Petition for Writ of Certiorari — Elmer D. Baker, Petitioner v. Ron Neal, Warden

Case: 21-1707

Filed: 11/21/2022

Document: 37

Pages: 2

JSnitefr plates (Enurt of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted October 31, 2022

Decided November 21, 2022

Before

ILANA DIAMOND ROVNER, Circuit Judge

DIANE P. WOOD, Circuit Judge

MICHAEL B. BRENNAN, Circuit Judge

No. 21-1707

ELMER DEAN BAKER,

*

Petitioner-Appellant,

Appeal from the United States District

Court for the Northern District of

Indiana, South Bend Division.

v.

No. 3:19-CV-423-RLM-MGG

RON NEAL,

Respondent-Appellee.

Robert L. Miller, Jr.,

Judge.

ORDER

Appointed counsel for Elmer Dean Baker have filed a purported Anders brief and

a motion to withdraw from the case. See Anders v. California, 386 U.S. 738 (1967). Yet this

is not a direct criminal appeal, the setting in which we typically see Anders briefs.

Rather, Baker is pressing a collateral attack under 28 U.S.C. § 2254, and this court has

granted him a certificate of appealability. In that procedural posture, as we said in Lavin

v. Rednour, a lawyer who can discern no appealable issue should file not an Anders brief,

but a motion to vacate the certificate of appealability before the start of briefing. 641

F.3d 830 (7th Cir. 2011). This court therefore has construed counsels' filing as a Lavin

motion and allowed Baker a chance to respond, which he did.

Case: 21-1707

No. 21-1707

Document: 37

Filed: 11/21/2022

Pages: 2

Page 2

Upon consideration of counsel's motion and Baker's response, we conclude that

Baker has not made a substantial showing of the denial of a constitutional right. From

these filings, it is clear beyond serious debate that Indiana's amendment of its omnibusdate statute did not alter Baker's criminal liability or sentencing exposure and thus

could not have violated the Ex Post Facto Clause.

We therefore GRANT appointed counsels' motion to withdraw and VACATE

Baker's certificate of appealability.

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

ELMER DEAN BAKER,

Petitioner,

v.

CAUSE NO. 3:19-CV-423-RLM-MGG

WARDEN,

Respondent.

OPINION AND ORDER

Elmer Dean Baker, a prisoner without a lawyer, filed a habeas corpus

petition to challenge his convictions for child molestation under Cause No.

17D01-607-FA-7. Following a jury trial, on February 6, 2009, the Dekalb

Superior Court sentenced Mr. Baker as a habitual offender to one hundred six

years of incarceration.

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). 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, 814-815 (7th Cir. 2006) (citing Boyko

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v. Parke. 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 v. Sternes. 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.” IcL “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.

Mr. Baker’s habeas petition presents thirty-seven claims for relief. He

raises eleven claims against the trial court and one claim against the Indiana

Supreme Court for its decision on direct appeal. His petition to transfer on direct

appeal raised only two claims: whether the trial court erred by not requiring jury

unanimity on a specific criminal incident and whether the statute allowing the

prosecution greater latitude in amending the charges violated the Ex Post Facto

Clause. Under Indiana law, “if an issue was known and available but not raised

on direct appeal, the issue is procedurally foreclosed.” Stephenson v. State. 864

N.E.2d 1022, 1028 (Ind. 2007). The claims against the trial court and the Indiana

Supreme Court that weren’t raised in the petition to transfer on direct appeal are

procedurally defaulted. Further, the Indiana Supreme Court found that Mr.

Baker waived the jury unanimity claim by not raising it at trial, so this claim is

also procedurally defaulted. The Indiana Supreme Court reviewed the jury

unanimity claim under the fundamental error doctrine, but such limited review

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doesn’t allow this court to consider the claim in this habeas case. See Carter v.

Douma. 796 F.3d 726, 734 (7th Cir. 2015); Gray v. Hardy. 598 F.3d 324, 329

(7th Cir. 2010). The court will consider the remaining claim of whether the trial

court violated the Ex Post Facto Clause by allowing the prosecution to amend

the charges.

