Arthur T. Perry (argued), Office of Attorney
General, Indianapolis, IN, for Rondle Anderson.
Before BAUER, EASTERBROOK, and KANNE, Circuit
Judges.
KANNE, Circuit Judge.
Petitioner, Gamba Rastafari, a/k/a Gregory
Rouster ("Rouster"), was convicted of two counts of felony murder in
Indiana state court after a joint jury trial with two co-defendants.
At the jury's recommendation, the trial judge sentenced Rouster to
death. After exhausting his state remedies, Rouster filed a petition
for a writ of habeas corpus in the Northern District of Indiana.
Rouster now appeals the denial of his habeas petition, alleging the
following: 1) that his trial counsel was ineffective for failing to
move for severance prior to trial; 2) that his trial counsel was
ineffective for failing to move for severance prior to the penalty
phase; and 3) that his trial counsel was ineffective for failing to
present expert testimony on self-defense. For the following reasons,
we affirm.
I. Facts
A. Background
John and Henrietta Rease, an elderly couple who
lived in Gary, Indiana, cared for, fed, and housed foster children
at their home at 2430 Jennings Street in exchange for $160 per month
per child. One such foster child was Rouster, who lived with the
Reases from November 1985 until his eighteenth birthday on February
7, 1986. On August 12, 1986, the Reases were robbed and shot to
death in their home. Police arrested Rouster, Darnell Williams,
Theresa Newsome, and Edwin Taylor and charged them each by
information with two counts of felony murder. Ind.Code §
35-42-1-1(2).
Further, the State sought the death penalty against Rouster and
Williams pursuant to Ind. Code § 35-50-2-9, Indiana's death penalty
statute.
At the Initial Hearing, public defender Robert
Lewis was appointed to represent Rouster, and Rouster entered a plea
of not guilty on both counts. On January 7, 1987, Noah Holcomb was
appointed as additional counsel to aid Lewis in representing Rouster.
On February 3, 1987, Williams filed a motion for severance, asking
the court to "sever him from the trial of the remainder of the
defendants herein... [because] his interests, rights and his
defenses hereto will be prejudiced if he is tried with the remainder
of the defendants herein." Williams' motion to sever was denied, and
Rouster never filed a motion to sever.
B. The Crimes
Rouster's joint trial with Williams and Newsome
began on February 10, 1987, at which time Rouster's counsel waived
opening statement. Neither Rouster nor Williams testified, but the
following evidence was adduced at trial through direct and cross-examination
of the State's witnesses and through the admission of 70 trial
exhibits consisting of physical evidence and of photographs.
Jack Baumer, the child welfare caseworker who
placed Rouster with the Reases, testified that he saw Rouster at a
drug store in Gary, Indiana on August 12, 1986. Rouster asked Baumer
if the Reases received a clothing allowance on his behalf during the
time Rouster lived with them. Baumer responded that the Reases
received a clothing allowance of about five to six dollars per month,
and Rouster told him that he had never received any clothing from
the Reases. According to Baumer, Rouster ended the conversation by
saying that he was going to get his money from the Reases.
Derrick Bryant, a seventeen-year-old foster child
who lived with the Reases, testified that on August 12, 1986, he was
in the living room of the Rease house. Through a window in the
living room, Bryant saw Rouster, Williams, Newsome, and Kim Toney ("Four")
walking towards the Rease house at around 9:00 p.m. Bryant testified
that while walking toward the Rease house, Rouster was drinking from
a 40-ounce bottle of Private Label malt liquor. The Four entered the
Rease house and sat down in the living room, and Rouster and
Henrietta Rease went into Rouster's former bedroom to talk.
Bryant testified that while he was in the living room, he heard
Rouster state that Baumer had told him that he was supposed to get
some money from the Reases. Bryant also testified that Henrietta
Rease responded that she did not know anything about that money.
Bryant stated that Rouster and Henrietta Rease returned to the
living room, at which time Bryant then left the living room and went
to a room at the back of the house.
From the back room, Bryant heard Henrietta Rease
ask the Four to leave the house. Bryant testified that he then heard
Williams say, "I won't let her, she's doing nothing but gypping you
out of the money." Bryant then heard a gunshot and someone running
through the backyard. He testified that the gunshot sounded like it
was fired outside of the Rease house. Bryant then went upstairs to
hide in the attic. While in the attic, he heard a conversation take
place outside between Williams, Rouster, and Edwin Taylor, another
foster child living with the Reases. According to Bryant, Taylor
said, "you all have guns, you all go take the money." Bryant stated
that Rouster asked Taylor where the Reases kept their money, to
which Taylor responded, "it's on the dresser." Bryant then testified
that he heard Rouster say, "let's go rob them."
Bryant ran downstairs to warn the Reases, but
when he saw Rouster coming into the Rease house through the front
door, he hid behind a stairway. He then heard Rouster tell Henrietta
Rease, "I know how to act now and I don't need us to go through this
because I got a gun and you got a gun." Bryant heard Williams tell
Henrietta Rease to get down on the floor and heard Rouster demand to
be told where the money was. Next, Bryant heard Rouster say, "bring
both of them back here," and Bryant heard a noise that sounded like
someone falling into a wall. Because he was hiding behind the stairs,
Bryant could not determine where in the house this activity took
place. Bryant testified that Williams then said, "it's your time."
Bryant then heard Rouster say, "waste them." Bryant stated that
Henrietta Rease asked Rouster, "Greg, why are you doing this?" to
which Rouster responded, "my name ain't Greg." Bryant then heard a
gunshot, followed by someone entering the Rease house through a side-door
in the kitchen. The next noise that Bryant heard sounded like money
falling on the kitchen floor. Bryant heard more gunshots coming from
inside of the house, at which time he ran out of the back door of
the house. Bryant testified that he then flagged down a police car
and told the police to come to the Rease house. Finally, Bryant
testified that he knew that the Reases kept at least one pellet gun
in the house, and that Taylor told him that Henrietta Rease kept a
gun by her bed.
Fourteen-year-old Eugene Powell testified that at
around 8:30 or 9:00 p.m. on August 12, 1986, he was standing outside
of his house at 2423 Jennings Street (across the street and one
house over from the Rease House) with friends Jamal Pope, Demond
Ligon, Jimmy Gray, and others ("Group"). Powell saw Rouster, Newsome,
a young man, and a young woman walking towards the Rease House.
