UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

MICHAEL WILSON, )

)

Petitioner, )

)

v. ) No. 1:16-cv-00024-RL

) 

SUPERINTENDENT, INDIANA ) 

STATE PRISON, )

)

Respondent. )

RETURN TO ORDER TO SHOW CAUSE

Respondent, by counsel, submits this Return to Order to Show Cause. 

Respondent respectfully requests this Court to dismiss the petition with prejudice 

because Petitioner’s claims are without merit. 

JURISDICTION

Petitioner, Michael Wilson, is in the custody of Respondent, Ron Neal, 

Superintendent of the Indiana State Prison. Petitioner is identified by prisoner 

number 174500. Petitioner is currently serving a sixty-year sentence, with fifteen 

years suspended subject to five years of probation upon his 2008 Marion County, 

Indiana, conviction for murder. As it currently stands, Petitioner’s earliest possible 

release date under this conviction is April 1, 2029. Petitioner brings the instant 

action pursuant to 28 U.S.C. § 2254, which provides for federal collateral review of 

confinement based on a judgment of a state court. 
EXHAUSTION

Respondent states that Petitioner has exhausted his state court remedies 

inasmuch as direct and post-conviction review have concluded. No further avenues 

for relief remain.

STATEMENT OF THE FACTS

In reviewing a petition for federal collateral relief from a state court 

judgment of conviction, this Court must presume as correct the facts as found by the 

state courts. 28 U.S.C. § 2254(e)(1); Sumner v. Mata, 449 U.S. 539, 547 (1981); see 

Lindh v. Murphy, 96 F.3d 856, 867 (7th Cir. 1996) (en banc), rev’d on other grounds, 

521 U.S. 320 (1997). Moreover, Petitioner has the burden of rebutting the 

presumption of correctness by clear and convincing evidence. 28 U.S.C. § 

2254(e)(1).

On appeal from the denial of post-conviction relief, the Indiana Court of 

Appeals set forth the following facts and procedural history:

The facts most favorable to the verdict reveal that thirty-twoyear-old Wilson and thirty-three-year-old Nupur Srivastava met 

at a drug and alcohol rehabilitation center in New York in 

November 2006. After Nupur was discharged from the center, 

she joined Wilson at his father’s home in Indianapolis in 

January 2007, and later rented an apartment on the north side 

of town. In early April 2007, while Nupur was visiting her 

family in Maryland, her parents convinced her she needed to 

return to the rehabilitation center. Nupur briefly returned to 

Indianapolis to retrieve her belongings. The day before she was 

scheduled to leave Indianapolis, Nupur and Wilson were 

drinking whiskey and arguing on Wilson’s father’s patio when 

Wilson splashed Nupur with gasoline and set her on fire. 

Nupur ran through Wilson’s father’s house to the bathroom 

where she filled up the bathtub and jumped into it to put out the 
flames. While she was in the bathtub, Wilson called 911 to 

report a fire. During the phone call, Nupur asked Wilson why he 

had done that. Wilson responded, “I didn’t think it was going to 

be like that, I swear.”

When paramedics arrived at the scene, Nupur walked 

unassisted out of the garage. Paramedic Jeff Brown ran to 

Nupur and escorted her to an ambulance. When Brown asked 

Nupur what had happened, she told the paramedic that Wilson 

had poured gas on her and set her on fire. Brown placed Nupur 

in the ambulance and turned to see a naked Wilson standing in 

the yard. Wilson had burns on his hands and portions of his 

forearms. Wilson told the paramedic that there had been an 

accident with the gas grill. On the way to the hospital, Nupur 

again told Brown as well as paramedic Shawn Grindstaff that 

she and Wilson were arguing when Wilson threw gasoline on her 

and lit her on fire. Wilson told another paramedic and a hospital 

nurse that the fire started when he and Nupur tried to light a 

grill using gasoline.

The following day, Indianapolis Police Department Sergeant 

John Breedlove went to the hospital to interview Wilson. Before 

the interview, Breedlove consulted with hospital staff who 

advised him that Wilson was taking Percocet for pain. Before 

questioning Wilson, Sergeant Breedlove read him his Miranda 

rights and had him sign a waiver of rights form.2 Wilson told the 

sergeant that he understood his rights, and the sergeant began 

to question him.

2On rehearing, this statement was corrected to note that 

because of injuries to Wilson’s hands, he was unable to 

sign the form for himself. Instead, after he was advised of 

his rights and verified that he understood them, Sergeant 

Breedlove wrote on the waiver of rights form that Wilson 

was unable to sign because he was injured. This 

correction did not alter our original disposition regarding 

the admissibility of his statement. Wilson v. State, No. 

49A05-0806- CR-329, 904 N.E.2d 392 at *1 (Ind. Ct. App., 

Mar. 25, 2009).

During the interview, Wilson asked to make a telephone phone 

call so that he could talk to someone because of the seriousness 

of the events. The sergeant told Wilson that he could stop 

answering questions at any time and allowed Wilson to make a 
telephone call. Wilson attempted to call his father, who he was 

unable to reach. After making the phone call, Wilson told the 

sergeant that the person he wanted to speak to was his father 

but that he was unable to reach him.

