UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

ROBERT SPEARS, )

)

Petitioner, )

)

v. ) CAUSE NO. 3:13-CV-016 RM

)

SUPERINTENDENT )

)

Respondent. )

OPINION AND ORDER

Robert Spears, a pro se prisoner, filed a petition for writ of habeas corpus pursuant

to 28 U.S.C. § 2254 which raises three grounds to challenge his two convictions and

sentences for dealing in controlled substances by the Marion Superior Court under cause

number 49G20-0510-FB-184297. The respondent briefed those issues and filed the state

court record. Mr. Spears has filed a traverse. 

FACTS

In deciding this habeas petition, the court must presume the facts set forth by the

state courts are correct unless rebutted by the petitioner with clear and convincing

evidence. 28 U.S.C. § 2254(e)(1). On direct appeal, the Court of Appeals of Indiana set forth

the facts regarding these convictions as follows:

The evidence most favorable to the convictions is that Spears regularly

sold tablets of hydrocodone (Vicodin) and alprazolam (Xanax) to his niece,

Shannon Welsh, for over a year. Welsh also occasionally sold pills she

obtained from Spears to other persons and gave the proceeds to Spears.

Welsh knew that Spears had his prescriptions for the drugs filled towards the
end of each month, and the two would arrange to meet shortly thereafter for

Welsh to obtain some pills. Sometimes Welsh initiated the contact, and

sometimes Spears did.

At some point, Welsh and her family obtained a protective order

against Spears because of allegedly threatening behavior towards them.

Welsh and her family contacted law enforcement for assistance with Spears’s

alleged threats. Indianapolis Metropolitan Police Department (“IMPD”)

Detective Noble Duke met with Welsh and her family several times to

discuss Spears. At one of these meetings, Welsh told Detective Duke about

Spears selling controlled substances. Eventually, Welsh agreed to make a

controlled buy of drugs from Spears as a way “to try to help Welsh’s family

with their problems.” Tr. p. 286.

On October 25, 2005, Welsh contacted Detective Duke to let him know 

that Spears probably had medication in his possession. Welsh went to an

IMPD district office, where she was thoroughly searched by a female officer.

Officers also thoroughly searched Welsh’s vehicle. No contraband was found

on Welsh or in her car. She was given money that was photocopied

beforehand and outfitted with a transmitting device.

Welsh drove directly to Spears’s home in Indianapolis, followed 

by IMPD officers. Detective Duke parked where he could see the rear of 

Spears’s home and another group of officers were parked where they could

see the front. When Welsh pulled up to Spears’s house he was standing

outside. Welsh asked Spears if he had any pills, and Spears responded that

he wanted to drive around the block to see if there were any police officers

observing them. Spears drove around the block in his truck, with Welsh

following in her car. Officers observed Welsh driving, although they

temporarily lost sight of her at one point. At the end of the block, Welsh

drove up beside Spears and told him she did not see anybody, and they both

drove back to Spears’s house and went inside.

No one else was inside the home aside from Welsh, Spears, and

Spears’s four-year-old son. Officers could not directly see Spears’s back door

for some of the time Welsh was inside, but over the transmitter they heard

no one enter the house while Welsh was there. Welsh again asked if Spears

had any pills for sale, and he said that he did. She requested ten Xanax and

six Vicodin pills, which he gave to her in exchange for fifty dollars. Welsh

then left and drove directly to a pre-arranged location, followed by Detective

Duke. Welsh gave Detective Duke six pills containing hydrocodone, a

schedule III controlled substance, and nine pills containing alprazolam, a

schedule IV controlled substance. A search of Welsh and her vehicle

uncovered no other contraband. Police then went to Spears’s house and

arrested him. During a search incident to arrest, officers found on Spears’s

2
person two prescription bottles containing hydrocodone and alprazolam,

and cash that matched the buy money provided to Welsh.

DE 10-2 at 2-5 (brackets omitted).

In his traverse, Mr. Spears raises numerous factual disputes.1

 He spends many pages

setting forth an alternative factual history and drawing alternative conclusions based on

those facts. He argues that he didn’t sell drugs to Shannon Welsh for over a year, but she

testified that he did. He argues that she didn’t sell pills for him and give him the money,

but she testified that she did. He argues that she didn’t meet with Detective Noble Duke

several times and tell him about those drug transactions, but she testified that she did. He

argues that she didn’t contact Detective Duke on October 25, 2005 because she believed that

Mr. Spears had pills to sell, but Detective Duke testified that she did. Mr. Spears argues that

opinions of the Court of Appeals of Indiana incorrectly identified the date of the controlled

buy as October 25, 2005 – rather than October 24, 2005 – but the testimony at trial

repeatedly identified the correct date. Moreover, a scrivener’s error in the appellate

opinions has no bearing on the merits of the claims in Mr. Spears’s habeas corpus petition. 

Mr. Spears argues that IMPD officers didn’t follow Shannon Welsh when she drove

directly from the police station to his house for the controlled buy, but both she and

Detective Duke testified that she didn’t make any stops that weren’t allowed by the police.

Moreover, Sergeant Miller, Detective Duke, and Detective Reed testified that they were

members of the Indianapolis Metropolitan Police Department and that they followed her

1

 Mr. Spears also raises legal objections in his traverse that will be addressed during the discussion

of the grounds he as presented in support of his habeas corpus petition. 