Mr. Baker raises fourteen claims of ineffective assistance of trial counsel.

Under Indiana law, “a Sixth Amendment claim of ineffective assistance of trial

counsel, if not raised on direct appeal, may be presented in postconviction

proceedings.” Woods v. State. 701 N.E.2d 1208, 1220 (Ind. 1998). “However, if

ineffective assistance of trial counsel is raised on direct appeal by a Davis petition

or otherwise, the issue will be foreclosed from collateral review.” IcL (referring to

mechanism to expedite review of post-conviction claims set forth in Davis v.

State. 368 N.E.2d 1149 (Ind. 1977)). Mr. Baker raised four claims of ineffective

assistance of trial counsel on direct appeal, asserting that trial counsel erred by

entering into a stipulation on uncharged crimes, by not objecting to the

instruction on the elements of child molestation, by not requesting an

instruction on unanimity, and by not presenting an expert witness. He didn’t

present of these claims in his petition to transfer to the Indiana Supreme Court

so the ineffective assistance claims raised on direct appeal are procedurally

defaulted. Further, due to Indiana’s all-or-nothing approach on the presentation

of ineffective assistance of trial counsel claims, the ineffective assistance of trial

counsel claims that weren’t raised on direct appeal are also procedurally

defaulted.

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Mr. Baker raises eleven claims of ineffective assistance of appellate

counsel. In the petition to transfer to the Indiana Supreme Court on post­

conviction review, Mr. Baker didn’t assert that appellate counsel rendered

ineffective assistance by asserting ineffective assistance of trial counsel claims

on direct appeal or that she mishandled any arguments presented to the Court

of Appeals of Indiana. Mr. Baker maintains that he presented these claims to the

Indiana Supreme Court by incorporating by reference his brief to the Court of

Appeals of Indiana, but Indiana law doesn’t let parties to present arguments that

way. Bigler v. State. 732 N.E.2d 191, 197 (Ind. App. 2000) (“[A] party may not

present an argument entirely by incorporating by reference from a source outside

the appellate briefs.”). Mr. Baker also says that appellate counsel didn’t properly

present the jury unanimity claim to the Indiana Supreme Court, but Mr. Baker

didn’t have a right to counsel at that stage of the proceedings. See Resendez v.

Smith. 692 F.3d 623, 626 (7th Cir. 2012) (“A criminal defendant enjoys a right

to counsel through his first appeal of right but once the direct appeal has been

decided, the right to counsel no longer applies.”). For these reasons, Mr. Baker

can’t proceed on these ineffective of assistance of appellate counsel claims.

Mr. Baker fairly presented claims that he received ineffective assistance of

appellate counsel based on these issues: (1) trial counsel should have objected

to a juror who had a disqualifying relationship with the prosecuting attorney’s

husband; (2) trial counsel should have objected to the addition of a third count

of child molestation in the amended information because it violated the statute

of limitations; (3) the trial court allowed trial counsel to waive his right to a jury

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trial on the habitual offender enhancement in violation of Indiana’s personal

waiver requirement; (4) the trial court sentenced him in violation of Apprendi v.

New Jersey. 530 U.S. 466 (2000); (5) the prosecution improperly vouched for the

victim’s credibility and relied on vouching testimony; (6) trial counsel should

have objected to juror bias as a result of pretrial publicity; and (7) the trial court

should not have allowed the stipulation of evidence.

In consideration of Mr. Baker’s pro se status, the court construes the

ineffective assistance of appellate counsel claims as an assertion of cause-andprejudice for the underlying claims of trial error and deficient performance by

trial counsel. A habeas petitioner can overcome a procedural default by showing

both cause for not abiding 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” that prevented a

petitioner from pursuing his constitutional claim in state court. Murray v.