Sergeant Breedlove readvised Wilson of his rights, and Wilson 

told the sergeant that he understood those rights and was 

willing to continue answering questions. During the interview, 

Wilson appeared coherent, understood the questions the 

sergeant asked him, never became confused, and thought about 

and provided answers to the questions. Although Wilson delayed 

answering some of the questions about how Nupur became 

doused with gasoline and set on fire, Sergeant Breedlove 

interpreted Wilson’s responses to be deceitful rather than 

confused.

During the interview, Wilson admitted that his previous story 

about the grill accident was not true. Wilson explained that he 

told that story because he panicked. According to Wilson, he was 

holding a gas can while he and Nupur were arguing. Nupur

pulled on the can and gas apparently splashed on her and 

ignited when one of them lit a cigarette. Wilson explained that 

when Nupur drank alcohol, “she always [got] very, very 

argumentative and want[ed] to put [Wilson] down and want[ed] 

to say things to push buttons.” The State subsequently charged 

Wilson with attempted murder and aggravated battery. Nupur, 

who had third degree burns on 80% of her body, was placed in a 

drug-induced coma to allow for treatment and pain 

management. After she died from multi-organ failure resulting 

from her burns five weeks later, Wilson was charged with 

murder.

At trial, additional evidence revealed that in March 2007, while 

Nupur was staying at a hotel in Indianapolis, she and Wilson 

got into a physical altercation. Jimmy Barona, the hotel’s owner, 

testified that Nupur’s hair was messed up, and she had a black 

eye and scratches on her face. When Nupur and Barona told 

Wilson to leave Nupur’s hotel room, Wilson pushed Nupur and 

appeared ready to fight Barona. Barona and a hotel 

maintenance worker had to physically remove Wilson from the 

room.

In addition, a former neighbor testified that Wilson and Nupur 

argued every day. According to the neighbor, one night Wilson 
banged on Nupur’s apartment door for hours demanding to be 

let into the apartment. The following morning, the neighbor 

noticed plaster from the ceiling and the walls had been knocked 

to the floor by Wilson’s banging.

Also at trial, ATF Fire Research Engineer Brian Grove testified 

that he conducted nine tests where gas was splashed on a 

manikin [sic] wearing jeans and a sweater similar to those that 

Nupur was wearing. The tests revealed that Nupur was seated 

when she was doused with approximately one-half cup of 

gasoline below her waistband and above her knees. The gasoline 

was then ignited with a flame, not a cigarette, which had to 

have been placed one to two inches from the gasoline. Two 

lighters were found on the patio where Nupur was sitting. One 

of the lighters was found on a table, and the other was found on 

the ground.

Wilson testified that at the time he gave his statement to 

Sergeant Breedlove, Wilson was “pretty doped up,” and easily 

confused. He also testified that Nupur set herself on fire and 

asked him not to tell anyone what she had done. . . .

Wilson’s family retained attorney Marvin Coffey shortly after 

the charges were filed, and Coffey represented Wilson through 

trial and sentencing. A jury found Wilson guilty after a 5 threeday trial, and the trial court sentenced him to sixty years, with 

fifteen years suspended, five of which were to be served on 

probation.

On direct appeal, Wilson argued the trial court erred in 

admitting into evidence his statement to police because it was 

not voluntary and was admitted in violation of his right to 

counsel. He also argued the evidence was insufficient to support 

his conviction. This court affirmed Wilson’s conviction, holding 

the trial court did not err in admitting his statements, id. at *3-

4, and there was sufficient evidence to support the jury’s verdict, 

id. at *5. [Wilson sought transfer to the Indiana Supreme Court 

where he reiterated his claims. The Indiana Supreme Court 

denied transfer on May 14, 2009. Ex. B]. 

[On July 7, 2009,] Wilson filed a petition for post-conviction 

relief that was later amended by counsel. He alleged he was 

entitled to relief because his trial counsel had been ineffective in 

numerous respects. Following a hearing, the post-conviction 
court entered findings of fact and conclusions thereon, denying 

Wilson’s petition for post-conviction relief upon finding his trial 

counsel was not ineffective. 

Ex. N at 2-4. 

On appeal from the denial of post-conviction relief, Petitioner argued that his 

trial counsel was ineffective for: (1) “failing to adequately counsel him about the 

possibility of tendering lesser-included offense instructions to the jury, prejudicing 

him because he might not have been convicted of murder if the instructions had 

been given”; (2) “failing to present evidence regarding both his and Nupur’s levels of 

intoxication at the time of the incident, prejudicing him because the reliability of 

statements made in the immediate aftermath would have been suspect with this 

evidence”; (3) “failing to object to Nupur’s statements to the paramedics and to 

evidence of uncharged misconduct on Wilson’s part”; (4) “not filing a pre-trial 

motion to suppress his statement to police but instead objecting to the statement 

and asking the detective preliminary questions in front of the jury during his 

testimony”; and (5) failing to seek a ruling on alleged prosecutorial misconduct.” 

Ex. N. Petitioner also contended that the alleged cumulative errors by his trial 

counsel undermined confidence in the jury verdict and warranted post-conviction 

relief. Ex. N at 27-28.