3
as she drove to the controlled buy. Mr. Spears argues that she didn’t agree to participate

in the controlled buy to help her family because they had been threatened by Mr. Spears,

but she testified that she did. He argues that officers couldn’t verify that they didn’t hear

anyone enter the house during the controlled buy, but Detective Duke testified testified

that he did not hear anyone go into or out of the house during the controlled buy. Mr.

Spears argues that Ms. Welsh didn’t ask him to purchase ten Xanax and six Vicodin pills

in exchange for $50.00, but she testified that she did. He argues that Detective Duke didn’t

follow her when she left the house after the controlled buy, but Detective Duke testified

that he did. Moreover, Ms. Welsh testified that “I really don’t remember.” He argues that

she bought ten Xanax pills, but only gave nine of them to Detective Duke, but she testified

that “[h]e might not have gave it to me” and “[h]e could have miscounted.” He argues that

Ms. Welsh testified that her car was not searched after the controlled buy, but her

testimony was, “[t]hey looked in it. I guess not – not a search. I really don’t remember.

They looked in there. I don’t remember if they – I don’t remember.” In addition, Detective

Reed testified that he searched the car, and Detective Duke corroborated that testimony.

Mr. Spears argues that officers didn’t find two prescription bottles containing hydrocodone

and alprazolam as well as cash matching the buy money when they searched him, but

Detective Duke testified that they did. Mr. Spears argues that he didn’t request that the jury

hear the entire recording of the controlled buy, but his trial lawyer did on his behalf. He

argues that his trial counsel didn’t present evidence about a federal gun investigation to

the jury even though the judge ruled that she could do so, but he must know that such

4
evidence was ultimately excluded because he explains that “[t]he fact is Spears testified

because . . . the court changed its ruling about the gun case . . ..”

Mr. Spears argues that his prior criminal history should have been inadmissible

under any circumstances because his conviction was more than ten years old and it was

unrelated to whether he was guilty of the current charges, but he had been released from

prison on in February 2005, and Indiana Rule of Evidence 609(b) (like the federal rule)

allows the introduction of such evidence when less than ten years have passed since the,

“conviction or release from confinement for it, whichever is later.” Moreover, Mr. Spears’s

prior criminal history would be relevant if he wanted to demonstrate that he was being

investigated for being a felon in possession of a magazine for a firearm.

Mr. Spears argues that there was no foundation for the state court to conclude that

the search was sufficiently controlled, but the testimony of Mr. Welsh and four police

officers (Noble Duke, Chris Reed, David Miller, and Paul Arkins) during the suppression

hearing provided the court with plenty of information about the controls implemented

during the controlled buy. Mr. Spears argues that Ms. Welsh was promised leniency in

return for her testimony against him, but she testified that she wasn’t. Moreover, Mr.

Spears hasn’t identified anything in the record indicating such a promise other than his

own conjecture. He argues that his trial lawyer didn’t impeach Ms. Welsh with her prior

deposition testimony about whether she and her car were searched after the controlled buy,

but she was impeached on those subjects. 

5
Mr. Spears hasn’t satisfied the requirements of 28 U.S.C. § 2254(e)(1) because he

hasn’t provided clear and convincing evidence that the facts found by the Court of Appeals

of Indiana are incorrect. So too, he hasn’t satisfied the requirements of 28 U.S.C. § 2254(d)

by demonstrating that the state courts made an unreasonable determination of the facts in

light of the evidence presented. The court must accept as true those facts that were found

by the Indiana courts. 

Other facts, relevant to the particular claims raised by Mr. Spears in his habeas

corpus petition, will be provided as needed. 

GROUND 1

In Ground 1, Mr. Spears argues that he was denied the effective assistance of trial

counsel for five2

 reasons: 

(1) [A] Counsel failed to conduct a professional investigation into the

facts and circumstances surrounding the federal entrapment scheme

whereby ATF agents planted illegal gun accessories in Spears’ house to

return Spears to prison. When that scheme failed, State agents charged

Spears with allegedly selling his prescribed Vicodin and Xanax drugs to his

niece, a long-term drug addict. [B] Counsel failed to present material and

relevant evidence to the jury, namely the fact that the prosecutor and the lead

detective made a deal with the niece to forego charging her with possession

of drugs, theft, and armed robbery in exchange for her cooperation in

planting the illegal gun accessories in Spears house under the pretext of

buying Spears prescribed medications. [C] Counsel further failed to

challenge the inadequate controls of the alleged drug buy.

(2) Counsel failed to properly cross-examine and impeach police

officers with inconsistent statements that clearly demonstrated the fabricated

2

 The respondent accurately notes that Ground 1-(1) contains three separate alleged acts of

ineffectiveness (DE 10 at 17) which are identified here as [A], [B], and [C]. 

6
testimony of police officers and their involvement in a conspiracy to entrap

Spears with false evidence.

(3) Counsel failed to conduct professional interviews of available

defense witnesses who could have testified to material and relevant evidence

that Spears niece, the long-term drug addict, was not a credible or reliable

witness, and that the niece had been coerced by the State to cooperate in

planting false evidence in exchange for not being charged for thefts, armed

robbery, and other felonies.

(4) Counsel failed to object and challenge multiple versions of drug

buy recordings and transcripts on the alleged drug buy that were not

authenticated by any audio expert.

