# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued August 5, 2015

Decided August 27, 2015

Before

DIANE P. WOOD, Chief Judge

WILLIAM J. BAUER, Circuit Judge

DANIEL A. MANION, Circuit Judge

No. 14

‐ 1757

KEVIN SMITH,

Petitioner

‐ Appellant

,

v

.

RON NEAL, Superintendent,

Indiana State Prison,

Respondent

‐ Appellee

. Appeal from the United States District

Court for the Northern District of Indiana,

South Bend Division.

No. 3:13

‐ cv

‐ 509

William C. Lee,

J udge

.

O R D E R

Kevin Smith, an Indiana prisoner, was convicted after a jury found him guilty of

rape, criminal deviate conduct, criminal confinement, and sexual battery. He was

sentenced to 58 years’ imprisonment. At trial Smith claimed to have had a consensual

sexual encounter with the victim, but testified that during the afternoon of the offense he

was running errands with his son. Defense counsel presented no witnesses to

corroborate Smith’s testimony. Smith asserted in state post

‐ conviction proceedings that

counsel was ineffective for not investigating and calling alibi witnesses. The last state

court to address this issue concluded that counsel investigated the witnesses and

strategically decided not to call them in favor of a consent defense. Smith renewed the NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 14

‐ 1757 Page 2

claim in a petition under 28 U.S.C. § 2254 and after the district court denied relief, this

court certified the question for appeal. Because the Indiana Court of Appeals did not

unreasonably apply clearly established federal law when evaluating counsel’s

effectiveness, we affirm the judgment.

The facts of the crime are set forth by the Court of Appeals of Indiana in Smith v.

Indiana

, 984 N.E.2d 260, 2013 WL 653725 (Ct. App. Ind. 2013) (unpublished). According

to her testimony at trial, on August 15, 2005, 18

‐ year

‐ old M.S. was walking past Smith’s

home on her way to a friend’s house. M.S. had previously met Smith through his

girlfriend, but M.S. and Smith were not friends and certainly not sexual partners. Smith

told M.S. that his girlfriend could give her a ride home and invited M.S. inside (in reality

Smith’s girlfriend was not present). Once M.S. was inside, Smith locked the door and

asked M.S. if she wanted to have sex, and M.S. declined

. Smith then grabbed her arms,

held a knife to her throat, dragged her into the bedroom, and threw her on the bed.

Smith removed her shirt and then forced her to perform fellatio on him for ten to fifteen

minutes under threat of anal sex. Smith also removed M.S.’s pants and tampon while

M.S. struggled to free herself before Smith forced her to have intercourse with him.

Smith then accompanied M.S. to the shower and instructed her to wash herself off. Smith

allowed M.S. to re

‐ dress and reinsert a tampon before he instructed her to lie down on

the bed. After she complied, Smith bound her hands and feet with rope before talking to

her about his custody battle for his son and giving her a cigarette. He then tied M.S. to

the bedframe, put duct tape on her mouth, and left. The court concluded that the rape

finished by 1:30 p.m. when Smith left. Smith returned about ten minutes later with his

son, and M.S. yelled for help, causing Smith to choke her. Smith and his son left.

Sometime before 4:00 p.m., M.S. was able to free herself and ran out of the house. She

intercepted a passerby and told him she had been raped. The passerby saw that she was

hysterical and had rope tied around her wrists; he helped untie her and called 911. A

rape examination kit was performed at the hospital and Smith’s DNA was discovered.

Meanwhile, Smith fled to Virginia with his son.

Before trial, counsel had submitted a list of alibi witnesses to the court that

included Smith’s son, mother, stepfather, neighbor, and three friends. After learning

about the DNA results, counsel withdrew the alibi defense in favor of a consent defense.

At trial, in addition to M.S., several witnesses were called by the prosecution.

Smith was the only defense witness to testify. He testified that he and M.S. knew one

another and had previously engaged in a sexual relationship. On August 15, 2005,

sometime before 1:00 p.m., they had consensual sex. The condom broke, Smith testified,No. 14

‐ 1757 Page 3

and M.S. became upset and scared. She then asked for an OxyContin pill and, when he

wouldn’t give her one, angrily left the house. Smith picked up his son and they ran some

errands that included eating lunch at Burger King, stopping at his parents’ and his

friend’s houses, and going to two auto

‐ parts stores. As is allowed in Indiana, see Ind. R.