Powell had known Rouster and Newsome from the time that Rouster
lived with the Reases, but did not know the other young man. Powell
testified that he saw Rouster and Newsome enter the Rease house,
while the other two stayed outside. The Group walked to the corner
of Jennings Street and 25th Avenue, and then turned around and began
walking down Jennings Street towards the Rease house. The Group
continued walking, and when they were across the street from the
house on 2462 Jennings Street, Powell heard a noise that sounded
like two firecrackers coming from inside the Rease house. When the
Group reached Gray's house (directly across the street from the
Rease house), Powell saw the young man he did not know looking for
something on the ground in front of the Rease house, using a
cigarette lighter for illumination. Powell then saw Taylor running
down Jennings Street, and the Group moved to Powell's front yard.
Powell then testified that he saw Rouster exit the Rease house and
enter the Reases' garage with the young man. At that point, Powell
and Ligon began to walk up the Reases' driveway, but when they heard
Rouster say "who's up in here, we'll shoot," they turned around and
went back across the street to Powell's house.
The Group then began to walk down Jennings Street
away from the Rease house again, and when they were two houses down
from Powell's, Powell heard three more firecracker sounds. Powell
then saw the shadow of a person in the living room of the Rease
house. After hearing two more firecracker sounds, Powell, Pope, and
Ligon went to Ligon's house to call Powell's father. A few minutes
later, Powell and Pope started walking towards Powell's house.
Powell saw Rouster and Newsome in the Reases' driveway and heard
Rouster ask Newsome if she still loved him. Powell and Pope then
started running towards Powell's father's car, which was parked in
Powell's driveway. Powell testified that while running, he heard
Rouster tell Newsome, "I killed the motherfuckers." Powell and Pope
then got into Powell's father's car, and Powell saw a police car
pull up to where Rouster and Newsome were talking, and saw Rouster
pointing down the street. The police car pulled away and stopped at
a different house down the block. As Powell, Pope, and Powell's
father drove away, Powell heard another firecracker sound while
Rouster and Newsome were still in the Reases' driveway.
Pope, Ligon, and Gray all testified and
corroborated Powell's testimony. Ligon added that Rouster was
wearing a white shirt and a black hat that night, and Gray added
that he saw Rouster drinking from a 40-ounce bottle of Private Label
malt liquor when Rouster was first walking up Jennings Street
towards the Rease house.
Lelia Gray, Jimmy's mother, testified that after
hearing a lot of noise coming from the Rease house, she looked out
of the window of her house, which was directly across the street
from the Rease house, and saw two young men wrestling in the Reases'
front yard. One of the young men wore a white shirt and Ms. Gray
heard one of them shout that he "wanted his share." Ms. Gray then
saw a young woman wearing all white clothing ask one of the young
men for bus fare. From her front yard, Ms. Gray saw the two young
men enter the Rease house and saw that the young man in the white
shirt had a gun in his back pocket. After the young men entered the
Rease house, she heard gunfire. In addition, she saw two flashes
inside of the Rease house, which she described as "light flashing
from [the] firing of a gun"?one in the living room and one in the
front bedroom. She then saw the young man in the white shirt talking
to the young woman in white on the Reases' driveway, telling her
that he "killed the motherfuckers." Ms. Gray also heard the young
woman ask the young man, "why did you do that?" Ms. Gray then saw a
police car pull in front of the Rease house and saw the young man in
the white shirt tell the police that the disturbance was down the
street. Ms. Gray then testified that she saw the young man in the
white shirt and the young woman in white walk behind the outside of
the Rease house, and that she then heard one more gunshot.
Gloria Williams, the Reases' next-door neighbor,
testified that on the night of August 12, 1986, she heard screams
and a noise that sounded "like a hammer hitting aluminum siding"
coming from inside the Rease house. She heard someone inside of the
Rease house yell, "Get it. You know where it is. Go get it." Also,
Ms. Williams testified that she could see inside of the Reases'
bedroom from her second-floor window, and that she saw objects being
tossed around the room. However, someone then closed the shade in
the Reases' bedroom. After hearing more noises that sounded like
gunshots from the Rease house, Ms. Williams called the police. She
then noticed a young man and young woman arguing in the Reases'
front yard. The young man told the young woman, "you don't love me,"
and she replied, "yes I do. You know I love you." Ms. Williams
testified that the voice of the young man who was arguing with the
young woman in the front yard was the same voice that she heard
yelling in the Rease house.
C. The Arrest
Officer Rita Dorsey of the Gary Police Department
testified that she and her partner had been dispatched to the Reases'
neighborhood because of reports of gunfire in the area. As she drove
down Jennings Street, Officer Dorsey saw two black youths ? one male
and one female ? talking and asked them where the disturbance was.
The young woman approached the police car and told Officer Dorsey
that there was no disturbance at that location and that maybe there
was a disturbance at a different house down the street. After
questioning one of the Reases' neighbors, Officer Dorsey heard a
gunshot. She and her partner returned to their patrol car and drove
towards the direction of the gunshot. The officers were flagged down
by Bryant, who took them to the Rease house. Officer Dorsey and her
partner entered the Rease house and found the Reases' bodies on the
floor of a bedroom.
Gary bus driver Donna Thomas testified that at
8:05 p.m. on August 12, 1986, two young women and two young men got
onto her bus at 21st Avenue and Broadway. She identified Rouster as
one of the young men and Newsome as one of the young women, and
testified that Rouster was wearing a white shirt and a black hat.
Thomas testified that Rouster had a bottle wrapped in a paper bag
with him. She also stated that Rouster smelled strongly of "intoxicants."
Thomas testified that at around 8:15 p.m., the Four departed the bus
at 21st Avenue and Hendricks. Thomas then stated that shortly after
9:20 p.m., Rouster and Newsome ran across 21st Avenue and then
boarded her bus at 21st Avenue and Chase. They paid their bus fare
with change and asked Thomas if they "could ride around." Thomas
testified that as the bus crossed 25th Avenue and Chase, she saw an
Indiana State Police car and noticed that Rouster and Newsome
crouched down in their seats. Rouster and Newsome exited the bus at
21st Avenue and Broadway, where another bus whose route went down
Broadway to 41st Avenue was idling.