(5) Counsel failed to object and challenge the paid testimony of the

niece, working as a confidential informant, and failed to properly

cross-examine and impeach the informant with prior bad acts.

DE 1 at 4-5. 

Because the Court of Appeals of Indiana adjudicated these ineffective assistance of

trial counsel claims on the merits, habeas corpus relief can’t be granted unless that

adjudication “(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established federal law as determined by the Supreme Court of the

United States or (2) resulted in a decision that was based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §

2254(d). “In order for a federal court to find a state court’s application of [United States

Supreme Court] precedent ‘unreasonable,’ the state court’s decision must have been more

than incorrect or erroneous. The state court’s application must have been ‘objectively

unreasonable.’” Wiggins v. Smith, 539 U.S. 510, 520-521 (2003) (citations omitted). 

“Judicial scrutiny of counsel’s performance must be highly deferential.” Strickland

v. Washington, 466 U.S. 668, 689 (1984). “[A] court must indulge a strong presumption that

7
counsel’s conduct falls within the wide range of reasonable professional assistance; that is,

the defendant must overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy. There are countless ways to

provide effective assistance in any given case.” Id. (quotation marks and citations omitted).

However, counsel need not be perfect, indeed not even very good, to

be constitutionally adequate. As we noted, Strickland has two prongs, both

of which must be satisfied to succeed on an ineffectiveness claim. A

defendant must show that his attorney performed below minimal

professional standards and that the substandard performance prejudiced

him. Under AEDPA, establishing that a state court’s application of the

Strickland standard was unreasonable is a tall task, and only a clear error in

applying Strickland will support a writ of habeas corpus.

McAfee v. Thurmer, 589 F.3d 353, 355-356 (7th Cir. 2009) (quotation marks and citations

omitted). “Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky,

130 S. Ct. 1473, 1485 (2010). “Establishing that a state court’s application of Strickland was

unreasonable under § 2254(d) is all the more difficult [because] the question is not whether

counsel’s actions were reasonable. The question is whether there is any reasonable

argument that counsel satisfied Strickland’s deferential standard.” Harrington v. Richter,

131 S. Ct. 770, 778 (2011). The Court of Appeals of Indiana correctly identified and applied

the Strickland standard to each of Mr. Spears’s claimed instances of ineffectiveness. In each

instance, the court reasonably explained how his lawyer satisfied the Strickland standard.

In addressing the claim raised in Ground 1-(1)[A] that his trial counsel didn’t

properly investigate the ATF’s effort to entrap him in a gun crime, the Court of Appeals

of Indiana explained:

8
Spears next maintains that Zahn failed to introduce evidence of the

gun clip as part of the entrapment defense. Notwithstanding this contention,

Zahn’s trial strategy was to pursue the entrapment defense using only

evidence concerning the pills. Zahn developed this theory through Welsh’s

testimony that she worked with Detective Duke to eliminate problems that

Welsh and her family were having with Spears, and Detective Duke also

echoed this theory during his cross-examination. Tr. p. 113-15, 286. Zahn also

had Welsh admit that Detective Duke had contacted her, and Zahn elicited

testimony from Detective Duke that his sole source of information regarding

the fact that Spears had been supplying Welsh with pills for a year was

Welsh—someone with whom Detective Duke had never worked before. And

the entrapment defense was the theme of Zahn’s closing argument.

Zahn knew about the gun clip and Spears’s opinion about it.

However, the record shows that Zahn made a conscious decision not to

pursue a defense strategy that involved the gun clip because such evidence

could have opened the door to evidence of Spears’s criminal history,

including the fact that he had recently served an executed sentence for a

federal gun-related conviction. In our view, Zhan’s strategy was not

unreasonable, because that evidence would have negatively impacted

Spears’s credibility. Moreover, Spears has failed to show that the gun clip

had much—if any—relevance to the drug charges that he was facing. And

Spears’s claim of prejudice consisted only of his unsupported claim that had

the jury known about the gun clip, he would have been acquitted. Such bald

assertions do not meet a petitioner’s burden on appeal to show, by a

preponderance of the evidence, prejudice as a result of purported

professional errors. Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). For all

of these reasons, Spears’s claim of ineffective assistance of counsel fails with

regard to evidence involving the gun clip.

DE 10-3 at 15-16. 

Mr. Spears argues that this is wrong because “Zahn’s theory at trial was never to

pursue an entrapment defense on the pills,” but during closing, counsel discussed the pills

and argued, “The reason that I’m bringing up that Shannon said all this, and you never

heard the defendant offer any, is because of entrapment. That’s our defense, entrapment.”

Counsel also stated during the PCR hearing that the theory of the defense was “to go

9
forward with entrapment for the drug buy.” Mr. Spears repeatedly argues that Ms. Zahn

abandoned a trial strategy based on the federal gun investigation without regard for

concerns about opening the door to his prior criminal history and character, but trial

counsel testified during his PCR hearing that “[m]y fear was if we talked about the gun

charge and Mr. Spears wanted to go with entrapment on the gun charge, then that opens

his whole criminal history and he does have firearm convictions. You know they would

have to show that he wasn’t predisposed to handling and having and owning firearms. As

so that was my fear and that’s why we didn’t – why I chose not to present that evidence on

the gun or the gun clip.” The record demonstrates that the explanation provided by the

Court of Appeals of Indiana was reasonable as to why trial counsel was not deficient even

though she did not pursue his concerns about the ATF’s activities. These arguments

present no basis for habeas corpus relief. 

