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After previously overturning the conviction of the man convicted of murdering Indiana University student Jill Behrman, the Indiana Southern District Court on remand has declined to grant habeas relief to John Myers a second time.
Judge James Sweeney issued the order Tuesday denying Myers’ habeas petition as well as a certificate of appealability. He determined that Myers failed to prove a violation of Giglio v. United States, 405 U.S. 150, 153 (1972), or Brady v. Maryland, 373 U.S. 83, 87 (1967).
That’s a reversal from four years ago, when Sweeney granted habeas relief to Myers, who was convicted of the 2000 murder of Behrman, an accomplished cyclist and IU student who disappeared on a bike ride in Bloomington. Her body was found three years later.
Myers was convicted in state court and was sentenced in 2006 to 65 years. The Court of Appeals of Indiana subsequently rejected his direct appeal and his petition for post-conviction relief.
But Myers found success in federal court, with Sweeney ruling in September 2019 that Myers’ counsel had been ineffective, prejudicing his defense.
“After reviewing the record and the parties’ briefs in detail, the Court concludes that Mr. Myers received ineffective assistance of counsel at trial in violation of his Sixth Amendment rights,” Sweeney wrote in the 147-page order handed down in 2019. “Most notably, Mr. Myers’ counsel made false statements to the jury during opening statements. … He also failed to object to two significant categories of evidence that should not have been presented to the jury.”
Myers was ordered released unless the state opted to retry him.
The state appealed Sweeney’s order, and Myers was initially ordered released pending appeal in 2020 based on COVID concerns. But the 7th Circuit Court of Appeals sent him back to prison in June 2020 while it reviewed the case.
The following August, the 7th Circuit reinstated Myers’ conviction, determining that while his counsel was deficient, he was not prejudiced.
The appellate panel emphasized the failure of Myers’ counsel to object to testimony that Behrman was raped before she was killed — a failure the court called the “starkest example” of deficient performance.
But “even without the testimony about rape,” the 7th Circuit held, “the state painted the picture about Myers through other means.”
The 7th Circuit denied rehearing and rehearing en banc, but it did remand the case in September 2020 for the district court to consider Myers’ claims that the state had withheld exculpatory evidence in violation of Brady.
Myers’ two Brady claims went back before Sweeney on June 1, 2022, followed by a denial of those claims on Tuesday.
In his order, Sweeney determined that the two Brady claims the 7th Circuit ordered him to review on remand were actually one claim under Giglio and another under Brady.
Under Giglio, Myers argued that his due process rights were violated when the state presented four pieces of allegedly false testimony.
Specifically, he said a detective falsely testified that Myers did not deny his guilt when he was interrogated; the state presented evidence about Myers having access to guns even though they had been eliminated as the murder weapon; the state argued that a jailhouse informant was credible even though his deposition revealed issues with his testimony; and another suspect, Wendy Owings, testified that she did not claim responsibility for Behrman’s murder until 2002, when grand jury evidence revealed she had done so within “days or weeks” of Behrman’s disappearance.
An alternate theory of the case was that Owings had struck Behrman with a car, then, together with Alicia Sowder-Evans and Uriah Clouse, had stabbed her and disposed of her body. Owings confessed but later recanted.
Rejecting the Giglio argument, Sweeney determined it was procedurally defaulted.
“There is no evidence that the Indiana Court of Appeals’ ruling was unexpected when it held that the only trial errors that can be raised in post-conviction proceedings are ineffective assistance claims or ‘’issues demonstrably unavailable at the time of trial or direct appeal,’’ … and that ‘Myers has made no attempt to establish that his claims … were demonstrably unavailable at trial or on direct appeal,’” Sweeney wrote. “Simply put, the Indiana Court of Appeals concluded that Mr. Myers did not attempt to make the required showing to demonstrate that this claim could proceed in a post-conviction proceeding.
“This Court does ‘not review the merits of the state court’s application of its own procedural rules,’ … and instead ‘ask[s] whether the rule invoked was firmly established and regularly followed,’” Sweeney continued. “… Mr. Myers has not shown that Indiana’s rules against petitioners bringing standalone claims on post-conviction review that were available on direct appeal was not firmly established or regularly followed. Absent such a showing, this Court cannot review the Indian Court of Appeals’ application of its procedural rule.
“Accordingly, because the Indiana Court of Appeals relied on an independent and adequate state law ground, this claim is procedurally defaulted.”
Turning next to Brady, Myers claimed “thousands of pages of reports from the FBI and Bloomington Police Department were not disclosed by the state, ‘[t]he bulk’ of which ‘contained details of the investigation against Owings, Sowders and Clouse, information which exculpates Mr. Myers.’”
But according to Sweeney, “During state post-conviction proceedings, Mr. Myers was not able to identify what, if any, materials had been suppressed.”
Further, “Even assuming that his trial counsel did not receive any of the 8,000 pages of documents from the FBI and BPD — that is, the evidence was suppressed — Mr. Myers failed to establish that the evidence was favorable or material because he failed to direct the state court to any specific piece of suppressed evidence that was both material and favorable.
“… Mr. Myers has not satisfied the requirements of (28 U.S.C.) § 2254(e)(2),” Sweeney wrote. “It is apparent from the briefing that the evidence he seeks to admit now was available through the exercise of due diligence at the time of his state post-conviction proceedings if not before.”
Finally, in denying a certificate of appealability, Sweeney held, “Jurists of reason would not disagree that Mr. Myers’ Giglio claim is procedurally defaulted, that the Indiana Court of Appeals’ denial of his Brady claim was not unreasonable, and that his remaining ineffective assistance of counsel claims were resolved by the Seventh Circuit Court of Appeals.”
The case is John Myers v. Superintendent, Indiana State Prison, 1:16-cv-02023.
Indiana Attorney General Todd Rokita, whose office argued against habeas relief for Myers, celebrated Sweeney’s ruling in a statement issued Thursday.
“The wheels of justice might turn slowly at times, but we take comfort in knowing we have achieved the proper outcome in this case,” Rokita said. “This vicious predator attacked and killed a young woman out innocently enjoying a bike ride, and Jill’s family since that time has endured a long and drawn-out investigatory and legal process. They will always mourn their loss, but we pray that God will grant them a measure of closure and peace.”
Myers is currently incarcerated at the Indiana State Prison in Michigan City, according to online records. His earliest possible release date is June 8, 2037.
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