UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

GREGORY FOSTER, )

)

Petitioner, )

) 

v. ) Case No. 1:13-CV-193 JD

)

SUPERINTENDENT, )

)

Respondent. )

OPINION AND ORDER

Gregory Foster, a pro se prisoner, filed a petition pursuant to 28 U.S.C. § 2254

challenging his 2002 conviction in Allen County for rape, criminal deviate conduct, and criminal

confinement. (DE 1.) For the reasons stated below, the petition is denied.

I. BACKGROUND

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 Foster’s burden to rebut this presumption with clear and

convincing evidence. Id. The Indiana Court of Appeals set forth the facts underlying Foster’s

conviction as follows: 

On November 18, 2000, at approximately 3:00 a.m., S.J. was walking from her

apartment to visit a friend. S.J. lived in the Eden Green Apartments in Fort Wayne,

Indiana. As S.J. walked down the street, Foster drove by in a white Toyota Camry,

and called out the name “Diane,” thinking that S.J. was her aunt. S.J. informed Foster

that she was not Diane and told him her first name. Foster offered S.J. a ride because

it was late at night and she was walking alone. S.J. accepted the ride and entered the

car. Once S.J. entered the car, Foster drove in the opposite direction of S.J.’s

intended destination.

As a result, S.J. informed Foster that he was going in the wrong direction. Foster told

S.J. that he had to take care of some business first and encouraged her to calm down.

At this point, S.J. became worried, but she was not scared. However, S.J. asked

Foster several times to stop in order to let her out of the car. Foster ignored her

requests and continued to drive to the Canterbury Green Apartments, on the other
side of town. Foster parked in a carport and left the car for about five minutes. S.J.

testified that she remained in the car for the following reasons: (1) it was late, (2) she

did not know the area, (3) it was dark, and (4) mostly white people, who she did not

think would help her, inhabited the Canterbury Green Apartments.

When Foster reentered the car, he placed a black handgun on the dashboard and

drove to Shoaff Park located in Fort Wayne, Allen County, Indiana. After seeing the

handgun, S.J. was scared, and she began to cry. Again, S.J. informed Foster that she

wanted to go home. Foster told S.J. to shut up. Then, Foster parked the car in a dark

area of Shoaff Park surrounded by trees. He ordered that S.J. perform oral sex on

him. When Foster threatened to use the handgun, S.J. performed oral sex on him as

he requested. Afterwards, Foster instructed S.J. to pull her pants off and sit back in

her seat. When S.J. complied, Foster lay on top of her, and engaged in sexual

intercourse with her. S.J. testified that she cried and asked Foster to stop, but that he

just told her to shut up and stop crying. Foster ejaculated on S.J.’s thigh and ordered

her out of the car. S.J. testified that she refused to exit the car because she thought

Foster would kill her if she exited the car. When S.J. refused to exit the car, Foster

drove her back to her apartment. As Foster drove away, S.J. remembered the license

plate number of the car Foster was driving.

As S.J. stood outside, she saw Fort Wayne Police Officer James King (Officer King)

in a store parking lot. S.J. approached Officer King and told him that she had been

raped. S.J. was hysterical and Officer King calmed her down before taking her

statement. S.J. provided Officer King with a description of her attacker, and a

description of the car he was driving with the license plate number. Officer King

contacted the medics for S.J. S.J. was taken to the Sexual Assault Treatment Center

and examined by Nurse Stephanie Good (Nurse Good). Nurse Good completed a

rape kit for S.J. S.J. reported that her upper arms were tender. There were also fresh

bruises on her lower extremities. In the meantime, Officer King ran the license plate

number provided by S.J. and discovered that the car was registered to Shirley Foster,

Foster’s mother. S.J. later identified Foster from a photo array.

