Tommy Ford v. Bill Wilson , 747 F.3d 944 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12-3844
TOMMY D. FORD,
Petitioner-Appellant,
v.
BILL WILSON, Superintendent
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:11-cv-490-JTM — James T. Moody, Judge.
____________________
ARGUED APRIL 17, 2014 — DECIDED MAY 2, 2014
____________________
Before MANION, SYKES, and TINDER, Circuit Judges.
TINDER, Circuit Judge. This is a habeas action brought un-
der 28 U.S.C. § 2254, in which Petitioner Tommy Ford chal-
lenges his conviction for murder in an Indiana state court.
On appeal, Ford maintains only one ground for relief: that
his trial counsel was ineffective in failing to object when the
state prosecutor commented on his failure to testify. Ford
contends that an objection would have been sustained be-
cause the prosecutor’s comments violated his Fifth Amend-
2 No. 12-3844
ment privilege against compulsory self-incrimination. How-
ever, even assuming that to be true, Ford has failed to show
prejudice resulting from his attorney’s failure to object.
Therefore, we affirm.
I. BACKGROUND
In § 2254 proceedings, factual determinations made by
the state court are presumed to be correct. 28 U.S.C.
§ 2254(e)(1). Ford has made no attempt to rebut this pre-
sumption as it pertains to the facts relied upon by the Indi-
ana Court of Appeals, which summarized the evidence at
trial as follows:
On November 1, 2005, Ford visited Glen Park in Gary
and encountered an acquaintance, James Grace. Ford
talked with Grace and drank vodka with one of
Grace’s friends. Grace told Ford that he needed a
place to store his vehicle. Ford offered to show Grace
his garage as a possible storage location. Ford left his
car at the park and rode with Grace to Ford’s home.
As the two men approached Ford’s house, they
passed fifteen-year-old Christian Hodge, who was
seated on a front-yard retaining wall on the property
next door. Ford and Hodge greeted each other. When
Ford and Grace entered Ford’s house, Ford said to
Grace, “I can’t stand that mother fucker. I’ll be back.”
Ford left the house, and Grace heard a popping sound
shortly thereafter. He looked outside and saw Hodge
lying in the street. Ford came back inside the house
and said to Grace, “I got to get the fuck out of here,
and meet me down—meet me at the end of the alley
and pick me up.” Grace got into his truck and drove
away. He soon located a police officer and led him
No. 12-3844 3
back to the crime scene. Hodge had suffered one gun-
shot wound to the back of his head, and he died the
next day.
At the crime scene, Gary Police Officer Daniel
Quasney spoke with witness Ronell Simmons, who
appeared to be “upset, in disbelief, and in a state of
shock.” Simmons stated that he had seen the victim
talking to a black male in a black hooded sweatshirt.
He stated that the man pulled out a gun and shot
Hodge in the head and then walked away.
Ford’s first trial, in which Simmons testified, ended in
a mistrial on May 18, 2006. During the second trial,
the State alleged that Simmons was unavailable to tes-
tify and moved for admission of Simmons’s prior tes-
timony. The trial court denied the State’s request. The
State later moved to admit Officer Quasney’s testi-
mony recounting Simmons’s statements at the crime
scene. The trial court admitted this evidence pursuant
to Indiana Evidence Rule 803(2), the excited utterance
exception to the hearsay exclusion rule.
Ford v. State (Ford I), No. 45A03–0701–CR–20, 2007 WL
3071987, at *1 (Ind. Ct. App. Oct. 23, 2007) (citations omit-
ted).
During closing arguments in Ford’s second trial, his at-
torney argued that the state had failed to provide any rea-
sonable explanation as to why Ford would shoot Hodge. In
response, the state prosecutor argued as follows:
Sometimes we’ll never know why crimes were com-
mitted. Someone who could—now, let me phrase this
correctly, he never has to say a single word, a single
4 No. 12-3844
word. It’s the State’s burden to prove that he commit-
ted this crime beyond a reasonable doubt, but what
happens when you have crimes, when you have one
or two people there who can possibly talk and tell
you what happened and one of them’s dead? One of
them’s dead. Who else are we going to get that infor-
mation from? The next possible source is the person
who committed the offense. If that person who com-
mitted the offense don’t talk, how would we ever
know? We would speculate. Does it mean the person
wasn’t shot and killed, it didn’t happen?
