TYRONE L. JONES, Petitioner-Appellant,
RICHARD BROWN, Respondent-Appellee
Argued February 19, 2014
Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. No. 2:11-cv-205-WTL-WGH -- William T. Lawrence, Judge.
For Tyrone L. Jones, Petitioner - Appellant: Paul J. Astolfi, Attorney, Ryan W. Fuoss, Attorney, Mayer Brown Llp, Chicago, IL.
For Richard Brown, Respondent - Appellee: Gary R. Rom, Attorney, Office of The Attorney General, Indiana Government Center South, Indianapolis, IN.
Before POSNER, RIPPLE, and KANNE, Circuit Judges.
Ripple, Circuit Judge.
After a bench trial, Tyrone L. Jones was convicted of felony murder in an Indiana trial court. His conviction was affirmed on direct appeal. He then filed a petition for postconviction relief in state court, alleging ineffective assistance of trial counsel. Specifically, he contended that his trial counsel had been ineffective for failing to seek the suppression of clothing that Mr. Jones had given to the police after his arrest. Mr. Jones contended that the clothing had been obtained in violation of Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634 (Ind. 1975), which, at least under some circumstances, requires that a detainee be advised of his right to counsel prior to consenting to a search of his property. The state trial court denied postconviction relief; the Court of Appeals of Indiana affirmed that judgment, and the Supreme Court of Indiana denied transfer.
Having exhausted his state remedies, Mr. Jones sought federal habeas relief under 28 U.S.C. § 2254. He reiterated the same claim of ineffectiveness of counsel that he had presented to the state courts. The district court denied relief. We now affirm that judgment because trial counsel was not constitutionally ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
The Court of Appeals of Indiana summarized the facts underlying Mr. Jones's conviction as follows:
In February 2002, Sam Alexander lived at the Lamplighter Apartments in Indianapolis. Alexander was fifty-five years old and weighed approximately 138 pounds. He walked with a limp and suffered from emphysema. Alexander and Jones used drugs together on occasion. In February 2002, Jones was thirty-three years old and weighed 230 pounds.
During the weekend of February 8, 2002, Jones and Annissa Harris were getting high on crack cocaine at Alexander's apartment. At some point, Alexander asked Jones and Harris to leave, and Harris left. Harris later saw Jones carrying Alexander's television, and when she inquired what Jones was doing with it, he stated that Alexander had " pawned it to him." Jones sold the television to a friend of Robert Crabtree. Crabtree and Harris both lived across the street from Alexander's apartment.
Harris went back to Alexander's apartment that night, and although she saw someone looking through the peephole of the door, no one answered. When she returned the next day, the door was locked and, again, no one answered. On Sunday, February 17, 2002, after noticing that Alexander's apartment lights were on all the time, Harris returned to Alexander's apartment with a friend. When she and her friend approached Alexander's door, they both smelled " a foul odor." Later that evening when she saw a police officer, Harris asked the officer to check on Alexander. At some point that weekend, Jones called Crabtree and asked him if he had a valid identification because Jones wanted to pawn a microwave.
Indianapolis Police Officer Stephen Hart arrived at Alexander's apartment and noticed a foul odor. When he could not gain entry into the apartment, he called for the fire department to bring a ladder. Once firemen arrived, they gained entry into Alexander's apartment through the back door. They discovered Alexander's body on the floor. His hands had been tied behind his back, his feet tied at the ankles, and a piece of cloth had been tied over his mouth as a
gag. Alexander's body was in an advanced stage of decomposition.
During a police investigation, Harris identified Jones as the person who had been in Alexander's apartment when she had last seen Alexander alive.
Indianapolis Police Detective Charles Benner later discovered that Mr. Jones was wanted on three outstanding warrants. The police located Mr. Jones, arrested him and brought him to police headquarters on April 10, 2002.
Jones signed a form dated April 10, 2002, that contained an " ADVICE OF RIGHTS" and " WAIVER OF RIGHTS." Detective Benner interviewed Jones and noticed that the soles of his shoes appeared to be the same shoe print that he saw on a pillowcase. Detective Benner asked if he could take Jones's clothing and shoes, and Jones said yes. The police also interviewed Jones twice on April 11, 2002, and Jones gave two statements.