Indiana State Police DNA Analyst, Mary Reed, performed a DNA analysis on

several of the samples from S.J.’s rape kit. The swab taken from S.J.’s left thigh was

consistent with Foster’s DNA. She testified that one African-American in fifty-eight

billion would match the DNA found on S.J.’s left thigh and external genitalia. The

vaginal and cervical swabs were consistent with S.J., Foster, and an unknown third

contributor. The swab taken from S.J.’s right groin area was also consistent with both

S.J. and Foster. On November 21, 2000, Fort Wayne Detective Hilda Williams

(Detective Williams) interviewed Foster. Detective Williams testified that, at first,

Foster denied that he picked up a girl during the early hours of November 18, 2000.

However, Detective Williams testified that Foster later claimed that he picked up a

girl, on November 18, 2000, and drove her one block up the street, but that no sexual

contact occurred.

2
On February 16, 2001, the State of Indiana filed an information charging Foster with

Count I, rape, a Class A felony; Count II, criminal deviate conduct, a Class A felony;

and Count III, criminal confinement, a Class B felony. On March 5, 2001, a warrant

was issued for Foster’s arrest. Foster was arrested pursuant to the warrant on March

7, 2001. On March 9, 2001, the trial court held Foster’s initial hearing. On April 25,

2001, the State filed an additional information alleging that Foster was a habitual

offender, I.C. § 35-50-2-8.

A jury trial was held on April 23-24, 2002. On April 24, 2002, during a hearing held

outside of the presence of the jury regarding final instructions, Foster objected to the

State’s tendered final instruction providing that a conviction can rest on the

uncorroborated testimony of the victim, if believed beyond a reasonable doubt. The

trial court gave the instruction over Foster’s objection. On the same date, the jury

found Foster guilty of rape, criminal deviate conduct, and criminal confinement. The

jury also determined that Foster was a habitual offender.

On May 20, 2002, a sentencing hearing was held. The trial court sentenced Foster

to the Indiana Department of Correction for a period of fifty (50) years on Count I,

enhanced by a term of thirty (30) years due to his habitual offender status; fifty (50)

years on Count II; and twenty (20) years on Count III, for an aggregate sentence of

150 years; each sentence to run consecutively to the others.

Foster v. State, 795 N.E.2d 1078, 1082-84 (Ind. Ct. App. 2003) (footnotes omitted).

On direct appeal, Foster raised the following claims: (1) the trial court erred in

connection with the jury instructions; (2) the trial court improperly denied his speedy trial

motion under Indiana Criminal Rule 4; and (3) his 150-year aggravated sentence was excessive.

Id. at 1082. The Indiana Court of Appeals affirmed his conviction and sentence. Id. at 1093.

Foster sought transfer to the Indiana Supreme Court raising these same claims (DE 13-9), but his

petition was denied. (DE 13-3.)

Thereafter, Foster pursued state post-conviction relief. Foster v. State, No. 02A04-1107-

PC-398, slip op. at 5 (Ind. Ct. App. May 3, 2012). Following an evidentiary hearing at which he

was represented by counsel, the petition was denied. Id. On appeal, he argued that his trial

counsel was ineffective in failing to: investigate the DNA of the unknown contributor found

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during S.J.’s examination; object to S.J.’s testimony that she was not sure whether Foster was the

father of her child; move for a directed verdict at the close of the state’s case; and object when

the trial court submitted an ex parte response to a jury question. Id. at 7. He further argued that

his appellate counsel was ineffective in failing to raise an argument based on Blakely v.

Washington, 594 U.S. 296 (2004) challenging his enhanced sentence. Id. at 15. Finally, he

argued that his conviction should be overturned based on newly discovered evidence showing

that he was not the father of S.J.’s child. Id. at 21. The court rejected these arguments and

affirmed the denial of post-conviction relief. Id. at 7-22. Foster filed a petition to transfer raising

these same claims. (DE 13-14.) The petition was denied. (DE 13-4.)

