Jarrard v. Warden

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

PAYTON THOMAS JARRARD,

Petitioner,

v. CAUSE NO.: 3:22-CV-724-DRL-MGG

WARDEN,

Respondent.

OPINION AND ORDER

Payton Thomas Jarrard, a prisoner without a lawyer, filed a habeas corpus petition

challenging his 2015 child molestation conviction in Tippecanoe County under case

number 79D01-1401-F1-1. (ECF 2.) For the following reasons, the court denies his petition.

BACKGROUND

In deciding the petition, the court must presume the facts set forth by the state

court are correct, unless Mr. Jarrard rebuts this presumption with clear and convincing

evidence. 28 U.S.C. § 2254(e)(1). On post-conviction review, the Indiana Court of Appeals

set forth the facts underlying Mr. Jarrard’s conviction as follows:

In August 2014, Jarrard was in a relationship with eleven-year-old T.C.’s

mother. One night, T.C. was home with her two older brothers while her

mother was gone. Although Jarrard lived elsewhere, he was at the home

with T.C. and her brothers. After T.C. went to bed, she was awoken by

Jarrard shaking her bed as he touched her “bottom area” on the front, in the

area she used to urinate. T.C. described feeling Jarrard touch inside her and

it hurting. T.C. immediately reported the incident to her brother, who called

their mother. Their mother told the children to go to a friend’s house, and

the incident was reported to the police.

T.C.’s Mother (“Mother”) talked to the police, but T.C. did not. T.C. went to

Hartford House for a forensic interview and told the interviewer what had

happened to her. T.C. also went to Riley Hospital, where sexual assault

nurse examiner Anna Gordon (“Nurse Gordon”) examined her. T.C. had

taken a shower before the examination. Nurse Gordon spoke only to

Mother about the offense, and T.C. was not present when they spoke.

In September 2014, the State charged Jarrard with Level 1 felony child

molesting. Specifically, the State alleged that twenty-nine-year-old Jarrard

had used his hand to engage in “other sexual conduct” with eleven-year-

old T.C. The State also alleged that Jarrard was an habitual offender.

The trial court held a two-day jury trial in January 2015. Public defenders

Thomas O’Brien (“Trial Counsel O’Brien”) and Matthew Harris (“Trial

Counsel Harris”) represented Jarrard at trial. Jarrard’s theory of defense

was that the State could not meet its burden of proof. Jarrard’s counsel

challenged the credibility of T.C.’s testimony by focusing on the fact that

T.C. did not see Jarrard touch her and by attempting to portray T.C. as being

confused about what had happened. Counsel[] also relied on the fact that

the limited DNA evidence did not specifically identify Jarrard.

During trial, T.C. testified that she had been asleep and awoke to Jarrard on

the side of her bed. She noticed that her pajama pants and underwear had

been pulled down. She testified that Jarrard had touched her “bottom area”

and explained that he had touched “[t]he front” of that area that she used

“[t]o urinate.” T.C. further testified that she had felt Jarrard touching her on

the “inside” and that it “hurt.” Additionally, T.C. testified that the pain she

felt inside the area where she urinated was a greater level of pain than she

had experienced when she had broken her arm.

Mother testified that, after she had found out what Jarrard had done to T.C.,

she had contacted the police and talked to Child Protective Services. Mother

also testified that she had taken T.C. to Hartford House for a forensic

interview and to Riley Hospital for a medical examination. Additionally,

Mother testified that T.C. had already taken a shower before she had her

medical exam and that she had given T.C.’s pajama pants and underwear

to an officer a few days after the offense.

The State introduced DNA evidence that showed no conclusive results. The

certificates of analysis from forensic DNA analyst Shawn Stur (“Forensic

Analyst Stur”) and forensic biologist Nicole Keeling (“Forensic Biologist

Keeling”) indicated that three swabs (vaginal/cervical swabs, external

genital swabs, and anal swabs) taken from T.C during her medical exam

had “failed to demonstrate a sufficient quantity of male DNA” for

“autosomal STR analysis” and for “further Y-STR DNA analysis.” Forensic

Analyst Stur also testified that the three swabs “[ha]d not give[n] ... enough

male DNA to continue with [an] analysis.” Forensic Biologist Keeling

testified that the anal swabs did not have male DNA and that

vaginal/cervical swabs and external genital swabs had a “slight” amount

of male DNA but not enough to perform a Y-STR analysis. Forensic

Biologist Keeling also testified that the Y-STR DNA result from the swab

from T.C.’s underwear showed the presence of a mixture of at least four

males and that the swab from T.C.’s pajama pants showed the presence of

a mixture of at least five males, resulting in no conclusions that could be

drawn. The prosecutor set forth a hypothetical regarding a person living in

a house with multiple brothers, as T.C. did, and asked whether it was

surprising to have the presence of multiple male contributors on those

items. Forensic Biologist Keeling testified that there was “the potential for

multiple male contributors to be present on those samples” because she was

looking at skins cells that could be on the surface.1

When Trial Counsel O’Brien cross-examined Forensic Analyst Stur and

Forensic Biologist Keeling, counsel had them confirm that none of the DNA

testing swabs had specifically identified Jarrard. Forensic Analyst Stur

responded that she had not done any comparison testing, and Forensic

Biologist Keeling responded that she had not identified him because the

samples had not had enough male DNA to develop a Y-STR profile.