On October 24, 2014, the Indiana Court of Appeals held that Petitioner was 

not denied the effective assistance of trial counsel and affirmed the denial of postconviction relief. Ex. N. On transfer, Petitioner reasserted his claim and the 

Indiana Supreme Court denied transfer on January 21, 2015. Ex. C; Ex. O. 
On January 21, 2016, Petitioner, through counsel, filed a petition for writ of 

habeas corpus seeking federal collateral review of his 2008 Marion County, Indiana, 

conviction for murder. This Court entered an order pursuant to Rule 4 of the Rules 

Governing Section 2254 Cases in the United States District Courts and requested 

that Respondent show cause why a writ of habeas corpus should not be granted. 

ARGUMENT

I.

Standards Governing Federal Collateral Review

In order to be entitled to federal habeas relief, a petitioner must establish 

that he is being held in violation of the United States Constitution or the laws or 

treaties of the United States. 28 U.S.C. § 2241; Estelle v. McGuire, 502 U.S. 62, 67 

(1991); Haas v. Abrahamson, 910 F.2d 384, 389 (7th Cir. 1990). The petition in this 

case was filed after the effective date of the Anti-Terrorism and Effective Death 

Penalty Act of 1996 (“AEDPA”), and so the AEDPA’s provisions apply here. Lindh 

v. Murphy, 521 U.S. 320, 336 (1997). “Under the AEDPA, a federal court may grant 

habeas relief only if the state court’s adjudication of the petitioner’s constitutional 

claims was based on unreasonable fact-finding or was contrary to, or involved an 

unreasonable application of, clearly established federal law.” Starkweather v. 

Smith, 574 F.3d 399, 402 (7th Cir. 2009) (citing 28 U.S.C. § 2254(d); Williams v. 

Taylor, 529 U.S. 362, 376-77 (2000)). 

The burden of establishing a right to federal collateral relief resides with the 

petitioner. Harrington v. Richter, 562 U.S. ---, 131 S.Ct. 770, 784 (2011); Johnson v. 
Zerbst, 304 U.S. 458, 468-69 (1938); Smith v. Grams, 565 F.3d 1037, 1043 (7th Cir. 

2009). Section 2254(d) “...preserves authority to issue the writ in cases where there 

is no possibility fairminded jurists could disagree that the state court’s decision 

conflicts with this Court’s precedents. It goes no farther.” Richter, 562 U.S. ---, 131 

S.Ct at 786. “If this standard is difficult to meet, that is because it was meant to 

be.” Id. “A [petitioner] whose position depends on anything other than a 

straightforward application of established rules cannot obtain a writ of habeas 

corpus.” Liegakos v. Cooke, 106 F.3d 1381, 1388 (7th Cir. 1997).

II.

The Indiana Court of Appeals correctly applied established federal law in 

holding that Petitioner was not denied the effective assistance of counsel. 

Petitioner contends that his trial counsel rendered constitutionally ineffective 

assistance. Specifically, Petitioner alleges that the Indiana Court of Appeals 

unreasonably applied Strickland on holding that his trial counsel was not 

ineffective with respect to his investigation and presentation of intoxication

evidence with respect to Nupur and Petitioner. Because the Indiana Court of 

Appeals reasonably applied clearly established federal law in concluding that 

Petitioner’s trial counsel was effective, habeas relief is foreclosed. 

Standard of Review for Claims of Ineffective Assistance of Counsel

Ineffective assistance of counsel claims require the petitioner to establish 

that his counsel’s performance fell below an objective standard of reasonableness, 

and this deficiency actually caused prejudice. Martin v. Evans, 384 F.3d 848, 851 

(7th Cir. 2004) (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). To 
support a claim of ineffective assistance of counsel, Petitioner must demonstrate: 

(1) that counsel’s performance was deficient, and (2) that absent said deficient 

performance, there exists a reasonable probability of a different outcome. Id. To 

satisfy the first prong, Petitioner must show that counsel made errors so serious 

that counsel was not functioning as the counsel guaranteed by the Sixth 

Amendment. Williams v. Taylor, 592 U.S. 362, 390 (2000). In considering counsel’s 

performance, a reviewing court must indulge a strong presumption that counsel’s 

conduct fell within the wide range of reasonable professional assistance. 

Strickland, 466 U.S. at 689. To satisfy the second prong, Petitioner must show that 

there is a reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different. Id. “A reasonable probability is 

a probability sufficient to undermine confidence in the outcome.” Id. (quoting 

Strickland, 466 U.S. at 694); see also Bell v. Cone, 535 U.S. 685, 702 (2002) (to 

support a claim of ineffective assistance of counsel on habeas review, a petitioner 

must show that the state court’s application of Strickland’s attorney-performance 

standard was objectively unreasonable).

The United States Supreme Court has reiterated and clarified the 

applicability and practical effect of these standards in a manner particularly 

instructive here. See Harrington v. Richter, 562 U.S. ---, 131 S.Ct. 770, 786 (2011). 