 Thereafter, Foster sought federal habeas relief. In his petition, he raises the following

claims: his trial counsel was ineffective on numerous grounds; his appellate counsel was

ineffective in failing to raise a Blakely claim; the trial court erred in denying his motion for

release under Indiana Criminal Rule 4; and his conviction should be overturned because newly

discovered evidence shows he is not the father of S.J.’s child.1

 (DE 1 at 3-6.) 

II. ANALYSIS

Foster’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). 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

1 The court notes that the petition is organized in a confusing manner, and some of the grounds are

duplicative or overlapping. Where appropriate, the court has grouped the petitioner’s claims together.

4
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

(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). Instead, to obtain relief, a petitioner must show

5
the state court’s ruling was “so lacking in justification that there was an error well understood

and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at

786-87.

A. Ineffective Assistance of Trial Counsel

Foster first asserts that his retained trial counsel, Richard Thonert, was ineffective on

various grounds. 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, the court must “evaluate [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).

“[C]ounsel need not be perfect, indeed not even very good, to be constitutionally adequate.”

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McAfee v. Thurmer, 589 F.3d 353, 355-56 (7th Cir. 2009) (citation omitted). Where the

defendant 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).

Under the Sixth Amendment, counsel also has “a duty to make reasonable investigations

or to make a reasonable decision that makes particular investigations unnecessary.” Strickland,

466 U.S at 690-91. The decision whether to investigate must be assessed for reasonableness

based on the circumstances, “applying a heavy measure of deference to counsel’s judgments.”

Id. at 691. Furthermore, counsel is given significant discretion in selecting a trial 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

7
whether it is possible a reasonable doubt 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.

Foster first claims that his trial counsel was deficient in failing to investigate the DNA

evidence pertaining to the unknown third contributor. In rejecting this claim on post-conviction

review, the Indiana Court of Appeals properly identified Strickland as the governing standard,

and concluded that Foster did not establish deficient performance or prejudice in connection with

this claim. Foster, No 46A04-1109-PC-563, slip op. at 6-10. Based on the record, the state

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

As recounted above, the record shows that an Indiana State Police DNA analyst 

performed an analysis on several of the samples from S.J.’s rape kit. Id. at 3. The swabs taken

from S.J.’s left thigh, right groin area, and external genitalia were consistent with Foster’s DNA.

Id. at 3-4. The vaginal and cervical swabs were consistent with the DNA of S.J., Foster, and an

unknown third contributor. Id. At trial S.J. testified that she had engaged in sexual intercourse

with her boyfriend, whom she identified as Robert, shortly prior to meeting Foster. Id. at 7. S.J

also indicated at trial that she was on her way to visit another man, Darrell Masterson, at a pool

hall when she met Foster on the street. Id. She then testified that she had realized that she had

engaged in sexual intercourse with Ben Spencer prior to meeting Foster, as Spencer was her

boyfriend at the time rather than Robert. Id. Post-trial DNA testing later revealed that a man with

the last name of Pippin was the father of S.J.’s child. Id. at 8.

Foster argues that trial counsel was ineffective in failing to investigate the identity of the

unknown contributor. However, the record reflects that counsel did not overlook this issue due to

8
lack of preparation or inadvertence; he was well aware of the issue but concluded that it would

not be helpful to the defense to pursue the matter further.2 At the post-conviction hearing, trial

counsel explained his reasoning as follows: 

Well here’s the situation. You’ve got the identity of an unknown individual and

perhaps it was the boyfriend so what do you have with that. Well the jury recognizes

that we have a number of men having sex with this lady. The issue is whether it’s

consensual or whether it was with a gun that was never found and that type of thing.

So for example, well and hypothetically even assuming we could find the unknown

individual what would, what relevance or benefit, he could say something he could

help us or hurt us, we don’t know. Or, so I, in trying to answer your question I

believe at the time all, that this was coming into play it is a matter of trial strategy

with the jury, it was beneficial for the jury to understand that she was sexually active

and that she had sperm and she didn’t know who it was.