Nurse Gordon testified during direct examination that the physical

examination of T.C. could neither confirm nor deny whether any sexual

abuse had occurred. On cross-examination of Nurse Gordon, Trial Counsel

Harris attempted to question Nurse Gordon about a section of her medical

report in which she had written down statements from her conversation

with Mother. Specifically, Trial Counsel Harris sought to have Nurse

Gordon testify about a statement from Mother regarding what she had said

that T.C. had reported to Mother. The State objected based on hearsay and

pointed out that Jarrard’s counsel had had the opportunity but had not

cross-examined Mother about her statement. Trial Counsel Harris indicated

that he was asking the question for impeachment purposes. After noting

1 At trial, T.C.’s mother testified that upon being directed by police to obtain T.C.’s pajama

bottoms and underwear from that night, she called home and told T.C.’s older brother to take the

clothes out the hamper and put them under her mattress “so nobody else [could] get a hold of

them.” (ECF 16-2 at 64.) She further testified her children sometimes slept on that mattress, and

that T.C.’s brothers and two other males had helped her move the mattress. (Id. at 66.) T.C. also

described that she had been wearing the pajama bottoms in various areas of the house prior to

going to bed, including sitting on the floor while watching television. (Id. at 125.)

that trial counsel could have cross-examined Mother about her statement

or cross-examined T.C. about whether she had made such a statement to

Mother, the trial court sustained the State's objection.

At the conclusion of Nurse Gordon’s testimony, a juror submitted a

question, asking Nurse Gordon to relate what Mother had told her. The trial

court declined to ask the question. Trial Counsel Harris then made an offer

of proof as to the testimony that he sought from Nurse Gordon. Trial

Counsel Harris stated that, according to the medical exam record, Mother

had told Nurse Gordon that T.C. had “disclosed that [Jarrard] touched her

but [had] n[o]t put anything inside[.]”

Jarrard v. State, 175 N.E.3d 366 (Table), 2021 WL 4448795, 1-3 (Ind. Ct. App. Sept. 29, 2021)

(headnotes and internal citations omitted). After deliberating, the jury found him guilty

of child molesting, and he admitted to his guilt on the habitual offender charge. Id. at 3.

He was sentenced to an aggregate term of 52 years in prison. (ECF 15-1 at 7.)

On direct appeal, Mr. Jarrard raised three claims: (1) the trial court improperly

sustained the prosecutor’s objection to Nurse Gordon’s testimony; (2) the jury

instructions on the meaning of “penetration” under Indiana law were inaccurate; and (3)

the evidence was insufficient to support his conviction. Jarrard v. State, 42 N.E.3d 173

(Table), 2015 WL 6954944, 1-3 (Ind. Ct. App. Nov. 10, 2015). The Indiana Court of Appeals

rejected each claim. The court determined that the prosecutor’s objection was properly

sustained because Mr. Jarrard’s counsel was trying to “impeach” Nurse Gordon with an

out-of-court statement made by someone else, T.C.’s mother, which was not permissible

under state law. Id. at 1. The court next determined that Mr. Jarrard waived his argument

about the jury instructions by failing to object at trial; but, notwithstanding the waiver,

the record showed the jury was properly instructed on the meaning of “penetration”

under Indiana law. Id. at 2. Finally, the court determined that T.C.’s testimony was

sufficient evidence to support his conviction. Id. at 3. The court thus affirmed in all

respects. Id.

Mr. Jarrard filed a petition to transfer to the Indiana Supreme Court asserting one

claim: that the trial court erred in connection with the jury instructions on penetration.

(ECF 15-6.) The Indiana Supreme Court denied the petition without comment on January

28, 2016. Jarrard v. State, 43 N.E.3d 1280 (Table) (Jan. 28, 2016). He did not seek review in

the United States Supreme Court. (ECF 2 at 1.)

On January 13, 2017, Mr. Jarrard filed a pro se petition for post-conviction relief,

which was later amended after the Indiana Public Defender’s Office filed an appearance

on his behalf. (ECF 15-7.) He asserted grounds of ineffective assistance of counsel: (1) trial

counsel failed to impeach T.C. with a prior inconsistent statement she made to her

mother; (2) trial counsel failed to adequately crossexamine the DNA witnesses; and (3)

trial counsel failed to object to comments by the prosecutor during closing argument

misstating the definition of “penetration” under Indiana law. Jarrard, 2021 WL 4448795,

at 4-7. An evidentiary hearing was held, at which his two trial attorneys and T.C.’s mother

testified. Id. He also submitted as exhibits a post-trial deposition transcript from T.C.,

affidavits from the state’s two DNA experts explaining their findings, T.C.’s medical

records, and the record from his direct appeal. Id. Following the hearing, the court denied

post-conviction relief. Id.

On post-conviction appeal, Mr. Jarrard asserted the same claims of ineffective

assistance of counsel. Id. The Indiana Court of Appeals rejected each of them in turn. The

court concluded that his attorneys made reasonable strategic decisions about the scope

of their crossexamination of T.C. and the DNA witnesses. Id. at *5-7. The court further

concluded that Mr. Jarrard did not establish prejudice in connection with counsel’s failure

to object to the prosecutor’s comments during closing argument because the jury was

properly instructed on the meaning of penetration under Indiana law. Id. The court also

noted that he raised a claim of “cumulative” error, but concluded that this claim was

waived under state law because he did not assert it in his post-conviction petition. Id. at

7 n.5. Notwithstanding the waiver, the court found no error, cumulative or otherwise,

warranting post-conviction relief. Id.

Mr. Jarrard sought transfer to the Indiana Supreme Court raising his claims that

his attorneys were ineffective in failing to adequately crossexamine T.C. and the state’s

DNA witnesses. (ECF 15-13 at 2.) On January 6, 2022, the Indiana Supreme Court denied

the petition without comment. Jarrard v. State, 180 N.E.3d 930 (Table) (Ind. Jan. 6, 2022).