Evid. 614, jurors submitted numerous questions to Smith. One juror attempted to verify

Smith’s account by asking whether there was video surveillance from the Burger King or

auto

‐ parts stores. The trial court did not ask this question because it concluded that

Smith would not know the answer. Smith was convicted and sentenced.

After an unsuccessful direct appeal, Smith moved for post

‐ conviction relief

arguing, as relevant here, that his counsel was ineffective for failing to interview

witnesses and call them at trial. At an evidentiary hearing on Smith’s petition, Smith’s

trial counsel, John Cantrell, testified that he remembered speaking with three witnesses

that Smith had suggested to him, but had no recollection of the other seven including

Smith’s son, his stepfather, or one of the friends. Counsel stated that he remembered

talking to Smith’s mother and concluding that he would not call her because she was

“tough and hard” on Smith. He also talked with “two young girls” but determined that

they were “lying through their teeth” and a prosecutor would “eat them for breakfast.”

He decided not to pursue an alibi defense because a consent defense was more likely to

be successful given the DNA test results. Ultimately, counsel concluded that although

Smith had several people willing to testify that he was at their homes at various times

during the afternoon of August 15, the time period was not relevant for an alibi and the

DNA evidence proved Smith had sex with M.S., thus a consent defense was the

appropriate strategy.

At the hearing, Smith presented eight witnesses who corroborated his trial

testimony about where he was after 1:30 p.m. on August 15. Although Smith and the

parties refer to these witnesses as “alibi witnesses,” they are not—they corroborated

what Smith said but did not provide an alibi for Smith for the time M.S. said he was

raping her. Everyone confirmed that between 1:30 and 3:30 p.m., Smith was running

errands with his son.

The post

‐ conviction trial court denied relief and the Indiana Court of Appeals

affirmed this decision. Smith

, 984 N.E.2d 260, at *7. In reciting the facts gathered at the

post

‐ conviction hearing, the court stated in a footnote that Smith’s neighbor testified that

Smith picked up his son at 1:30 p.m., that his mother and stepfather testified that they

saw Smith at their house at 2:10 or 2:20 p.m., and that “several other witnesses” testified

that Smith and his son went to a friend’s house. Id. at *2 n.3. The court found that “SmithNo. 14

‐ 1757 Page 4

had provided counsel with a list of potential defense witnesses [and counsel] spoke with

a number of these witnesses during his investigation,” before concluding that the

witnesses lacked credibility or were unhelpful. Id. at *4. The court concluded that

counsel made a strategic decision to reject an alibi defense, a belief that the court shared

given the circumstances. Id.

Smith petitioned in federal court for a writ of habeas corpus, see 28 U.S.C. § 2254,

arguing that his trial counsel was ineffective for not investigating defense witnesses or

presenting them at trial. The district court denied his petition and declined to issue a

certificate of appealability. This court certified the question of whether Smith’s counsel

provided ineffective assistance at trial for withdrawing the alibi defense and failing to

produce witnesses. Smith v. Wilson

, No. 14

‐ 1757 (7th Cir. July 29, 2014).

On appeal, Smith argues that the Indiana Court of Appeals unreasonably applied

both parts of the Strickland v. Washington, 466 U.S. 668 (1984), analysis. The State argues

that Smith waived the specific ineffective

‐ assistance theory at issue here by not arguing

it in the district court. Specifically the State says that Smith never argued that the

witnesses would have impeached M.S.; instead, he argued only that the witnesses would

have provided an alibi. But Smith, proceeding pro se until this point, has always

maintained that counsel was ineffective for not investigating and calling these witnesses,

and this level of preservation is adequate to survive the State’s challenge. See Welch v.

Hepp

, No. 14

‐ 1164, 2015 WL 4231144 at *3 (7th Cir. July 14, 2015) (“We will not split hairs

that finely.”).