Foster, No 46A04-1109-PC-563, slip op. at 9 (internal citation omitted). 

Counsel’s strategy was not “so far off the wall” as to constitute deficient performance.

See Lathrop, 634 F.3d at 937. Indeed, leaving the matter unknown aided the defense’s consent

theory, since it suggested to the jury that S.J. was so promiscuous even she did not know with

whom she had sexual intercourse that night. 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 S.J. had consented. Although the defense strategy

ultimately proved unsuccessful, this cannot be attributed to an error by counsel, but rather to the

strength of the evidence inculpating Foster. Such evidence included S.J.’s direct testimony that

Foster raped her at gunpoint, the evidence of S.J.’s physical injuries, and the testimony of a

police officer that S.J. was hysterical when she flagged him down after this incident. Based on

the record, Foster has not demonstrated that counsel was deficient, or that in the absence of an

2 The record reflects that Thonert had been practicing criminal law since 1974 and handled more than 100

jury trials during his career. (DE 15, State Court Record, Post-Conviction (“PCR”) Transcript (“Tr.”) at 14.)

9
error by counsel, the result of the proceeding would likely have been different. Thus, the state

court’s resolution of this claim was not unreasonable. 

In a related vein, Foster argues that Thonert was deficient because he failed to object to

S.J.’s testimony that she did not know whether Foster was the father of her child. (DE 1 at 4.)

At the post-conviction hearing, trial counsel testified that he did not object to S.J.’s testimony on

this issue because he did not want to highlight it for the jury. Foster, No 46A04-1109-PC-563,

slip op. at 10. Second, counsel felt that if anything this testimony was beneficial to the defense,

because it reinforced the theory that S.J. was so promiscuous she did not know who had fathered

her child. Id. at 10-11. For the same reasons outlined above, this was not an unreasonable trial

strategy. Foster’s post hoc speculation that another defense theory might have been more

successful does not establish deficient performance. Nor has Foster established prejudice, since

he has not established that an objection to this testimony would have been sustained under

Indiana law. See Stone, 86 F.3d at 717. The state court’s rejection of this claim was not

objectively unreasonable. 

Foster next claims that counsel was deficient in failing to object when the trial court

provided an answer to a jury question without prior notification to the parties. (DE 1 at 3.) The

record shows that late in the evening during deliberations, the jury asked the court about certain

aspects of the victim’s testimony. Foster, No 46A04-1109-PC-563, slip op. at 13. The court

declined to provide any response other than to direct the jurors to “[p]lease rely on your

memories or your notes of the testimony[.]” Id. The court later advised Foster’s counsel what

had occurred, and counsel told the court that he felt the response given was appropriate. Id. At

the post-conviction hearing, counsel further explained that he did not feel he had a basis to

10
object, as the court had answered the jury’s question in “exactly” the manner he would have

requested. (DE 15, PCR Tr. at 32-33.) Foster has not demonstrated that counsel’s professional

judgment on this issue was unreasonable.

Nor has he made the necessary showing of prejudice. In rejecting Foster’s claim on postconviction review, the Indiana Court of Appeals held that under Indiana law, the response given

by the trial court was appropriate. See Foster, No 46A04-1109-PC-563, slip op. at 13-14. This

court is bound by the state court’s determination of state law in deciding whether counsel was

ineffective in failing to object. See Huusko v. Jenkins, 556 F.3d 633, 637 (7th Cir. 2009) (“[A]

federal court cannot issue a writ of habeas corpus that rests on a belief that a state court has

misunderstood or misapplied state law.”); Earls v. McCaughtry, 379 F.3d 489, 495 (7th Cir.

2004) (federal habeas court cannot “second-guess state courts in interpreting state law,” and thus

court was bound by state’s determination that an objection would not have been sustained under

state law in assessing ineffective assistance of counsel claim). Because the state court determined

that an objection would have been unavailing under state law, Foster has not established

deficient performance or prejudice based on counsel’s failure to object. Stone, 86 F.3d at 717.

