissible under Ind. R. Evid. 613, which allows the use of prior
inconsistent statements to impeach a witness. ECF 10-11 at 13-14. The appellate court

observed that only Morris Govan’s proposed testimony involved a statement from the
victim and that Govan had not identified any portion of the victim’s testimony that this
proposed testimony would have impeached. Id.
After reviewing the record, the court cannot find that the State court made an
unreasonable determination on this ineffective assistance of counsel claim. Govan

asserts that trial counsel should have, in essence, invited the victim to lay the
foundation for the introduction of prior inconsistent statements by asking the victim
about whether she made threats against him in connection with the child custody
proceedings. However, the ruling on the motion in limine foreclosed trial counsel from
asking such questions as demonstrated by the trial court’s motion in limine ruling

before trial and the ruling on the objection to Zelma Petrie’s testimony on the nature of
the victim’s relationship with Govan in recent years. Further, it is not clear that such
questions would have produced the desired result, and it may have even prejudiced
Govan. It is possible that the victim may have simply admitted to making unsavory
threatening statements about Govan when she lost custody of her son. If so, the
proposed testimony would have been consistent with the victim’s testimony and thus

inadmissible as a prior inconsistent statement. The victim also would have likely been
granted the opportunity to provide context for such testimony, potentially engendering
sympathy towards herself and disdain with respect to Govan.
Additionally, even if the victim testified as Govan anticipates, the jury may not
have afforded much weight to the testimony of Morris Govan, given his close familial
relationship with Govan and the understandable frustration of losing custody of a child.

Moreover, the impact proposed testimony is further blunted because it would have
served only to impeach the victim’s testimony rather than as substantive evidence. See
Martin v. State, 736 N.E.2d 1213, 1217 (Ind. 2000) (“[W]hen a prior inconsistent statement
is used to impeach a witness, it is not hearsay because the statement is not used to
prove the truth of the matter asserted.”). As detailed above, the evidence corroborating

the victim’s narrative was substantial, including Harold Johnson’s testimony that
Govan was with the victim on the night of the incident, photographs of her apartment
in disarray, photographs and documentation of her physical injuries, testimony from
several witnesses about her apparent emotional distress in the immediate aftermath, her
shattered cellphone, and the presence of Govan’s DNA on her genitals, buttocks, neck,

ears, and breasts.
In sum, the court cannot find that trial counsel performed deficiently because he
was foreclosed from asking questions about the child custody proceedings by the ruling
on the motion in limine and by Ind. R. Evid. 613 and because, even if he was not, it is
unclear that such questions would have resulted in a meaningful advantage to Govan.
Therefore, the claim of ineffective assistance of trial counsel 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 Govan 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 November 15, 2022

s/ Michael G. Gotsch, Sr.
Michael G. Gotsch, Sr.
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10163260. Public record. Not legal advice.