Carrier. 477 U.S. 478, 492 (1986). “Meritorious claims of ineffective assistance

can excuse a procedural default.” Richardson v. Lemke. 745 F.3d 258, 272 (7th

Cir. 2014). “But those claims must themselves be preserved; in order to use the

independent constitutional claims of ineffective assistance of trial and appellate

counsel as cause to excuse a procedural default, a petitioner is required to raise

the claims through one full round of state court review, or face procedural default

of those claims as well.” Icl As detailed above, Mr. Baker fairly presented seven

claims of ineffective assistance of appellate counsel. Therefore, the court will

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consider whether appellate counsel error on those seven claims excuses

procedural default on the underlying claims involving the trial court and trial

counsel.

LEGAL STANDARD

“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)(l)

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 v. Donald. 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.

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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). “[I[n the cause-andprejudice context, we apply the same deferential standard as we would when

reviewing the claim on its own merits.” Richardson v. Lemke. 745 F.3d 258, 273

(7th Cir. 2014).

ANALYSIS

Ex Post Facto Clause

Mr. Baker argues that he is entitled to habeas relief because the trial court

violated the Ex Post Facto Clause by allowing the prosecution to amend the

charges. “The ex post facto prohibition forbids the Congress and the States to

enact any law which imposes a punishment for an act which was not punishable

at the time it was committed; or imposes additional punishment to that then

prescribed.” Weaver v. Graham. 450 U.S. 24, 28 (1981) (“[T[wo critical elements

must be present for a criminal or penal law to be ex post facto: it must be

retrospective, that is, it must apply to events occurring before its enactment, and

it must disadvantage the offender affected by it.” IcL at 29. “The critical question

is whether the law changes the legal consequences of acts completed before its

effective date.” Id. at 31.

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In July 2006, the prosecution charged Mr. Baker with two counts of child

molestation and a habitual offender enhancement accusing him of misconduct

with two minor children in June or July 2003. The omnibus date was in

December 2006. In June 2007, a jury trial on those charges resulted in a

mistrial. Shortly after the trial, the trial court allowed the prosecution to amend

the existing charges by expanding the timeframe to October 2000 to August 2003

for each of the two counts and to add a third count of child molestation involving

another minor in 2002. In August 2008, a second jury convicted Mr. Baker.

At the time of the crimes, the relevant statute required the prosecution to

notify a criminal defendant of substantive amendments at least thirty days before

the omnibus date. Ind. Code § 35-34-l-5(b)(l) (2003). That limitation didn’t apply

to amendments to cure immaterial defects, including “the failure to state the

time of place at which the offense was committed where the time or place is not

of the essence of the offense.” Ind. Code § 35-34-l-5(a) (2003). This statute was

amended effective May 8, 2007, to allow amendments at any time before trial “if

the amendment [did] not prejudice the substantial rights of the defendant.” Ind.

Code § 35-34-1-5(b)(2) (2008).

On direct appeal, the Court of Appeals of Indiana rejected Mr. Baker’s

claim of error on the basis that it had previously held that the revised statute

didn’t violate the Ex Post Facto Clause in Ramon v. State. 888 N.E.2d 244 (Ind.

App. 2008). In Ramon, the appellate court reasoned that the revised statute

“creates no new crimes, does not change the elements of any crime, and does

not alter the sentencing statutes.” Ramon v. State. 888 N.E.2d at 252. The

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appellate court also found that even the previous version of the statute would

have allowed the expansion of the timeframes for the first two counts of child

molestation. It reasoned that time wasn’t of the essence in such cases given the

inability of children to remember specific dates.

After reviewing the state court record, the court cannot find that the state

court made an unreasonable determination with respect to the Ex Post Facto

Claim. The relevant statute would have allowed the prosecution to amend the

first two counts of child molestation by expanding the timeframe even before the

effective date of the revisions. At all relevant times, the statute allowed the

prosecution to amend the information to correct “the failure to state the time or

place at which the offense was committed where the time or place is not of the

essence of the offense.” Ind. Code. § 35-34-1-5 (a)(7). In other words, the change

in the law had no effect on these amendments, and so couldn’t have violated the

Ex Post Facto Clause.

