No ineffective counsel, habeas relief for man convicted of rape, domestic battery in state court

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A man convicted of rape and battery against his ex-girlfriend in state court has failed in his bid to win habeas relief at the federal level.

Petitioner-appellant Donald Karr was convicted by an Indiana jury of domestic battery and rape following an incident in May 2015. On the night in question, Karr arrived home and accused his then-girlfriend A.P. of sneaking a man into the house.

Karr struck A.P. in the face multiple times, pulled her hair hard enough to rip some of it out and began making sexual demands. But A.P. began experiencing abdominal pain during the fight and convinced Karr to take her to the hospital. When they arrived, A.P. asked a nurse to call police, but a responding officer said there was insufficient evidence to arrest Karr.

Thus, A.P. left the hospital with Karr and returned to his home, where he resumed hitting her and making sexual demands.

A.P. returned to the hospital the next day and spoke with a different officer and a forensic nurse, who took photographs of the injuries to her face. After A.P.’s second visit to the hospital, the state charge Karr with domestic battery, rape, strangulation and intimidation.

Attorney Joshua Taylor represented Karr at trial. A jury found Karr guilty of two of the five counts against him. He hired a new lawyer, Jane Ruemmele, to represent him at sentencing.

Ruemmele moved for a new trial, arguing, among other things, that A.P.’s prescription drug medication had not been explored at trial, but if it had her testimony could have been impeached. Similarly, Ruemmele noted a forensic analysis of Karr’s cellphone did not uncover a pornographic video made or viewed on the night of the attack, as A.P. had claimed, calling into question her credibility.

But the trial court declined the motion for a new trial and sentenced Karr to 17 ½ years in prison, with five years suspended.

Karr, still represented by Ruemmele, appealed the denial of the motion for a new trial, then stayed that appeal under the Davis-Hatton procedure to pursue post-conviction relief. Karr claimed Taylor had been ineffective as his trial counsel, returning to the issue of A.P.’s medication history and the lack of a pornographic video.

But the trial court granted summary judgment to the state on the PCR petition, prompting a combined appeal of Karr’s convictions, sentence and PCR denial. The Court of Appeals of Indiana affirmed in full in January 2018, the Indiana Supreme Court denied transfer and the U.S. Supreme Court denied cert.

Karr then sought habeas relief in the U.S. District Court for the Southern District of Indiana, once again raising his two previous ineffectiveness claims as well as six new allegations of ineffective assistance of trial counsel. The district court denied habeas relief, finding the six new claims were procedurally defaulted and not excused under Martinez v. Ryan, 566 U.S. 1 (2012), or Trevino v. Thaler, 569 U.S. 413 (2013).

As for the remaining two claims, the district court determined the COA reasonably applied the law in reaching its no-prejudice determination. After expanding the certificate of appealability at Karr’s request, the 7th Circuit affirmed the denial of habeas relief Wednesday in Donald G. Karr, Jr. v. Mark R. Sevier, Warden, 21-2463.

Turning first to the question of whether Taylor should have investigated and presented evidence regarding A.P.’s use of prescription medications on the night of the attacks, the 7th Circuit held that there was “no factual foundation for Karr’s assertion that the evidence he claims should have been investigated and introduced at trial would have affected the jurors’ assessment of A.P.’s credibility.”

“Given that Taylor knew A.P. could speak in a calm and detailed manner about what happened to her on the night of the assaults, he reasonably could have concluded that any records of her medications would not have affected the jury’s evaluation of her credibility,” Judge Michael Brennan wrote. “Notably, Ruemmele did not elicit any testimony contradicting this rationale during her examination of Taylor at the evidentiary hearing.

“Moreover,” Brennan continued, “as the State notes, any attempt Taylor could have made to impeach A.P. with evidence of her medication history could have been contrary to the theory of defense he presented to the jury — that A.P. had purposely fabricated the story of the assault for financial gain.”

Turning next to whether Taylor should have presented evidence of the forensic audit of Karr’s cellphone — which did not uncover the video A.P. said was either made or viewed the night of the attacks — the 7th Circuit determined that “(e)ven if the forensic analysis of Karr’s cellphone had been presented to the jury, it is extremely unlikely that evidence would have changed the trial’s outcome.”

“In fact, an attempt to impeach A.P. with the forensic analysis of Karr’s cellphone could have hurt rather than helped Karr’s defense,” the court held. “The jury might have perceived a potential attempt to cast A.P. as unreliable — by focusing on an extraneous part of her account — as reinforcing the strength of the State’s case on the core details of the assaults.”

The 7th Circuit thus declined to reach the question of whether Taylor’s overall performance was deficient, adding without deciding that “the State may be correct that Taylor’s overall performance was at least adequate.”

Finally, the federal appellate court declined to consider the six procedurally defaulted ineffectiveness claims, agreeing with the district court that neither Martinez nor Trevino excused the defaults.

“Now, we conclude that Karr’s defaulted claims did not even warrant the issuance of a certificate of appealability, as they are insufficiently developed to show that ‘jurists of reason could disagree with the district court’s resolution … or that jurists could conclude the issues presented are adequate to deserve encouragement to proceeding further,’” Brennan wrote, quoting Miller-El v. Cockrell, 537 U.S. 322 (2003). “Each of the six defaulted claims is vague, conclusory, or both. There is, therefore, no basis on which to debate the district court’s decision.”

Finally, the 7th Circuit addressed the question of whether defaulted claims, if substantial, would succeed at the case’s current procedural posture. The court determined the answer was no, in part because “Ruemmele’s representation of Karr on both initial postconviction review and on direct appeal removes this case from the terrain occupied by the Martinez-Trevino exception.”

“Here, as the State argues, Karr could have raised a claim before the Indiana Supreme Court that his direct-appeal counsel had been ineffective in procedurally defaulting the six claims for ineffective assistance of trial counsel. But he did not do so, perhaps because Ruemmel was still representing him on further appeal,” Brennan wrote. “… By failing to raise ineffective assistance of appellate counsel before the Indiana Supreme Court, Karr procedurally defaulted the claim, which if successful could have excused the procedural defaults of his six claims for ineffective assistance of trial counsel.”

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