It happened, and that’s what we have to prove to you,
not why it happened.
Ford v. State (Ford II), No. 45A05–1009–PC–610, 2011 WL
3476616, at *9 (Ind. Ct. App. Aug. 9, 2011). Ford was convict-
ed and sentenced to fifty years’ imprisonment.
Following his conviction, Ford filed an unsuccessful di-
rect appeal. Later, he filed a petition for postconviction relief
in Lake County Superior Court, presenting several grounds
for relief, including the one we address today. However, the
Superior Court denied Ford’s petition, the Indiana Court of
Appeals affirmed, and the Indiana Supreme Court denied
his petition to transfer.
Having exhausted his state remedies, Ford filed this
§ 2254 petition in the U.S. District Court for the Northern
District of Indiana. However, the district court dismissed his
petition and denied him a certificate of appealability. Ford
then filed a notice of appeal in this court, and we granted
him a certificate of appealability.
No. 12-3844 5
II. TIMELINESS
Ford’s notice of appeal was filed on December 4, 2012,
thirty-two days after the district court’s judgment. Thus, in
its response brief, the state argued that the appeal should be
dismissed as untimely. See Fed. R. App. P. 4(a)(1). However,
Ford is an inmate confined in an institution; therefore, he
may benefit from the so-called “prisoner mailbox rule,” un-
der which a notice is timely “if it is deposited in the institu-
tion’s internal mail system on or before the last day for fil-
ing.” Fed. R. App. P. 4(c)(1). “If an institution has a system
designed for legal mail, the inmate must use that system to
receive the benefit of this rule.” Id. “If the prison lacks such a
system: ‘Timely filing may be shown by a declaration in
compliance with 28 U.S.C. § 1746 … which must set forth the
date of deposit and state that first-class postage has been
prepaid.’” United States v. Craig, 368 F.3d 738, 740 (7th Cir.
2004) (quoting Fed. R. App. P. 4(c)(1)).
After the state’s response brief was filed in our court,
Ford filed such a declaration, stating that he placed his no-
tice of appeal in the prison’s internal mailing system on No-
vember 28, 2012, twenty-six days after the district court’s
judgment, “with first class postage affixed.” Ford was not
required to file this declaration simultaneously with his no-
tice of appeal. See Ingram v. Jones, 507 F.3d 640, 642–44 (7th
Cir. 2007) (relying on declarations filed after the notice of
appeal to establish compliance with Rule 4(c)(1)); Grady v.
United States, 269 F.3d 913, 917–18 (8th Cir. 2001) (holding
that the declaration required by Rule 4(c)(1) need not ac-
company the notice of appeal). Moreover, he was required to
“attest to ‘only two things’: the date the notice was deposited
into the prison mail system and that first class postage was
6 No. 12-3844
prepaid.” 1 Hurlow v. United States, 726 F.3d 958, 964 (7th Cir.
2013) (quoting Craig, 368 F.3d at 740). Ford’s declaration sat-
isfies these requirements, and it is corroborated by the certif-
icate of service he included with his notice of appeal, which
states that he served a copy on the Indiana Attorney General
on November 28, 2012, “by depositing the same in the Unit-
ed States Mail, postage paid.” As a result, we find his notice
timely, and we turn to the merits of his appeal.
III. DISCUSSION
Under the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), a state prisoner may obtain federal ha-
beas relief based on a claim of legal error only if the state
court’s decision “was contrary to, or involved an unreasona-
ble application of, clearly established Federal law, as deter-
mined by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1). In this case, the district court determined that
Ford was not entitled to relief under that standard.
“Our review of the district court’s decision to deny the
habeas petition is de novo, and is governed by the terms of the
AEDPA.” Bolton v. Akpore, 730 F.3d 685, 693 (7th Cir. 2013).