On August 20, 2022, Mr. Jarrard tendered his federal petition for mailing.2 (ECF 2

at 8.) He asserts nine claims, which he articulates as follows: (1) “Unsupported evidence

regarding finger/hand defined in Ind. Code 35-31.5-2-221.5;” (2) “Trial court invoking

legal[]y insufficient analysts as a witness for the State;” (3) “Trial court erroneously

admitted expert testimony from Forensic Scientist regarding Male DNA;” (4) “False DNA

Presented at trial;” (5) ineffective assistance by trial counsel “regarding failure to question

witnesses prior to trial;” (6) ineffective assistance by trial counsel “regarding failure to

retain or investigate DNA Analyst;” (7) “Prior inconsistent statement of T.C. to her

2 The handwritten date is difficult to read and may in fact be August 26, 2022. (ECF 2 at 8.) The

court has afforded Mr. Jarrard the benefit of the doubt and accepted the date as August 20, 2022.

mother;” (8) “Improper closing arguments by Prosecutor claiming physical evidence

regarding DNA;” and (9) cumulative error that denied him a “fair trial.” (ECF 2 at 3-7.)

The respondent argues that the petition was not timely filed and must be

dismissed. (ECF 15 at 7-8.) Alternatively, the respondent argues that claims one, two,

three, four, six, eight, and nine are all procedurally defaulted and that the remaining

claims (five and seven) fail on the merits. (Id. at 8-24.) Mr. Jarrard’s traverse was due by

February 23, 2023.3 (ECF 18.) That deadline passed without one.

ANALYSIS

Mr. Jarrard’s petition is governed by the provisions of the Anti-Terrorism and

Effective Death Penalty Act of 1996 (AEDPA), which allows a district court to issue a writ

of habeas corpus “only on the ground that [the petitioner] is in custody in violation of the

Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Habeas corpus

was intended as a “guard against extreme malfunctions in the state criminal justice

systems, not a substitute for ordinary error correction through appeal.” Gilbreath v.

Winkleski, 21 F.4th 965, 981 (7th Cir. 2021) (citation and quotations omitted). To succeed,

a petition must meet the stringent requirements of 28 U.S.C. § 2254(d), set forth as follows:

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

3 The original deadline was January 6, 2023. (ECF 13.) Mr. Jarrard did not file a traverse by that

deadline, and instead filed a “Motion to Grant Petitioner’s Habeas Corpus by Default” after the

respondent filed the return. (ECF 17.) This motion was denied because the respondent was not in

default, but as a courtesy the court extended the deadline for him to file a traverse. (ECF 19.)

(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.

This standard is “difficult to meet” and “highly deferential.” Hoglund v. Neal, 959

F.3d 819, 832 (7th Cir. 2020) (quoting Cullen v. Pinholster, 563 U.S. 170, 181 (2011)). “It is

not enough for a petitioner to show the state court’s application of federal law was

incorrect; rather, he must show the application was unreasonable, which is a

‘substantially higher threshold.’” Id. (quoting Schriro v. Landrigan, 550 U.S. 465, 473

(2007)). In effect, “[a] petitioner must 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 fair-minded

disagreement.” Id. (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).

A. Timeliness

The respondent first argues that the petition is untimely and cannot be considered

on the merits. AEDPA contains a strict statute of limitations, set forth as follows:

(1) A 1-year period of limitation shall apply to an application for a writ of

habeas corpus by a person in custody pursuant to the judgment of a State

court. The limitation period shall run from the latest of--

(A) the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for

seeking such review;

(B) the date on which the impediment to filing an application

created by State action in violation of the Constitution or laws

of the United States is removed, if the applicant was

prevented from filing by such State action;

(C) the date on which the constitutional right asserted was

initially recognized by the Supreme Court, if the right has

been newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or

claims presented could have been discovered through the

exercise of due diligence.

28 U.S.C. § 2244(d). The statute of limitations is tolled when “a properly filed application

for State post-conviction or other collateral review with respect to the pertinent judgment

or claim is pending.” 28 U.S.C. § 2244(d)(2).

On direct appeal, the Indiana Supreme Court denied his petition to transfer on

January 28, 2016, and he did not seek review in the United States Supreme Court. (ECF 2

at 1.) Under 28 U.S.C. § 2244(d)(1)(A), his conviction became final when the time for

seeking review in the United States Supreme Court expired on April 27, 2016. See Gonzalez

v. Thaler, 565 U.S. 134, 150 (2012) (for habeas petitioners who do not complete all levels of

review, judgment becomes final when the time for seeking further review expires); see

also U.S. Sup. Ct. R. 13(1) (petition for writ of certiorari must be filed within 90 days of

state court’s judgment).

On January 13, 2017, he filed a post-conviction petition, which tolled the deadline

under 28 U.S.C. § 2244(d)(2). As of that date, 261 days had elapsed on the federal clock.

The deadline remained tolled until the post-conviction proceedings concluded on

January 6, 2022, when the Indiana Supreme Court denied his petition to transfer. See

Lawrence v. Florida, 549 U.S. 327, 332 (2007) (holding that the statute of limitations is tolled

under § 2244(d)(2) “only while state courts review the application”). At that point, Mr.

Jarrard had 104 days remaining on the federal clock, or until April 20, 2022, to file a timely

petition under 28 U.S.C. § 2244(d)(1)(A). He did not do so, and instead waited until

August 20, 2022, to put his petition in the prison mail system, which was four months

after the deadline had expired.

He does not argue, nor can it be discerned, that one of the other provisions of

§ 2244(d)(1) applies to render any of his claims timely.4 In the petition, when asked to

state why his petition is timely under the provisions of 28 U.S.C. § 2244(d), he states

simply: “I have followed all the rules without undue delay.” (ECF 2 at 8.) This statement

does not explain why the petition should be deemed timely even though it was filed four

months beyond the statutory deadline, nor does it provide a potential reason to excuse

the late filing. Therefore, the petition is untimely.

