Howard v. Warden

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

CLAY HOWARD,

Petitioner,

v. CAUSE NO. 3:24-CV-624 DRL-SJF

WARDEN,

Respondent.

OPINION AND ORDER

Clay Howard, by counsel, filed a habeas corpus petition under 28 U.S.C. § 2254 to

challenge his conviction for murder under Case No. 48C01-1012-MR-893. Following a

jury trial, on May 5, 2014, the Madison Circuit Court sentenced him to 65 years of

incarceration.

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

state courts are correct unless 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 April 2007, Howard was an inmate at the Pendleton Correctional Facility.

On April 5, 2007, Howard was transferred into cell 103 in Building D, where

inmates live two to a cell with individual doors on each cell. Howard’s new

cellmate was Kent McDonald, a convicted child molester.

On the night of April 5, 2007, two inmates played dominos with McDonald

and later heard McDonald and Howard arguing around 11:30 p.m. On the

morning of April 6, 2007, a correctional officer doing a body count observed

Howard on the top bunk and McDonald lying under the covers on the

lower bunk with his legs sticking up at an unusual angle. Although

McDonald had never previously missed a meal, he missed breakfast that

morning. Two inmates later came to see if McDonald wanted to join them

for lunch and talked with Howard, who was “shaking” and appeared

“afraid.” Howard blocked the door so that they could not see into the cell

and told them that McDonald was sleeping.

Shortly after noon on April 6, correctional officers found McDonald lying

on the bottom bunk, with his legs still in the unusual position they had been

in earlier that morning. McDonald’s leg was cold to the touch, and when

his blankets were removed, the officers discovered that he had a pillowcase

tied around his head and observed a substantial amount of blood. He was

not breathing, and medical personnel were unable to resuscitate him. Later,

a pathologist conducting an autopsy observed that McDonald had multiple

blunt force injuries to the head and neck, with evidence of asphyxiation.

In December 2010, the State charged Howard with McDonald’s murder,

alleging that Howard, “acting in concert with Paul M. Rayle, did knowingly

kill” McDonald. Howard’s jury trial took place from February 18 through

26, 2014.

* * *

During the trial, the State requested that the jury view the cell where the

murder took place. The trial court allowed the jury to view the crime scene

over Howard’s objection, finding that it was “beneficial” to the jury to view

the scene.

At trial, the State introduced a letter into evidence. The State alleged that

approximately one year after McDonald’s murder, a corrections officer

screening outgoing mail observed a letter from Howard to his father. The

screening officer placed the letter in a secured box for further review. The

letter was later retrieved by a Department of Correction (DOC) investigator

and sent to Indiana State Police officers. In relevant part, the letter stated as

follows:

I still go hunting. Just not your typical Game though. Tell Shane I

Bagged and Tagged a [illegible]. It’s got a gamey taste but a lot like Beef.

They tried to get me on Poaching charges because the Son Bitch wasn’t

in season. The charges never stuck. That was 2 Birds w/one stone not

only did he Play with kids, he Played with Boys so he was a F*g. How

about that for earning some stripes. Thats something you can be Proud

of. Throw this letter in the Fire Place or Burn it non-the less when your

done reading it. Serious.

Howard objected that the State had failed to establish a sufficient chain of

custody to introduce the letter into evidence. The trial court overruled the

objection and admitted the letter into evidence.

At trial, inmate Toby Hicks testified that Howard admitted to him that he

had discovered that his cellmate was a child molester and that he was

ordered by the prison gang Aryan Brotherhood to “take care of it.” Howard

told Hicks that he was in the process of joining the gang at that time.

According to Hicks, Howard said that he had attempted to extort money

from McDonald and McDonald refused to pay, after which Howard and

another gang member “beat him and tortured him and left him in his bed

and went to chow.” Howard stated that they “choked him out” until he

passed out and then “put him on the bed and left him there.”

The State sought to enter pictures of Howard’s Aryan Brotherhood tattoo

into evidence. Howard objected because the photographs had not been

disclosed to him prior to trial. The trial court granted the objection in part,

denying the State’s request to admit the photographs into evidence and

instead ordering Howard to show his tattoo to the jury. The trial court

reasoned that the State had laid a sufficient foundation by presenting

Hicks’s testimony regarding Howard’s membership in the Aryan

Brotherhood gang. A DOC investigator who monitors prison gang activity

testified regarding gang activity in Indiana prisons and the Aryan

Brotherhood tattoo, and then identified Howard’s chest tattoo as an Aryan

Brotherhood gang tattoo. The investigator also testified that the Aryan

Brotherhood requires an act of violence to earn admission into the gang and

that this particular gang is known for targeting and extorting child

molesters.

At the close of trial, the jury found Howard guilty as charged. On May 5,

2014, the trial court sentenced Howard to sixty-five years imprisonment.

Howard v. State, 29 N.E.3d 820 (Ind. Ct. App. 2015); ECF 9-6 at 2-5.