“Thus, although we technically hear this appeal from the
district court, our inquiry focuses entirely on what occurred
in the state court. In so doing, we look at ‘the decision of the
last state court to rule on the merits of the petitioner’s
claim.’” McNary v. Lemke, 708 F.3d 905, 913 (7th Cir. 2013)
(quoting McCarthy v. Pollard, 656 F.3d 478, 483 (7th Cir.
2011)). In this case, that was the Indiana Court of Appeals,
1 The state does not contend that the institution where Ford is con-
fined has a separate mailing system designed for legal mail that Ford
should have used.
No. 12-3844 7
when it affirmed the denial of Ford’s petition for postconvic-
tion relief. Ford II, 2011 WL 3476616.
A. CONSTITUTIONAL FRAMEWORK
In order to determine whether the Indiana Court of Ap-
peals issued 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,” it
is first necessary to understand what that law is. Thus, be-
fore turning to the state court’s decision, we consider what
the Supreme Court has said about the constitutionality of
prosecutorial comments on a defendant’s silence.
1. Griffin v. California and the Fifth Amendment Privilege
In Griffin v. California, 380 U.S. 609 (1965), a state prosecu-
tor commented on a murder defendant’s failure to testify, 2
and the trial court instructed the jury that it was permitted to
draw an adverse inference based on the defendant’s failure
to explain or deny facts within his knowledge. 3 At the time,
a California constitutional provision allowed both the prose-
cutor and the court to comment on the defendant’s silence.
2 After asserting that the defendant was in a position to know what
happened, the prosecutor said, “Essie Mae is dead, she can’t tell you her
side of the story. The defendant won’t.” 380 U.S. at 611 (internal quota-
tion marks omitted).
3 The trial court instructed, “As to any evidence or facts against him
which the defendant can reasonably be expected to deny or explain be-
cause of facts within his knowledge, if he does not testify or if, though he
does testify, he fails to deny or explain such evidence, the jury may take
that failure into consideration as tending to indicate the truth of such
evidence and as indicating that among the inferences that may be rea-
sonably drawn therefrom those unfavorable to the defendant are the
more probable.” 380 U.S. at 610 (internal quotation marks omitted).
8 No. 12-3844
However, the Supreme Court held that the Fifth
Amendment privilege against compulsory self-
incrimination, which applies to the states through the Four-
teenth Amendment, “forbids either comment by the prose-
cution on the accused’s silence or instructions by the court
that such silence is evidence of guilt.” Id. at 615. In doing so,
the Court reasoned that “comment on the refusal to testify is
a remnant of the inquisitorial system of criminal justice,
which the Fifth Amendment outlaws.” Id. at 614 (citation
and internal quotation marks omitted). The Court de-
nounced the practice of commenting on a defendant’s silence
as “a penalty imposed by courts for exercising a constitu-
tional privilege,” noting that it “cuts down on the privilege
by making its assertion costly.” Id.Over twenty years later, the Court revisited the Fifth
Amendment privilege in United States v. Robinson, 485 U.S.
25 (1988). In that case, the defendant did not testify, but in
closing arguments his attorney suggested that the govern-
ment had unfairly deprived him of the opportunity to tell his
side of the story. In response, the prosecutor argued that the
defendant had several opportunities to explain his actions,
including the opportunity to testify at trial. On appeal, the
defendant argued that the prosecutor’s comments violated
his Fifth Amendment privilege against compulsory self-
incrimination as interpreted in Griffin. However, the Su-
preme Court disagreed.
The Court rejected the view that “any ‘direct’ reference
by the prosecutor to the failure of the defendant to testify
violates the Fifth Amendment as construed in Griffin.” Id. at
31. Instead, “Griffin prohibits the judge and prosecutor from
suggesting to the jury that it may treat the defendant’s si-
No. 12-3844 9
lence as substantive evidence of guilt.” Id. at 32 (quoting Bax-
ter v. Palmigiano, 425 U.S. 308, 319 (1976)). Thus, the Court
reasoned:
Where the prosecutor on his own initiative asks the
jury to draw an adverse inference from a defendant’s
silence, Griffin holds that the privilege against com-
pulsory self-incrimination is violated. But where as in
this case the prosecutor’s reference to the defendant’s
opportunity to testify is a fair response to a claim
made by defendant or his counsel, we think there is
no violation of the privilege.