In addressing the claims raised in Ground 1-(1)[B], Ground 1-(3), and Ground 1-(5)

that his trial counsel didn’t impeach Ms. Welsh’s testimony properly with information

about her being compensated for her testimony as an informant and with her prior bad

acts, the Court of Appeals of Indiana explained:

Spears next claims that Zahn was ineffective because she did not

depose various witnesses and call them to testify at trial. The evidence that

these witnesses would purportedly have offered may be grouped into three

main categories: 1) evidence that Spears was being set up for a gun charge;

2) evidence that Welsh was a drug addict; and 3) evidence that Welsh had

committed crimes for which she had not been charged. Appellant’s Br. p. 28.

As discussed above, Zahn’s strategy not to introduce evidence

regarding the gun clip was reasonable. And offering witness testimony that

Spears was being set up for a gun charge would not have furthered that

10
strategy. Also, Welsh admitted in response to Zahn’s questioning, that she

was an extensive drug abuser when the controlled buy took place. Any

additional evidence pertaining to Welsh’s drug use would have been

cumulative, and therefore, likely inadmissible.

As to evidence that Welsh had committed crimes for which she had

not been prosecuted, Zahn did make an attempt to convince the trial court

to allow that evidence. The trial court made preliminary rulings that Spears

would be permitted to introduce such evidence if he could establish a nexus

between the lack of charges being filed and Welsh’s cooperation in the

prosecution. However, such a connection was never shown because the State

did not offer Welsh any consideration for her testimony. [PCR] Tr. p. 55,

416-17, 426. Moreover, the trial court granted the State’s motion in limine,

thus preventing Sears from offering such evidence.

In any event, Zahn did impeach Welsh with her robbery conviction

that is permitted under Indiana Rules of Evidence 609(a). In sum, Zahn

cannot be said to have been ineffective for not presenting evidence from

witnesses whose testimony was irrelevant and would have been in violation

of the trial court’s order in limine.

DE 10-3 at 17-18. 

Finally, Spears argues that Zahn was ineffective because she failed to

present evidence that the State had declined to prosecute Welsh for several

crimes she had committed. Spears contends that the State’s decision not to

prosecute Welsh was to obtain her testimony against Spears. However, as

noted above, the trial court ruled that such evidence would be admissible

only if the defense could establish a nexus between the State’s failure to

prosecute and Welsh’s testimony at trial. The trial court also granted the

State’s motion in limine prohibiting such testimony.

The record shows that the police officers who had investigated the

alleged crimes had been deposed, and their deposition testimony did not

support Spears’s theory that the State declined to prosecute Welsh in

exchange for her testimony. It was clearly established that the State did not

offer Welsh any consideration for her testimony. In light of the

circumstances, simply offering the testimony of various witnesses who

claimed that Welsh committed crimes would not have established the nexus

required to make the desired impeachment evidence admissible. And Zahn

did not introduce such evidence because the trial court’s rulings prohibited

her from doing so. Thus, Spears has failed to show that Zahn was ineffective

on this basis.

11
DE 10-3 at 20-21. 

Mr. Spears argues that Ms. Welsh could have been. but wasn’t, prosecuted for

several crimes. He argues that the circumstances demonstrate she must have been

promised leniency in return for her testimony. He argues that Ms Welsh and the law

enforcement officials all were lying when they denied that any promises were made. But

the deputy prosecutor testified during the PCR hearing that Ms. Welsh didn’t receive any

consideration for her testimony. She further testified that, “every single police officer

testified that they had not filed charges against Shannon Welsh and accordingly no

consideration was given to her on any criminal cases.” Additionally, Shannon Welsh

testified at trial that she wasn’t promised leniency in return for her testimony. Mr. Spears

argues that her statement at trial that, “I’m not trying to get in no more trouble. I’m already

in prison. I don’t want no more time” proves that she must have received something in

return for her testimony, but those remarks were made to explain why she had changed

her mind and decided to testify moments after the trial judge told her that if she didn’t

testify, he could find her in contempt and sentence her to up to 180 days in jail. The record

demonstrates that the explanation provided by the Court of Appeals of Indiana was

reasonable as to why trial counsel was not deficient even though she didn’t impeach Ms.

Welsh more fully. These arguments present no basis for habeas corpus relief. 

In addressing the claims raised in Ground 1-(1)[C] that his trial counsel didn’t

challenge the controls police used during the drug buy, the Court of Appeals of Indiana

12
explained that counsel raised this claim in a motion to suppress before trial. Then she

preserved the objection at trial. 

As for the motion to suppress, Spears contends that Zahn failed to

object at trial and reassert the argument at trial. However, the record shows

that Zahn did object at trial but the objections were overruled. In short, Zahn

preserved the issue for appeal, and we did, in fact, address the issue in

Spears’s direct appeal. Spears, slip op. at 3-5.

DE 10-3 at 17. This is a reasonable explanation of why Mr. Spears’s counsel was not

deficient in challenging the controls utilized during the drug buy. 