The addition of third count of child molestation is a different matter. As

the state court noted, the revised statute didn’t criminalize previously legal

behavior or increase the severity of the sentence for child molestation. But the

reasoning can’t stop there, because the same line of reasoning could apply to the

statute challenged in Stogner v. California. 539 U.S. 607 (2003), which Mr. Baker

cited in his appellate brief. In that case, the Supreme Court of the United States

considered a statute that allowed prosecuting attorneys to pursue certain

criminal charges after the limitations period for those charges had expired. The

Supreme Court found that this statute violated the Ex Post Facto Clause for

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criminal defendants whose limitations period had expired before its effective

date. Stogner v. California. 539 U.S. at 609. It likened the expiration of a

limitations period to a form of amnesty and reasoned that the new statute

imposed punishment for conduct that was, in essence, immunized from

punishment by the passage of time. IcL at 611-615.

Nevertheless, the deadline for substantive amendments to criminal

charges isn’t equivalent to a statutory limitations period. Before the statutory

revision, the amendment deadline was tied to the omnibus date, which, under

Indiana law, broadly serves as a point of reference for scheduling in criminal

proceedings. Ind. Code Ann. § 35-36-8-1(b). The trial court’s discretion to modify

the omnibus date is and was relatively constrained, particularly given the wide

latitude typically afforded to trial courts for setting deadlines. According to Ind.

Code § 35-36-8-1(d), “[o]nce the omnibus date is set, it remains the omnibus

date for the case until final disposition,” unless certain circumstances apply,

including the substitution of trial counsel, the prosecution’s failure to comply

with a discovery deadline, or the agreement of the parties. But these

circumstances, though limited in number, don’t arise infrequently and suggest

that extensions of omnibus dates are common enough occurrences. In sum, the

amendment deadline’s relationship to the omnibus date indicates that the

amendment deadline isn’t meant to afford criminal actors the degree of amnesty

afforded by a statutory limitations period.

Expiration of the amendment deadline does not make a criminal act

unpunishable, so an extension of an expired amendment deadline, through

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statutory revision or otherwise, doesn’t violate the Ex Post Facto Clause. Mr.

Baker’s claim that the amendment of the charges violated his rights under the

Ex Post Facto Clause is not a basis for habeas relief.

Ineffective Assistance of Appellate Counsel

Mr. Baker asserts that he is entitled to habeas relief because he received

ineffective assistance of appellate counsel. He also asserts that he is entitled to

habeas relief due to trial error and ineffective assistance of trial counsel, but

these claims axe procedurally barred. As a result, the court can’t grant habeas

relief based on these claims unless Mr. Baker demonstrates that the procedural

bar was caused by ineffective assistance of appellate counsel.

To prevail on an ineffective assistance of counsel claim, 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). 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.” hi at 694. A reasonable probability is a probability “sufficient to

undermine confidence in the outcome.” Icl 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). “On 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.” Icl

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Mr. Baker argues that appellate counsel erred by declining to argue that

the publicity caused by local newspaper articles deprived him of the right to an

impartial jury. Trial counsel didn’t object on this basis, so appellate counsel

could present this claim only as an ineffective assistance of trial counsel claim,

which would have required a showing of prejudice, or to argue that it resulted in

fundamental error. See Baumholser v. State. 62 N.E.3d 411, 414 (Ind. App.

2016) (“Failure to object at trial waives the issue on review unless fundamental

error occurred.”). Under Indiana law, “[fundamental error is an extremely

narrow exception that applies only when the error amounts to a blatant violation

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

resulting error denies the defendant fundamental due process.” IcL The appellate

court rejected this claim on post-conviction review because Mr. Baker didn’t

show that the newspaper articles prejudiced him. He didn’t provide any evidence

that the jurors were aware of the newspaper articles or that the pretrial publicity

had any effect on the verdict. Given the lack of evidentiary support for this claim,

the court can’t find that this determination was unreasonable.

Mr. Baker argues that appellate counsel erred by declining to argue that

trial counsel should have moved for a mistrial after a juror’s conversation with

the prosecuting attorney’s spouse. Under Indiana law, “[defendants seeking a

mistrial for suspected jury taint are entitled to the presumption of prejudice only

after making two showings, by a preponderance of the evidence: (1) extra-judicial

contact or communications between jurors and unauthorized persons occurred,

and (2) the contact or communications pertained to the matter before the jury.”