For these reasons, the state court’s rejection of this claim was not objectively unreasonable.

Although unclear, Foster may also be claiming that Thonert’s overall performance was

deficient, and that he essentially abandoned his role as an advocate. The record belies any such

claim. Instead the record reflects that trial counsel was well-prepared and advocated vigorously

on Foster’s behalf throughout the trial proceedings. He entered his appearance less than four

months prior to the scheduled trial date, after Foster fired his original attorney; he quickly sought

Foster’s immediate release under Indiana Criminal Rule 4, moved for a bond reduction, and

11
objected to the state’s request for a continuance of the trial. (DE 15, State Court Record, Tr. of

Proceedings, Nov. 30, 2001; Tr. of Proceedings, Dec. 10, 2001; Tr. of Proceedings Feb. 12,

2002.) He later objected to the state’s motion in limine and filed his own motion in limine on

Foster’s behalf. (Id., Trial Tr. at 3-28.) At trial he renewed the request for Foster’s immediate

release, conducted extensive voir dire questioning of prospective jurors, made an opening

statement, thoroughly cross-examined S.J. and the other state witnesses, made a record as to

various objections, requested limiting instructions, objected to the state’s proposed jury

instructions, gave a compelling closing argument, and argued for leniency at sentencing.3 (Id. at

61-82, 110-61, 182-88, 236-300, 317-23, 356-97, 401-07, 422-30, 445-52, 470-85, 492-535;

Sentencing Tr. at 12-23; Petitioner’s Ex. G, at 98-99, 108-112, 118-19, 137-38, 206-07.) 

In short, Foster has not established that counsel failed to serve as an advocate or that

counsel’s overall performance fell below the minimum standard required by Strickland. Based

on the record, the state court’s resolution of Foster’s ineffective assistance of trial counsel claims

did not constitute an unreasonable application of Strickland. Accordingly, these claims are

denied.

B. Ineffective Assistance of Appellate Counsel

Foster also claims that his appellate counsel, Eugene Hollander, was ineffective in failing

to pursue an argument based on Blakely v. Washington, 542 U.S. 296 (2004), on direct appeal.

(DE 1 at 6.) In rejecting this claim on post-conviction review, the Indiana Court of Appeals

Petitioner properly identified Strickland as the governing standard. Foster, No. 02A04-1107-PC3 At the close of the evidence, counsel made a record to reflect that Foster was in agreement that he would

not testify and that the defense would not be calling any witnesses. (DE 15, Trial Tr. at 492.) Counsel further asked

him, “So Greg, everything we talked about, we’ve done[.]” (Id.) Foster responded, “Yes.” (Id. at 493.)

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398, slip op. at 15-21. The court concluded that Foster failed to establish deficient performance

or prejudice in connection with this claim. Id. Based on the record, the state court’s resolution of

the claim was not objectively unreasonable.

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

Here, Foster’s argument is based on the U.S. Supreme Court’s decision in Blakely. In a

line of cases beginning with Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the Court held

that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt.” In Blakely, the Court further refined the rule to hold that “statutory

maximum” means the maximum sentence a judge may impose solely on the basis of the facts

reflected in the jury verdict or admitted by the defendant, not the maximum sentence a judge

may impose after finding additional facts. Blakely, 542 U.S. at 303-04.

Foster maintains that his enhanced sentence violated Blakely because it was based on

aggravators determined by the judge rather than the jury; in his view counsel was deficient in

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failing to raise this claim on direct appeal.4

 A review of the record undercuts this claim. At the

time Blakely was decided, there was a long-standing rule in Indiana that an issue not raised at

trial was waived on appeal. See Bruno v. State, 774 N.E.2d 880, 883 (Ind. 2002). Here, Foster

did not preserve any Sixth Amendment challenge to his sentence at the time it was imposed. (See

DE 15, Sentencing Tr. at 1-29.) At the post-conviction hearing, Hollander testified that he was

aware no objection had been made or preserved on this ground by trial counsel.5 (Id., PCR Tr. at

49-51.) As it turned out, the Indiana Supreme Court later relaxed this rule with respect to Blakely

claims. See Smylie v. State, 823 N.E.2d 679, 690 (Ind. 2005). However, Foster’s counsel cannot

be found incompetent for failing to predict or anticipate changes in the law. See Valenzuela v.