In addressing the claims raised in Ground 1-(2) that his trial counsel didn’t properly

cross-examine and impeach the police officers, the Court of Appeals of Indiana explained:

As for Spears’s contention that Zahn failed to accurately impeach the

police officers for alleged inconsistencies among the depositions, suppression

hearing, and trial testimony, we initially observe that the nature and extent

of cross-examining a witness is a matter of trial strategy that is left to trial

counsel. Waldon v. State, 684 N.E.2d 206, 208 (Ind. Ct. App. 1997).

The record shows that Zahn prepared for cross-examination by

reading the State’s witnesses’ deposition and suppression hearing testimony.

Zahn identified inconsistencies, particularly regarding the various “controls”

that pertained to the buy, and cross-examined the State’s witnesses about

them. Tr. p. 127-35, 292-305. Zahn impeached Welsh, Detective Duke, and

another officer with inconsistencies between their deposition and trial

testimony. Id. at 127-35, 314-15, 381, 384. As noted above, Zahn chose not to

impeach Detective Duke with every inconsistency between his previous

testimony and his trial testimony because she believed that some of Detective

Duke’s trial testimony was favorable to Spears.

In short, the record demonstrates that Zahn’s cross-examination

strategy was a deliberate choice that we will not second guess, and Spears

has failed to rebut the strong presumption that Zahn’s cross-examination was

a reasonable exercise of professional judgment. Stevens v. State, 770 N.E.2d

739, 746 (Ind. 2002). As a result, the post-conviction court did not err in

denying Spears’s petition for post-conviction relief on this basis.

DE 10-3 at 14-15. 

13
Mr. Spears argues that Zahn didn’t “impeach Duke on the fact that Duke destroyed

the cassette tapes and created his own versions of the compact disks . . . by inserting his

own versions of the conversations between Shannon and Spears inside the house” (DE 18-1

at 38), but Mr. Spears hasn’t cited to anything indicating that Detective Duke destroyed the

original tape or that he altered the compact disk copies by inserting additional dialogue.

Mr. Spears argues that Ms. Zahn did not impeach Detective Duke about his having

“admitted he could not understand what had been said in the house,” but Detective Duke

didn’t say that during his deposition. What he said was, “The wire was fairly clear until she

entered into the residence.” Then at trial, after admitting that the recording in the house

was fuzzy and scratchy, he testified that “I heard the majority of the conversation. Some

of it was inaudible.” Mr. Spears argues that Ms. Zahn didn’t impeach Detective Duke “on

the fact that he took Shannon to a Hardee Restaurant to meet with prosecutor South for the

purpose of making a deal for Shannon’s cooperation,” but Mr. Spears hasn’t cited to any

evidence indicating that this allegation was known to either him or his trial counsel until

after his trial. Indeed, he argues that her statement was discovered only after the trial

concluded. Thus, the record demonstrates that the explanation provided by the Court of

Appeals of Indiana was reasonable as to why trial counsel wasn’t deficient in her crossexamination of the police officers. These arguments present no basis for habeas corpus

relief. 

14
In addressing Mr. Spears’s claims raised in Ground 1-(4) that his trial counsel did

not challenge the recordings, transcript, and authentication of the drug buy audio evidence,

the Court of Appeals of Indiana explained:

Spears next argues that Zahn was ineffective for failing to introduce

the original cassette tape of the buy into evidence, even though he

specifically acknowledges that the original recording was lost or erased

before Zahn received Spears’s file from a previous defense counsel of record.

Spears does not explain the efforts that Zahn allegedly failed to make to

retrieve the lost tape or what measures she could have taken to locate the

missing recording. Therefore, Spears has failed to show that Zahn’s

performance in this regard was deficient. The record also does not support

Spears’s contention that Zahn failed to challenge the accuracy and reliability

of the tape recording. An unenhanced copy of the tape was admitted into

evidence, and part of Zahn’s trial strategy was to challenge the admissibility

of the recording on the basis that it was inaudible. Therefore, contrary to

Spears’s contention on appeal, Zahn was not ineffective for failing to object

to the lack of expert testimony to authenticate the recording. The tape

admitted was not enhanced and Detective Duke, who listened to Welsh and

Spears during the buy, authenticated the tape by testifying that he had

reviewed the tape and that it was accurate. This was a sufficient foundation

to render the recording admissible. Indiana Evid. Rule 901(a), (b)(1). 

Spears also maintains that Zahn should not have agreed to allowing

the entire tape of the controlled buy to be played for the jury. However, Zahn

had tried to have evidence of a family feud introduced into evidence that

would explain Welsh’s motivation for participating in the controlled buy.

Zahn’s apparent strategy was to show that Welsh had ulterior motives to lie

about buying drugs from Spears, part of which was the apparent bad blood

caused by Welsh’s participation in ransacking Spears’s residence that was

discussed during the controlled buy. Zahn’s insistence on having the entire

recording played to the jury was a method of placing this information before

it.

Spears maintains that he was prejudiced because the recording

contained unspecified “false and prejudicial allegations of misconduct.”

Appellant’s Br. p. 31. However, Zahn’s apparent strategy was that any

potentially prejudicial content on the recording would be overshadowed by

the feud evidence that dovetailed into the overall entrapment defense. Again,

we decline to second guess Zahn’s strategy. State v. Moore, 678 N.E.2d 1258,

15
1261 (Ind. 1997). As a result, Spears’s claim that Zahn was ineffective on this

basis fails.

