Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. S 84-0702 -- Allen Sharp, Judge.
Cummings, Ripple, and Manion, Circuit Judges.
Brian ("Benny") Cambridge appeals the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. We affirm.
In the early morning hours of June 17, 1979, Cambridge returned home to the Indianapolis, Indiana apartment he shared with Robin Jackson. Jackson was in bed feigning sleep until she opened her eyes and saw Cambridge standing by the bed. Cambridge proceeded to pin Jackson to the bed and asked her about some cigarette butts in the apartment and where she had been that night. They argued. Cambridge accused Jackson of lying and said, "I'm going to kill you." Still pinning Jackson to the bed, Cambridge reached across the bed, pulled out a gun, and pointed it at her head. Jackson turned her head and Cambridge shot her. Jackson was extremely fortunate. The bullet entered her forehead, traveled about an inch, and exited at her hairline. Jackson got away from Cambridge and locked herself in the bathroom. Cambridge left the apartment.
Cambridge then returned, telling Jackson, "Baby, I didn't mean to hurt you . . . Please, don't send me back to jail. . . . listen to me, I hid the gun . . . This is what we [are] going to tell them, somebody was trying to come in and rob through the bathroom. . . ." Cambridge took an ashtray and broke a window to make it appear that a burglar had entered the apartment. Cambridge then told Jackson that he would take her to the hospital. A police officer arrived as they were leaving the apartment. He questioned Jackson and Cambridge. Jackson told the officer Cambridge shot her. Cambridge repeated his story about a burglar. The officer arrested Cambridge. At the scene, the police found the broken window and pieces of broken glass on the ground outside the window.
The State charged Cambridge with attempted murder. Following plea negotiations, the State agreed to drop the attempted murder charge in return for a guilty plea to battery. The State agreed to recommend an eight-year determinate sentence. Cambridge signed the agreement. Cambridge's attorney subsequently moved to withdraw the guilty plea and withdraw from the case. He stated that Cambridge had signed the plea agreement "reluctantly" and that Jackson had visited Cambridge in jail and "allegedly told [Cambridge] that this whole case was a misunderstanding, that she did not want him to plead guilty, and that she was leaving the state and would not prosecute." The court then appointed Cambridge a new defense attorney and granted him leave to withdraw his guilty plea.
The State recharged Cambridge with attempted murder and a jury trial was held on June 9, 1980. Robin Jackson was the chief prosecution witness. Cambridge did not testify in his own defense, but rather relied upon a defense strategy of trying to create reasonable doubt about the government's case. This strategy focused primarily on attempting to discredit Robin Jackson's testimony by attempting to show that her testimony about the shooting was inconsistent with the fact that she had kept in contact with Cambridge and had visited him while he was in prison. On cross-examination, Cambridge's attorney asked Jackson how she had obtained permission to visit Cambridge and the following colloquy took place:
Q. I'm asking you if you had any special permission?
Q. And, you had to do that on your own, that wasn't something Brian Cambridge could have done for you, is it?
A. No, he couldn't do it for me, but as I was trying to say, the Court case was supposed to be over, Benny had signed a Guilty Plea; and that was the only time I went down there to find out about my diamond--.
Mr. Hollander: Your honor, I would ask for the witness' statement to be struck, and ask for a mistrial, it was an answer unresponsive to the question, ...