B. Procedural Default

Assuming for the sake of argument Mr. Jarrard could overcome the untimeliness

bar, the respondent alternatively argues that all but two of his claims are procedurally

defaulted. (ECF 15 at 8-13.)

4 Though he has not expressly made this argument, the court has considered that claims two,

three, four, five, and six appear to be based at least in part on affidavits prepared by the DNA

experts in the post-conviction proceedings. Those affidavits were signed on November 15, 2018.

(See ECF 16-8 at 22, 24.) Arguably, 28 U.S.C. § 2244(d)(1)(D) could apply to these claims, but Mr.

Jarrard has not made any attempt to show that he exercised diligence in uncovering the factual

predicate for the claims. There is no basis in the record to conclude that the information in the

affidavits could not have been obtained prior to November 2018, as the information was

essentially a clarification of the experts’ 2015 trial testimony. The court concludes that these claims

are not timely under § 2244(d)(1)(D). Villanueva v. Anglin, 719 F.3d 769, 774 (7th Cir. 2013) (“The

court must consider both the date on which the petitioner discovered the factual predicate of the

claim and whether the petitioner exercised due diligence in discovering that information. . . . [T]he

clock [] starts at the time a reasonable person would have discovered those facts.”).

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);

Hoglund, 959 F.3d at 832. The exhaustion requirement is premised on a recognition that

the state courts must be given the first opportunity to address and correct violations of

their prisoners’ federal rights. Davila v. Davis, 582 U.S. 521, 527-28 (2017); O’Sullivan v.

Boerckel, 526 U.S. 838, 845 (1999). For that opportunity to be meaningful, the petitioner

must fairly present his constitutional claim in one complete round of state review. Baldwin

v. Reese, 541 U.S. 27, 30-31 (2004); Boerckel, 526 U.S. at 845. This includes seeking

discretionary review in the state court of last resort. Boerckel, 526 U.S. at 848. The

companion procedural default doctrine, also rooted in comity concerns, precludes a

federal court from reaching the merits of a claim when the claim was presented to the

state courts and was denied on the basis of an adequate and independent state procedural

ground, or when the claim was not presented to the state courts and the time for doing

so has passed. Davila, 582 U.S. at 527; Coleman v. Thompson, 501 U.S. 722, 735 (1991).

A habeas petitioner can overcome a procedural default by showing both cause for

failing to abide by state procedural rules and resulting prejudice. Davila, 582 U.S. at 528.

“Cause” in this context means “an objective factor external to the defense that impeded

the presentation of the claim to the state courts,” and only applies to factors that “cannot

fairly be attributed to the prisoner.” Crutchfield v. Dennison, 910 F.3d 968, 973 (7th Cir.

2018) (citation and quotations omitted). A habeas petitioner can also 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).

Claim one can be read as a challenge to the sufficiency of the evidence. (ECF 2 at

3.) Mr. Jarrard raised a claim on direct appeal challenging the sufficiency of the evidence,

but he did not include this claim in his petition to transfer to the Indiana Supreme Court.

(ECF 15-6.) It is therefore procedurally defaulted. Boerckel, 526 U.S. at 848.

He suggests in his petition that the failure to present this claim was caused by

attorney error. (ECF 2 at 3.) Attorney error rising to the level of a Sixth Amendment

violation can provide cause to excuse a procedural default. Davila, 582 U.S. at 528. Here,

however, the default occurred at a stage when Mr. Jarrard did not have a right to counsel,

as there is no Sixth Amendment right to counsel to seek discretionary review with a state

supreme court. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Wainwright v. Torna, 455

U.S. 586, 587 (1982). When there is no constitutional right to counsel, attorney error cannot

supply cause to excuse a procedural default.5 Davila, 582 U.S. at 529; Coleman, 501 U.S. at

752. Therefore, claim one is defaulted and cannot be considered on the merits.

Mr. Jarrard articulates claim two as follows: “Trial court invoking [] legally

insufficient analysts as a witness for the State.” In his view, the DNA experts’ “statements

at trial failed to exclude[] every possible and reasonable hypothesis regarding the DNA

analyst that would gave Jarrad a fair trial and not prejudice Jarrard’s innocen[ce].” (ECF

5 Mr. Jarrard also suggests that the default is attributable to his post-conviction counsel. (ECF 2 at

3.) However, under Indiana law, claims that are known and available at the time of direct appeal,

including sufficiency of the evidence claims, cannot be raised on post-conviction review. See

Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002); Peele v. State, 168 N.E.3d 1059 (Table), 2021 WL

1343547, 4 (Ind. Ct. App. Apr. 12, 2021). Furthermore, he did not have a Sixth Amendment right

to counsel in the post-conviction proceedings, so any error by post-conviction counsel does not

provide cause to set aside the default of his sufficiency of the evidence claim. Coleman, 501 U.S. at

752; Finley, 481 U.S. at 555.

2 at 3.) Although somewhat unclear, he appears to be claiming that he was denied a fair

trial because the state’s DNA evidence was legally insufficient. In support, he points to

affidavits submitted by the DNA analysts in the post-conviction proceedings.

The Indiana Court of Appeals summarized the facts surrounding the affidavits as

follows:

During the post-conviction hearing, Jarrard offered affidavits from the two

trial DNA witnesses. In Forensic Biologist Keeling’s post-conviction

affidavit, she acknowledged that she had testified at trial that the

vaginal/cervical swabs and external genital swabs “had a slight amount of

male DNA that was below our cutoff for Y-STR analysis” and that the anal

swabs “did not have male DNA.” Forensic Biologist Keeling further

averred that “[h]ad [she] been questioned further, [she] would have

explained that the male DNA values [she had] observed were so low that

[she] could not be certain if there was actually male DNA present or if the

values were the result of background noise[,] such as “signal from the

instrument, bubbles in the plate, and dust on the plate.” In Forensic Analyst

Stur’s post-conviction affidavit, she acknowledged her trial testimony was

that the three swabs “[ha]d not give[n] [her] enough male DNA to continue

[her] analysis.” Forensic Analyst Stur further averred that “[h]ad [she] been

questioned further, [she] would have explained that [she had] classified the

amount of male DNA in these three items as “undetermined[,]” which

“mean[t] either there was very little male DNA in these items, or no male

DNA at all.” In the post-conviction affidavits of the DNA witnesses

submitted by the State, Forensic Biologist Keeling and Forensic Analyst Stur

both declared that their trial testimonies had been “true and accurate.”