Indiana State Trooper Rodney Means testified that
while in his patrol car on the evening of August 12, 1986, he saw a
young man and a young woman, who he later identified as Rouster and
Newsome, running towards a bus on 21st Avenue. He then saw them
board the bus at 21st Avenue and Broadway. Rouster and Newsome
matched the description of two of the youths involved in the
shootings at the Rease house, and therefore, Officer Means followed
the bus. When Rouster and Newsome got off the bus at 41st Avenue and
Broadway, Officer Means got out of his patrol car, approached them,
and questioned them. Rouster and Newsome told him inconsistent
stories about where they boarded the bus. Newsome also told Officer
Means not to listen to Rouster because he was high and had been
drinking. Officer Means testified that Rouster appeared intoxicated
and that his eyes were bloodshot. Next, Officer Means testified that
he asked Rouster what the bulge in his shirt pocket was, to which he
answered "bullets" or "ammunition." Rouster then handed about twenty
bullets to Officer Means. Officer Means then noticed several red
spots that looked like blood stains on the back of Rouster's white
shirt.
Indiana State Trooper Al Brown testified that on
August 12, 1986, he went to 41st Avenue and Broadway to assist
Officer Means. Officer Brown arrived there immediately after Rouster
had handed the bullets to Officer Means. Officer Brown examined the
bullets and determined that they were .30 caliber bullets. Officer
Brown then testified that he read Rouster and Newsome their Miranda
rights and arrested them both. He also noticed "red splotches" on
the back of Rouster's white shirt. Officer Brown then transported
Newsome to the Gary Police Department, and Officer Means transported
Rouster to the Gary Police Department. At the Police Department,
Officer Brown searched Newsome's handbag and discovered that it
contained, among other things, several loose coins.
Lake County Police Officer Timothy Lukasik
testified that at approximately 9:45 p.m. on August 12, 1986, he
began to search the area around the Rease house in order to
ascertain possible suspects. In front of 2530 Chase Street, which
was about three blocks away from the Rease house, Officer Lukasik
saw a young man that matched Williams's description. After
apprehending the suspect, Officer Lukasik found a black pouch on him
and took him to the Gary Police Department. Officer Lukansik
testified that the black pouch he found on the suspect contained a
gold watch,
$232.00, a billfold, a J.C. Penny credit card, and .30 caliber
ammunition. In court, Officer Lukansik identified the suspect as
Williams.
D. The Investigation
Lake County crime technician Ronald Lach
testified that on August 12, 1986, he searched the Rease house for
evidence. Lach found a live .30 caliber cartridge case on the floor
outside of the door to the Reases' bedroom. Lach then opened the
door to the bedroom and saw John Rease lying on the floor, with his
knees bent. Lach then saw Henrietta Rease lying wedged between the
bed and dresser with her head resting on an open drawer of the
nightstand. Lach testified that the room was "ransacked" and that
the two bodies were covered with clothes from the dresser drawers.
Lach found live .30 caliber ammunition in the
doorway going into the bedroom and two live .30 caliber rounds next
to John Rease's leg. Lach also found two fired .32 caliber cartridge
cases and two or three live rounds of .22 caliber bullets lying on
the floor of the bedroom. He also found two boxes of ammunition on
the bed's headboard: Remington .32 caliber Smith & Wesson live
rounds and Western X .25 caliber automatic live rounds. He found two
other boxes of ammunition on the nightstand: Winchester Super
Western .38 caliber live rounds and Remington .32 caliber Smith &
Wesson live rounds. Next, Lach testified that he found a wad of
money behind the corner of the dresser and coins lying on the floor.
He also saw several apparent bullet holes in the Rease house: one in
the bedroom wall, one on the nightstand, and one on the side of the
refrigerator. Additionally, Lach found a .22 caliber weapon with
three fired rounds in the cylinder and a B.B. or pellet pistol in
the house.
Further, Lach testified that in the early morning
hours of August 13, 1986, he went to the Gary City jail to observe
Rouster. Lach noticed red drops on the back of Rouster's white vest
and t-shirt. Lach also found several red drops on Rouster's shorts,
white tube socks, and gym shoes.
Kimberly Epperson, a forensic serologist employed
by the Indiana State Police Department, testified that the blood
found on Rouster's vest, socks, and gym shoes was consistent with
the blood type of John Rease, but not with that of Henrietta Rease,
Newsome, Taylor, Williams, or Rouster. Epperson also testified that
the blood found on Rouster's t-shirt and shorts was consistent with
the blood type of either Henrietta or John Rease or with that of
Rouster, but not consistent with the blood type of Newsome, Taylor,
or Williams.
Crime technician Lach finally testified that he
returned to the Rease house on August 19, 1986, at which time he
found two more rounds of .22 caliber live ammunition and three fired
.32 caliber cartridge cases in the bedroom. He then searched the
weeds behind the house and found a.32 caliber revolver with one
fired .32 caliber cartridge case in the cylinder.
Sarvind Kakodar, a pathologist for the Lake
County Coroner's Office, testified that he performed the Reases'
autopsies. Dr. Kakodar testified that there was a gunshot entrance
wound above John Rease's collarbone and that he recovered the bullet
that caused this wound from John Rease's back. He also testified
that this wound damaged John Rease's lung, and that John Rease's
cause of death was "due to a laceration of the right lung." Dr.
Kakodar also testified that Henrietta Rease had three bullet
entrance wounds: one that entered the skull cavity through the right
eye, one at the "lateral end of the left eyelobe," and one in the
abdominal area. Dr. Kakodar testified that Henrietta Rease's cause
of death was "due to laceration of the brain due to two gunshot
wounds of the head."
Jay Gauthier, a firearms examiner for the Lake
County Crime Lab, testified that the bullet recovered from John
Rease's back was fired by the .32 caliber gun that Lach found behind
the Rease house. Further, Gauthier testified that the same gun fired
the bullet that was recovered from Henrietta Rease's abdomen.
Gauthier then testified that one of the bullets recovered from
Henrietta Rease's head may have come from the .22 caliber gun that
Lach found in the Rease house.
E. Defendants' Case
Defendants' case consisted of calling four
witnesses. Theresa Newsome testified that on the evening of August
12, 1986, the Four were at her home, when Rouster asked if they
wanted to accompany him to the Rease house. Newsome claimed that
Rouster said he "wanted to be with some friends." The Four then left
Newsome's house and boarded a bus at 41st Avenue and Johnson Street.
At Broadway and 24th Avenue, Rouster and Williams got off the bus,
bought one 40-ounce bottle of malt liquor each, and reboarded the
bus several minutes later with the beer bottles wrapped in paper
bags. Newsome testified that Rouster continued to drink his beer the
entire bus ride. When the Four got off the bus, they walked down
Jennings Street, entered the Rease house, and sat down in the living
room with Henrietta Rease, John Rease, and Bryant. Newsome testified
that Rouster and Henrietta Rease then went into a back room to talk,
where they "were talking loud." After several minutes, Newsome,
Toney, and maybe Williams (Newsome testified that she could not
remember) left the house and walked a few feet down Jennings Street.