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Ramirez v. State, 7 N.E.3d 933, 939 (Ind. 2014). At trial, the prosecuting attorney

told the court that, at a fast food restaurant, a juror asked her spouse whether

he planned to play on a soccer team and that he replied that he would if he

asked. The prosecuting attorney represented that her spouse and the juror didn’t

discuss the case. Ich The appellate court rejected this claim on post-conviction

review

for

lack

of deficient

performance,

reasoning

that

since

this

communication didn’t relate to Mr. Baker’s trial, trial counsel had no basis for

requesting a mistrial. Mr. Baker didn’t show that the lack of an objection caused

him prejudice, so this determination was not unreasonable.

Mr. Baker argues that his appellate counsel erred by declining to argue

that trial counsel should have objected to the third count of child molestation in

the amended information for untimeliness. The applicable limitations period is

five years. Ind. Code § 35-41-4-2(a)(l). The prosecution added the third count on

June 18, 2007, asserting that, “in or about 2002,” Mr. Baker “did perform or

submit to fondling or touching with A.H.” Direct Appeal App. 80. At trial, the

three victims described an event in which Mr. Baker molested each of them. J.A.

testified that Mr. Baker began molesting her around the time of another trial that

occurred in October 2002. A.H. testified that all of the molestation incidents

involving Mr. Baker occurred within the year preceding her August 2003 police

report. On the basis of this testimony, the appellate court found that Mr. Baker

didn’t suffer prejudice as a result of trial counsel’s decision not to object on the

basis of timeliness. The court can’t find that this determination was

unreasonable. As detailed above, the record reflects that the prosecution had

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evidence to support a timely count of child molestation with respect to A.H. Had

objected to the amended information on the basis of timeliness, it seems more

likely that such an objection would have resulted in another amendment rather

than the prosecution discontinuing their pursuit of it.

Mr. Baker argues that appellate counsel erred by declining to argue that

Mr. Baker didn’t knowingly, voluntarily, and intelligently waive his right to a jury

trial on the habitual offender enhancement. He maintains that a criminal

defendant can waive the right to a jury trial only bu=y personally communicating

it to the trial court, citing Horton v. State, 51 N.E.3d 1154 (Ind. 2016). The

appellate court rejected this claim on post-conviction review, reasoning that

Horton hadn’t been decided during trial proceedings and that it was unclear

whether its holding applied to habitual offender enhancements.

This court further adds that, in her appellate briefs, appellate counsel

focused on her arguments on jury unanimity, which resulted in the Indiana

Supreme Court agreeing to require more specific jury instructions in certain

circumstances, and on the Ex Post Facto Clause, a substantial, if ultimately

unsuccessful, constitutional argument as detailed above. Success on these

arguments would have resulted in a new trial or dismissal for all charges. By

contrast, the argument on personal waiver would have entitled Mr. Baker to a

new trial only on the habitual offender enhancement. Prior convictions, which

are a matter of public record, are difficult to contest, and Mr. Baker offers no

basis to suggest a jury would not have found him to be a habitual offender. Given

the substantial issues raised on direct appeal and the limited relief afforded by

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a successful personal waiver argument, the court can’t find that the State court’s

determination that appellate

counsel did

not perform

deficiently was

unreasonable.

Mr. Baker argues that appellate counsel erred by declining to argue that

his sentence violated Apprendi v. New Jersey. 530 U.S. 466 (2000), in which the

Supreme Court of the United States held that “[ojther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt.” kh at 490. The appellate court correctly determined that

Apprendi didn’t apply to Mr. Baker’s sentence. Apprendi. by its own terms,

doesn’t apply to prior convictions and so didn’t apply to the habitual offender

enhancement. The trial court found other aggravating factors without the

assistance of a jury, but didn’t impose a sentence beyond the prescribed

statutory maximum. See Ind. Code Ann. § 35-50-2-4 (2005) (fifty years for Class

A felony); Ind. Code Ann. § 35-50-2-6 (2005) (eight years Class C felony); Ind.