Id. The Court recognized that the defendant’s assertion of
the privilege may be costly in either situation, but it empha-
sized that in order to serve the truth-finding purpose of a
criminal trial, “it is important that both the defendant and
the prosecutor have the opportunity to meet fairly the evi-
dence and arguments of one another.” Id. at 33.
2. Doyle v. Ohio and the Right to Due Process
Eleven years after Griffin, the Supreme Court decided
Doyle v. Ohio, 426 U.S. 610 (1976). In that case, two defend-
ants were charged with selling marijuana to an informant. In
their separate trials, each defendant took the stand and for
the first time asserted that he was trying to buy, rather than
sell, marijuana. To impeach them, the prosecutor brought
out on their respective cross-examinations that neither de-
fendant told that story to the police after he was arrested.
The prosecutor also relied on the defendants’ post-arrest si-
lence in his closing arguments.
In considering the constitutionality of this practice, the
Supreme Court first noted that the defendants had been giv-
10 No. 12-3844
en Miranda warnings when they were arrested and that
those warnings implicitly assured them that their silence
would carry no penalty. Id. at 618. The Court then concluded
that “[i]n such circumstances, it would be fundamentally un-
fair and a deprivation of due process to allow the arrested
person’s silence to be used to impeach an explanation subse-
quently offered at trial.” Id.Later, in Wainwright v. Greenfield, 474 U.S. 284 (1986), the
Court found that the due process concerns recognized in
Doyle were equally relevant when a defendant’s post-arrest
silence was used to respond to a defense theory, rather than
to impeach the defendant. In Wainwright, the defendant pre-
sented an insanity defense, and the prosecution attempted to
rebut that defense by showing that the defendant was of
sound enough mind to exercise his right to remain silent af-
ter receiving Miranda warnings. The Court held that this vio-
lated the defendant’s right to due process as interpreted in
Doyle. Id. at 295.
These cases reflect an important difference between the
violation of due process recognized in Doyle and the viola-
tion of the Fifth Amendment privilege recognized in Griffin.
Specifically, as the Court held in Robinson, prosecutors may
use a defendant’s silence to impeach him or to fairly respond
to a defense theory without violating the Fifth Amendment
privilege. However, due process generally prohibits prose-
cutors from using the fact that a defendant remained silent
after receiving Miranda warnings, even if that fact is used for
purposes of impeachment (as in Doyle) or in response to a
defense theory (as in Wainwright).
Indeed, the Court has declined to find a violation of due
process based on the mention of a defendant’s silence after
No. 12-3844 11
receiving Miranda warnings only where that silence “was not
used against him within the meaning of Doyle.” Greer v. Mil-
ler, 483 U.S. 756, 764 n.5 (1987). Just as in Doyle, the defend-
ant in Greer took the stand and presented an exculpatory sto-
ry, and the prosecutor asked him why he had not told that
story when he was arrested. However, in Greer, defense
counsel immediately objected, and the court sustained the
objection and later advised the jury that it should disregard
any questions to which an objection was sustained. Moreo-
ver, the prosecutor asked no further questions on the subject,
nor did he refer to the defendant’s silence in his closing ar-
gument. The Court held that no due process violation oc-
curred because the defendant’s post-arrest silence “was not
submitted to the jury as evidence from which it was allowed
to draw any permissible inference.” Id. at 764–65.
B. THE STATE COURT’S POSTCONVICTION DECISION
In this case, Ford claims that his trial counsel was ineffec-
tive in failing to object to the prosecutor’s comments on his
failure to testify. In his brief to the Indiana Court of Appeals,
he argued that such an objection inevitably would have been
sustained because the prosecutor’s comments violated his
Fifth Amendment privilege against compulsory self-
incrimination. He cited Griffin in support of this argument,
and he did not rely on Doyle or other cases dealing with
Doyle-type due process violations.