Richter found that the Ninth Circuit’s conclusion that the state appellate court had 

unreasonably applied clearly established federal law to an ineffective assistance 
claim was based on its level of confidence regarding the conclusion that court would 

have reached had it conducted de novo review:

The Court of Appeals appears to have treated the 

unreasonableness question as a test of its confidence in the 

result it would reach under de novo review: Because the Court 

of Appeals had little doubt that Richter’s Strickland claim had 

merit, the Court of Appeals concluded the state court must have 

been unreasonable in rejecting it. This analysis overlooks 

arguments that would otherwise justify the state court’s result 

and ignores further limitations of § 2254(d), including its 

requirement that the state court’s decision be evaluated 

according to the precedents of this Court. See Renico v. Lett, 559 

U.S. ----, ----, 130 S.Ct. 1855, 1866, 176 L.Ed.2d 678 (2010). It 

bears repeating that even a strong case for relief does not mean 

the state court's contrary conclusion was unreasonable. See

Lockyer, supra, at 75, 123 S.Ct. 1166.

Richter, 562 U.S. ---, 131 S.Ct. at 786 (emphasis added).

Richter clarifies Strickland’s requirement of showing prejudice from actions 

or omissions of counsel:

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 might have been established if counsel acted differently. 

See Wong v. Belmontes, 558 U.S. ----, ----, 130 S.Ct. 383, 390, 175 

L.Ed.2d 328 (2009) (per curiam) (slip op., at 13); Strickland, 466 

U.S., at 693, 104 S.Ct. 2052. Instead, Strickland asks whether it 

is “reasonably likely” the result would have been different. Id., 

at 696, 104 S.Ct. 2052. This does not require a showing that 

counsel’s actions “more likely than not altered the outcome,” but 

the difference between Strickland’s prejudice standard and a 

more-probable-than-not standard is slight and matters “only in 

the rarest case.” Id., at 693, 697, 104 S.Ct. 2052. The likelihood 

of a different result must be substantial, not just conceivable. 

Id., at 693, 104 S.Ct. 2052.

Richter, 131 S.Ct at 791-92.
Richter, and Premo v. Moore, 556 U.S. ---, 131 S.Ct. 733 (2011) (“The

Strickland standard is a general one, so the range of reasonable applications is 

substantial.”)(quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)), decided the 

same day, stand together as a powerful admonishment to federal courts conducting 

review of state court applications of clearly established federal law. Together, they 

hold that grants of federal habeas relief from state court adjudications should be 

reserved for only cases where fair-minded jurists would agree that the state court’s 

adjudication had no justification in existing law:

If this standard is difficult to meet, that is because it was meant

to be. As amended by AEDPA, § 2254(d) stops short of imposing 

a complete bar on federal court relitigation of claims already 

rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 

664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing 

AEDPA’s “modified res judicata rule” under § 2244). It preserves 

authority to issue the writ in cases where there is no possibility 

fairminded jurists could disagree that the state court’s decision 

conflicts with this Court’s precedents. It goes no farther. Section 

2254(d) reflects the view that habeas corpus is a “guard against 

extreme malfunctions in the state criminal justice systems,” not 

a substitute for ordinary error correction through appeal. 

Jackson v. Virginia, 443 U.S. 307, 332, n. 5, 99 S.Ct. 2781, 61 

L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a 

condition for obtaining habeas corpus from a federal court, a 

state prisoner must show that the state court’s ruling on the 

claim being presented in federal court was so lacking in 

justification that there was an error well understood and 

comprehended in existing law beyond any possibility for 

fairminded disagreement.

Richter, 131 S.Ct. at 786-87 (emphasis added). 

Where a state court’s decision is unaccompanied by an 

explanation, the habeas petitioner’s burden still must be met by 

showing there was no reasonable basis for the state court to 

deny relief. This is so whether or not the state court reveals 

which of the elements in a multipart claim it found insufficient, 
for § 2254(d) applies when a “claim,” not a component of one, has 

been adjudicated.

Id. at 784. 

Here, the Indiana Court of Appeals’ adjudication of Petitioner’s claim of trial 

counsel ineffectiveness was not only well within the possibility of disagreement 

between fairminded jurists, but correct. There is no basis here for federal habeas 

relief.

The Indiana Court of Appeals correctly applied established federal law. 

The Indiana courts did not apply a standard that was contrary to Strickland 

v. Washington, 466 U.S. 668 (1984). The primary question addressed by the 

Indiana Court of Appeals was as follows:

To prevail on an ineffective assistance claim, Wilson must 

satisfy the two-part test set forth in Strickland v. Washington, 

466 U.S. 668 (1984). First, he must demonstrate that his 

counsel’s performance was deficient; that is, that counsel’s 

performance “fell below an objective standard of 

reasonableness.” Id. at 687-88. Our scrutiny of counsel’s 

performance is “highly deferential[,]” and we “indulge a strong 

presumption that counsel’s conduct falls within the wide range 

of reasonable professional assistance.” Id. at 689. “[A] defendant 

must offer strong and convincing evidence to overcome this 

presumption.” Ritchie v. State, 875 N.E.2d 706, 714 (Ind. 2007). 

Second, he must show that the deficient performance caused 

prejudice to him by showing 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. 