Jarrard, 2021 WL 4448795 at 6 (internal citations omitted).

Based on these affidavits, Mr. Jarrard argues that the DNA evidence was legally

insufficient and denied him a fair trial. But he acknowledges that he did not assert such

a claim in state proceedings. His failure to fairly present such a claim to the state courts

means that it is procedurally defaulted. See Hicks v. Hepp, 871 F.3d 513, 530 (7th Cir. 2017).

He asserts that the default should be excused because “my attorneys for trial,

appeal, and post-conviction overlooked it.” (ECF 2 at 3.) As stated, attorney error

amounting to a Sixth Amendment violation can provide cause to excuse a procedural

default. Davila, 582 U.S. at 527. Assuming the default occurred at a stage when he was

entitled to counsel, the exhaustion doctrine requires that an ineffective-assistance-of-

counsel claim be presented to the state court as an independent claim before it may be

used to establish cause for a procedural default. Edwards v. Carpenter, 529 U.S. 446, 451-

52 (2000). Mr. Jarrard did not exhaust a claim in the state proceedings that his trial,

appellate, and post-conviction attorneys were ineffective in failing to argue that the

state’s DNA evidence was legally insufficient. On post-conviction review, he argued that

his trial attorneys were ineffective in not properly cross-examining the DNA witnesses.

Jarrard, 2021 WL 4448795 at 4-7. Although related, that claim involved different operative

facts than his claim that the attorneys were ineffective in not arguing that the state’s DNA

evidence was legally insufficient. Hicks, 871 F.3d at 530 (to fairly present a claim to the

state courts, the “petitioner must place before the state court both the controlling law and

the operative facts” supporting the claim); Johnson v. Hulett, 574 F.3d 428, 432 (7th Cir.

2009) (“A bare mention of ineffective assistance of counsel is not sufficient to avoid a

procedural default; [the petitioner] must have ‘identif[ied] the specific acts or omissions

of counsel that form the basis for [his] claim of ineffective assistance.’”). He has not

provided cause to set aside the default of claim two.

In claims three and four, he relatedly argues that the trial court erred in admitting

the DNA evidence and that “false” DNA evidence was presented at his trial. However,

he did not raise these claims in state court, either on direct appeal or post-conviction

review. His failure to fairly present these claims to the state courts means that they are

procedurally defaulted. Hicks, 871 F.3d at 530.

He suggests in his petition that the default was caused by his post-conviction

counsel. (ECF 2 at 4.) As a general rule, errors by post-conviction counsel do not qualify

as cause to set aside a procedural default. Maples v. Thomas, 565 U.S. 266, 280 (2012). The

Supreme Court has recognized an exception to this rule, when ineffective assistance by

post-conviction counsel can provide cause to set aside the default of a claim of ineffective

assistance by trial counsel. Trevino v. Thaler, 569 U.S. 413 (2013); Martinez v. Ryan, 566 U.S.

1 (2012). This so-called Martinez-Trevino exception applies to prisoners in Indiana. Brown

v. Brown, 847 F.3d 502, 513 (7th Cir. 2017). It is of no benefit to Mr. Jarrard here, however,

because Martinez-Trevino is a narrow exception that applies solely to review of defaulted

claims of ineffective assistance by trial counsel, not to other types of defaulted claims.

Davila, 582 U.S. at 529-30. Thus, alleged errors by Mr. Jarrard’s post-conviction counsel

cannot be used to obtain review of a defaulted claim pertaining to the sufficiency of the

state’s DNA evidence. He has not provided cause to set aside the default of these claims.

In claim six, he asserts that his trial attorneys were ineffective in not retaining and

calling their own DNA expert as a witness. (ECF 2 at 5.) Although he raised claims of

ineffective assistance of trial counsel in state court, he did not raise this specific claim,

meaning that it is defaulted. See Johnson, 574 F.3d at 432. He again blames his post-

conviction attorney for the default. (ECF 2 at 5.) An error by post-conviction counsel

causing a default of his ineffective-assistance-of-trial-counsel claim would fall within the

Martinez-Trevino exception. However, to obtain relief he must show that “the underlying

ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say . . . that

the claim has some merit.” Martinez, 566 U.S. at 9, 14. The respondent argues that he has

not satisfied this standard. (ECF 15 at 18.) The court concludes that even if there is some

threshold merit to his claim, thus allowing it to be considered on the merits, the claim

ultimately would not entitle him to federal habeas relief.

To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must

show that counsel’s performance was deficient and that the deficiency prejudiced him.

Strickland v. Washington, 466 U.S. 668, 687 (1984). On the first prong, the central question

is “whether an attorney’s representation amounted to incompetence under prevailing

professional norms, not whether it deviated from best practices[.]” Harrington v. Richter,

562 U.S. 86, 105 (2011). The petitioner must show that “counsel made errors so serious

that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.” Gilbreath, 21 F.4th at 981. The court’s review of counsel’s performance is

deferential, and there is an added layer of deference when the claim is raised in a federal

habeas proceeding: “[T]he question is not whether counsel’s actions were reasonable. The

question is whether there is any reasonable argument that counsel satisfied Strickland’s

deferential standard.” Harrington, 562 U.S. at 105.