Even so, the Indiana Court of Appeals analyzed Ford’s
claim under Doyle. The court recognized that in Doyle, “the
United States Supreme Court held that, under the Four-
teenth Amendment, a prosecutor may not use the silence of
a defendant who has been arrested and Mirandized to im-
peach the defendant.” Ford II, 2011 WL 3476616, at *7. How-
12 No. 12-3844
ever, the court also noted that in both Doyle and Wainwright,
“the prosecution used the act of the defendant’s silence or
the fact of the request for counsel itself as indicative of guilt
or damaging to credibility.” 2011 WL 3476616, at *8 (quoting
Willsey v. State, 698 N.E.2d 784, 793 (Ind. 1998)) (internal
quotation marks omitted). Based on this principle, the court
held that “the State did not run afoul of Doyle when it re-
ferred to Ford’s silence in direct response to a defense theory
and when that use was not used to indicate the defendant’s
guilt or damage his credibility.” Id.This was wrong in two respects. First, Ford’s claim was
based on his Fifth Amendment privilege, not his right to due
process. Thus, the Indiana Court of Appeals applied the
wrong legal standard. The state argues that Ford’s claim
could be governed by either Doyle or Griffin, given that the
prosecutor’s comments were vague and could have referred
to Ford’s silence immediately after his arrest or at trial. But
the fact remains that Ford has not relied on the due process
rights articulated in Doyle. And even if he had advanced
such a claim, the Indiana Court of Appeals should have con-
sidered his Griffin argument as well. Due process and the
Fifth Amendment privilege are independent rights, and one
may be violated even though the other is not.
Second, even if Ford’s claim was based on due process,
the court’s application of Doyle was incorrect. As Wainwright
makes clear, due process may be violated even if the defend-
ant’s post-arrest silence is used “in direct response to a de-
fense theory.”4 Moreover, it is inaccurate to say that Ford’s
4The Indiana Court of Appeals cited Willsey v. State, 698 N.E.2d 784(Ind. 1998), in support of its holding. Willsey, quoting one of our cases,
recognized that “Doyle does not impose a prima facie bar against any
No. 12-3844 13
silence “was not used to indicate [his] guilt or damage his
credibility.” It was used to explain the state’s inability to
prove motive, and while motive was not an element of the
offense, it was certainly relevant. See Turner v. State, 953
N.E.2d 1039, 1057 (Ind. 2011) (“Evidence of a defendant’s
motive is always relevant in the proof of a crime.”); see also
House v. Bell, 547 U.S. 518, 540 (2006) (“When identity is in
question, motive is key.”). Because evidence of motive
would have been probative of Ford’s guilt, the prosecutor’s
explanation for the absence of such evidence was necessarily
used to indicate Ford’s guilt, or at least to rebut a suggestion
of innocence, which is simply the reverse side of the same
coin.
Of course, the fact that the Indiana Court of Appeals
misapplied Doyle does not in itself permit relief under the
AEDPA, because “the court’s application must have been
more than incorrect; it must have been objectively unreason-
able.” Ruhl v. Hardy, 743 F.3d 1083, 1091 (7th Cir. 2014).
However, the court never should have applied Doyle in the
mention whatsoever of a defendant’s right to request counsel, but in-
stead guards against the exploitation of that constitutional right by the
prosecutor.” 698 N.E.2d at 793 (quoting Lindgren v. Lane, 925 F.2d 198,
202 (7th Cir. 1991)) (internal quotation mark omitted). However, this
does not mean that a defendant’s post-arrest silence or request for coun-
sel may be used in response to a defense theory. It is simply another way
of stating the unremarkable proposition that there is no due process vio-
lation if the defendant’s post-arrest silence or request for counsel “was
not used against him within the meaning of Doyle.” Greer, 483 U.S. at 764
n.5; see Willsey, 698 N.E.2d at 793 (“[T]he State took advantage of Will-
sey’s implication of sinister knowledge, not the request for counsel.”);
Lindgren, 925 F.2d at 202 (“Since this request for counsel was not used
against petitioner, [Wainwright] was not contravened.”).
14 No. 12-3844
first place, and a “state court’s decision is ‘contrary to’ feder-
al law if it employs the wrong legal standard established by
the Supreme Court.” McNary, 708 F.3d at 913 (citing Bell v.