In the petition, Mr. Howard argues that he is entitled to habeas relief because the

trial court erred by allowing the jury to view the scene of the crime at the Pendleton

Correctional Facility and because trial counsel failed to request jury instructions for

lesser-included offenses.

PROCEDURAL DEFAULT

The Warden argues that Howard has procedurally defaulted his claims. 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. Benik, 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 (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.

A. Viewing the Crime Scene.

The court first considers whether the claim of trial court error is procedurally

defaulted. The trial court held a conference on the prosecution’s request to allow the jury

to view the crime scene before jury selection. ECF 10-14 at 23-25. Trial counsel objected

on numerous grounds, including redundancy with video and photograph exhibits, the

absence of a plan or procedure, the changes at the prison since the crime, and the risk that

it would unfairly emphasize Mr. Howard’s status as a prisoner. Id. The trial court took

the matter under advisement for the purpose of observing some of the evidence to

facilitate its determination on whether viewing the crime scene would aid the jury. Id.

After the prosecution presented testimony from five witnesses, the trial court heard

further argument on the prosecution’s motion. ECF 10-15 at 17-25. Trial counsel objected

on the bases that jurors are discouraged from personally conducting investigations and

that viewing the crime scene would not materially aid the jury. Id. He also raised the risk

of improper communications with other inmates or inappropriate questions by jurors,

the disruption of normal prison activities, and the lack of clarity regarding how the scene

view would proceed. Id. The trial court granted the prosecution’s motion. Id.

On direct appeal, Mr. Howard argued, “A jury view of the prison is fundamentally

prejudicial and unnecessarily marks the defendant as a dangerous character or suggests

his guilt is a foregone conclusion in the same way that being tried in prison attire would.”

ECF 9-3 at 19. The Indiana Court of Appeals found that Mr. Howard had waived this

objection by failing to raise it at trial. ECF 9-6 at 8-9. It further found that, if such an

objection had been raised, it would have been appropriate to overrule it. Id. The court

noted that the jury was informed of Mr. Howard’s status as a prisoner throughout the

trial given the nature of the charges and the evidence used to support them. Id. It also

noted material differences between “the protections in place to ensure a defendant is not

unfairly viewed as dangerous” and “shielding a jury from observed a crime scene that

happens to be a prison.” Id. Mr. Howard presented the claim in a petition to transfer, but

the Indiana Supreme Court denied it. ECF 9-2; ECF 9-7.

“[A] procedural default [bars] consideration of a federal claim on either direct or

habeas review [when] the last state court rendering a judgment in the case clearly and

expressly states that its judgment rests on a state procedural bar.” Harris v. Reed, 489 U.S.

255, 263 (1989). The Indiana Court of Appeals expressly found that Mr. Howard had

waived his argument, and the Indiana Supreme Court did not disturb this finding, so it

appears that this claim is procedurally defaulted.

Mr. Howard argues that his claim is not procedurally defaulted because the

Indiana Court of Appeals issued a ruling on the merits. “A state court may reach the

merits of a federal claim in an alternative holding; if it does so explicitly, then the

independent and adequate state ground doctrine curtails reconsideration of the federal

issue on federal habeas.” Moore v. Bryant, 295 F.3d 771, 775 (7th Cir. 2002); see also Bivens

v. Rednour, 428 F. Appx. 638, 641–42 (7th Cir. 2011); McDonald v. Page, 14 F. Appx. 651,

653 (7th Cir. 2001). “By its very definition, the adequate and independent state ground

doctrine requires the federal court to honor a state holding that is a sufficient basis for the

state court’s judgment, even when the state court also relies on federal law.” Harris, 489

U.S. at 264 n.10. The Indiana Court of Appeals explicitly framed its ruling on the merits

as a secondary alternative basis for denying relief. Therefore, the court finds that the

scene-viewing claim remains procedurally defaulted.

Mr. Howard also offers the following argument as a basis to excuse procedural

default:

But if this Court [finds] that waiver applies, then it should find [that] cause

exists. Trial Counsel provided detailed argument against the view even if

he left out that part of the argument. And even then there was video and

pictures of the scene available from the day in question. Taking the jurors

to the scene simply formed them into a prison, an environment most had

probably never known, surrounded by the sound and smell of inmates and

the sights which only prejudiced Howard. The prejudice was

overwhelming, and he stood no chance of ever getting a fair trial.

ECF 12 at 14.

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 impeded [his] efforts to comply with the State’s procedural

rule.” Murray v. Carrier, 477 U.S. 478, 492 (1986). Though his argument appears to be an

assertion of the cause-and-prejudice excuse to procedural default, the factual basis of the

argument does not fit squarely within the cause-and-prejudice framework. The only

identifiable factor that could have prevented Mr. Howard from complying with the rule

that an objection during trial be made to preserve the issue for appeal is trial counsel’s

failure to object during trial, but he phrases his argument as though trial counsel’s

performance was both sufficient and deficient.