DE 10-3 at 18-20. This is a reasonable explanation of why Mr. Spears’s counsel wasn’t

deficient as to the audio evidence of the drug buy. This argument presents no basis for

habeas corpus relief. 

In his traverse, Mr. Spears tries to assert another instance of his trial counsel’s

ineffectiveness. He argues that she should have introduced the police officer’s depositions

and suppression hearing transcripts into evidence during the trial as impeachment

evidence. Though it isn’t proper to raise new claims in the traverse (Section 2254 Habeas

Corpus Rule 2(c)(1)), even if he had presented this claim in his original petition, it wouldn’t

have been a basis for habeas corpus relief because the Court of Appeals of Indiana

addressed this claim and refused to second guess counsel’s trial strategy: 

Spears also claims that Zahn was ineffective because she should have

entered the statements, depositions, and testimony of unspecified witnesses

into evidence so they could have been properly impeached. However, Zahn

did not believe that admitting the documents themselves into evidence was

the proper method of impeaching the witnesses. Indeed, Zahn

cross-examined the witnesses, and Spears has failed to show that this method

of impeachment was improper. Again, we will not second guess Zahn’s

strategy, and Spears’s claim fails.

DE 10-3 at 16. This is a reasonable explanation of why Mr. Spears’ counsel wasn’t deficient

for not having introduced those depositions and transcripts. Even had this argument been

properly presented in his habeas corpus petition, it wouldn’t present a basis for habeas

corpus relief. 

16
Because the Court of Appeals of Indiana wasn’t unreasonable in finding that Mr.

Spears’ trial counsel wasn’t deficient as to any of his individual claims, there are no

cumulative effects to evaluate. Cf. Malone v. Walls, 538 F.3d 744 (7th Cir. 2008) quoting

Hough v. Anderson, 272 F.3d 878 (7th Cir. 2001) (“[P]rejudice may be based on the

cumulative effect of multiple errors. Although a specific error, standing alone, may be

insufficient to undermine the court’s confidence in the outcome, multiple errors together

may be sufficient.”) Therefore, Ground 1 presents no basis for habeas corpus relief.

GROUND 2

In Ground 2, Mr. Spears argues that he was denied the effective assistance of

appellate counsel for three reasons: 

(1) Appellate counsel failed to properly argue the entrapment defense

on false evidence when counsel overlooked the fact that the police action

against Spears started with the ATF scheme to return Spears to prison for

possession of illegal gun accessories that were planted in his house by a paid

informant, and when that scheme failed, then State police officers arrested

Spears immediately thereafter for allegedly selling his prescribed

medications to his niece, the paid informant, who received immunity from

prosecution in exchange for her cooperation.

(2) Appellate counsel failed to properly object and challenge the

unauthenticated disks that were played for the jury, when the lead detective

was the person who reproduced the alleged and distorted tape recordings

unto compact disks.

(3) Appellate counsel failed to present the official misconduct of the

trial judge, prosecutor, and police officers. On the trial record, the prosecutor

and police officers were caught in numerous lies and distortions of fact. The

prosecutor and lead detective denied that they had a secret meeting with

Spears niece, and arranged a deal whereby the niece would not be charged

with numerous felonies in exchange for her cooperation in planting false

evidence and for her testimony that Spears had sold his prescribed

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medications to her for over one year, even though medical records indicated

that Spears prescription was issued less than six months before the filed

charges. Counsel failed to argue that the planting of false evidence is a

violation of Rule 901 of the Indiana and Federal Rules of Evidence. The trial

judge deliberately overlooked the misconduct of the prosecutor and the lead

detective in this case.

DE 1 at 5-6. 

Because the Court of Appeals of Indiana adjudicated these ineffective assistance of

appellate counsel claims on the merits, habeas corpus relief can’t be granted unless that

adjudication was either legally or factually unreasonable. 28 U.S.C. § 2254(d). Even if a state

court ruling is erroneous or incorrect does not necessarily mean that it is unreasonable.

Wiggins v. Smith, 539 U.S. 510, 520-521 (2003).

A claim of ineffective assistance of appellate counsel is subject to the Strickland

analysis. Howard v. Gramley, 225 F.3d 784, 789-90 (7th Cir. 2000). 

Strickland provides the standard we apply on direct review of a claim

of ineffective assistance. Where, as here, our review is of a state conviction

under § 2254, we apply AEDPA’s deferential standard as well, making our

review “doubly” deferential as to those issues ruled on by the state court.

Harrington v. Richter, 131 S. Ct. 770, 788, 178 L. Ed. 2d 624 (2011). “When §

2254(d) applies, the question is not whether counsel’s actions were

reasonable. The question is whether there is any reasonable argument that

counsel satisfied Strickland’s deferential standard.” Id.

Ruhl v. Hardy, 743 F.3d 1083, 1092 (7th Cir. 2014). To prevail on any of these claims of

ineffective assistance of appellate counsel, Mr. Spears must show that his appellate counsel

failed to present a “significant and obvious” issue on appeal. Howard v. Gramley, 225 F.3d

784, 790 (7th Cir. 2000). Appellate counsel “need not (and should not) raise every

nonfrivolous claim, but rather may select from among them in order to maximize the

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likelihood of success on appeal.” Smith v. Robbins, 528 U.S. 259, 288 (2000). On the

prejudice prong, the petitioner must demonstrate that if the argument had been raised,

there is “a reasonable probability that his case would have been remanded for a new trial

or that the decision of the state trial court would have been otherwise modified on appeal.”