Cone, 535 U.S. 685, 694 (2002)). Therefore, apart from the
state court’s misapplication of Doyle, Ford has cleared the
AEDPA hurdle.
But this is not the end of our inquiry. “Where the state
court’s decision is ‘contrary to’ federal law, that decision is
not entitled to the usual AEDPA deference and is therefore
reviewed de novo with the reviewing court applying the cor-
rect legal standard.” Mosley v. Atchison, 689 F.3d 838, 844 (7th
Cir. 2012). Thus, we must apply the correct legal standard to
Ford’s claim, without deference to the state court’s decision,
to determine whether his attorney’s failure to object war-
rants reversal of his conviction.
C. DE NOVO REVIEW
Under Griffin, we must ask whether the prosecutor’s
comments were a fair response to defense counsel’s argu-
ment that the state failed to prove motive. We have our
doubts. As Ford points out, the prosecutor could have
stopped at saying that the state was not required to prove
motive. He also could have pointed out that there was evi-
dence of motive in the record, given that Ford told Grace just
before the shooting, “I can’t stand that mother fucker.”
However, we must back up a moment. Ford’s claim is
not based on the Fifth Amendment directly but rather on the
ineffectiveness of his counsel in failing to recognize and ob-
ject to a Fifth Amendment violation. Indeed, a Fifth
Amendment violation would not in itself be a proper basis
for habeas relief, because Ford did not present such a claim
No. 12-3844 15
to the Indiana courts. See O’Sullivan v. Boerckel, 526 U.S. 838,
845 (1999) (To sufficiently exhaust state remedies, a federal
habeas petitioner must “give the state courts one full oppor-
tunity to resolve any constitutional issues by invoking one
complete round of the State’s established appellate review
process.”).
The general rule in Indiana is that “[i]f an issue was
known and available on direct appeal, but not raised, it is
procedurally defaulted as a basis for relief in subsequent
proceedings.” Williams v. State, 808 N.E.2d 652, 659 (Ind.
2004). The only exception is a claim of ineffective assistance
of trial counsel, which is properly presented in a post-
conviction proceeding if not raised on direct appeal. Id. Ford
failed to raise a Fifth Amendment challenge on direct ap-
peal, so he was procedurally barred from doing so in his
state postconviction proceedings, except in the context of a
claim of ineffective assistance of counsel. We will not cir-
cumvent the state’s procedural rules by considering Ford’s
Fifth Amendment challenge directly.
“Under Strickland v. Washington’s familiar, two-pronged
test for ineffective assistance of counsel, [Ford] must demon-
strate that (1) his counsel’s performance was deficient; and,
(2) that deficiency resulted in prejudice.” United States v.
Berg, 714 F.3d 490, 496–97 (7th Cir. 2013). Thus, even assum-
ing the prosecutor’s comments violated Ford’s Fifth
Amendment privilege (which we do not decide), and further
assuming that defense counsel’s failure to object fell below
an objective standard of reasonableness (which we also do
not decide), Ford must establish “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
16 No. 12-3844
proceeding would have been different.” Strickland v. Wash-
ington, 466 U.S. 668, at 694 (1984). This he cannot do.
Ford argues that he was prejudiced because his first trial
resulted in a hung jury, and the prosecutor’s comments on
his silence were the only significant difference between the
two trials. However, there was at least one other significant
difference: one of the state’s witnesses, Sade Robinson, testi-
fied at the first trial but was unavailable for the second, and
in the latter trial, the court allowed her prior testimony to be
read to the jury. Ford’s counsel did not object because he be-
lieved that his cross-examination in the first trial had been
effective and that Robinson would be more prepared if she
were called to testify again. Indeed, during Ford’s postcon-
viction hearing, his trial counsel testified that when the state
agreed to have Robinson’s prior testimony read to the jury,
“I did back flips because I felt her testimony in the first trial
had been extremely helpful to Mr. Ford and played a role in
the verdict.” Apparently, his cross-examination did not have
the same impact when it was read to the jury in the second
trial. This simply underscores the need to be cautious “in as-
signing critical significance to the failure of a different jury,
which heard different evidence and argument, to reach
agreement.” United States v. Williams, 212 F.3d 1305, 1311
n.10 (D.C. Cir. 2000).