In evaluating counsel’s performance, the court must avoid the benefit of hindsight

and respect its “limited role in determining whether there was manifest deficiency in light

of information then available to counsel.” Premo v. Moore, 562 U.S. 115, 125 (2011). An

attorney’s representation “need not be perfect, indeed not even very good, to be

constitutionally adequate.” Delatorre v. United States, 847 F.3d 837, 845 (7th Cir. 2017).

Additionally, counsel is afforded significant discretion in selecting a trial strategy based

on the information known at the time. Yu Tian Li v. United States, 648 F.3d 524, 528 (7th

Cir. 2011). “[S]trategic choices made after thorough investigation of law and facts relevant

to plausible options are virtually unchallengeable[.]” Gilbreath, 21 F.4th at 982. If the

defendant wanted counsel to raise an argument that itself had no merit, an ineffective-

assistance claim cannot succeed, because “[c]ounsel is not ineffective for failing to raise

meritless claims.” Warren v. Baenen, 712 F.3d 1090, 1104 (7th Cir. 2013).

On the prejudice prong, the petitioner must show that “but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Strickland,

466 U.S. at 694. “This requires showing that counsel’s errors were so serious as to deprive

the defendant of a fair trial, a trial whose result is reliable.” Gilbreath, 21 F.4th at 981

(citation omitted). In assessing prejudice under Strickland, “the question is not whether a

court can be certain counsel’s performance had no effect on the outcome or whether it is

possible a reasonable doubt might have been established if counsel had acted

differently.” Harrington, 562 U.S. at 111. “The likelihood of a different result must be

substantial, not just conceivable.” Id. at 112.

Mr. Jarrard argues that his attorneys should have retained a defense expert to

analyze the DNA evidence so that the issues referenced in the DNA experts’ affidavits

could have been presented to the jury. However, at the post-conviction hearing, one of

Mr. Jarrard’s trial attorneys explained that they did not see a need to further explore the

DNA evidence because their trial strategy was to focus on the fact that the DNA evidence

was inconclusive and did not inculpate him. Id. at 6. In furtherance of that strategy,

counsel questioned Forensic Analyst Stur and Forensic Biologist Keeling and had them

each confirm that none of the DNA testing swabs identified Mr. Jarrard. Jarrard, 2021 WL

4448795 at 2. During closing arguments, counsel emphasized this point again, stating:

“There’s no physical evidence, none, that was presented to you, that shows he committed

this crime. Nothing[.]” (ECF 16-3 at 53.)

Mr. Jarrard’s lead attorney had decades of trial experience, handled more than ten

prior trials with DNA evidence, and had prior training related to DNA evidence. (ECF

16-7 at 74, 76-77.) The record reflects that he was well-versed in the DNA evidence. The

strategy counsel adopted to highlight the fact that the DNA evidence did not inculpate

Mr. Jarrard and simply move on was not unreasonable under the circumstances.

Gilbreath, 21 F.4th at 98 (“[S]trategic choices made after thorough investigation of law and

facts relevant to plausible options are virtually unchallengeable[.]”).

Mr. Jarrard also has not made a showing that retaining a defense expert to further

focus on the DNA evidence was likely to have led to a more favorable result. The jury

repeatedly heard evidence and arguments that the DNA evidence was inconclusive and

did not inculpate Mr. Jarrard. He wanted the jury to be told about the possibility that the

swabs did not contain male DNA, which does not seem a significant distinction. As his

counsel noted at the post-conviction hearing, T.C.’s household included males besides

Mr. Jarrard, and so the presence of male “touch” DNA was not “any crushing blow” to

the defense. (ECF 16-7 at 76.) Indeed, hearing from the DNA experts that there was male

DNA present that could not be linked to Mr. Jarrard might have led the jury to consider

whether T.C. was confused and whether it was someone else in the home who had

molested her. Although the jury ultimately decided to convict, the record suggests this

was because of T.C.’s unequivocal testimony—which his counsel acknowledged was

“extraordinarily damning”—rather than to the failure to counsel to retain a DNA expert.

(Id. at 36, 72.) Even assuming this defaulted claim could be reviewed on the merits, it

would not entitle him to habeas relief.

In claim eight, he argues that the prosecutor misstated the evidence during closing

arguments when describing the DNA results. (ECF 2 at 6.) He did not assert a free-

standing claim of prosecutorial misconduct in the state proceedings, either on direct

appeal or in the post-conviction proceedings. See Jarrard, 2021 WL 4448795 at 4-8; Jarrard,

2015 WL 6954944 at 1-3. Although he asserted a claim on post-conviction review that his

trial counsel erred in failing to object to the prosecutor’s comments during closing

arguments, this claim pertained to the prosecutor’s comments on the meaning of

“penetration,” not to a comment about the DNA evidence. Jarrard, 2021 WL 4448795 at 7.

He also couched this claim in terms of a violation of his Sixth Amendment right to

counsel, not to the denial of his right to a fair trial, which would be governed by a

different body of law. Id.; see also Darden v. Wainright, 477 U.S. 168 (1986). His failure to

fairly present this claim to the state courts means that it is procedurally defaulted. Hicks,

871 F.3d at 530. He doesn’t acknowledge the default or provide any grounds to excuse it.

In claim nine, he asserts that the “cumulative effect of the errors in this case

deprived Jarrad a fair trial.” (ECF 2 at 7.) Specifically, he argues that he was denied a fair

trial because of misleading DNA evidence, the prosecutor’s alleged misstatements, and

the testimony of T.C. that she was “molested with Jarrard’s finger/hand but in all reality

did not see and only assumed it was a finger,” among other errors. (ECF 2 at 7.) “Trial

errors which in isolation are harmless might, when aggregated, alter the course of a trial

so as to violate a petitioner’s right to due process of law.” Alvarez v. Boyd, 225 F.3d 820,

824–25 (7th Cir. 2000). But Mr. Jarrard did not assert a claim in the state proceedings that

cumulative error related to the DNA evidence, T.C.’s testimony, and other factors

resulted in a due process violation, either on direct appeal or post-conviction review.

