IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

CHARLES E. JUSTISE, SR., )

)

Petitioner, )

)

vs. ) CAUSE NO. 3:12-CV-826

)

SUPERINTENDENT, )

)

Respondent. )

OPINION AND ORDER

This matter is before the Court on the Amended Petition under

28 U.S.C. Paragraph 2254 for Writ of Habeas Corpus filed by Charles

E. Justise, Sr., a pro se prisoner, on March 28, 2013. For the

reasons set forth below, the amended habeas corpus petition (DE 11)

is DENIED and Justise is DENIED a certificate of appealability. 

BACKGROUND

Charles E. Justise, Sr., a pro se prisoner, is challenging his

convictions for Child Molesting as a class A felony and Child

Molesting as a class C felony. He was sentenced to 51 years by the

Marion Superior Court on November 16, 2008, under cause number

49G06-0608-FA-159374. Justise filed a direct appeal which was

denied by the Court of Appeals of Indiana and he filed a petition

to transfer which was denied by the Indiana Supreme Court. He did

not seek post-conviction review. 
DISCUSSION

In this petition, Justise raises five grounds for habeas

corpus relief.

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

(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). 

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). To warrant

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

erroneous; it must be “objectively” unreasonable. Wiggins v. Smith,

539 U.S. 510, 520 (2003). This is a difficult standard to meet, and

“[a] state court’s determination that a claim lacks merit precludes

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federal habeas relief so long as fairminded jurists could disagree

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

Richter, 562 U.S. __, __; 131 S. Ct. 770, 786 (2011).

Ground One

Justise argues that his rights under Brady v. Maryland, 373

U.S. 83, 87 (1963) were violated when the State destroyed 332

minutes of telephone calls which included conversations he had with

his daughter while he was housed in the jail. He argues that during

those calls, his daughter admitted that she fabricated the

allegation that Justise had sexually assaulted her. The Court of

Appeals of Indiana addressed this claim during his direct appeal

and found that:

Here, however, there was no evidence for the

prosecution to suppress because the phone calls about

which Justise complains were simply not recorded.

Michael, the keeper of inmate phone records at the Marion

County Jail, explained that the system failed to download

approximately 90,000 phone calls due to a system wide

failure. Although the logs indicated that the calls had

been made, the recordings did not exist. It is axiomatic

that if there is no evidence to suppress, there is no

Brady violation. Accordingly, we find no error on this

basis.

Justise v. State, 49A02-1105-CR-408 (Ind. Ct. App. May 22, 2012),

DE 6-6 at 6. 

Justise does not explain how the Court of Appeals of Indiana 

misapplied Brady; rather, he argues that it erroneously found that

the calls did not exist because the evidence shows that these 332

minutes of recordings were destroyed after Detective Gregory Norris

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listened to them. However, there is no evidence in the record to

support his speculation about their destruction. At trial, Buzz

Michael, a computer/telephone record keeper for the Marion County

Jail, testified that about 90,000 inmate phone calls were logged,

but not recorded from March 2006 to February 2007. Trial Record at

129. During a pre-trial hearing, Michael explained it this way: 

Basically, to make it simple, you have a computer, and

the calls go out through that computer. The computer

makes the record that you see, the, the visual, the

actual record showing the time and the date of the call,

and the recording, actual recording of the call happens

on another piece of hardware. Those two pieces of

hardware weren’t communicating properly at the time, and

because of that it made the record, but it didn’t

actually make the recording of the call.

September 16, 2008, Pre-Trial Hearing Transcript at 15-16. Michael

also testified that “there’s no rhyme or reason behind which calls

were lost and which calls were kept.” Id. at 17. Then he explained

that, “when you pull up those calls it’s going to pull up a call

log showing that all the calls happened. But when it goes to burn

the CD it’s only going to burn onto the CD the call, the, the

recorded calls that were recorded. It’s not going to be able to

burn on there files that don’t exist.” Id. at 17-18.

Justise argues that Detective Norris testified that he 

listened to those 332 minutes of missing recordings. However, that

was not his testimony at trial. Detective Norris testified that he

“printed a log” showing that Justise had made over 500 minutes of

calls while at the jail, but he did not testify that he downloaded

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all of those calls. Trial Record at 280. As Michael explained,

unrecorded calls could not be downloaded, therefore Detective

Norris could not have listened to any of the 332 minutes of

unrecorded calls. Nothing in Detective Norris’ testimony indicates

that he did. Justise cites to Detective Norris’ affirmative

response to his question on cross-examination, “you listened to all

of the phone calls, is that correct?” Id. But he ignores the

clarifying statement explaining that he “listened to every minute

that I downloaded . . ..” Id. at 281. Nowhere does Detective Norris

testify that he listened to any of the 332 minutes of calls that

Justise alleges were destroyed. The trial record supports the

holding of the Court of Appeals of Indiana that those calls were

not recorded. 