Moreover, “[a] jury may hang for any number of reasons,
including the idiosyncratic views of a single juror.” United
States v. Newton, 369 F.3d 659, 680 (2d Cir. 2004). As a result,
only in close cases should the fact of a prior hung jury lead
to a finding of prejudice. Id. This is not such a case because
the evidence against Ford was far too strong for us to find
prejudice under Strickland.
No. 12-3844 17
James Grace testified that after he and Ford walked past
Hodge and into Ford’s house, Ford said, “I can’t stand that
mother fucker. I’ll be back.” Ford left the house, and shortly
thereafter Grace heard a popping sound. He looked out the
front window of Ford’s house and saw Hodge lying in the
street. As Grace continued to look out the window, Ford re-
appeared behind him and frantically said, “I got to get the
fuck out of here, and meet me down—meet me at the end of
the alley and pick me up.”
Gary Police Officer Daniel Quasney testified that after he
arrived at the scene, he questioned a witness named Ronell
Simmons. Simmons stated that he had seen Hodge talking to
a black male in a black hooded sweatshirt and that the man
had pulled out a gun, shot Hodge in the head, and walked
away.
Veveca Story, Sade Robinson’s sister, testified that on the
day of the shooting, one of her coworkers drove her and
Robinson to their mother’s house, which was next door to
Ford’s. As soon as they pulled up to the house, there was a
popping sound. When Story turned to look behind her, she
saw Ford walking toward his house with a gun in his hand.
Ford was wearing dark clothing, and as he walked, he made
a slashing motion across his throat. Ford and Story’s mother
had been neighbors for about two years at the time, and Sto-
ry had seen Ford many times before. As a result, she was
able to recognize him at the time, and she later identified
him at trial.
In addition to the testimony of these witnesses, Ford’s
cellmate testified that Ford confessed to shooting Hodge.
Taken together, the strength of this evidence negates any
reasonable probability that the outcome of Ford’s trial would
18 No. 12-3844
have been different absent the prosecutor’s comments. See,
e.g., Morales v. Johnson, 659 F.3d 588, 602 (7th Cir. 2011) (“The
two eyewitness identifications were substantial evidence
against [the defendant] and negated any possibility of Strick-
land prejudice from [his attorney’s] errors … .”). Conse-
quently, Ford is not entitled to habeas relief based on the
claimed ineffective assistance of his trial counsel. 5
IV. CONCLUSION
Although the Indiana Court of Appeals applied the
wrong legal standard to Ford’s claim, when we apply the
correct standard, we get the same result. Even assuming the
performance of Ford’s trial counsel was deficient, there is no
reasonable probability that adequate performance would
have changed the outcome of Ford’s trial. Therefore, the dis-
trict court’s dismissal of Ford’s petition for a writ of habeas
corpus under 28 U.S.C. § 2254 is AFFIRMED.
5 The outcome would be the same if we were to consider Ford’s
claim directly under the Fifth Amendment and conduct a harmless-error
analysis. Ford asks us to apply the Chapman harmless-error standard,
under which “the court must be able to declare a belief that it was harm-
less beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24
(1967). But that only applies on direct appeal; the “the Kotteakos harm-
less-error standard applies in determining whether habeas relief must be
granted because of constitutional error of the trial type.” Brecht v. Abra-
hamson, 507 U.S. 619, 638 (1993). “The test under Kotteakos is whether the
error ‘had substantial and injurious effect or influence in determining the
jury’s verdict.’” Id. at 637 (quoting Kotteakos v. United States, 328 U.S. 750,
776 (1946)). In other words, there must be “actual prejudice.” Id. (quoting
United States v. Lane, 474 U.S. 438, 449 (1986)). This is difficult to distin-
guish from the Strickland standard, but it may be somewhat more de-
fendant-friendly. See United States v. Dominguez Benitez, 542 U.S. 74, 86–
87 (2004) (Scalia, J., concurring in the judgment). Even so, we would
reach the same result under either standard in this case.