TOMMY D. FORD, Petitioner-Appellant,
BILL WILSON, Superintendent, Respondent-Appellee
Argued April 17, 2014
[Copyrighted Material Omitted]
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.
For TOMMY D. FORD, Petitioner - Appellant: Robert J. Palmer, Attorney, MAY, OBERFELL & LORBER, Mishawaka, IN.
For BILL WILSON, Superintendent, Respondent - Appellee: Kelly A. Miklos, Attorney, OFFICE OF THE ATTORNEY GENERAL, Indianapolis, IN.
Before MANION, SYKES, and TINDER, Circuit Judges.
Tinder, Circuit Judge
This is a habeas action brought under 28 U.S.C. § 2254, in which Petitioner Tommy Ford challenges 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 because the prosecutor's comments violated his Fifth Amendment privilege against compulsory self-incrimination. However, even assuming that to be true, Ford has failed to show prejudice resulting from his attorney's failure to object. Therefore, we affirm.
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 presumption as it pertains to the facts relied upon by the Indiana Court of Appeals, which summarized the evidence at trial as follows:
Chambers of judge Maichamb 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 back to the crime scene. Hodge had suffered one gunshot 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 testify and moved for admission of Simmons's prior testimony. The trial court denied the State's request. The State later moved to admit Officer Quasney's testimony 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 omitted).
During closing arguments in Ford's second trial, his attorney argued that the state had failed to provide any reasonable
explanation as to why Ford would shoot Hodge. In response, the state prosecutor argued as follows:
Sometimes we'll never know why crimes were committed. Someone who could--now, let me phrase this correctly, he never has to say a single word, a single word. It's the State's burden to prove that he committed 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 information from? The next possible source is the person who committed the offense. If that person who committed 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 convicted and sentenced to fifty years' imprisonment.
Following his conviction, Ford filed an unsuccessful direct 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 ...