IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

DWAYNE KELLY, )

)

Petitioner, )

)

vs. ) CAUSE NO. 3:13-CV-1101

)

SUPERINTENDENT, )

)

Respondent. )

OPINION AND ORDER

This matter is before the Court on a petition under 28 U.S.C.

Paragraph 2254 for Writ of Habeas Corpus by a person in State

Custody, filed by Dwayne Kelly, a pro se prisoner, on October 17,

2013. (DE #1.) For the reasons set forth below, the petition (DE

#1) is DENIED, and the court DENIES the petitioner a certificate of

appealability.

BACKGROUND

Kelly is serving a 65-year sentence for a murder committed in

Grant County. (DE #1 at 1.) In deciding the petition, the court

must presume the facts set forth by the state courts are correct. 

28 U.S.C. § 2254(e)(1). It is Kelly’s burden to rebut this

presumption with clear and convincing evidence. Id. On direct

appeal, the Indiana Court of Appeals set forth the facts underlying

Kelly’s conviction as follows:
On March 4, 2005, Kelly went to Heather Jones’s house in

Marion, Indiana, looking for Alonzo Coleman. Steffan

Bobson and several friends were already at Jones’s house. 

When Kelly entered the house, Bobson was sleeping on the

couch with a gun in his lap. Kelly took the gun from

Bobson’s lap and asked who owned the gun. One of

Bobson’s friends testified that Kelly cocked the gun and

pointed it at his legs. Despite being urged by several

of the people present to return the gun to Bobson, Kelly

left with the gun. Kelly testified that he unloaded the

gun and hid it after he left Jones’s house.

The following day, Kelly went to Antoinette Sanders’s

house looking for Coleman. While Kelly was at Sanders’s

house, Bobson arrived. Bobson yelled at Kelly to return

his gun and acted as if he was going to hit Kelly. Kelly

jumped, causing onlookers to laugh. Kelly then left and

retrieved Bobson’s gun from its hiding place. Kelly told

his friends that he was going back to the house to “deal

with him,” or to “settle the problem[.]” Not long after

he first left Sanders’s house, Kelly returned and knocked

on the door. When Bobson answered, Kelly said, “Let me

holler at you.” Bobson partially shut the door and walked

away, but Kelly entered the house while holding the gun

in his hand. Kelly raised the gun and pointed it at

Bobson. Kelly and Bobson struggled over the gun. During

the struggle, Bobson was shot and eventually died from a

“loose contact gun shot wound” to the chest. Kelly

testified that it was a “surprise” to him when the gun

went off because he thought it was unloaded.

After the shooting, Kelly took the gun and walked away

from the scene. He gave the coat he was wearing to a

friend’s nephew and told him to wash it. He borrowed a

change of clothes and arranged a ride to Chicago with

friends. He told one of his friends that “he didn’t mean

[ ] for it to happen like that, he meant . . . to put him

in the wheelchair.”

Kelly was eventually arrested and charged with murder.

Kelly testified on his own behalf at his jury trial,

admitting to much of the State’s evidence, but claiming

that he believed the gun was unloaded, that he did not

have the gun in his hand when he entered Sanders’s house,

and that he does not know who pulled the trigger during

the struggle for the gun. 

Kelly v. State, No.72A05-0610-CR-590, slip op. at 2-3 (Ind. Ct.

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App. Mar. 28, 2008) (internal citations omitted). The jury found

Kelly guilty of murder. Id. at 3. The court sentenced him to an

aggravated term of 65 years, based on his extensive criminal

history and the fact that he was on probation at the time of the

offense. Id. Kelly appealed, challenging the sufficiency of the

evidence and arguing that the trial court erred in imposing his

sentence. Id. at 2. The Indiana Court of Appeals affirmed. Id.

at 11. Kelly did not seek transfer in the Indiana Supreme Court,

nor did he seek review in the U.S. Supreme Court. (See DE #1 at

1.)

Kelly then filed a state petition for post-conviction relief

alleging ineffective assistance of counsel on various grounds.

Kelly v. State, No. 27A01-1212-PC-568 (Ind. Ct. App. Aug. 2, 2013). 

Following an evidentiary hearing at which Kelly was represented by 

counsel, the petition was denied. Id. at 3. Kelly appealed,

raising three arguments: his counsel was ineffective in opening the

door to prejudicial character evidence; his counsel was ineffective

in failing to object to certain testimony about threats to two of

the witnesses; and his counsel was ineffective in failing to raise

an argument based on admission of the threat evidence on direct

appeal. Id. at 4. The Court of Appeals affirmed the denial of

post-conviction relief. Id. at 12. Kelly sought transfer raising

the same claims (DE #8-11), but his petition was denied. (DE #8-

6.) He did not seek review in the U.S. Supreme Court. (DE #1 at

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2.)