Newsome then heard two gunshots that sounded as
if they were fired from outside the front of the Rease house.
Although she was not wearing her glasses, at the time she heard the
first gunshot, she also saw Rouster standing with his arms up in the
air in the front hall of the Rease house. One of the neighborhood
children told Newsome that Rouster had a gun, and Toney told that
child to call the police. Newsome and Toney then went back into the
Rease house and saw Rouster, Williams, and the Reases talking in the
living room. Newsome asked Henrietta Rease how she was doing, and
she replied that she was doing fine. After telling their boyfriends
that they were ready to go, Newsome and Toney left the Rease house,
where Rouster and Williams remained.
Newsome and Toney walked to the bus stop on 24th
Avenue, at which point Newsome realized she had no money for bus
fare. Newsome then started to return to the Rease house to ask
Rouster for some money. As she approached the Rease house, she saw
Rouster in the front yard of the house. She asked him for bus fare,
and he told her to go home. Newsome then testified that Rouster told
her that "he killed the motherfuckers" and asked her, "do you love
me?" Newsome did not see Williams and did not hear any gunshots.
Further, Newsome stated that she did not see Rouster with a gun that
entire night. Newsome then testified that a police car pulled up to
the Rease house, and that she and Rouster approached the car and
that Rouster told the police officers that the disturbance was down
the street. Newsome also testified that Rouster gave her some money
from a purse that he had taken from the Rease house. After receiving
the money, Newsome stated that she and Rouster boarded a bus.
Finally, Newsome testified that she and Rouster were apprehended by
the police when they got off the bus at 41st Avenue and Broadway.
Williams called two witnesses. First, he called
an employee of the Public Defender's Office to authenticate some
photographs taken of the Rease house. Then, he called his and
Newsome's mother, Shirley Williams, who testified that Williams had
possessed the black pouch and the items therein before August 12,
1986. Rouster called one witness, Officer Means, who testified that
while at the Gary Police Department, he searched Rouster and found
some money on him. He testified that the bills and coins that he
found on Rouster totaled approximately twenty dollars.
For the most part, Rouster's trial strategy
consisted of cross-examining the State's witnesses, seeking to
establish the following facts: 1) that Rouster was outside of the
Rease house when at least one gunshot was fired; 2) that Rouster was
intoxicated on the night of August 12, 1986; 3) that the Reases kept
guns in their house; 4) that no one except Ms. Gray saw Rouster with
a gun that night; and 5) in any event, no one saw who shot the
Reases. Similarly, Williams' strategy was to establish the following
facts through cross-examining the State's witnesses: 1) that he was
outside of the Rease house when some of the shots were fired; 2)
that no one saw him with a gun that night; and 3) that no one saw
who shot the Reases. Further, both Rouster and Williams attempted to
impeach the State's witnesses in order to attack their credibility.
F. Closing Arguments
During closing arguments, Rouster and Williams
began to accuse each other for the first time. Before closing
arguments, the trial judge informed the parties that each defendant
had forty-five minutes to address the jury. Newsome was to argue
first, then Williams, and then Rouster. However, because Rouster was
to go last, the trial judge informed the parties that if he
perceived that Rouster had "turned on" his co-defendants, he would
allow each co-defendant an additional fifteen minutes to rebut
Rouster's contentions. He would signal his intention to allow this
additional time by placing his eyeglasses on the bench during
Rouster's argument. If that happened, then Rouster would also be
given the opportunity to extend his argument by fifteen minutes, so
that each co-defendant would be allotted an equal amount of time (one
hour) for final argument.
Following the State's and Newsome's summations,
Williams' counsel told the jury that Rouster "wanted to settle the
score" with the Reases and that Rouster had gone "berserk." He also
argued that the State had not proved that Williams was guilty of
felony murder "beyond a reasonable doubt." Rouster's counsel
countered in his closing argument that "the real maniac was Darnell
Williams." He argued that because Williams was twenty years-old and
Rouster only eighteen on August 12, 1986, Williams was the
ringleader and driving force behind the murders. He also argued that
the police only found drops of blood on the back of Rouster's vest
and shirt, and that this was evidence that he was facing away from
the Reases when someone else shot them. In response, the trial judge
placed his glasses on the bench, and each defendant received an
additional fifteen minutes of argument. In his additional time,
Williams' counsel argued that the police also found blood on
Rouster's shorts, socks and shoes, so that it is unclear whether he
was facing away from the Reases when they were shot. Newsome's
counsel also argued in his additional time that Newsome received the
money that the police found on her "from Greg [Rouster], after he
had told her [the Reases] were dead."
G. Sentencing
The jury found Rouster and Williams guilty of two
counts of felony murder and acquitted Newsome on both counts. At the
joint penalty phase ("Phase II"), which began the next day in front
of the same jury, the State sought the death penalty pursuant to
Ind.Code § 35-50-2-9. That statute provided that the State could
seek the death penalty against a defendant convicted of murder if
the State proved beyond a reasonable doubt one of the following
aggravating factors: that the "defendant committed murder by
intentionally killing the victim while committing or attempting to
commit" robbery or that the "defendant has been convicted of another
murder." Id. at §§ 35-50-2-9(b)(1) and (7). In this case, the State
alleged that at least one of the following aggravating factors was
present: 1) that Rouster and Williams intentionally killed John
Rease while committing or attempting to commit a robbery, 2) that
Rouster and Williams intentionally killed Henrietta Rease while
committing or attempting to commit a robbery, or 3) that Rouster and
Williams had been convicted of the murder of John Rease and
Henrietta Rease.
The Indiana death penalty statute also provided
that the defendant could present evidence pertaining to one of the
following mitigating circumstances: 1) the defendant had no
significant history of prior criminal conduct; 2) the defendant was
under the influence of extreme mental or emotional disturbance; 3)
the victim was a participant in, or consented to, the defendant's
conduct; 4) the defendant was an accomplice in a murder committed by
another person, and the defendant's participation was relatively
minor; 5) the defendant acted under the substantial domination of
another person; 6) the defendant's capacity to appreciate the
criminality of his conduct or to conform his conduct to the
requirements of law was substantially impaired as a result of mental
disease or defect or of intoxication; 7) any other circumstances
appropriate for consideration.