Howard v. Gramley, 225 F.3d at 790. If the underlying argument has no merit, an

ineffective assistance claim can’t succeed, because “[f]ailure to raise a losing argument,

whether at trial or on appeal, does not constitute ineffective assistance of counsel.” Stone

v. Farley, 86 F.3d 712, 717 (7th Cir. 1996).

In addressing the claims raised in Ground 2 that his appellate counsel omitted

meritorious claims during his direct appeal, the Court of Appeals of Indiana explained:

Spears next claims that Cornelius, his counsel on direct appeal, was

ineffective because additional issues should have been raised, including the

defense of entrapment and the official misconduct of the trial judge,

prosecutor, and police officers. Spears maintains that false evidence was

presented to the jury and that relevant evidence was concealed from the jury.

As a result, he argues that these issues should have been raised on direct

appeal.

We note that the standard set forth above applies to both claims of

ineffective assistance of trial and appellate counsel. Rhoiney v. State, 940

N.E.2d 841, 845 (Ind. Ct. App. 2010), trans. denied. Our supreme court has

recognized three types of ineffective assistance of appellate counsel: (1)

denial of access to appeal; (2) failure to raise issues that should have been

raised; and (3) failure to present issues well. Wrinkles v. State, 749 N.E.2d

1179, 1203 (Ind. 2001).

When a petitioner claims that he or she was denied the effective

assistance of appellate counsel because various issues were not presented, we

are particularly deferential to counsel’s strategic decision to exclude certain

issues in favor of others, unless such a decision was unquestionably

unreasonable. Taylor v. State, 840 N.E.2d 324, 338 (Ind. 2006). However, even

if we determine that counsel’s choice of issues was not reasonable, a

petitioner must demonstrate a reasonable probability that the outcome of the

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direct appeal would have been different in order to prevail. Id. We must

determine “(1) whether the unraised issues are significant and obvious from

the face of the record; and (2) whether the issues that were not raised are

clearly stronger than the raised issues.” Gray v. State, 841 N.E.2d 1210, 1214

(Ind. Ct. App. 2006). Ineffective assistance of counsel is rarely found when

the issue is failure to raise claims on direct appeal. Taylor v. State, 717 N.E.2d

90, 94 (Ind. 1999). This is so because the decision about what issue or issues

to raise on appeal is one of the most important strategic decisions that an

appellate counsel makes. Bieghler v. State, 690 N.E.2d 188, 193 (Ind. 1997).

In this case, Spears argues, among other things, that Cornelius was

ineffective because she did not “properly raise the entrapment defense on the

planting of false evidence, and for failing to properly argue that the planting

of false evidence is in violation of rule 901.” Appellant’s Br. p. 34.

Presumably, Spears is contending that Cornelius should have argued on

direct appeal that the State did not rebut the gun clip entrapment defense.

However, as Cornelius explained to Spears during the consultation leading

to his direct appeal, such a claim could not be raised because there was no

evidence developed at trial to support it. Tr. p. 236-37, 239-40, 243.

Indeed, arguments raised on direct appeal must be based on matters

that are contained in the trial record. Turner v. State, 508 N.E.2d 541, 543

(Ind. 1987). Cornelius did argue that the State had failed to rebut the drug

buy entrapment defense based on the evidence in the record. Spears, slip op.

at 10-12. And our review of the record demonstrates that Cornelius did not

fail to “present this issue well.” Bieghler, 690 N.E.2d at 193-95.

Spears also claims that Cornelius was ineffective because she did not

challenge the admission of the controlled buy recording, the alleged

misconduct of the judge, prosecutor, and police officers in “misrepresenting

facts regarding the planting of false evidence,” and numerous other claims

of misconduct. Appellant’s Br. p. 34.

Notwithstanding Spears’s contentions, Cornelius raised four issues on

direct appeal, including challenging the admission of evidence procured

incident to Spears’s arrest, the admission of the recording of the buy, the

evidence negating his entrapment defense, and the appropriateness of the

sentence. Spears, slip op. at 2. And through these efforts on appeal, Spears’s

aggregate sentence was reduced from twenty-eight years to twenty years. Id.

at 12-14.

Part of Spears’s burden on appeal is to convince us that the issues he

claims that should have been raised—but were not—were clearly stronger

than those that Cornelius did choose to raise. Spears fails to meet this

requirement because he offers no argument comparing the merits of his

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proposed issues to those that were actually raised. Thus, Spears’s claim of

ineffective assistance of appellate counsel fails.

DE 10-3 at 21-23. This is a reasonable explanation of why Mr. Spears’ appellate counsel’s

performance wasn’t deficient. This ground presents no basis for habeas corpus relief. 

Because the Court of Appeals of Indiana was not unreasonable in finding that Mr.

Spears’ appellate counsel was not deficient as to any individual claims, there are no

cumulative effects to evaluate. Cf. Malone v. Walls, 538 F.3d 744 (7th Cir. 2008). Ground 2

presents no basis for habeas corpus relief.

GROUND 3

In Ground 3, Mr. Spears argues that he was “denied fundamental due process and

a fair trial by the official misconduct of the trial judge, prosecutor, and police officers.” The

Court of Appeals of Indiana found that he had waived this claim. 