On post-conviction review, he argued that the “cumulative effect of trial counsel’s

deficient performance prejudiced him,” but that claim involved different operative facts

and different governing law. See Hicks, 871 F.3d at 530. Additionally, the Indiana Court

of Appeals determined that he had waived his “cumulative error” claim by not raising it

in accordance with state law. Jarrard, 2021 WL 4448795 at 7 n.5. This determination

constitutes an adequate and independent state law ground that precludes federal review.

Thomas v. Williams, 822 F.3d 378, 384–85 (7th Cir. 2016) (“[W]here the state courts declined

to address a petitioner’s federal claims because the petitioner did not meet state

procedural requirements . . . the state court judgment rests on an independent and

adequate state ground”). A second level of default occurred when he omitted the

“cumulative error” claim from his petition to transfer to the Indiana Supreme Court. (See

ECF 15-13.) His failure to present this claim to the state courts in accordance with state

law means that it is procedurally defaulted.

He again argues that the error is attributable to errors by his post-conviction

counsel. (ECF 2 at 7.) However, as explained, errors by post-conviction counsel generally

do not qualify as cause to set aside a procedural default. Maples, 565 U.S. at 280. Nor can

he use the Martinez-Trevino exception to obtain review of this claim because that narrow

exception only applies to defaulted ineffective-assistance-of-trial-counsel claims, not to a

defaulted due process claim. Thus, the claim cannot be reviewed on the merits.

C. Merits

The respondent acknowledges that Mr. Jarrard’s two remaining claims—claims

five and seven—were properly exhausted in state court and could be considered if the

petition had been filed on time. Nevertheless, the respondent argues that the claims fail

on the merits.

a. Claim Five

In claim five, Mr. Jarrard asserts ineffective assistance by trial counsel “regarding

failure to question witnesses.” As outlined, to prevail on an ineffective-assistance claim,

he must demonstrate that counsel’s performance was deficient and that the deficiency

prejudiced him. Strickland, 466 U.S. at 687. In considering this claim on post-conviction

review, the Indiana Court of Appeals properly identified Strickland as the governing

standard and concluded that he did not establish ineffective assistance of counsel under

that standard. Jarrard, 2021 WL 4448795 at 5. Mr. Jarrard has not shown that the state

court’s application of Strickland was objectively unreasonable.

Mr. Jarrard argues that his counsel should have further crossexamined the DNA

experts to show that they could not determine with certainty that the swabs contained

male DNA. The state court concluded that counsel made a reasonable strategic decision

in connection with the scope of their crossexamination. In effect, the defense strategy was

to argue that the DNA evidence did not advance the prosecution’s case and that there

was no physical evidence to back up T.C.’s account. In furtherance of this strategy,

counsel elicited testimony from the DNA experts that the DNA evidence was

inconclusive and did not inculpate Mr. Jarrard. They then argued this point again in

closing argument. In his lead counsel’s experience, trying to conduct an expansive

crossexamination of a DNA expert was usually not useful, because such experts were

“usually . . . robots” who “just testify [to] exactly what’s on that report.” (Id. at 77.) In

light of the record, it was not unreasonable for counsel to focus on a theory that the state

could not prove its case, rather than spending limited time and resources attempting to

further pick apart the DNA evidence.6 The state court’s determination that he did not

establish deficient performance under Strickland was not unreasonable.

Although the state court found no need to reach the prejudice prong, Mr. Jarrard

has not established a reasonable probability that “but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. As

previously outlined, the jury heard evidence and arguments that the DNA evidence was

inconclusive and did not inculpate Mr. Jarrard. In light of the fact that T.C.’s household

6 The court also considers counsel’s performance as a whole during the trial proceedings. Ebert v.

Gaetz, 610 F.3d 404, 412 (7th Cir. 2010). The record reflects that his two trial attorneys served as

vigorous advocates on his behalf. Among other things, counsel filed a speedy trial motion (which

required both the prosecution and the defense to expedite their trial preparations); elicited

testimony from T.C.’s mother to show that Mr. Jarrard had been a father figure to T.C.; elicited

testimony from T.C. that she did not actually see Mr. Jarrard put his fingers in her vagina;

crossexamined the state’s DNA witnesses to highlight the fact that the DNA evidence did not

inculpate Mr. Jarrard; crossexamined Nurse Gordon and a doctor who examined T.C. about the

lack of evidence of any physical injury suffered by T.C.; actively participated in the jury

instruction conference; made a compelling closing argument pointing out weaknesses in the

state’s evidence; and argued for leniency at sentencing.

included two older brothers, the presence of male touch DNA was not particularly

damaging to Mr. Jarrard, and it may have actually caused the jury to consider whether

someone else had molested T.C. (ECF 16-7 at 76.) Furthermore, hearing that the DNA

experts could not be sure whether the swabs contained male DNA would not have

undercut T.C.’s unequivocal testimony that she woke to find Mr. Jarrard inserting his

fingers into her vagina. His own attorney acknowledged that T.C.’s trial testimony had

been consistent and “extraordinarily damning.” (Id. at 36, 72.) He has not established a

likelihood that, but for an error by his counsel, the result of the proceeding would have

been different. Harrington, 562 U.S. at 111; Strickland, 466 U.S. at 694.

Based on the record, Mr. Jarrard has not shown that the state court’s resolution of

this claim was “so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fair-minded disagreement.”