See id. at § 35-50-2-9(c) (1987). The statute provided that the jury
could recommend the death penalty, see Ind.Code § 35-50-2-9(e), only
after it had found that: 1) the state had proved beyond a reasonable
doubt that at least one of the aggravating circumstances existed and
2) any mitigating circumstances that existed were outweighed by the
aggravating circumstance(s).
Id. at § 35-50-2-9(k). The judge would then make the final
determination about the appropriate sentence after considering the
jury's recommendation and the standards elucidated in Ind.Code §
35-50-2-9(k). Id. at § 35-50-2-9(e).
In Phase II, Rouster once again waived opening
statement. The State then called Taylor, who testified that after
the Four entered the Rease house, Rouster, Williams, and Henrietta
Rease went into a back room to talk. Taylor heard Williams tell
Henrietta Rease, "you better get Greg [Rouster] his fucking money."
Everyone returned to the living room, and Henrietta Rease asked
Taylor to take Rouster and Williams outside. Taylor then saw Rouster
pull out a gun that was hidden in his vest, and Taylor ran out of
the house. While next door to the Rease house, Taylor testified that
he saw Rouster, who was on the sidewalk outside of the Rease house,
fire his gun twice at the living room window. After Taylor ran to
the back of the Rease house and hid behind a shed, he heard Williams
say, "Greg [Rouster], somebody in back," and then Rouster say, "come
on out, I'm going to shoot." After Taylor came out from his hiding
spot, Williams took the gun from Rouster, pointed it at Taylor, and
asked him where the Reases kept their money. Taylor answered, at
which point Rouster told Williams to leave Taylor alone. Taylor then
said that Williams dropped the gun in the yard and started looking
for it, using a lighter for illumination. Taylor then ran to his
friend's house to call the police.
Taylor also identified the .22 caliber gun found
at the Rease house as the gun that Rouster and Williams had
brandished and the .32 caliber gun found behind the house as the
Reases' gun. In addition, Taylor testified that both Williams and
Rouster appeared drunk that night. Finally, he testified that about
two or three weeks prior to August 12, 1986, Rouster told Taylor
over the telephone that he was going to rob the Reases. In addition,
the State also presented evidence that in 1982, Rouster had been
adjudicated as a delinquent for two counts of burglary and that
Williams, but not Rouster, had previously participated in a robbery
similar to the one committed against the Reases.
Rouster's evidence during Phase II consisted of
the testimony of his welfare caseworkers and of his welfare file,
which revealed that Rouster had been abandoned at birth by his
fourteen-year-old prostitute mother. The evidence also showed that
Rouster had lived in a number of foster homes and institutional
placements prior to his placement with the Reases. Further, Rouster
was tested several times as having mild mental retardation. In an IQ
test administered in 1982, Rouster was found to have an IQ of 76,
although Rouster's April 1984 welfare report indicated that he was
able to receive passing grades in high school.
During Phase II, Williams presented testimony
that he was employed, had graduated high school, and had lived with
his mother for most of his life. Further, friends and family members
testified about Williams' character, claiming that he was a kind and
responsible young man.
Williams' counsel gave his closing argument after
the State's summation. He argued that Rouster was the triggerman and
that Rouster's deprived background was reason to find that Rouster
was more blameworthy than Williams. During Rouster's closing
argument, his attorneys addressed Rouster's unfortunate upbringing
and argued that Rouster had not intentionally killed the Reases and
was not the triggerman. On February 19, 1987, the jury recommended
the death sentence for both Rouster and Williams.
On March 20, 1987, a joint sentencing hearing was
held, at which Rouster did not present any witnesses or testify.
Williams, however, presented testimony from his family members and
from his employer. The judge entered a death sentence against
Rouster and issued written findings therewith.
The judge's findings indicated that the State had proved three
aggravating factors under Ind. Code § 35-50-2-9: 1) that Rouster
intentionally killed John Rease while committing the crime of
robbery; 2) that Rouster intentionally killed Henrietta Rease while
committing the crime of robbery; and 3) that Rouster had previously
been convicted of another murder. He also addressed each potential
mitigating factor and held that none applied. Specifically, the
judge found:
1. As a juvenile the defendant was adjudicated
for two burglaries in 1982 and for violation of probation in 1984.
As an adult he was charged in Lake County Division I for conversion.
2. The killings were done in a deliberate
fashion. Though there is some indication that Rouster thought he was
suffering an injustice, this had no basis in fact. It was pretext to
give the appearance of justification for killing.
3. From the evidence previously referred to, we
conclude the victims acceded to the robbery to avoid the killings,
but were completely at the defendant's mercy.
4. Rouster planned the robbery with Williams.
Both were well known to the Reases. It is reasonable to conclude
that once the robbery plan was carried out the Reases could not be
permitted to identify either Rouster or Williams. Rouster
additionally was the one announcing that he had killed them both.
5. Both Rouster and Williams acted as a team. It
was Rouster who said: "Let's get them now." He was equal partner and
not under anyone's domination.
6. Rouster is mentally alert and was capable of
making A's and B's in high school.... There is no indication of
mental disease or defect. There was evidence that Rouster had been
drinking that evening. He was, however, able to deceive the
arresting officer as to his prior locations that evening and had the
presence of mind to duck down in the bus when the police car went
by.
7. The defendant, Rouster is a nineteen (19) year-old
male, well-informed of stature, physically strong and mentally alert.
His lack of family support and traditional human relationships,
though a factor in his antisocial behavior, cannot excuse that
conduct as resulting from a social disorder or mental disease. The
court also notes that Rouster was eighteen (18) years of age at the
time of the murders. A young age is always a mitigating factor,
though not enumerated by statute. A person of tender age makes
impulsive choices, often unwise, that someone of greater experience
and years would not make. Had this been the first or second bad
decision, his age would have been a substantial mitigating factor.
But Rouster has consistently made bad decisions. He has been
subjected to corrective treatment. He has been given more time to
reflect. He has had his environment changed. He has had the benefit
of supervision at all levels of his development. It has had no
deterrent effect.
The judge then sentenced Rouster and Williams to
death.
H. Procedural History
After the Indiana Supreme Court rejected all of
Rouster's claims on direct appeal, see Rouster v. State, 600 N.E.2d
1342 (Ind. 1992), he filed a petition for post-conviction relief in
Lake County Superior Court on April 28, 1995. In that petition,
Rouster alleged the following: 1) that he was denied effective
assistance of counsel because of his trial counsel's failure to move
for severance and present expert testimony on self-defense; 2) that
there were fundamental errors in the jury instructions; 3) that
false evidence was submitted to the jury; 4) that the Indiana
sentencing scheme was unconstitutional; and 5) that execution by
electrocution was a cruel and unusual mode of punishment.