Code Ann. § 35-50-2-8 (2005) (thirty years for habitual offender enhancement).

Mr. Baker argues that appellate counsel erred by declining to argue that

the prosecution improperly introduced vouching testimony and improperly

vouched for the victims during closing arguments. In his appellate brief, Mr.

Baker referenced the testimony of a caseworker who explained her role in the

case and the investigatory process for her agency, wrote in her report that the

victim’s mothers believed the accusations and that she would not have submitted

the case to the prosecutor’s office if she and her supervisor didn’t agree that it

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had merit. He referenced the testimony of the victim’s family members that they

believed the victims. He also referenced the testimony of a physician that she

performed certain medical procedures on a victim because she suspected sexual

abuse. According to Mr. Baker, at closing, the prosecution implied that the

caseworker, the detective, and the prosecution believed the victims by observing

that these individuals didn’t abandon the case and directed the jury to review

the exhibits, which included the caseworker’s reports. The prosecution also

made references to the victims’ testimony, including that they had cried and that

they had taken an oath “to tell the truth as they remembered it today.”

The appellate court found that the prosecution didn’t improperly vouch or

elicit sympathy for the victims but instead fairly commented on the trial

evidence. Under Indiana law, “a prosecutor may not state his or her personal

opinion regarding the credibility of a witness during trial,” but “a prosecutor may

comment as to witness credibility if the assertions are based on reasons arising

from the evidence presented in the trial.” Thomas v. State, 965 N.E.2d 70, 77

(Ind. App. 2012). After reviewing the prosecution’s closing argument, the court

doesn’t find that the state court’s determination on this issue was unreasonable.

The prosecution referenced and made observations about witness testimony but

stopped short of expressing a personal opinion on the credibility of the victims.

The bulk of the testimony cited by Mr. Baker is not attributable to the

prosecution but was instead elicited on cross-examination by trial counsel. This

testimony doesn’t support the claim of prosecutorial misconduct.

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Additionally, under Indiana law, “to properly preserve a claim of

prosecutorial misconduct for appeal, a defendant must not only raise a

contemporaneous objection but must also request an admonishment; if the

admonishment is not given or is insufficient to cure the error, then the defendant

must request a mistrial.” Neville v. State. 976 N.E.2d 1252, 1258 (Ind. App.

2012). In other words, this is another claim that appellate counsel could have

presented only as an ineffective assistance of trial counsel claim, which would

have required a showing of prejudice, or to argue that it resulted in fundamental

error. Given that appellate counsel would have faced the more difficult task of

demonstrating prejudice and given her focus on other, more substantial claims,

the claim of prosecutorial misconduct is not a basis for habeas relief.

Mr. Baker argues that appellate counsel should have argued that the trial

court abused its discretion by allowing the parties to stipulate on the

admissibility of evidence. On May 14, 2008, the parties stipulated to the

following:

1. Evidence regarding all allegations of sexual activity between the

victims and the defendant is admissible, including but not limited

to when those activities began.

2. Evidence regarding the opportunities for the victims to complain

about that alleged sexual activity, including but not limited to the

Loren Wilkins investigation, is admissible.

Direct Appeal App. 229.

The appellate court held on post-conviction review that the trial court

didn’t abuse its discretion by accepting a stipulation with the consent of both

parties. Review of the pretrial motions indicates that trial counsel’s decision to

17

USDC IN/ND case 3:19-cv-00423-RLM-MGG document 27 filed 03/22/21 page 18 of 19

stipulate was a reasonable strategic decision. The prosecution sought to exclude

evidence of the victims’ past sexual activity, including their involvement as

victims of child molestation by another individual, while trial counsel sought to

use such evidence as part of the defense. Direct Appeal App. 161-63, 194-97. By

entering into the stipulation, trial counsel obtained a benefit for Mr. Baker, and

the trial court might have allowed evidence of prior sexual activity between the

victims and Mr. Baker without the stipulation. See Beasley v. State. 452 N.E.2d

982, 984 (Ind. 1983) (“The general rule is that evidence of criminal activity other

than that which is charged is inadmissible on the question of guilt; however,

such evidence may be admitted if it is relevant to show intent, motive, purpose,

identification or common scheme or plan.”). Therefore, this claim 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 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).