United States, 261 F.3d 694, 700 (7th Cir. 2001) (“[T]he Sixth Amendment does not require

counsel to forecast changes or advances in the law.”). 

Moreover, Foster has not established that the result of his appeal would have been

different if counsel had raised a Blakely claim. The record reveals that Foster had an extensive

criminal record, both as a juvenile and as an adult,6

 which was considered by the trial judge in

4 Apprendi and Blakely have not been made retroactive to cases on collateral review. See Wilson v. United

States, 414 F.3d 829, 831 (7th Cir. 2005) (“decisions in the Apprendi sequence do not apply retroactively on

collateral review”). However, if a case was still “pending” when the cases were decided, the defendant is entitled to

the benefit of these cases. See White v. Battaglia, 454 F.3d 705, 706 (7th Cir. 2006). Here, the state court agreed that

Foster’s case was not yet final when Blakely was decided. Foster, No. 02A04-1107-PC-398, slip op. at 18.

5 At the post-conviction hearing, Hollander testified that he had been practicing criminal law since 1973,

and handled approximately 200 felony jury trials as well as 200-300 hundred criminal appeals during his career. (DE

15, PCR Tr. at 40-41.) Counsel testified that in his professional judgment it was best to focus on “the strongest

issues and don’t dilute those issues by raising lesser issues.” (Id. at 53.) He felt that the three arguments he raised

were the strongest arguments Foster had, including an error in the jury instructions which, if successful, would have

necessitated a new trial. (Id.) Counsel’s strategy was not unreasonable. See Smith, 528 U.S. at 288 (observing that

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”). 

6 The record reflects that Foster had juvenile delinquency adjudications for shoplifting, rape, and battery;

adult convictions for robbery, criminal recklessness, possession of marijuana, and public intoxication; and had his

probation revoked on two separate occasions. (DE 15, Trial Tr. at 506-35; Sentencing Tr. at 1- 24.)

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imposing an enhanced sentence. This was proper even after Apprendi and Blakely. See United

States v. Elliott, 703 F.3d 378, 381 (7th Cir. 2012) (observing that even after Apprendi and

Blakely, “a defendant’s recidivism is not an element of the offense which must be found by a

jury beyond a reasonable doubt, but rather is a sentencing factor that may be found by the

sentencing judge”). Under Indiana law, a defendant’s criminal history alone is sufficient to

support the imposition of an enhanced sentence. See IND. CODE § 35-38-1-7.1(a)(2) (listing

“history of criminal or delinquent behavior” as an aggravating factor supporting enhanced

sentence); McCarthy v. State, 749 N.E.2d 528, 539 (Ind. 2001) (holding that one aggravator is

sufficient to support an enhanced sentence under Indiana law). Thus, the Indiana Supreme Court

has held that where a defendant has a criminal record which, by itself, supports the imposition of

an enhanced sentence, there is no need for resentencing notwithstanding a Blakely error. See

Robertson v. State, 871 N.E.2d 280, 287 (Ind. 2007). Accordingly, Foster has not demonstrated

that his case would likely have been reversed for resentencing had counsel raised a Blakely

claim. 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. Accordingly, this claim is denied.

C. Violation of Indiana Criminal Rule 4

Foster next claims that the trial court erred in denying his motion for immediate release

pursuant to Indiana Criminal Rule 4. (DE 1 at 3.) That rule provides in pertinent part: 

If any defendant held in jail on an indictment or an affidavit shall move for an early

trial, he shall be discharged if not brought to trial within seventy (70) calendar days

from the date of such motion, except where a continuance within said period is had

on his motion, or the delay is otherwise caused by his act, or where there was not

sufficient time to try him during such seventy (70) calendar days because of the

congestion of the court calendar.