Spears next argues that he is entitled to post-conviction relief because

the evidence demonstrates that the prosecutor and the police engaged in

various acts of misconduct, and that the trial court judge was biased against

him. We need not address the merits of these claims because, as mentioned

above, the scope of the post-conviction remedy is limited to issues not known

at the time of the original trial or that were unavailable on direct appeal. If

an issue was known and available, but not raised on direct appeal, it is

waived. Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001).

Here, all of the claims that Spears raises regarding alleged judicial bias

and prosecutorial and police misconduct could have been raised on direct

appeal. Because they were not, Spears has waived these claims.

DE 10-3 at 24. 

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Mr. Spears argues “that the official misconduct of the judge, prosecutor, and the

police was learned after Spears received the trial record and deposition and Suppression

Hearings and was not known during trial, and was in fact newly discovered evidence after

trial, especially the fact that Shannon had been taken to the Hardee Restaurant by Duke to

meet South.” The records of the adversarial proceedings were known to him before his

direct appeal and could have been obtained through the exercise of due diligence, so they

don’t qualify as newly discovered. See Stephenson v. State, 864 N.E.2d 1022, 1050 n.13 (Ind.

2007) (“Evidence is newly discovered if the defendant shows that (1) the evidence has been

discovered since the trial and demonstrates (2) due diligence in discovering and presenting

such evidence.” (quotation marks omitted)). 

Ms. Welsh’s statement about the Hardee Restaurant is different. The Court of

Appeals of Indiana didn’t find that it was waived. It addressed this claim on the merits and

held that she was not creditable and that her statement did not warrant a new trial. 

In resolving this issue, we note that new evidence will mandate a new

trial only when the defendant demonstrates that: (1) the evidence has been

discovered since the trial; (2) it is material and relevant; (3) it is not

cumulative; (4) it is not merely impeaching; (5) it is not privileged or

incompetent; (6) due diligence was used to discover it in time for trial; (7) the

evidence is worthy of credit; (8) it can be produced upon a retrial of the case;

and (9) it will probably produce a different result at retrial. Greenwell v.

State, 884 N.E.2d 319, 328-29 (Ind. Ct. App. 2008). We analyze these factors

with care, as the “basis for newly discovered evidence should be received

with great caution and the alleged new evidence carefully scrutinized.” Id.

at 329.

As for Welsh’s attempt to recant her trial testimony, we note that a

new trial is not warranted if the post-conviction court determines that the

recantation is not credible. See id. at 329 (denying the petitioner a new trial

22
based on the fact that the recantation of a witness who previously identified

him as the murderer was inconsistent and implausible).

In this case, the post-conviction court specifically found that Welsh’s

testimony at the post-conviction hearing was inconsistent with her

suppression and trial testimony. It also determined that the testimony was

somewhat internally inconsistent, in that Welsh stated that Spears did not

sell her pills, but she admitted to leaving money on the table. The

post-conviction court found this testimony to be “not credible.” Appellee’s

App. p. 30. Because we defer to the post-conviction court’s factual findings,

and given that Welsh’s post-conviction testimony was not worthy of credit,

Spears has failed to meet one of the nine factors for assessing the value of

newly discovered evidence. Therefore, his claim fails. Greenwell, 884 N.E.2d

at 329.

DE 10-3 at 24-25. The record demonstrates that the explanation provided by the Court of

Appeals of Indiana was reasonable as to Ms. Welsh’s statement about the Hardee

Restaurant. 

Because the state courts found that Mr. Spears waived the claims of misconduct by

various state officials, they are, for the purposes of this habeas corpus petition,

procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 735 (1991). Though there are

rare exceptions when it is possible to have a procedurally defaulted claim considered, Mr.

Spears hasn’t presented any arguments or explanations that indicate that he can

demonstrate either cause and prejudice or a fundamental miscarriage of justice. See

Richardson v. Lemke, 745 F.3d 258, 272 (7th Cir. 2014) (“Because the independent and

adequate state law ground rule is prudential and not jurisdictional, we may excuse a

procedural default if the petitioner can show both cause for and prejudice from the default

or can demonstrate that the district court’s failure to consider the claim would result in a

23
fundamental miscarriage of justice.) Because this court won’t consider the merits of Ground

3, it presents no basis for habeas corpus relief.

CERTIFICATE OF APPEALABILITY

Finally, pursuant to Rule 11 of the Rules Governing Section 2254 Cases, the court

must consider whether to grant a certificate of appealability. To obtain a certificate of

appealability under 28 U.S.C. § 2253(c), the petitioner must make a substantial showing of

the denial of a constitutional right by establishing “that reasonable jurists could debate

whether (or, for that matter, agree that) the petition should have been resolved in a

different manner or that the issues presented were adequate to deserve encouragement to

proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). To obtain a certificate of

appealability when the court dismisses a claim on procedural grounds, the petitioner must

show that reasonable jurists would find it debatable (1) whether the court was correct in

its procedural ruling and (2) whether the petition states a valid claim for denial of a

constitutional right. Id. Mr. Spears hasn’t made such a showing and will be denied a

certificate of appealability. 

CONCLUSION

For the foregoing reasons, the petition for writ of habeas corpus is DENIED and a

certificate of appealability is DENIED. 

SO ORDERED.

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ENTERED: May 20 , 2014 

 /s/ Robert L. Miller, Jr. 

Judge

United State District Court

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