Thereafter, Kelly filed a federal habeas petition raising the

following claims: (1) his counsel was ineffective in opening the

door to prejudicial character evidence and in failing to object to

the threat evidence; and (2) his counsel was ineffective in failing

to raise an argument based on admission of the threat evidence on

direct appeal. (DE #1 at 3-4.) 

DISCUSSION

Kelly’s petition is governed by the provisions of the

Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”).

See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA allows a

district court to issue a writ of habeas corpus on behalf of a

person in custody pursuant to a state court judgment “only on the

ground that he is in custody in violation of the Constitution or

laws or treaties of the United States.” 28 U.S.C. § 2254(a). The

court can grant an application for habeas relief if it meets the

stringent requirements of 28 U.S.C. § 2254(d), set forth as

follows:

An application for a writ of habeas corpus on behalf of

a person in custody pursuant to the judgment of a State

court shall not be granted with respect to any claim that

was adjudicated on the merits in State court proceedings

unless the adjudication of the claim—

(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

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(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.

Under this deferential standard, a federal habeas court must

“attend closely” to the decisions of state courts and “give them

full effect when their findings and judgments are consistent with

federal law.” Williams v. Taylor, 529 U.S. 362, 383 (2000). A

state court decision is contrary to federal law if the state court

arrives at a conclusion opposite to that reached by the U.S.

Supreme Court or reaches an opposite result in a case involving

facts materially indistinguishable from relevant U.S. Supreme Court

precedent. Bell v. Cone, 535 U.S. 685, 694 (2002). 

A federal court may grant habeas relief under the

“unreasonable application” clause if the state court identifies the

correct legal principle from U.S. Supreme Court precedent but

unreasonably applies that principle to the facts of the

petitioner’s case. Wiggins v. Smith, 539 U.S. 510, 520 (2003). To

warrant relief, a state court’s decision must be more than

incorrect or erroneous; it must be “objectively” unreasonable. Id.

This is a difficult standard to meet, and “[a] state court’s

determination that a claim lacks merit precludes federal habeas

relief so long as fairminded jurists could disagree on the

correctness of the state court’s decision.” Harrington v. Richter, 

—U.S.—, 131 S. Ct. 770, 786 (2011). To obtain relief, a petitioner

must show that the state court’s ruling was “so lacking in

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justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded

disagreement.” Id. at 786-87.

Both of Kelly’s claims are based on ineffective assistance of

counsel. Under the Sixth Amendment, a criminal defendant is

entitled to “effective assistance of counsel—that is,

representation that does not fall below an objective standard of

reasonableness in light of prevailing professional norms.” Bobby

v. Van Hook, 558 U.S. 4, 16 (2009). To prevail on such a claim,

the petitioner must show that counsel’s performance was deficient

and that the deficient performance prejudiced him. Strickland v.

Washington, 466 U.S. 668 (1984). On the deficiency prong, the

central question is “whether an attorney’s representation amounted

to incompetence under prevailing professional norms, not whether it

deviated from best practices[.]” Richter, 131 S. Ct. at 788. The

court’s review of counsel’s performance is deferential, and there

is an added layer of deference when the claim is raised in a habeas

proceeding; “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. Furthermore, “counsel need not be perfect, indeed not even

very good, to be constitutionally adequate.” McAfee v. Thurmer,

589 F.3d 353, 355-56 (7th Cir. 2009) (citation omitted).

In assessing counsel’s performance, the court must “evaluate

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[counsel’s] performance as a whole rather than focus on a single

failing or oversight,” Ebert v. Gaetz, 610 F.3d 404, 412 (7th Cir.

2010), and must respect its “limited role in determining whether

there was manifest deficiency in light of information then

available to counsel.” Premo v. Moore, —U.S.—, 131 S. Ct. 733, 741

(2011). Counsel is given significant discretion to select a t rial

strategy based on the information known to him at the time. See Yu

Tian Li v. United States, 648 F.3d 524, 528 (7th Cir. 2011) (“So

long as an attorney articulates a strategic reason for a decision

that was sound at the time it was made, the decision generally

cannot support a claim of ineffective assistance of counsel.”);

United States v. Lathrop, 634 F.3d 931, 937 (7th Cir. 2011)

(observing that as long as counsel’s reasons were not “so far off

the wall that we can refuse the usual deference that we give

tactical decisions by counsel, his performance will not qualify as

deficient.”).