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IND. CRIM. R. 4(B). The rule also provides instructions for calculating the 70 days. Id. Foster

claimed on direct appeal that the trial court violated Criminal Rule 4(B), but the Indiana Court

of Appeals rejected this argument. The court concluded that a portion of the pretrial delays were

due to Foster’s own actions, since he fired his attorney shortly before the scheduled trial date

and withdrew his objection to the state’s motion for a continuance. Foster, 795 N.E.2d at 1086-

87. Foster argues that the court’s analysis was erroneous. (DE 1 at 3.)

Upon review, it is apparent that Foster is claiming an error in the application of state

law, which does not provide a cognizable basis for granting federal habeas relief. Estelle v.

McGuire, 502 U.S. 62, 67-68 (1991) (federal habeas relief is only available for a violation of

the U.S. Constitution or other federal laws). In his traverse Foster attempts to reformulate this

claim as being premised on federal law. (DE 19 at 7-8.) However, he did not raise a federal

claim on this ground in his petition, and a traverse is not the place to be raising a new claim for

the first time.7

 See RULE 2(C)(1) OF THE RULES GOVERNING SECTION 2254 CASES (providing

that all grounds for relief must be contained in the petition). Furthermore, he did not raise a

federal claim on this ground in the state proceedings. Instead the argument he presented to the

Indiana Supreme Court was based entirely on state law. (DE 13-9.) To properly exhaust, a

petitioner must “present both the operative facts and the legal principles that control each claim

7 In his federal petition he articulated the claim as follows: “Foster’s conviction and sentence should be set

aside because he was not brought to trial pursuant to Trial Rule 4. . . . Foster should have been discharged because

he was not brought to trial within seventy (70) days from his Motion for Speedy Trial proceedings to Criminal Rule

4(b).” (DE 1 at 3.) Unlike the Indiana trial rule, the U.S. Constitution does not provide a set deadline by which the

defendant must be brought to trial. Rather, evaluating a constitutional speedy trial requires balancing four factors: 

(1) whether the delay was uncommonly long; (2) whether the government or the defendant is more to blame for the

delay; (3) whether the defendant asserted his right to a speedy trial in due course; and (4) whether the defendant

suffered prejudice as a result of the delay. Doggett v. United States, 505 U.S. 647, 651-52 (1992). Foster has not

provided an analysis of these factors here, nor did he do so in the state proceedings; instead, his argument throughout

has been that he was not brought to trial within 70 days as required by Indiana law.

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to the state judiciary” at each level of state review. Stevens v. McBride, 489 F.3d 883, 894 (7th

Cir. 2007). This includes alerting the state court to the “federal nature” of the claim. Baldwin v.

Reese, 541 U.S. 27, 33 (2004). Foster did not do that here. His claim of state law error cannot be

reasserted in this proceeding, nor can he reformulate his claim at this stage to encompass the

violation of a federal right.8 Accordingly, this claim is denied.

D. Actual Innocence

Finally, Foster argues that the court should overturn his conviction because newly

discovered evidence establishes that he is not the father of S.J.’s child. (DE 1 at 4.) In support,

he points to evidence from an Illinois paternity case reflecting that another man was the father

of S.J.’s child. Foster, No. 02A04-1107-PC-398, slip op. at 21. Foster’s claim is unavailing.