For the reasons explained in this opinion for denying habeas corpus relief, there

is no basis for encouraging Mr. Baker to proceed further.

18

USDC IN/ND case 3:19-cv-00423-RLM-MGG document 27 filed 03/22/21 page 19 of 19

For these reasons, the court DENIES the habeas corpus petition (ECF 1),

DENIES the certificate of appealability, and DIRECTS the clerk to enter judgment

in favor of the Respondent and against the Petitioner.

SO ORDERED on March 22, 2021

s/ Robert L. Miller, Jr._________

JUDGE

UNITED STATES DISTRICT COURT

19

USDC IN/ND case 3:19-cv-00423-RLM-MGG document 30 filed 04/05/21 page 1 of 2

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

ELMER DEAN BAKER,

Petitioner,

v.

CAUSE NO. 3:19-CV-423-RLM-MGG

WARDEN,

Respondent.

ORDER

Elmer Dean Baker, a prisoner without a lawyer, filed a motion to reconsider

the order denying his petition for habeas relief. Based on the timing of this motion,

the court construes it as motion pursuant to Fed. R. Civ. P. 59(e). “A court may grant

a Rule 59(e) motion to alter or amend the judgment if the movant presents newly

discovered evidence that was not available at the time of trial or if the movant points

to evidence in the record that clearly establishes a manifest error of law or fact.”

Matter of Prince. 85 F.3d 314 (7th Cir. 1996); Deutsch v. Burlington N. R.R. Co.. 983

F.2d 741 (7th Cir. 1993). “Reconsideration is not an appropriate forum for rehashing

previously rejected arguments or arguing matters that could have been heard during

the pendency of the previous motion.” Caisse Nationale de Credit Agricole v. CBI

Industries. Inc.. 90 F.3d 1264, 1270 (7th Cir. 1996).

Mr. Baker argues that the court should reconsider the order because his

conviction violates the Ex Post Facto Clause, because trial counsel should have

objected to one count of child molestation as untimely, because he was sentenced in

USDC IN/ND case 3:19-cv-00423-RLM-MGG document 30 filed 04/05/21 page 2 of 2

violation of Annrendi v. New Jersey. 530 U.S. 466 (2000), and because trial counsel

should have objected that pretrial publicity deprived him of a fair trial. He also asks

the court to reconsider the denial of a certificate of appealability. The court has

adequately addressed Mr. Baker’s arguments in the order denying habeas relief. ECF

27. For the reasons set forth in that order, the court declines to reconsider them or to

issue a certificate of appealability.

For these reasons, the court DENIES the motion to reconsider (ECF 29).

SO ORDERED on April 5, 2021

s/ Robert L. Miller, Jr.__________

JUDGE

UNITED STATES DISTRICT COURT

2

Case: 21-1707

Filed: 12/21/2022

Document: 41

Pages: 1

Ltnitch jitafes Court of JVppeals

For the Seventh Circuit

Chicago, Illinois 60604

December 21, 2022

Before

ILANA DIAMOND ROVNER, Circuit Judge

DIANE P. WOOD, Circuit Judge

MICHAEL B. BRENNAN, Circuit Judge

No. 21-1707

ELMER DEAN BAKER,

Petitioner-Appellant,

Appeal from the United States District Court

for the Northern District of Indiana,

South Bend Division.

v.

No. 3:19-CV-423-RLM-MGG

RON NEAL,

Respondent-Appel lea

Robert L. Miller, Jr., Judge

ORDER

No judge of the court1 having called for a vote on the Petition for Rehearing and

Rehearing En Banc, filed by Petitioner-Appellant on December 5, 2022, and all of the

judges on the original panel having voted to deny the same,

IT IS HEREBY ORDERED that the Petition for Rehearing and Rehearing En

Banc is DENIED.

Circuit Judge Doris L. Pryor did not participate in the consideration of this petition.

Additional material

from this filing is

available in the

Clerk's Office.