Hoglund, 959 F.3d at 832. Therefore, even if Mr. Jarrard had filed his petition on time, this

claim would not entitle him to federal habeas relief.

b. Claim Seven

Mr. Jarrard articulates claim seven as follows: “Prior inconsistent statement of T.C.

to her mother.” This appears to be a slight recasting of his claim that his trial attorneys

were ineffective in not impeaching T.C. with her mother’s statement to Nurse Gordon.

The state court reasonably applied Strickland to deny this claim.

Mr. Jarrard was convicted of engaging in “other sexual conduct” with T.C.,

defined as “an act involving . . . the penetration of the sex organ or anus of a person by

an object.” Ind. Code § 35-31.5-2-221.5(2). “[E]ven the slightest penetration is sufficient to

sustain convictions for child molesting.” Spurlock v. State, 675 N.E.2d 312, 315 (Ind. 1996).

There is also no requirement that the vagina be penetrated, only the “female sex organ,”

which includes the “external genitalia.” Id. “[T]he definition of the term ‘object’ includes

the use of one’s fingers.” DPaffo v. State, 778 N.E.2d 798, 802 (Ind. 2002). Mr. Jarrard

wanted his attorneys to “impeach” T.C. with her mother’s statement to Nurse Gordon

that T.C. told her Mr. Jarrard did not put anything inside her. He believes this would

have proven that he did not “penetrate” T.C., a necessary element to convict.

As a preliminary matter, the Indiana Court of Appeals found that Mr. Jarrard

failed to show T.C. had actually made a prior inconsistent statement. Jarrard, 2021 WL

4448795 at 6 n.4. In a deposition taken in the post-conviction proceedings, T.C. denied

ever telling her mother that Mr. Jarrard did not put anything inside her. Rather, she

explained that her description to her mother was that Mr. Jarrard had inserted his fingers

inside her but had not used “any foreign objects.” Id. At trial, she testified unequivocally

that she woke to find Mr. Jarrard touching her with his hand “on the inside” of the area

where she urinates. (ECF 16-2 at 129-30.) She testified that she knew it was on the inside

because she could feel it and it “hurt.” (Id. at 130.) In the post-conviction proceedings, she

confirmed that her trial testimony had been truthful. Jarrard, 2021 WL 4448795 at 6 n.4.

The state court’s finding that T.C. did not make a prior inconsistent statement is binding

unless Mr. Jarrard rebuts the presumption of correctness that attaches with “clear and

convincing evidence.” 28 U.S.C. § 2254(e)(1). He does not acknowledge the finding, let

alone rebut it with clear and convincing evidence.

Furthermore, the Indiana Court of Appeals concluded that under Indiana law, Mr.

Jarrard’s attorneys could not impeach T.C. with a statement made by her mother to Nurse

Gordon. Jarrard, 2021 WL 4448795 at 6. The court held that the Indiana Rules of Evidence

only permitted impeaching a witness with the witness’s own statements, not a statement

made by someone else. Id. This court is bound by the state court’s determination that state

law precluded counsel from trying to impeach T.C. with the statement her mother made

to Nurse Gordon. See Harper v. Brown, 865 F.3d 857, 861 (7th Cir. 2017) (“[O]n § 2254

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

law.”); Earls v. McCaughtry, 379 F.3d 489, 495 (7th Cir. 2004) (federal habeas court cannot

“second-guess state courts in interpreting state law”). Because counsel could not have

pursued this line of questioning under state law, Mr. Jarrard cannot established deficient

performance or resulting prejudice. Warren, 712 F.3d at 1104.

The Indiana Court of Appeals also considered that Mr. Jarrard’s attorneys were

well aware of Mother’s alleged statement to Nurse Gordon, but reasonably chose not to

pursue the matter further. They were concerned that asking T.C. about her mother’s

statement could have opened the door to the prosecution introducing the video of T.C.’s

interview at Hartford House as evidence, in which she provided an account that was

consistent with her trial testimony. Jarrard, 2021 WL 4448795 at 4. Counsel concluded that

going down this road would not “have been much of benefit to Mr. Jarrard” and could

have been quite damaging. (ECF 16-7 at 31, 35.) Additionally, in counsel’s view, the

statement from T.C.’s mother to Nurse Gordon was not “super persuasive” evidence

because it was essentially “double hearsay.” (ECF 16-7 at 32.) Counsel also felt it was too

risky to question T.C. on the stand about the alleged statement because “T.C. was a really

good witness” who effectively “killed [the defense] case. . . every time [she] spoke.” (Id.

at 35, 51.)

The record thus reflects that counsel was aware of and considered this issue, but

made a reasonable strategic decision not to pursue it. Gilbreath, 21 F.4th at 982. The state

court’s resolution of this claim was not objectively unreasonable. Thus, even if the

petition had been timely filed, this claim would not entitle him to federal habeas relief.

D. Certificate of Appealability

Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, the court must

either issue or deny a certificate of appealability in all cases where it enters a final order

adverse to the petitioner. To obtain a certificate of appealability, the petitioner must make

a substantial showing of the denial of a constitutional right by establishing “that

reasonable jurists could debate whether (or, for that matter, agree that) the petition

should have been resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,

484 (2000) (quotations and citation omitted). For the reasons fully explained above, Mr.

Jarrard’s petition is untimely. Even if he could overcome the untimeliness bar, his claims

are procedurally defaulted or without merit under AEDPA standards. The court finds no

basis to conclude that reasonable jurists would debate the outcome of the petition or find

a reason to encourage Mr. Jarrard to proceed further. Accordingly, the court declines to

issue him a certificate of appealability.

CONCLUSION

For the reasons set forth above, the petition (ECF 2) is DENIED, and the petitioner

is DENIED a certificate of appealability. The clerk is DIRECTED to close this case.

SO ORDERED.

May 15, 2023 s/ Damon R. Leichty

Judge, United States District Court