Based on the facts in this record, Justise has not shown that

the decision of the Court of Appeals of Indiana “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)(2).

Therefore he has not demonstrated that he is entitled to habeas

corpus relief based on Ground One. 

Ground Two

Justise argues that “[t]he State has an obligation to make

sure that the missing phone calls were recorded.” DE 11 at 2. The

Respondent argues that the Court of Appeals of Indiana reasonably

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concluded that the calls were not recorded due to an unintended

computer failure. The United States Supreme Court has explained

that, “unless a criminal defendant can show bad faith on the part

of the police, failure to preserve potentially useful evidence does

not constitute a denial of due process of law.” Arizona v.

Youngblood, 488 U.S. 51, 58 (1988). 

Justise argues that bad faith is shown by the evidence

demonstrating that the calls were deleted. However, that is merely

rearguing the claim he raised in Ground One. As previously

explained, Ground One is not a basis for habeas corpus relief

because it was not an unreasonable determination of the facts for

the Court of Appeals of Indiana to have determined that the calls

in question were not recorded. Therefore to the extent that Ground

Two is merely a re-phrasing of Ground One, it is not a basis for

habeas corpus relief. However, to the extent that Ground Two is

raising a different claim – the claim that the calls were not, but

should have been recorded – bad faith cannot be shown by merely

inconsistently asserting that the calls were recorded and later

deleted. 

Here, the Court of Appeals of Indiana implicitly found that

the police were not acting in bad faith when it determined that

“the system failed to download approximately 90,000 phone calls due

to a system wide failure.” Justise v. State, 49A02-1105-CR-408

(Ind. Ct. App. May 22, 2012), DE 6-6 at 6. The finding that these

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calls were the result of a “system wide failure” precludes the

possibility that the police did not record 332 minutes of Justise’s

phone calls because of bad faith. Justise has not identified any

evidence showing that this conclusion “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)(2). Therefore he

has not demonstrated that he is entitled to habeas corpus relief

based on Ground Two. 

Ground Three

Justise argues that he was prevented from questioning “Ashley

Jackson about what exactly was told to her by [his daughter]

regarding a penis touching her or being ‘fingered.’” DE 11 at 2.

First, the Respondent argues that this claim is procedurally

defaulted because Justise did not raise it as a federal claim in

his Petition to Transfer to the Indiana Supreme Court.

Nevertheless, “[a]n application for a writ of habeas corpus may be

denied on the merits, notwithstanding the failure of the applicant

to exhaust the remedies available in the courts of the State.” 28

U.S.C. § 2254(b)(2).

Here, the facts in the record demonstrate that Justise was not

prevented from questioning Ashley Jackson about his daughter’s

statements regarding his penis touching his daughter or his having

fingered his daughter. Rather, the trial record shows that he never

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attempted to ask questions about those two subjects. He asked Ms.

Jackson, “And in that conversation did she . . . the conversation

was about a sexual incident?” Trial Record at 318 (ellipsis in

original), but he withdrew that question. Id. at 319. He then

asked, “Did she at any time say that I had licked her breasts?” Id.

That question was stricken because it called for hearsay. Id. Then

he asked, “Did she give you the impression that she had been

molested?” Id. That question was stricken because it called for

speculation. Id. Then the parties had a side bar conference which

concluded with the judge saying, “So there is nothing I can do for

you on these two questions. So do you have some more?” Trial Record

at 322. Justise argues that “This is clearly referring to the

finger and the penis.” DE 19 at 12. But he is wrong. Justise had

just asked two questions which had been stricken. The trial judge

had just explained why they were inappropriate questions. Trial

Record at 320. The trial judge then explained how it was necessary

to lay a proper foundation before asking questions of a third party

to impeach the testimony of a previous witness. Trial Record at

321-22. Finally, the judge concluded by telling Justise that “there

is nothing I can do for you on these two questions.” Trial Record

at 322. The two questions to which the trial judge was referring

were the two questions that had just been stricken. The trial judge

said nothing about the finger and the penis. 