Although actual innocence may be used as a “gateway” to review a procedurally defaulted

claim, it is not cognizable as a free-standing claim on federal habeas review. Schlup v. Delo,

513 U.S. 298, 315 (1995) (habeas petitioner’s claim of innocence is “not itself a constitutional

claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise

barred constitutional claim considered on the merits.”); Herrera v. Collins, 506 U.S. 390, 400

(1993) (“Claims of actual innocence based on newly discovered evidence have never been held

to state a ground for federal habeas relief absent an independent constitutional violation

occurring in the underlying state criminal proceeding.”); Ruth v. United States, 266 F.3d 658,

8

 Foster has not expressly raised this argument, but the court has considered that ineffective assistance of

counsel can be used to excuse the failure to properly exhaust a claim in state court; however, for ineffective

assistance to excuse a procedural default, it must have been exhausted as an independent claim. Edwards v.

Carpenter, 529 U.S. 446, 451-52 (2000). If the ineffective assistance claim itself was not properly raised in state

court, “the petitioner will be fully defaulted.” Dellinger v. Bowen, 301 F.3d 758, 767 (7th Cir. 2002). Here, Foster

complained about other aspects of appellate counsel’s performance, but he did not raise any claim pertaining to

counsel’s failure to present a federal speedy trial claim on direct appeal. As such, this claim is fully defaulted. To the

extent Foster is claiming that actual innocence excuses his failure to present a federal speedy trial claim in the state

proceedings, that argument is addressed in the next section.

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661 (7th Cir. 2001) (“An argument of actual innocence, based on newly discovered evidence,

does not implicate the Constitution”); Milone v. Camp, 22 F.3d 693, 700 (7th Cir. 1994)

(“Supreme Court precedent does not allow a federal court to issue a writ of habeas corpus only

on the ground that [the petitioner] is, or might be, innocent of the [offense].”). Accordingly, this

claim does not present a cognizable basis for granting federal habeas relief.

In any event, Foster has not established his actual innocence. To meet this extraordinary

exception, the petitioner must establish that “a constitutional violation has resulted in the

conviction of one who is actually innocent of the crime.” Schlup, 513 U.S. at 324. 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) (emphasis in original). Furthermore,

actual innocence means “factual innocence, not mere legal insufficiency.” Bousley v. United

States, 523 U.S. 614, 623 (1998). To support a claim of actual innocence the petitioner 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, 513 U.S. at 324. He must demonstrate that “in light of new evidence, it is more likely

than not that no reasonable juror would find him guilty beyond a reasonable doubt.” House v.

Bell, 547 U.S. 518, 537 (2006). This is a difficult standard to meet, and such claims are “rarely

successful.” Schlup, 513 U.S. at 324. 

Foster does not meet this exacting standard. Evidence that S.J. had a child with another

man does not undercut her direct testimony that Foster sexually assaulted her at gunpoint, the

evidence of her physical injuries, or the DNA evidence showing that Foster had sexual

intercourse with her on the night in question. Whether S.J. became pregnant as a result of the

18
rape was irrelevant. To the extent Foster believes this evidence shows S.J. to have been

promiscuous, the jurors were already aware that S.J. had more than one sexual partner at the

time of the offense, and they nevertheless chose to credit her testimony. Foster has not

demonstrated that evidence on this peripheral matter would have changed the jury’s decision.

See Whitlock v. Godinez, 51 F.3d 59, 64 (7th Cir. 1995) (petitioner did not establish actual

innocence based on new evidence that merely “add[ed] to the baggage” of state’s witness, since

the jury was made aware of issues impacting the witness’s credibility at trial). Accordingly, this

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 quotation marks and

citation omitted). For the reasons fully explained above, Foster’s claims are not cognizable in

this proceeding or are otherwise without merit under AEDPA standards. The court finds no

basis to conclude that jurists of reason could debate the outcome of the petition or find a reason

to encourage Foster to proceed further. Accordingly, the court declines to issue Foster a

certificate of appealability.

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III. CONCLUSION

For the reasons set forth above, the petition (DE 1) is DENIED, and the petitioner is

DENIED a certificate of appealability.

SO ORDERED.

ENTERED: June 11, 2014 

 /s/ JON E. DEGUILIO 

Judge

United States District Court

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