In his first statement, Jones admitted that he had spent the weekend of February 8 at Alexander's apartment. He denied that he had taken any of Alexander's things and claimed he did not know what had happened to Alexander.
In his second statement, however, Jones stated Alexander had agreed to give Jones his television in exchange for drugs. According to Jones, at some point, Alexander wanted more drugs, became angry and came at him with a pocketknife. Jones stated that he pushed Alexander, that Alexander's head hit the wall, and that Jones then hit him in the head with his fists a few times. Alexander was unconscious, and Jones stated that he gathered his things and left. He then returned and took the television. He stated that he returned a third time and decided to bind Alexander's hands and feet and gag his mouth. He stated that he sold the television to a man who lived across the street from Alexander but denied taking the microwave.
A few days after the interview, the State charged Mr. Jones with murder, felony murder, robbery and criminal confinement. He waived his right to a jury trial and proceeded to a bench trial. Mr. Jones's counsel argued that Mr. Jones had acted in self-defense, that he had not committed the robbery and that Mr. Jones had bound Alexander because of the further threat that Alexander posed. Counsel did not move to suppress the admission of Mr. Jones's clothing items, his admissions regarding his presence at Alexander's apartment or a laboratory report tying Mr. Jones's clothing to the crime scene. Indeed, Mr. Jones's counsel and the State stipulated to the laboratory report's admissibility because, as Mr. Jones's trial counsel explained, there was no issue about Mr. Jones's presence in the apartment on the day that Alexander was killed.
The trial court found Mr. Jones guilty, merged all the counts into the felony-murder count and entered a judgment of conviction for felony murder. It sentenced Mr. Jones to sixty-five years' imprisonment.
Mr. Jones appealed his conviction. On direct appeal, he argued that the State had presented insufficient evidence for his felony-murder
conviction and that the trial court had erred when it imposed sentence. The court of appeals affirmed the conviction and sentence. Mr. Jones did not seek transfer to the Supreme Court of Indiana.
Mr. Jones then filed a petition for state postconviction relief. The first petition was withdrawn and replaced with a second, pro se petition. The state trial court conducted an evidentiary hearing on the petition, at which Mr. Jones's trial attorneys testified. At the hearing, Mr. Jones inquired whether the attorneys had considered objecting to the admission of evidence related to the seizure of his shoes on the basis of Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634 (Ind. 1975). One attorney testified that,
if they arrested you on a warrant and they took your clothes in the ordinary course of taking your clothes, uh, as part of their procedures for that, uh, it's a valid arrest under the warrant. And what they take from you as standard operating procedures incident to that arrest, uh, I don't believe that would be something that would be a problem.
In questioning his other attorney, Mr. Jones asked: " Are you familiar with the laws with this state pertaining to a search for a person that's in police custody, that he must be informed of his right to consult with counsel before a valid consent can be given?"  The attorney responded: " That's not the law."  When Mr. Jones explicitly referred to Pirtle v. State, the attorney testified that " I think the issues ... whether or not a person has been advised of that is relevant to that decision, but it's not a requirement in our state."  He later sad that, to his recollection, he did not object to the shoes because Mr. Jones " w[as]n't denying that [he]'d been there at the fellow's apartment." 
At the hearing, Mr. Jones also questioned Detective Benner about his initial encounter with Mr. Jones after he was arrested. Detective Benner stated that, at that time, he requested Mr. Jones's shoes because he had observed that the print on the bottom of the shoes appeared to match a print that he had seen in photographs of the crime scene. According to Detective Benner's testimony, he asked " if [he] could have the shoes, and [Mr. Jones] said, yeah, no problem." 
Mr. Jones also elicited testimony from Detective Benner about his attempts to obtain a statement from Mr. Jones:
Q: And the day that you recovered my shoes I didn't want to make a taped statement, did I?
A: You said you were tired. You asked me to come back and get you the next day.
Q: On the day, on, on that day during our conversation, didn't I basically tell you I didn't know what happened to Sam, never saw Sam again, ...