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Justise did not ask Ashley Jackson any questions about his

daughter’s statements regarding his penis or his having fingered

his daughter. He was not prevented from trying to do so, nor even

told not to try. Indeed, after telling him why his two questions

had been stricken, and explaining how to ask a permissible

question, the trial judge asked him, “So do you have some more

[questions]?” Trial Record at 322. However, Justise abandoned the

line of questioning related to his sexual assault on his daughter

and turned to asking about a phone call from Denise Taylor instead.

Because Justise was not prevented from asking Ashley Jackson about

what his daughter told her about his penis and how he fingered the

girl, his argument – in Ground Three – that he was prevented from

doing so is not a basis for habeas corpus relief. 

Ground Four

Justise argues that the evidence was insufficient to support

his conviction because his daughter’s inconsistent statements were

“mere story telling.” DE 11 at 3. On direct appeal, the Court of

Appeals of Indiana was required to determine “whether, after

viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson

v. Virginia, 443 U.S. 307, 319 (1979)(emphasis in original). The

State court correctly identified this standard when it explained

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that it would “affirm the conviction unless no reasonable fact

finder could find the elements of the crime proven beyond a

reasonable doubt.” Justise v. State, 49A02-1105-CR-408 (Ind. Ct.

App. May 22, 2012), DE 6-6 at 7. 

Justise concedes that a single witness is generally

sufficient to sustain a conviction and does not challenge

the evidence supporting the elements of the offense.

Rather, he argues that [his daughter] engaged in “mere

story telling.” Appellant’s Br. p. 4. Specifically,

Justise contends that [his daughter] was “jealous of

other women . . . and in competition with a person she

told . . ..” Appellant’s Br. p. 4. However, this argument

is nothing more than an invitation for us to reweigh the

evidence, which we cannot do. See Peny, 962 N.E.2d at

154. Therefore, we affirm the decision of the trial

court.

Id. at 8. 

On habeas review, when considering a sufficiency of the

evidence claim premised on witness credibility, the Court’s role is

even more limited. To find in favor of the petitioner on such a

claim, the court would not only have to conclude that the witness

was unreliable as a matter of law, “but [also] that no court could

reasonably think otherwise.” McFowler v. Jaimet, 349 F.3d 436, 456

(7th Cir. 2003).

Justise argues that his daughter’s testimony was unreliable

because, “[h]er story has changed three times on whether the penis

was soft (TR 99) or hard (TR 98) when it entered her, before

settling on in between (TR 99) [and because s]he is not aware of

how her pants got off (TR 66).” DE 19 at 14 (footnote omitted).

However, as Justise himself notes, the “thing that remains common

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is the part that . . . a penis was inside here [sic].” Id. What is

also consistent is that it was his penis. Despite the fact that his

12 year old daughter had difficulty describing his penis and in

recalling every detail about how he molested her, she was

consistent in her assertion that he did so. It was not unreasonable

for the jury to have found Justise guilty and it was not

unreasonable for the Court of Appeals to have found that there was

sufficient evidence to convict him. This Court does not find that

his daughter was unreliable as a matter of law and Ground Four is

not a basis for habeas corpus relief. 

Ground Five

Justise argues that he was not allowed to present a complete

defense because he was unable to play 25 phone calls he had with

his daughter while he was in the Marion County Jail. As discussed

in the court’s review of Ground One, a computer failure resulted in

these calls not being recorded. The recordings Justise argues that

he wanted to play for the jury never existed. Nevertheless, Justise

argues that it was error for the State to have been permitted to

play some of the telephone calls that were recorded because the

jail did not record every call that he made while at the jail. As

discussed in this court’s review of Ground Two, the failure to

record the missing calls was not done in bad faith. Despite his

unsupported conjecture to the contrary, there is no evidence that

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the State decided whether to record a call based on its content. As

the Jail’s computer/telephone record keeper testified about the

missing 90,000 recordings, “there’s no rhyme or reason behind which

calls were lost and which calls were kept.” September 16, 2008,

Pre-Trial Hearing Transcript at 17. Without a showing of bad faith,

the missing telephone recordings are not a basis for excluding any

of the recordings that were made. Cf. Arizona v. Youngblood, 488

U.S. 51, 58 (1988). Therefore Ground Five is not a basis for habeas

corpus relief.

Certificate of Appealability

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).

Here, Justise has not made such a showing and will be denied a

certificate of appealability. 

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CONCLUSION

For the reasons set forth above, the amended habeas corpus

petition (DE 11) is DENIED and Justise is DENIED a certificate of

appealability. 

DATED: December 18, 2014 /s/RUDY LOZANO, Judge

United State District Court

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