Magistrate T. Edward Page held a hearing the week
of June 26, 1995 to evaluate Rouster's claims, at which time the
court received an affidavit from Dr. Jeffrey Gwynne, a
reconstruction expert. Dr. Gwynne asserted that it was highly likely
that Rouster was acting in self-defense at the time that Henrietta
Rease was shot, based on the angle of the bullet path and the
location of the bullet-hole in her dress. Additionally, he asserted
that the fatal wound to John Rease also supported the theory that
Rouster was acting in self-defense. Gloria Williams, the Reases'
neighbor, testified in support of Rouster and stated that the Reases
had used inappropriate force in dealing with their foster children.
Jimmy Gray also testified that he saw the Reases carry guns in their
home and saw a rifle in their bedroom.
Judge Richard Conroy dismissed Rouster's post-conviction
petition in its entirety. Rouster appealed the denial of his
petition for post-conviction relief directly to the Indiana Supreme
Court, alleging the following: that his trial counsel was
ineffective during the guilt phase for failing to file a motion to
sever, for failing to engage in certain discovery, and for failing
to present expert testimony on self-defense; that trial counsel was
ineffective during Phase II for failing to present additional
mitigation evidence and for failing to make a new request for
separate sentencing proceedings; that errors in the Phase II jury
instructions constituted fundamental error and ineffective
assistance of counsel; that he was denied the right to effective
assistance of counsel because of systematic defects within the Lake
County Public Defender system; that the prosecutor knowingly
presented false evidence against him at trial; and that his post-conviction
hearing denied him due process. The Indiana Supreme Court
unanimously affirmed the decision of the trial court denying post-conviction
relief. See Rouster v. State, 705 N.E.2d 999 (Ind.1999).
Rouster then filed a petition for a writ of
habeas corpus in the Northern District of Indiana on February 4,
2000, alleging that his trial counsel was ineffective for failing to
move for severance prior to trial and prior to Phase II, that trial
counsel was ineffective for failing to present expert testimony on
self-defense, that trial counsel was ineffective for failing to
investigate all of the potential mitigating evidence during Phase II,
and that several of the jury instructions contained fundamental
errors. Rouster's habeas petition was denied, and this appeal
followed. On appeal, Rouster now raises three issues: that trial
counsel was ineffective for failing to move for severance prior to
trial, that trial counsel was ineffective for failing to move for
severance prior to Phase II, and that trial counsel was ineffective
for failing to present expert testimony on self-defense.
II. Analysis
A. Standard of Review
Rouster filed his habeas petition on February 4,
2000, which was after the effective date of the Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. 104-132, 110
Stat. 1214 (1996) (codified at 28 U.S.C. 2254). Therefore, the
provisions of AEDPA govern our review. See, e.g., Lindh v. Murphy,
521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). AEDPA
provides that if a constitutional claim was adjudicated on the
merits by the state courts, a federal court may only grant habeas
relief based on that claim if the state court's decision was "contrary
to" or an "unreasonable application of" federal law as determined by
the Supreme Court of the United States.
28 U.S.C. 2254(d).
The Indiana Supreme Court's decision in this case
was not "contrary to" federal law as determined by the Supreme Court
of the United States. In Williams v. Taylor, 529 U.S. 362, 405-06,
120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Court stated
that a state court's decision is "contrary to" established Supreme
Court precedent when 1) the state court applies a rule that
contradicts the governing law set forth in Supreme Court cases or 2)
the state court confronts a set of facts that is materially
indistinguishable from those of a decision of the Supreme Court and
nevertheless arrives at a decision different from that reached by
the Supreme Court precedent.
In the present case, the Indiana Supreme Court
correctly applied Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984) as the controlling precedent for
Rouster's three ineffective assistance of counsel claims,
see Rouster, 705 N.E.2d at 1003-08, and "Strickland undoubtedly
qualifies as `clearly established Federal law, as determined by the
Supreme Court of the United States,' within the meaning of [AEDPA]."
Williams, 529 U.S. at 413, 120 S.Ct. 1495. Further, Rouster concedes
that the Supreme Court has never addressed facts that are materially
indistinguishable from those in this case. Therefore, because the
Indiana Supreme Court's decision was not "contrary to" established
federal law, Rouster is not entitled to habeas relief on this ground.
Nevertheless, we must determine whether the
Indiana Supreme Court's conclusions with respect to Rouster's three
ineffective assistance of counsel claims resulted from "an
unreasonable application of" Strickland. See Williams, 529 U.S. at
411, 120 S.Ct. 1495. In doing so, we must keep in mind that we may
not issue a writ of habeas corpus "simply because [we] conclude[]...
that the relevant state-court decision applied [Strickland]
erroneously or incorrectly. Rather, that application must also be
unreasonable." Id.
B. Strickland
A defendant who claims that his counsel's
assistance was so defective as to warrant a reversal must establish
two components: 1) that his counsel's performance fell below an
objective standard of reasonableness and 2) that he was prejudiced
by the deficient performance. See Strickland, 466 U.S. at 687-88,
104 S.Ct. 2052. A failure to establish either prong results in a
denial of the ineffective assistance of counsel claim. See Hough v.
Anderson, 272 F.3d 878, 890 (7th Cir.2001). Prejudice occurs when
there is a "reasonable probability" that but for counsel's deficient
performance, the result of the proceeding would have been different.
Strickland, 466 U.S. at 694, 104 S.Ct. 2052. A "reasonable
probability is a probability sufficient to undermine confidence in
the outcome." Id. Because Rouster cannot establish that he was
prejudiced by his counsel's allegedly deficient performance, we need
not address whether his counsel's performance was objectively
unreasonable.
C. Severance Prior to Trial
Rouster contends that his conviction should be
overturned because his trial counsel failed to move to sever his
trial from that of his co-defendants. Indiana law allows for
severance when "the parties' defenses are mutually antagonistic and
acceptance of one party's defense precludes the acquittal of the
other."
Lampkins v. State, 682 N.E.2d 1268, 1272 (Ind.1997). Rouster relies
on events that occurred during closing arguments to illustrate the
alleged irreconcilable defenses between his case and Williams'.