 On the prejudice prong, the petitioner must show there is a

reasonable probability that “but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694. A reasonable probability is a

probability “sufficient to undermine confidence in the outcome.”

Id. at 693. In assessing prejudice under Strickland, “the question

is not whether a court can be certain counsel’s performance had no

effect on the outcome or whether it is possible a reasonable doubt

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might have been established if counsel had acted differently.” 

Richter, 131 S. Ct. at 791. “The likelihood of a different result

must be substantial, not just conceivable.” Id. at 792. When the

petitioner wanted counsel to raise an argument that itself had no

merit, an ineffective assistance claim cannot 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). Where it is

expedient to do so, the court may resolve an ineffective assistance

claim solely on the prejudice prong, because if the petitioner

cannot establish prejudice, there is no need to “grade” counsel’s

performance. Strickland, 466 U.S. at 697. 

A claim of ineffective assistance of appellate counsel is also

subject to the Strickland analysis. Howard v. Gramley, 225 F.3d

784, 789-90 (7th Cir. 2000). On the deficiency prong, the

petitioner must show that counsel failed to present a “significant

and obvious” issue on appeal. Id. at 790. However, counsel “need

not (and should not) raise every nonfrivolous claim, but rather may

select from among them in order to maximize the 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

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modified on appeal.” Howard, 225 F.3d at 790.

A. Ineffective Assistance of Trial Counsel

The record reflects that Kelly was represented by Grant County

Public Defender C. Robert Rittman at trial and on appeal. (DE 10,

State Court Record, Post-Conviction Hearing (“PCR”) Transcript

(“Tr.”) at 6.) Kelly first claims that Rittman was deficient in

opening the door to improper character evidence by questioning a

witness about Kelly’s reputation for peacefulness. (DE #1 at 3.) 

In rejecting this claim on post-conviction review, the Indiana

Court of Appeals properly identified Strickland as the governing

standard, and concluded that Kelly did not make the requisite

showing of prejudice. Kelly, No. 27A01-1212-PC-568, slip op. at 4. 

Based on the record, the state court’s resolution of this claim was

not objectively unreasonable.

During the presentation of the defense’s evidence at trial,

Rittman asked witness Gina Wilcox about Kelly’s “reputation for

peacefulness.” Id. at 5. She responded “[h]e’s really nice to me”

and stated she had “[n]ever” known Kelly to be violent. Id. During

cross-examination, the prosecutor asked her if she knew “anything”

about Kelly battering a girlfriend in the past, and whether she

knew if Kelly had “been arrested and conviction of multiple

batteries on Jackie Sanders.” Id. at 6. Wilcox responded “No,

sir” and stated that Kelly never threatened or attacked her. Id.

Kelly then testified, admitting that he earned his income from

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selling cocaine, that he carried a gun due to his drug-dealing

activities, and that at the time he took Bobson’s gun he was

carrying his own gun and had another gun in his car. (DE #10,

State Court Record, Trial Tr. at 645-51.) During his

cross-examination, he acknowledged “criminal records for beating up

[his] girlfriend” and past battery convictions. (Id. at 683.)

Rittman objected, and during a sidebar, he successfully argued that

the prosecutor should not be permitted to inquire into the

specifics of these incidents. (Id.) Kelly now argues that Rittman

was deficient, and that his deficient performance prejudiced him in

connection with this testimony. 

As outlined above, this was not an easy case to defend.

Several witnesses saw Kelly take Bobson’s gun; heard him say he was

going back to the house to “deal with” Bobson; heard him tell

Bobson “you want me to put somethin’ in ya” and push his way in the

house as Bobson was trying to close the door; saw him take out the

gun from his waistband and point it at Bobson’s head; and saw him

wrestling with Bobson over the gun. There was also evidence that

he fled to Chicago after the shooting, disposed of his clothing,

and told a friend he only meant to put Bobson “in a wheelchair.” 