Ex. N at 6-7. 
The Indiana Court of Appeals correctly identified the analysis provided in 

Strickland for determining ineffective assistance of counsel claims and correctly 

applied it to Petitioner’s claims. Ex. N at 12-15. 

Both the post-conviction court and the Indiana Court of Appeals properly 

concluded that Petitioner’s trial counsel was not ineffective for not presenting 

evidence of Wilson and Nupur’s specific blood alcohol levels at the time of the fire 

and that Wilson was not prejudiced by any such omission (PC App. 83-85); Ex. N at 

12-15. 

Medical records for Nupur and Wilson recorded blood alcohol levels for each 

on the day of the fire (PC Tr. 53, 66-67, 173-74, 188-89; Petitioner’s PC Ex. E). Trial 

counsel testified that he was aware that both Nupur and Wilson had high levels of 

intoxication and of the blood tests contained in the medical records but that he did 

not fully understand the specific blood results in the medical records because they 

were blood alcohol results rather than breath content results, with which he was 

more familiar (PC Tr. 59, 61, 64-67). However, trial counsel had the medical 

records reviewed by a doctor, and trial counsel ultimately concluded that the 

specific blood alcohol levels were not important at trial (PC Tr. 64-67).1 Trial 

counsel believed that sufficient other evidence established that both Wilson and 

Nupur drank heavily on the day of the fire (PC Tr. 70-75, 116-17). 

 

1 While the records of Nupur and Petitioner were reviewed by a psychiatrist, they 

were reviewed with the general purpose to find any useful information to use 

against Nupur and in favor of Petitioner (PC Tr. 70). 
At the post-conviction hearing, Petitioner called Dr. Daniel McCoy a 

toxicologist to discuss the meaning of the results in the medical records. Dr. McCoy 

testified that Nupur’s blood alcohol level near the time of the fire would have been 

above .30 (PC Tr. 180). He also estimated that Wilson’s blood alcohol level near the 

time of the fire would have been approximately .281 (PC Tr. 189-90). However, 

contrary to Petitioner’s summation of Dr. McCoy’s testimony, Dr. McCoy was 

anything but unequivocal. The record demonstrates that Dr. McCoy was equivocal 

on the impact of the results indicated for the victim and Petitioner. Dr. McCoy had 

no experience dealing specifically with the impact of alcohol on burn victims (PC Tr. 

167, 201). Dr. McCoy further added that experienced drinkers with a high tolerance 

for alcohol, like the victim and Petitioner would be less affected by the level of 

alcohol in their system (PC Tr. 184, 192, 198-99). Dr. McCoy conceded that a 

person’s entire drinking history would be relevant to the impact that the blood 

alcohol level would have on them but that he did not have or evaluate such 

information for either Nupur or Petitioner (PC Tr. 186-87, 191, 206). 

In holding that counsel was not ineffective, the Indiana Court of Appeals set 

forth the evidence in the record of intoxication and held that trial counsel elicited 

testimony at trial that “Nupur had a drinking problem that she and Wilson met at a 

rehabilitation facility, that she was on the verge of returning to rehab when this 

incident occurred, and that on the way to the hospital, she told the paramedic that 

she had “a lot” to drink before the incident. Trial Tr. at 151–52.” Ex. N at 13. 

Therefore, “[a]lthough he may not have presented all available evidence, [trial 
counsel] did present evidence of Nupur’s intoxication at the time of the incident as 

well as her history with alcohol. And the members of the jury likely brought with 

them into the courtroom their own experiences or observations regarding the effects 

of intoxication.” Ex. N at 14.

As to Petitioner, the Indiana Court of Appeals noted the there was also

evidence in the record that Petitioner had been drinking on the day of the fire. 

Nevertheless, the Indiana Court of Appeals held:

the defense theory relied on the jury believing Wilson’s 

recollections from the day of the incident—that the fire started 

accidentally or was started by Nupur herself, that he tried to 

put the fire out, and that he carried her into the house and put 

her in the bathtub. Although there was testimony that Wilson, 

too, had been drinking prior to the incident, focusing on the 

unreliability of intoxicated persons in remembering and relating 

events by calling an expert to testify at length would have 

undermined that theory.

Ex. N at 15. Thereafter, the Indiana Court of Appeals held that even if there was 

deficient performance, and trial counsel should have introduced the specific BAC 

numbers and extrapolations in addition to a thorough explanation of the cognitive 

effects of the intoxication, Petitioner could not establish prejudice: “we cannot say 

Wilson has shown a reasonable probability that the result would have been 

different. Intoxication was an element of the case even without the specific 

numbers. Wilson has not convinced us there is no way the post-conviction court 

could have concluded counsel was not ineffective in this regard.”
Ex. N at 15. The Indiana Court of Appeals’ holding was not only reasonable, but a 

correct application of the law. As noted, the record, facts unchallenged by 

Petitioner, support the state appellate court’s holding. 