Nevertheless, the court would not allow Mr. Howard to proceed on this claim even

assuming that he intended to assert ineffective assistance of trial counsel as an excuse to

procedural default. “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; [] 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. Because Mr. Howard did not properly

present a claim regarding trial counsel’s failure to object to the Indiana courts, it is

procedurally defaulted. And, because this ineffective assistance claim is procedurally

defaulted, it cannot serve to excuse the procedurally defaulted nature of his habeas claims

about viewing the crime scene.

Consequently, Mr. Howard has not presented a valid excuse to procedural default

in connection with his claim of trial court error. As a result, the court will not further

consider the alleged trial court error as a basis for habeas relief.

B. Jury Instructions on Lesser-Included Offenses.

The court next considers the claim that trial counsel provided ineffective assistance

by failing to request jury instructions on lesser-included offenses. On post-conviction

review, Mr. Howard presented this claim to the Madison Circuit Court, who denied the

petition based on the merits of claims as follows:

To have pursued lesser included offenses or other alternative theories

inconsistent with the defense’s chosen trial strategy would have greatly

undercut the defense’s credibility. It would have been quite ineffective to

have argued as [Mr. Howard] now suggests, “Defendant was not the man

who caused the death. Furthermore, when he caused this death, it was an

accident as he was only trying to commit a different crime against the

victim.”

ECF 9-10 at 34.

On post-conviction appeal, Mr. Howard presented this claim to the Indiana Court

of Appeals, but the court found that Mr. Howard did not “support his arguments with

cogent reasoning, citations to relevant authority, and/or citations to the record” as

required by Ind. App. R. 46(A)(8)(a). ECF 9-12 at 7-8. The appellate court observed that

he had “merely cite[d] to all thirty-seven pages of his petition for post-conviction relief in

support of most of the arguments” and that “he did not cite to any part of the record of

the evidentiary hearing held on his petition.” Id. The appellate court concluded that Mr.

Howard waived his arguments. Id. It further found that, notwithstanding the waiver, Mr.

Howard did not demonstrate deficient performance or prejudice. Id. at 8-9. The appellate

court relied on trial counsel’s explanation that he did not believe the record contained

sufficient evidence to support instructions on lesser included offenses. Id.

Review of the appellate brief reveals that Mr. Howard cited to only his post-

conviction petition and related filings in connection with his lesser-included offense

argument. ECF 9-10 at 20-23. His appellate brief did not include any citations to the jury

instructions or evidence presented at trial and at the post-conviction hearing. Id. Mr.

Howard’s lack of compliance frustrated the purpose of Ind. App. R. 46(A)(8)(a), which is

“to aid and expedite review and to relieve the appellate court of the burden of searching

the record and briefing the case.” Wenner v. Hensley, 224 N.E.3d 339, 344 (Ind. Ct. App.

2023). As a result, the court finds that this claim is procedurally defaulted. As with the

claim of trial court error, the court similarly finds that this claim remains procedurally

defaulted, though the appellate court ruled on the merits of the claim too.

Mr. Howard argues that the court should excuse this procedural default because

he did not have counsel on post-conviction appeal. As a general rule, “[n]egligence on

the part of a prisoner’s postconviction attorney does not qualify as cause.” Maples v.

Thomas, 565 U.S. 266, 280 (2012); see also Coleman v. Thompson, 501 U.S. 722, 752 (1991)

(“There is no constitutional right to an attorney in state post-conviction proceedings.

Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel

in such proceedings.”). The exception is that “[i]nadequate assistance of counsel at initial-

review collateral proceedings may establish cause for a prisoner’s procedural default of

a claim of ineffective assistance at trial.” Martinez v. Ryan, 566 U.S. 1, 9 (2012); Brown v.

Brown, 847 F.3d 502 (7th Cir. 2017).

According to Martinez, “inadequate assistance of counsel” includes both when

post-conviction counsel renders ineffective assistance as defined by Strickland v.

Washington, 466 U.S. 668 (1984), and when a post-conviction petitioner proceeds without

counsel, Martinez, 566 U.S. at 9, 11-14. However, the Martinez exception “does not concern

attorney errors in other kinds of proceedings, including appeals from initial-review collateral

proceedings, second or successive collateral proceedings, and petitions for discretionary

review in a State’s appellate courts.” Id. at 16 (emphasis added). Mr. Howard defaulted

his ineffective assistance claim on post-conviction appeal rather than during his “initial-

review collateral proceedings” before the Madison Circuit Court. As a result, he cannot

assert lack of post-conviction counsel to excuse procedural default for this claim.

Consequently, the court declines to further consider the claim that trial counsel erred by

failing to request instructions on lesser-included offenses.

In sum, Mr. Howard’s claims are procedurally defaulted, and he offers no valid

basis to excuse procedural default. Therefore, the court denies the petition 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 Mr. Howard to proceed further.

For these reasons, the court DENIES the habeas corpus petition (ECF 3); 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.

February 25, 2025 s/ Damon R. Leichty

Judge, United States District Court