UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

JOHNNIE LEE GIPSON, ) 

 ) 

 Petitioner, ) 

 ) Case No. 3:15-CV-485-JVB 

v. ) 

 ) 

SUPERINTENDENT ) 

 ) 

 Respondent. ) 

OPINION AND ORDER 

 Johnnie Lee Gipson, a pro se prisoner, filed a habeas corpus petition (DE 6) raising four 

grounds for challenging his convictions and 12-year sentence by the St. Joseph Superior Court 

on August 10, 2011, under cause number 71D02-1012-FB-165. The Respondent argues that all 

of these grounds are procedurally defaulted. “To avoid procedural default, a habeas petitioner 

must fully and fairly present his federal claims to the state courts.” Anderson v. Benik, 471 F.3d 

811, 814-15 (7th Cir. 2006) (quotation marks and citation omitted). 

 Inherent in the habeas petitioner’s obligation to exhaust his state court 

remedies before seeking relief in habeas corpus is the duty to fairly present his 

federal claims to the state courts. Only if the state courts have had the first 

opportunity to hear the claim sought to be vindicated in the federal habeas 

proceeding does it make sense to speak of the exhaustion of state remedies. Fair 

presentment in turn requires the petitioner to assert his federal claim through one 

complete round of state-court review, either on direct appeal of his conviction or in 

post-conviction proceedings. This means that the petitioner must raise the issue at 

each and every level in the state court system, including levels at which review is 

discretionary rather than mandatory. 

Lewis v. Sternes, 390 F.3d 1019, 1025-1026 (7th Cir. 2004) (citations and quotation marks 

omitted). 

 State court records show that after Gibson was convicted, he took a direct appeal to the 

Court of Appeals of Indiana, but he did not file a timely Petition to Transfer to the Indiana 
2 

Supreme Court. (DE 25-2 at 2-3.) He filed a post-conviction relief petition, but when it was 

denied, he did not appeal that decision. (DE 25-6 at 5.) Therefore Gipson’s claims are 

procedurally defaulted. 

 Gipson presents two arguments to excuse his procedural default. First, citing to Neder v. 

United States, 527 U.S. 1 (1999), he argues that a per se prejudicial error occurred which 

requires that he be granted habeas corpus relief. However, none of Gipson’s four grounds meet 

that standard. In Ground One, Gipson argues that the victim’s past sexual history should not have 

been excluded. In Ground Two, he argues that the lead investigator should have testified at his 

trial. In Ground Three, he argues that there was insufficient evidence to have found him guilty.1

In Ground Four, he argues that his counsel were ineffective because they did not properly argue 

that he did not know the age of the victim. 

The Supreme Court in Neder “recognized that most constitutional errors can be harmless. 

If the defendant had counsel and was tried by an impartial adjudicator, there is a strong 

presumption that any other constitutional errors that may have occurred are subject to harmlesserror analysis.” Neder v. United States, 527 U.S. 1, 8 (1999) (quotation marks, citations, and 

brackets omitted). “The error[s] at issue here . . . differ[] markedly from the constitutional 

violations we have found to defy harmless-error review. Those cases, we have explained, contain 

a defect affecting the framework within which the trial proceeds, rather than simply an error in 

the trial process itself.” Id. (quotation marks and brackets omitted). Here, because all of the 

grounds raised by Gipson are merely alleged errors in his trial process, Neder does not excuse 

their procedural default. 

 

1 Ground Three is also addressed as a part of Gipson’s argument that it would be a fundamental miscarriage of justice 

if the court did not excuse his procedural default and consider the merits of his habeas corpus petition. 
3 

 Second, Gipson argues that he is innocent. Procedural default can be excused, “if the 

petitioner can . . . demonstrate that the district court’s failure to consider the claim would result 

in a fundamental miscarriage of justice.” Richardson v. Lemke, 745 F.3d 258, 272 (7th Cir. 

2014). In order to demonstrate a fundamental miscarriage of justice, the petitioner must prove 

that “a constitutional violation has resulted in the conviction of one who is actually innocent of 

the crime.” Schlup v. Delo, 513 U.S. 298, 324 (1995). “[T]enable actual-innocence gateway pleas 

are rare: A petitioner does not meet the threshold requirement unless he persuades the district 

court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him 

guilty beyond a reasonable doubt.” McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013) 

(quotation marks, brackets, and citation omitted). A petitioner who asserts actual innocence 

“must demonstrate innocence; the burden is his, not the state’s . . . .” Buie v. McAdory, 341 F.3d 

623, 626-27 (7th Cir. 2003). To do so, he must come forward “with new reliable evidence – 

whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical 

physical evidence – that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). 

Here, Gipson has not provided any new evidence. He merely argues that the evidence 

presented at trial was insufficient to prove that he knew the victim’s age. This alone precludes 

finding that he has demonstrated actual innocence and excused procedural default. Moreover, his 

insufficient evidence argument is meritless because there was ample evidence presented during 

his trial which demonstrated that he knew the victim’s age. 

 At some point, Gipson and N.B. began having conversations over the 

telephone. During their first lengthy phone conversation, N.B. told Gipson that 

she was only fourteen years old. After N.B. told Gipson that she was only 

fourteen years old, Gipson “was kind of quiet for a minute, and was like, ‘Nah, 

you're just playing.’” Tr. pp. 193–94. N.B. assured Gipson that she was not “just 

playing” and that she was only fourteen years old. From that point forward, N.B. 

continued to tell Gipson that she was only fourteen years old. N.B. told Gipson 
4 

about her school, including her information about her favorite classes, teachers, 

and a class trip to Six Flags. Gipson also contacted N.B.’s older sister through 

MySpace to ask about N.B. N.B.’s older sister did not reply at first, but in early 

June of 2010, replied to a post left by Gipson, informing him that N.B. “was 

fourteen, and that he should leave her alone.” Tr. p. 318. In addition, N.B.’s 

family repeatedly told Gipson that N.B. was fourteen years old. 

Gipson v. State, 968 N.E.2d 343, *1 (Ind. Ct. App. 2012) (table), DE 25-5 at 2-3. 

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

consider whether to grant a certificate of appealability. When the court dismisses a petition on 

procedural grounds, the determination of whether a certificate of appealability should issue has 

two components. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). First, the petitioner must 

show that reasonable jurists would find it debatable whether the court was correct in its 

procedural ruling. Id. at 484. If the petitioner meets that requirement, then he must show that 

reasonable jurists would find it debatable whether the petition states a valid claim for the denial 

of a constitutional right. Id. As previously explained, all of Gipson’s claims are procedurally 

defaulted and there is no reason to encourage him to proceed further. Therefore, he will be 

denied a certificate of appealability. For the same reasons, he may not appeal in forma pauperis 

because an appeal could not be taken in good faith. 

 For these reasons, the court--- 

 DENIES this habeas corpus petition; 

 DENIES a certificate of appealability; 

 DENIES leave to proceed on appeal in forma pauperis pursuant to 28 U.S.C. § 

1915(a)(3); and 

 DIRECTS the clerk to close this case. 

 SO ORDERED on February 16, 2017. 
5 

 s/ Joseph S. Van Bokkelen 

 JOSEPH S. VAN BOKKELEN 

 UNITED STATES DISTRICT JUDGE