Significantly, the post-conviction court found trial counsel had researched the 

issue of voluntary intoxication and was well aware that it was not a defense to 

murder in Indiana (PC App. 62-63). Trial counsel’s theory of the case was that the 

fire was set accidently, and that Petitioner’s statements to medical personnel, the 

police, and his trial testimony, were consistent with that theory. Contrary to 

Petitioner’s contention, and held by the Indiana Court of Appeals, lengthy expert 

testimony regarding the exact number of Petitioner’s BAC, his drinking history, and 

the assumed cognitive effect the specific BAC number would have had on Petitioner

would have achieved nothing other than to further damage Petitioner’s credibility, 

especially given that he previously lied to the police. 

As long held by the Seventh Circuit, expert testimony with regards to witness 

perception is not necessary on issues which the jury is already generally aware, and 

it will not contribute to their understanding of the particular dispute and/or mislead 

or confuse the jury. See United States v. Hall, 165 F.3d 1095, 1103-04 (7th Cir. 

1999). The same is true in Indiana under its version or Rue of Evidence 702. See

Byrd v. State, 593 N.E.2d 1183, 1185 (Ind. 1992). Here, as the Indiana Court of 

Appeals held, the trial was rife with evidence of intoxication, “[a]nd the members of 

the jury likely brought with them into the courtroom their own experiences or 

observations regarding the effects of intoxication.” Ex. N at 14. Supplementing the 
aforementioned evidence with specific numbers would have at best, had the effect of 

confusing the jury on at topic of which they possessed common knowledge, and at 

worst, further diminished Petitioner’s credibility and bolstered the State’s case. 

The Indiana Court of Appeals correctly held that trial counsel was not ineffective 

Moreover, Petitioner told police that that he and Nupur had been drinking, 

that in the past when they argued when they drank, and that when they drink, 

Nupur can “push buttons” (State’s Tr. Ex. 73 at p. 132-34). Further emphasis on 

their alcohol consumption could have bolstered the impression that Petitioner had a 

violent outburst in response to Nupur’s provocation. 

As to Nupur, the unchallenged factual findings demonstrated that evidence 

was presented to the jury that Nupur was an alcoholic, had previously been in 

rehab, and was planning to re-enter rehab imminently. Further, trial counsel

elicited on cross-examination of paramedic on scene that when she asked Nupur 

how much she had to drink, Nupur responded “a lot.” (Tr. 151-52). As the Indiana 

Court of Appeals aptly stated, “Intoxication was an element of the case even 

without the specific numbers.” Ex. N at 15. 

In addition, at the post-conviction hearing, the prosecutor who tried the case 

testified that, in any event, there would have been issues with admissibility of the 

BAC tests conducted at the hospital due to a lack of chain of custody, that the blood

draw was not done for evidentiary purposes, and medication Nupur was given in 

the ambulance, facts found by the post-conviction court in concluding that counsel

was not ineffective. Ex. K at 85. 
Moreover, Petitioner’s contention that because the Indiana Court of Appeals 

failed to address the prejudice prong of Strcickland the Court must address that 

prong de novo, is misplaced. ECF 1 at 16-17. The Indiana Court of Appeals did 

address prejudice. The Indiana Court of Appeals addressed Petitioner’s claim as to 

both Nupur’s and Petitioner’s intoxication under one heading. At the conclusion of 

the Court of Appeals’ analysis under that heading, the Indiana Court of Appeals 

held:

Even if counsel should have introduced the blood alcohol 

evidence and provided a thorough explanation of the cognitive 

effects of intoxication and how that related to the evidence at 

trial, we cannot say Wilson has shown a reasonable probability 

that the result would have been different. Intoxication was an 

element of the case even without the specific 

numbers. Wilson has not convinced us there is no way the postconviction court could have concluded counsel was not 

ineffective in this regard.

Ex. N at 15. Accordingly, the Indiana Court of Appeals did render a decision on the 

merits with regards to the prejudice prong and therefore, this Court owes that 

decision AEDPA deference. 

The Indiana Court of Appeals’ adjudication of Petitioner’s allegation of trial 

counsel ineffectiveness was not only well within the possibility of disagreement 

between fairminded jurists, but correct. This is especially true whereas here, trial 

counsel did investigate and present evidence to the jury of both Wilson’s and 

Nupur’s intoxication, unchallenged facts found by both the post-conviction court and 

the Indiana Court of Appeals. Moreover, Nupur was unequivocal about the 

circumstances that occurred; Petitioner poured gasoline on her and lit her on fire, 
whereas Dr. McCoy was equivocal about the effects of alcohol on both Petitioner and 

Nupur. 

As the Indiana Court of Appeals held, “[i]ntoxication was an element of the 

case even without the specific numbers.” The jury was made aware of the parties’

history with alcohol and that both has been drinking a great deal on the day 

Petitioner set Nupur on fire. Admitting evidence with specific numbers would have 

not changed the result of the proceedings and would have caused further damage to 

Petitioner’s credibility. Due to Nupur’s predisposition to “push buttons” the more 

alcohol she consumed, and the damage to Petitioner’s credibility with additional 

evidence of intoxication, counsel was in fact effective for not introducing additional 

evidence of intoxication. 