Faced with this evidence, counsel decided to adopt a strategy under

which the defense admitted to certain matters even though they

“shed some bad light” on Kelly, in hopes that the jury would

believe he was being truthful when he testified that he did not

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intend to kill Bobson. Kelly, No. 27A01-1212-PC-568, slip op. at

8. In essence, counsel’s goal was to try to obtain a conviction on

some lesser offense than murder. (DE #10, State Court Record, PCR

Tr. at 6, 10-11.) This strategy was not without risks, but given

the damning evidence against Kelly, counsel’s strategy was not “so

far off the wall” as to constitute deficient performance. See

Lathrop, 634 F.3d at 937. Indeed, admitting to certain bad

behavior was necessary given Kelly’s decision to testify, since he

could permissibly be questioned about his criminal record and other

matters bearing on his credibility.1

 

The trial record reflects that counsel vigorously pursued the

defense theory he selected, making arguments and eliciting

testimony from witnesses in support of the theory that the shooting

was accidental. Although the defense strategy ultimately proved

unsuccessful, this can be attributed to the strength of the

evidence inculpating Kelly rather than an error by counsel. The

state’s evidence included the testimony of eyewitnesses about

Kelly’s aggressive actions and threats to Bobson, including his

pointing a gun at Bobson’s head, his flight from the state after

the shooting, and his “wheelchair” comment. Kelly’s own testimony

that the shooting was accidental was thoroughly impeached by the

1 The record shows that Kelly had an extensive criminal record dating back

to when he was 17 years old, including six prior felony convictions, three

misdemeanor convictions, and two probation violations. (DE #10, State Court

Record, Appellant’s Appx. at 6-8.) He was also on probation at the time he

committed this offense. (Id. at 6.)

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prosecutor. The jury also heard evidence of his criminal record

for offenses other than the battery convictions, and also learned

that he was on probation at the time of the offense. Based on the

record, Kelly has not demonstrated that in the absence of an error

by counsel in connection with Wilcox’s testimony, the result of the

proceeding likely would have been different. Thus, the state

court’s resolution of this claim was not objectively unreasonable. 

In a related vein, Kelly argues that counsel was deficient

because he failed to properly object to certain testimony regarding

threats made to two witnesses, Latea Ford and Antoinette Sanders. 

(DE #1 at 3.) At trial, Ford, who was present for the

confrontation before the shooting, was asked on direct if she had

received any threats related to her testimony. She replied that she

had not, but stated that “people” had asked her if she was “goin’

to Court” and what she would “say in Court.” (DE 10, State Court

Record, Trial Tr. at 313.) Ford testified that a man named Jay

came to her house and “he just axed [sic] me, was I goin’ to Court

and said that Dwayne wanted me——” (Id.) At this point, Kelly’s

counsel objected, but the trial court overruled the objection. 

(Id.) The state then asked Ford what she had said to Jay. (Id.) 

Defense counsel objected again, but his objection was overruled. 

(Id. at 314.) Ford testified that she told Jay not to return to

her house and that she did not want to talk to him. (Id.) That

concluded the state’s questioning on the matter. (Id.)

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During the testimony of Sanders, she testified that she lived

with her children at the home where the shooting occurred, but was

not at the home at the time of the shooting. (Id. at 283, 287–88.) 

The prosecutor asked her why she left town a few days after the

shooting. (Id. at 293.) Kelly’s counsel objected, but the trial

court overruled the objection and allowed Sanders to answer. (Id.) 

She responded, “I was threatened that if I came to Court or if I

told what happened that me and my kids, somethin’ was going to

happen to me and my kids, so I left and it was just like

embarrasin’ to me that this happened in my house, so I left.” 

(Id.) There were no further questions on this matter. (Id.) 

Under Indiana law, evidence of a threat to a witness by a

third party is admissible, provided the state establishes a proper

foundation that the third party made the threats “with the

defendant’s knowledge or authorization.” Kimble v. State, 451

N.E.2d 302, 306 (Ind. 1983). As noted above, Kelly’s counsel did

raise objections to the testimony of Ford and Sanders, but his

objections were overruled. Although Kelly appears to believe

counsel should have done more to keep this testimony out, he

presented nothing in the post-conviction proceedings to suggest

that the trial court would have sustained some other type of

objection to this evidence. 

Furthermore, the Indiana Court of Appeals concluded that Kelly

failed to establish prejudice in connection with this testimony in

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light of the other evidence of his guilt. Kelly, No. 27A01-1212-

PC-568, slip op. at 8-11. This determination was not unreasonable. 

As the state court pointed out, the evidence about the threats was

quite limited and brief, and one of the witnesses expressly denied

having been threatened. The other witness stated that she decided

to leave town, in essence, because she was embarrassed this had

occurred in her home. On the other hand, the evidence of Kelly’s

guilt was substantial. This included Kelly’s own admissions about

his drug activities and his habit of carrying firearms, the

eyewitness testimony that Kelly pointed a firearm at Bobson’s head,

and the inculpatory statement he made to a friend after the

shooting. Based on the record, Kelly has not established that

counsel was deficient, or that in the absence of an error by

counsel in connection with this testimony, there is a substantial

likelihood that the proceeding would have had a different outcome.

