Tommy Ford v. Bill Wilson, 2014 U.S. App. LEXIS 8429

Ford challenges a murder conviction in Indiana state court via a 28 U.S.C. § 2254 habeas petition, arguing ineffective assistance of trial counsel for failing to object to prosecutor comments on his failure to testify, claiming Fifth Amendment violation.
Indiana Court of Appeals analyzed the claim under Doyle and held the prosecutor’s references to silence in response to a defense theory did not violate Doyle, allowing the comment to stand.
At Ford’s second trial, witness availability and hearsay issues arose; Simmons was unavailable, leading to attempts to admit prior testimony and the State’s use of Quasney’s testimony recounting Simmons’s statements; excited utterance rule applied to a different related statement.
Evidence at trial included Ford’s alleged motive (statements to Grace), his leaving the house after a warning, a sister of a witness testifying to seeing Ford with a gun, and a cellmate’s testimony that Ford confessed to the shooting.
Ford’s first trial ended with a hung jury; Robinson testified in the first trial but was unavailable in the second, with prior testimony read to the jury in the latter.
The district court dismissed the petition; the Seventh Circuit granted a certificate of appealability and later reviewed de novo under AEDPA because the state court misapplied Doyle.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether prosecutor comments on silence violated Fifth Amendment	Ford argues comments violated Fifth Amendment privilege against self-incrimination	State contends Doyle permits such comments if not used to show guilt	No prejudice; habitually allowed if not used as guilt cue

Griffin v. California, 380 U.S. 609 (1965) (prosecution cannot comment on a defendant’s silence to imply guilt)
United States v. Robinson, 485 U.S. 25 (1988) (prosecutor may respond to defense without violating Fifth Amendment)
Doyle v. Ohio, 426 U.S. 610 (1976) (due process prohibits using arrested/silenced statements to impeach later testimony)
Wainwright v. Greenfield, 474 U.S. 284 (1986) (due process limits post-arrest silence used to rebut defense)
Greer v. Miller, 483 U.S. 756 (1987) (due process concerns depend on how silence is presented to jurors)
Chapman v. California, 386 U.S. 18 (1967) (harmless-error standard applies on direct appeal for constitutional error)
Morales v. Johnson, 659 F.3d 588 (7th Cir. 2011) (Strickland prejudice analysis governs habeas review of trial counsel errors)
Lindgren v. Lane, 925 F.2d 202 (7th Cir. 1991) (context on Doyle and how it should be applied)
Turner v. State, 953 N.E.2d 1039 (Ind. 2011) (relevance of motive in proving guilt)
House v. Bell, 547 U.S. 518 (2006) (motive and identity considerations in criminal prosecutions)