Accordingly, had trial counsel done as Petitioner now claims he was 

ineffective for declining to do, he would have been ineffective under the Seventh 

Circuit’s reasoning in Miller. The Miller Court stated:

Most questionable of all the lawyer’s fumbles was his decision to 

call a psychologist to testify that Miller was incapable of the 

kind of violence that had been perpetrated against the victim. 

The lawyer did this knowing that Miller had been previously 

convicted of kidnapping, rape, and sodomy and at the time of the 

crime for which he was being tried had been free on parole from 

a life sentence for kidnapping. The state brought these facts out 

on cross-examination of the psychologist and they not only 

destroyed the psychologist’s credibility but almost certainly and 

perhaps decisively bolstered the jury’s confidence in Miller’s 

guilt. (The state had made no effort to place his prior convictions 

in evidence to demonstrate a modus operandi.) At the postconviction proceedings, the lawyer was unable to articulate a 

coherent reason for having put the psychologist on the stand, 

given the inevitability of the destruction of the psychologist and 

of Miller himself if the jury was told about the prior convictions.
Nor did the Indiana courts give any reason for supposing it an 

even minimally intelligent tactic. The fact that it was a tactic 

obviously does not immunize it from review in a challenge to the 

lawyer’s effectiveness. Tactics are the essence of the conduct of 

litigation; much scope must be allowed to counsel, but if no 

reason is or can be given for a tactic, the label “tactic” will not 

prevent it from being used as evidence of ineffective assistance 

of counsel. United States v. Zarnes, 33 F.3d 1454, 1473 (7th 

Cir.1994); Jackson v. Roth, 24 F.3d 1002, 1004-05 (7th Cir.1994); 

United States v. Booker, 981 F.2d 289, 295 (7th Cir.1992); Wade 

v. Franzen, 678 F.2d 56, 58 (7th Cir.1982); Kellogg v. Scurr, 741 

F.2d 1099, 1102 (8th Cir.1984).

Miller v. Anderson, 255 F.3d 455, 458 (7th Cir. 2001). Trial counsel’s decision not to 

put on cumulative evidence of intoxication was the correct course to take under 

these facts to prevent further damage to Petitioner’s credibility and to prevent the 

jury from further considering that Nupur’s alcohol consumption caused her to “push 

buttons” that led to a violent outburst from Petitioner. The Indiana Court of 

Appeals’ holding was in accordance with clearly established federal law.

At the very least, the Indiana Court of Appeals’ holding was within the 

possibility of disagreement between fairminded jurists. Petitioner’s argument is 

nothing more than an assertion that in hindsight counsel could have done more. 

Ineffective assistance claims are not analyzed through the distorted lens of 

hindsight. Mosley v. Atchison, 689 F.3d 838, 848 (7th Cir. 2012). 

Accordingly, nothing in the state court’s decision qualify it as objectively 

unreasonable application of Strickland and its progeny. Under any standard, 

whether Strickland, under the AEDPA, or de novo review, Petitioner has failed to 

prove entitlement to relief.
B. Overall Performance

Because there were no errors, the Indiana Court of Appeals’ holding that 

there was no cumulative error was correct. Nevertheless, trial counsel’s 

performance on Petitioner’s behalf was well above an objective standard of 

reasonableness. Counsel’s representation must be evaluated as a whole. See Payne 

v. Brown, 662 F.3d 825, 829 (7th Cir. 2011) (citing Williams v. Lemmon, 557 F.3d 

534, 538 (7th Cir. 2009) (“It is essential to evaluate the entire course of the defense, 

because the question is not whether the lawyer’s work was error-free, or the best 

possible approach, or even an average one”). 

During the trial, counsel, inter alia, presented an opening statement for the 

defense, cross-examined twelve of the State’s fifteen witnesses, made numerous 

offers to prove throughout the trial, asked the court’s permission to question a juror 

who advised the bailiff during trial that he went to school with a detective, asked 

pertinent preliminary questions of Sgt. Breedlove when the State offered 

Petitioner’s taped statement into evidence, objected to the admission of the 

Petitioner’s statement, voiced numerous objections during trial, presented seven 

witnesses to testify for the defense - including Petitioner, established a sufficient 

foundation via questioning of defense witness, in a hearing outside of the jury’s 

presence, to then allow the witness to testify at trial as to Petitioner’s reputation 

for peace and non-violence and as to her opinion that Petitioner sounded as if he 

was under the influence during his statement to the police, successfully objected to 

one of the State’s proposed final jury instructions, objected and argued against the 
court answering a jury question by the reading of a single instruction (Tr. 6, 23-27, 

105-09, 180-88, 214, 220, 331-37, 336-44, 346-476, 389-99, 401-07, 411-13, 479-81, 

521-22, 527-34).