Smith first challenges the Indiana Court of Appeals’ analysis of counsel’s

performance, arguing that trial counsel should have fully investigated and presented the

witnesses he had identified. For those people that counsel spoke to, the question is

simply whether the state court reasonably determined that counsel justified his decision

not to call them as witnesses. See Mosley v. Atchison

, 689 F.3d 838, 848 (7th Cir. 2012). The

Indiana Court of Appeals concluded that Smith’s counsel was not deficient because he

interviewed several of them and decided not to call them for strategic reasons. See Smith

,

984 N.E.2d at *4. Counsel believed that on the whole the witnesses were either

untruthful, too harsh, too close to Smith, or irrelevant to appear credible before jurors.

See United States v. Lathrop

, 634 F.3d 931, 939 (7th Cir. 2011) (finding that counsel did not

perform deficiently when counsel investigated witnesses and then did not call them

because their proposed testimony was inaccurate and the witnesses would fall apart on

cross examination); Toliver v. McCaughtry

, 539 F.3d 766, 775 (7th Cir. 2008) (noting that

counsel may make strategic decision not to call witness once counsel has interviewedNo. 14

‐ 1757 Page 5

them to evaluate their testimony, credibility, and demeanor). The Indiana Court of

Appeals reasonably applied Strickland when evaluating whether counsel’s performance

was deficient with regard to the five witnesses he actually talked to.

But the appellate court neglected to specifically discuss whether counsel

interviewed the remaining witnesses—Smith’s stepfather, his friend, and his son. By

conflating the interviewed and non

‐ interviewed witnesses the state court may have

unreasonably applied Strickland

. In fact, the state court’s omission arguably lessens the

deference owed its conclusion. See Brady v. Pfister, 711 F.3d 818, 826–28 (7th Cir. 2013).

But counsel’s decision not to speak with Smith’s son, stepfather or friend was justified

given what counsel knew at the time. See Brown v. Sternes

, 304 F.3d 677, 692 (7th Cir.

2002); Washington v. Smith, 219 F.3d 620, 631 (7th Cir. 2000). Counsel had interviewed

Smith, Smith’s mother, his neighbor, and the victim; none mentioned anything that

would alert counsel that Smith’s son, stepfather, or friend would have had any

additional or useful information. Counsel also received the DNA test results which led

him to believe a consent defense was the best trial strategy. Ultimately, the testimony of

Smith’s proposed witnesses does not provide Smith with an alibi for the time of the rape,

which the state court found was complete by 1:30 p.m, see Smith

, 984 N.E.2d at *2 n.5, nor

does it call into question whether the sex was consensual or not. Thus, even though

Smith’s son, stepfather, and friend may have corroborated Smith’s testimony about

seeing him on the afternoon of August 15, these witnesses had nothing to offer when it

came to impeaching the victim’s testimony or bolstering the consent defense. See United

States v. Weaver

, 882 F.2d 1128, 1140 (7th Cir. 1989) (noting that counsel is not deficient

when counsel decides not to call witnesses that will not fully corroborate the chosen

defense.)

Furthermore, Smith fails to show that the decision not to call these witnesses

prejudiced him, given the overwhelming amount of evidence against him at trial. M.S.’s

account of the day was bolstered by the testimony of the good Samaritan whom she

intercepted after the rape. This passerby testified that M.S. flagged him down outside of

Smith’s home and was crying, shaking, and asking for help. He stated that she

hysterically told him that she had been raped and, when she got into the passenger seat

of his car, she was still tied up with rope around her wrists. The man helped untie her

and waited with her until police arrived. The photographs taken during the rape

examination also confirmed that there were marks left by the rope on M.S.’s ankles and

wrists and marks on her neck from being choked. In cases like this, where a witness’s

proposed testimony is only “marginally exculpatory” or when that testimony

corroborates external but not “key” facts, there is not a reasonable probability that theNo. 14

‐ 1757 Page 6

outcome would have been different. See Ruhl v. Hardy

, 743 F.3d 1083, 1100–01 (7th Cir.

2014); Brady

, 711 F.3d at 827–28; see also United States v. Pedigo

, 12 F.3d 618, 624 (7th Cir.

1993).

Accordingly, we affirm the district court’s judgment.