Richter, 131 S. Ct. at 792. The state court’s resolution of this

claim was not objectively unreasonable.

Although unclear, Kelly may also be claiming that counsel’s

overall performance was deficient and that he essentially abandoned

his role as Kelly’s advocate. The record belies any such claim. 

Instead, the record reflects that trial counsel was well versed in

the facts and advocated vigorously on Kelly’s behalf throughout the

trial proceedings. He argued a motion in limine, conducted

extensive voir dire questioning of prospective jurors, made a

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lengthy opening statement, cross-examined the state’s witnesses

(including eliciting testimony that certain witnesses had prior

criminal records or had lied to police in the past), raised

numerous objections, argued in closing that Kelly’s conduct was

merely reckless, and argued for leniency at sentencing. (DE #10,

State Court Record, Trial Tr. Vol. I-IV.)

In short, Kelly has not established that counsel failed to

serve in his role as an advocate, or that counsel’s overall

performance fell below the minimum standard required by Strickland. 

Furthermore, given the substantial evidence in the record of his

guilt, as well as the evidence impugning his credibility as a

witness, he has not made the necessary showing of prejudice. Based

on the record, the state court’s resolution of Kelly’s claims

pertaining to trial counsel’s performance did not constitute an

unreasonable application of Strickland. Accordingly, these claims

are denied.

B. Ineffective Assistance of Appellate Counsel

Kelly also claims that counsel was ineffective in failing to

raise an argument on direct appeal regarding admission of the

threat evidence. (DE #1 at 3.) In rejecting this claim on postconviction review, the Indiana Court of Appeals Petitioner properly

identified Strickland as the governing standard. Kelly, No. 02A04-

1107-PC-398, slip op. at 4. The court concluded that Kelly failed

to establish deficient performance or prejudice in connection with

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this claim. Id. at 11-12. Based on the record, the state court’s

resolution of the claim was not objectively unreasonable.

Under Strickland, appellate counsel “need not (and should not)

raise every nonfrivolous claim, but rather may select from among

them in order to maximize the likelihood of success on appeal.” 

Smith, 528 U.S. at 288. Here, the record reflects that counsel

filed an 18-page appellate brief on Kelly’s behalf, raising two

arguments and citing various state and federal cases. (DE #8-3.) 

One of the arguments challenged the sufficiency of the evidence on

the issue of intent; if successful, this would have resulted in the

murder conviction being vacated. (See id.) The other argument

challenged Kelly’s sentence, asserting error under Apprendi v. New

Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296

(2004). If successful, this argument would have resulted in a

substantial reduction in Kelly’s 65-year sentence. The Indiana

Court of Appeals found enough merit to these arguments to warrant

an 11-page opinion analyzing the facts and applicable law. Kelly,

No. 27A05-0610-CR-590. Indeed, the court agreed with counsel that

the trial court had committed errors under Apprendi and Blakely,

but ultimately found these errors harmless. Id. at 8-11.

Kelly has not established that the argument regarding the

threat evidence was significantly stronger than the arguments

counsel chose to raise. As recounted above, counsel objected to

the threat testimony during trial, but his objections were

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overruled by the trial court. Kelly has not provided any basis to

conclude that further investigation or other action by counsel

would have led to a different decision by the trial court regarding

the admissibility of this evidence. Furthermore, the Indiana Court

of Appeals considered this argument on post-conviction review, and

concluded that Kelly was not prejudiced by the admission of the

threat evidence. Kelly, No. 27A01-1212-PC-568, at 11. There is no

indication Kelly’s argument would have fared any better on direct

appeal. Accordingly, Kelly has not made the necessary showing of

prejudice. See Howard, 225 F.3d at 790; Stone, 86 F.3d at 717. 

Based on the record, the state court’s resolution of this claim was

not objectively unreasonable, and therefore the claim is denied.

Pursuant to RULE 11 OF THE RULES GOVERNING SECTION 2254 CASES, the

court must either issue or deny a certificate of appealability in

all cases where it enters a final order adverse to the petitioner. 

To obtain a certificate of appealability, 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) (internal quote marks and citation omitted). 

As is fully explained above, Kelly’s claims are without merit under

AEDPA standards. Nothing before the court suggests that jurists of

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reason could debate the outcome of the petition or find a reason to

encourage Kelly to proceed further. Accordingly, the court

declines to issue him a certificate of appealability.

CONCLUSION

For the reasons set forth above, the petition (DE #1) is

DENIED, and the court DENIES the petitioner a certificate of

appealability.

DATED: July 1, 2014 /s/ RUDY LOZANO, Judge

 United States District Court

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