With regards to his closing statement, trial counsel made a zealous argument

covering a variety of scenarios. Trial counsel noted that it was tragic what

happened to Nupur but that trial is about the evidence and not about retribution

(Tr. 496). Trial counsel informed the jury that the evidence that the outside faucet 

was turned on and the hose going into the patio area was consistent with 

Petitioner’s testimony that the gas can was in plain view and not hidden as the 

State argued, and that Petitioner could have easily placed the can in the garage 

with the other gas cans if he wanted to hide it (Tr. 497). Counsel noted that 

Petitioner tried to save Nupur by beating at the flames with his hands as 

corroborated by his burns, then by trying to use the hose as corroborated by the 

location of the hose, and then by carrying her to the bathroom as corroborated by 

the marks on the hallway walls and the marks and hair on the wall of the 

shower/bathtub; that when asked by the paramedic if she had been drinking, Nupur 

said “a lot,” that Nupur’s hands were between her legs and all she would have to do 

is flip the lighter once to start the fire - whether on purpose or merely as a result of 

the amount of alcohol she had consumed, and that the lighter on the ground near 

Nupur’s chair was corroborative of that version of the events (Tr. 498-501,510). 

Moreover, trial counsel hired a private investigator to investigate Nupur’s 

past in Maryland, a fire investigator to help with analysis of the evidence at the 
scene and a doctor to scour the medical records. Furthermore, trial counsel sought 

an interlocutory appeal during trial, which was granted by the trial court, regarding

his attempt to have expert testimony presented from a professor in world religion

about the role of fire in Hinduism; Nupur’s religion (Tr. App. 178-81). 

Consequently, trial counsel was a strong advocate for Petitioner, and his overall 

performance was nothing less than reasonable.

In sum, Petitioner cannot meet the double burden of overcoming both 

Strickland and § 2254(d) review. “Establishing that a state court’s application of 

Strickland was unreasonable under § 2254(d) is all the more difficult. The 

standards created by Strickland and § 2254(d) are both ‘highly deferential,’ Id., at 

689 [104 S.Ct. 2052]; Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S.Ct. 2059, 138 

L.Ed.2d 481 (1997), and when the two apply in tandem, review is ‘doubly’ so.” 

Premo, 131 S. Ct. at 739–40; Richter, 131 S.Ct. at 788. Accordingly, the Indiana 

Court of Appeals’ conclusion that Petitioner’s trial counsel was not ineffective is in 

accord with clearly established federal law. Habeas relief is foreclosed. 
CONCLUSION

WHEREFORE, for the foregoing reasons, Respondent respectfully requests 

this Court to deny this action WITH PREJUDICE. 

Respectfully submitted,

GREGORY F. ZOELLER

Attorney General of Indiana

s/Henry A. Flores, Jr 

Henry A. Flores, Jr.

Deputy Attorney General

Counsel for Respondent
EXHIBITS TO RESPONDENT’S RETURN

Pursuant to Rule 5 of the Rules Governing Section 2254 Cases in the United 

States District Courts, Respondent submits the following as Exhibit to his Return to 

Order to Show Cause filed in the above captioned case:

Exhibit A: Marion County Chronological Case Summary in State v. Wilson, Cause 

No. 49G04-0704-PC-057737;

Exhibit B: Appellate Case History, Wilson v. State, Cause No. 49A05-0806-CR00329;

Exhibit C: Appellate Case History, Wilson v. State, Cause No. 49A02-1401-PC00049;

Exhibit D: Brief of the Appellant, Wilson v. State, Cause No. 49A05-0806-CR00329;

Exhibit E: Brief of the Appellee, Wilson v. State, Cause No. 49A05-0806-CR00329;

Exhibit F: Reply Brief of the Appellant, Wilson v. State, Cause No. 49A05-0806-

CR-00329;

Exhibit G: Opinion, Wilson v. State, Cause No. 49A05-0806-CR-00329 (Ind. Ct. 

App., Jan. 16, 2009); 

Exhibit H: Petition to Rehearing, Wilson v. State, Cause No. 49A05-0806-CR00329;

Exhibit I: Opinion on Rehearing, Wilson v. State, Cause No. 49A05-0806-CR00329 (Ind. Ct. App., March 25, 2009);

Exhibit J: Petition to Transfer, Wilson v. State, Cause No. 49A05-0806-CR-00329;

Exhibit K: Brief of the Appellant, Wilson v. State, Cause No. 49A02-1401-PC00049;

Exhibit L: Brief of the Appellee, Wilson v. State, Cause No. 49A02-1401-PC00049;

Exhibit M: Reply Brief of the Appellant, Wilson v. State, Cause No. 49A02-1401-

PC-00049;
Exhibit N: Opinion of the Indiana Court of Appeals, Wilson v. State, Cause No. 

49A02-1401-PC-00049 (Ind. Ct. App., Oct. 24, 2014); 

Exhibit O: Petition to Transfer, Wilson v. State, Cause No. 49A02-1401-PC-00049;

Exhibit P: Brief in Opposition to Transfer, Wilson v. State, Cause No. 49A02-

1401-PC-00049.

CERTIFICATE OF SERVICE

I certify that I have electronically filed the foregoing document. Because 

Petitioner is represented by counsel, service has been accomplished through the 

CM/ECF system.

s/ Henry A. Flores, Jr.

Henry A. Flores, Jr.

Deputy Attorney General 

OFFICE OF THE ATTORNEY GENERAL

Indiana Government Center South, Fifth Floor

302 West Washington Street

Indianapolis, Indiana 46204

317-233-1665 (voice)

317-232-7979 (facsimile)

henry.flores@atg.in.gov