For example, Williams' counsel depicted Rouster as an individual who
wanted to settle the score and who went "berserk." In response,
Rouster's counsel argued that Williams was "the real maniac" and
that blood stains on Rouster's vest and shirt indicated that Rouster
could not have fired the shots at the Reases. Rouster argues that
this sort of "fingerpointing" establishes "mutually antagonistic
defenses." Therefore, Rouster asserts he was prejudiced by being
jointly tried with Williams.
In order to show that he was prejudiced by his
joint trial with Williams, Rouster must show that had his counsel
moved for severance and had the motion been granted so that he was
tried separately, there was a "reasonable probability" that he would
have been acquitted. See Strickland, 466 U.S. at 687, 104 S.Ct.
2052. Even if Indiana law mandated severance in this case,
Rouster would not be able to establish prejudice because there was
not a "reasonable probability" that he would have been acquitted if
tried separately. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052.
In applying Strickland to Rouster's claim, the Indiana Supreme Court
stated:
Moreover, there is no reasonable probability that
the results of the guilt phase of trial would have been different if
a separation had occurred. First, each co-defendant's arguments
regarding who pulled the trigger were actually of little relevance
since both were convicted of felony murder under Ind.Code §
35-42-1-1. All participants in a robbery or attempted robbery that
results in killing by one robber are deemed equally guilty of murder,
regardless of which participant actually killed the victim.
Additionally, the same evidence would have been admitted against
Rouster even if he had been granted a separate trial. Such evidence
includes testimony that Rouster said, "I killed the motherfuckers"
to his co-defendant Teresa Newsome shortly after shots were heard
inside the Rease home; Derrick Bryant's testimony that he heard
Rouster tell Williams, "Bring them both back here" before he heard
Henrietta Rease say, "Greg, why are you doing this?" followed by two
shots; plus the physical evidence of the blood consistent with that
of John Rease found on Rouster's shoes, socks, and vest. Considering
the amount of corroborating evidence indicating Rouster's role in
the crime, Rouster was not prejudiced by his counsel's failure to
move for separate trials.
Id. at 1005 (citations omitted) (emphases added).
We have no problem holding that the Indiana
Supreme Court's application of Strickland was reasonable. In
Hernandez, 200 F.3d at 999, we held that Strickland prejudice exists
with respect to trial counsel's failure to move for severance only
when "there [is] a reasonable probability that the severance would
have made a difference to the outcome of the trial." In that case,
Hernandez was convicted for murder based on evidence that was
adduced almost entirely from his co-defendant's testimony at trial,
which contradicted Hernandez's own testimony at trial. See id. We
held that Hernandez was prejudiced by his trial counsel's failure to
move for severance because there was a reasonable probability that
had Hernandez been tried separately, his co-defendant would not have
testified at Hernandez's trial. See id. at 999-1000.
In contrast to Hernandez, in the present case,
the only contradictory positions proffered by the co-defendants
occurred during closing arguments. As Rouster's counsel argued to
the jury, however, closing arguments are not evidence. See, e.g.,
United States v. Henry, 2 F.3d 792, 795 (7th Cir.1993). Therefore,
had severance been granted, the evidence that would have been
presented at Rouster's trial would have been the same as the
evidence that was, in fact, presented at his joint trial. Cf.
Hernandez, 200 F.3d at 999. This evidence would include the
testimony of several witnesses who heard Rouster admit that he "killed
the motherfuckers," the testimony of several witnesses that saw
Rouster in or around the Rease house on the night of August 12, 1986
and then heard gunshots coming from the house, and the physical
evidence indicating that Rouster had blood consistent with John
Rease's blood on his clothing. Further, we agree with the Indiana
Supreme Court that the contradictory defenses concerning who was the
triggerman were irrelevant, as both Rouster and Williams could have
been convicted of felony murder even if the other had fired all of
the gunshots. See Rogers, 315 N.E.2d at 709-10. Therefore, because
we do not believe that there would have been a "reasonable
probability" of a different outcome had Rouster been tried
separately, we find that no prejudice resulted from Rouster's
counsel's failure to file a motion for severance prior to trial. See
Strickland, 466 U.S. at 687, 104 S.Ct. 2052.
D. Severance Prior to Sentencing
Next, Rouster contends that his sentence should
be reversed because his trial counsel failed to move for severance
prior to Phase II. Rouster's argument to the Indiana Supreme Court
with respect to this issue was the same as his argument with respect
to counsel's failure to move for severance prior to trial ? that he
and Williams had mutually antagonistic defenses. Thus, the Indiana
Supreme Court was faced with the novel question of "[w]hether a
defendant may claim separately that his counsel was deficient for
failing to file a motion for separate trials in regard to the guilt
and penalty phases of his trial." Rouster, 705 N.E.2d at 1007. The
Indiana Supreme Court determined that a defendant could do so only
if counsel became aware of a "previously unknown ground" that
required severance after the trial had started, and still failed to
move for severance. See id. There was no such ground in this case,
and therefore, the Indiana Supreme Court held that because the
evidence against him was overwhelming, Rouster was not prejudiced by
"counsel's omission in failing to file a motion to separate trials
before sentencing." Id. at 1007-08.
Now on appeal, Rouster has re-framed his argument
to claim that counsel's failure to move for severance prior to Phase
II constituted ineffective assistance of counsel because it denied
him an individualized sentencing hearing as required by the
Fourteenth Amendment. See, e.g., Woodson v. North Carolina,
428 U.S. 280 , 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976).
Further, even though Rouster did not mention Woodson nor its progeny
in his brief to the Indiana Supreme Court, Rouster claims that the
Indiana Supreme Court's decision was "contrary to" Supreme Court
precedent because it did not consider the standard elucidated in
those cases. However, Woodson, 428 U.S. at 304, 96 S.Ct. 2978, held
that the "Eighth Amendment ... requires consideration of the
character and record of the individual offender ... as a
constitutionally indispensable part of the process of inflicting the
penalty of death." That case had nothing to do with the issue at
hand?whether severance during the penalty phase was required.
Therefore, the standard for determining whether Rouster's counsel
was ineffective for failing to move for severance prior to Phase II
is "whether there is a reasonable probability that [had severance
been granted] the sentencer ... would have concluded that the
balance of aggravating and mitigating circumstances did not warrant
death." Strickland, 466 U.S. at 695, 104 S.Ct. 2052.
Rouster speculates that had there been separate
sentencing trials, the witnesses that testified favorably about
Williams (Williams' family and friends) would have testified
favorably about him. Rouster also argues that the State offered
evidence at the joint sentencing proceeding that Williams had
previously participated in a robbery, and that the jury may have
misascribed that conduct to Rouster. Next, Rouster suggests that
because Williams had some mitigating evidence that Rouster did not
have (evidence of a job and kindness to his relatives), Rouster
looked more deserving of the death penalty in comparison. Finally,
Rouster claims he was prejudiced by Williams' counsel's statements
about him during closing arguments.
Despite Rouster's contentions, there is no
evidence that in a separate proceeding, the jury and the judge would
have balanced the aggravating and mitigating factors differently.
See id. The court instructed the jury that it could recommend the
death penalty for Rouster only if it found 1) that the State proved
that at least one of the aggravating factors applied to Rouster and
2) that the mitigating circumstances applicable to Rouster were
outweighed by the aggravating factor(s). Therefore, the jury knew
that in determining whether to recommend a death sentence for
Rouster, it should only consider the aggravating and mitigating
factors that applied to him. See United States v. Boykins, 9 F.3d
1278, 1289 (7th Cir.1993) (holding that in joint trial, there is a
presumption that "the jury will follow instructions on considering
each defendant separately."). Also, in imposing the death sentence
on Rouster, the judge made specific findings that no mitigating
factor applied to Rouster. Further, Rouster's speculations about
what would have happened in a separate sentencing proceeding do not
render the Indiana Supreme Court's decision an unreasonable
application of Strickland. See, e.g., United States v. Williams, 934
F.2d 847, 852-53 (7th Cir.1991) (holding "speculation" insufficient
to establish prejudice). For example, Rouster's argument that he
looked more deserving of the death penalty than Williams because of
Williams' additional mitigating evidence is belied by the fact that
the jury also recommended the death sentence for Williams. Therefore,
because Rouster was not prejudiced, we find that the Indiana Supreme
Court's determination that Rouster's counsel was not ineffective for
failing to move for severance prior to Phase II was not an
unreasonable application of Strickland.
E. Expert Testimony on Self-Defense
Finally, Rouster argues that his trial counsel
was ineffective for failing to present expert testimony on self-defense
at trial. Rouster asserts that expert testimony would have
established that the shots Rouster fired at John Rease were fired in
self-defense, based on the trajectory of the bullet path. In
response to this argument, the Indiana Supreme Court stated:
Rouster argues that trial counsel were
ineffective for failing to present expert evidence to show the
killings were committed in an act of self-defense. Self-defense is
not available, however, as an affirmative defense when one is
engaged in the commission of a robbery. Ind.Code Ann. §
35-41-3-2(d)(1). Rouster's proposed evidence (expert testimony meant
to indicate the Reases' wounds were consistent with shots fired in
self-defense) does not affect the evidence necessarily believed by
the jury beyond a reasonable doubt that Rouster and Williams were
both engaged in robbery at the time the killings occurred. Thus,
even if we assume Rouster was indeed acting to protect himself (an
assumption that is belied by virtually all of the evidence), he is
barred from asserting self-defense since the jury found he was
engaged in robbery at the time of the killings. Trial counsel were
not ineffective for failing to offer self-defense evidence.
Rouster, 705 N.E.2d at 1006.
Even assuming that the expert testimony would
have conclusively shown that Rouster was acting in self-defense,
under Indiana law, a person "is not justified in using force if he
is committing ... a crime." Ind.Code § 35-41-3-2(d)(1). The Indiana
Supreme Court has interpreted this provision to mean that "self-defense
could not be applied as a defense" to the crime of robbery. Debose
v. State, 450 N.E.2d 71, 72 (Ind.1983). In the present case, the
State charged Rouster with two counts of felony murder under
Ind.Code § 35-42-1-1(2), which states that a "person who ... kills
another human being while committing or attempting to commit...
robbery ... commits murder, a felony." The jury instructions stated
that in order for the jury to convict Rouster of felony murder, it
must find beyond a reasonable doubt that Rouster killed the Reases
while committing or attempting to commit a robbery.
The jury returned a verdict on those two counts that stated, "[w]e,
the jury, find the defendant, Gregory Anthony Rouster, guilty of
Murder, a felony." Therefore, the jury necessarily found that
Rouster had committed or attempted to commit robbery.
The only expert testimony that Rouster alleges
his counsel was ineffective for failing to present was testimony
from a "reconstruction expert [that] could have shown the .32
caliber shots fired by the Petitioner ... were evidence of self-defense."
This evidence does not affect the overwhelming evidence believed by
the jury beyond a reasonable doubt that Rouster was committing or
attempting to commit a robbery when the Reases were killed. This
evidence includes uncontradicted testimony that Bryant heard Taylor
say that Rouster had a gun, that he heard Rouster ask Taylor where
the Reases kept their money, that he heard Rouster say "let's go rob
them," that he heard Rouster enter the Rease house and threaten
Henrietta Rease with a gun, and that he then heard several gunshots
being fired. Further, Newsome testified that Rouster had given her
money that he had taken from the Reases. Therefore, because the jury
believed the overwhelming evidence that Rouster committed a robbery,
because the expert testimony only concerned self-defense and did not
affect the evidence concerning the robbery, and because self-defense
is not an affirmative defense to robbery, Rouster was not prejudiced
by his counsel's failure to present the expert testimony. See
Strickland, 466 U.S. at 687, 104 S.Ct. 2052. As Rouster was not
prejudiced by this failure, the Indiana Supreme Court's application
of Strickland was reasonable. See United States ex rel. Bell v.
Pierson, 267 F.3d 544, 558 (7th Cir.2001) (holding state court's
application of Strickland reasonable where evidence that counsel
failed to present would not have overcome overwhelming evidence of
guilt).
Finally, Rouster argues that the Indiana Supreme
Court's reliance on Indiana law stating that self-defense is not an
affirmative defense to felony murder is "contrary to" and "an
unreasonable application of" Washington v. Texas, 388 U.S. 14,
18-19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) and its progeny.
See Williams, 529 U.S. at 405-06, 120 S.Ct. 1495. However, Rouster
cannot succeed on this claim. In that case, the Supreme Court held
that criminal defendants had the fundamental right to "present [their]
own witness[es] to establish a defense." Washington, 388 U.S. at 19,
87 S.Ct. 1920. That case dealt with a defendant's generalized right
to present a defense ? a "right to his day in court." Id. at 18, 87
S.Ct. 1920. Rouster confuses this right with the purported right to
have a state recognize any particular affirmative defense that a
defendant wishes to raise. No such right exists and we reject
Rouster's final claim.
III. Conclusion
Because of the foregoing, we AFFIRM the district
court's denial of Rouster's petition for writ of habeas corpus.
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