Craig v. Young et al
Filing
14
OPINION AND ORDER granting 10 Motion to Dismiss. Signed by U.S. District Judge Charles B. Kornmann on 3/20/18. (SKK)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION
JERRY LEE CRAIG, SR.,
I:I7-CV-01016-CBK
Plaintiff,
vs.
OPINION AND ORDER
DARIN YOUNG, SOUTH DAKOTA
ATTORNEY GENERAL'S OFFICE,
Respondents.
INTRODUCTION
Jerry Lee Craig, Sr. filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 challenging his September 12, 2013, conviction and 150 year sentence for
rape, sexual contact with a minor, and aggravated incest. After conducting an initial
consideration of the petition I determined that he had raised claims under the Fifth, Sixth,
and Eighth Amendments to the United States Constitution and ordered the respondents to
file an answer or other responsive pleading. Respondents filed a motion to dismiss.
BACKGROUND
The victim of Craig's offenses, age nine at the time ofthe offenses, and her two
younger siblings lived with Craig and his wife in Aberdeen and Presho, South Dakota,
episodically when their mother was homeless or otherwise unable to care for them. In
May 2012, the children's mother picked up her children from Craig in Presho and drove
them,to Aberdeen. Craig contends in his papers filed in support of his petition that the
mother picked them up because she was concerned that Craig was trying to get custody
of the children. The victim testified at trial that her mother picked them up from Presho
because the.victim called her mother and reported that she was being touched by Craig.
The mother reported to the South Dakota Department of Social Services the next day
that, during the trip, the victim reported inappropriate sexual contact with Craig. Six
days after the initial disclosure, the victim was interviewed by Colleen Brazil ("Brazil")
from Child's Voice, a medical evaluation center that specializes in conducting forensic
interviews of children when there is suspected physical or sexual abuse. That interview
was recorded by video tape and the video tape became a part of the victim's medical
record at Child's Voice, along with the record ofthe medical checkup performed upon
the child after the interview.
Based upon the victim's allegations made during the interview with Brazil, Craig
was indicted in August 2012 and charged with first degree rape, sexual contact with a
child, and incest.' Brazil also interviewed the victim's younger brother six days after the
victim was interviewed. The victim's younger brother, age 8 at the time ofthe interview,
claimed Craig had physically abused him and had "raped" him but he could not explain
what,he meant by "rape." Brazil did not think his report of rape was reliable.. No sexual
abuse charges were ever filed as to that allegation.-
Craig was interviewed by an Aberdeen police officer. He denied the allegations
and claimed that the victim made the allegations in retaliation after being caught stealing
from Craig. Craig did admit that, on one occasion, he awoke and realized he was
touching the victim, mistakenly believing that he was touching his wife.
At trial, the victim, who was by then age 10, testified that Craig put his fingers
"down my pants and my underwear and he'd start touching my private parts," that Craig
touched her where her "poop comes out," that he stuck his tongue in her vagina, forced
her to touch his penis, that he kissed her chest and vagina, that he touched her vagina, and
that he touched her bare chest. She denied that he had penetrated her vagina with his
finger. The prosecutor did not ask the victim any questions as to date, place, number of
times, or any sensory questions. He told the jury in opening statements that he was going
^ Craig was originally charged with one count of first degree rape, three counts of sexual contact
with a child under the age of sixteen, and one count of aggravated incest. A second indictment
was filed in April 2013, charging Craig with three counts of first degree rape, three counts of
sexual contact with a child imder the age of sixteen, and one count of aggravated incest, all
involving the same victim.
to let the victim tell the details through the playing of the video recording of her interview
with Child's Voice. The admissibility of the video had already been settled at an
evidentiary hearing held prior to trial. Prior to cross examination of the victim, the video
of the victim's interview with Brazil was played to the jury. A compact disc containing
that interview was admitted into evidence but that exhibit is not part of the record and
there is no transcript of that interview in the record for this Court to review. Some of the
details that must have been given by the victim in the interview were referred to in the
examination of other witnesses and in closing arguments. Following the playing of the
victim's interview with Brazil, counsel for defendant then cross-examined the victim
about her testimony and about statements she made during the interview.
Brazil testified the day after the victim testified. The prosecution elicited
testimony about delayed disclosure of sexual abuse, interview protocol, specific questions
that an interviewer asks to determine what a child knows based upon personal experience
and what a child knows based upon being told by someone, children's conception of
dates and number of times an event occurs, and suggestibility. Brazil also testified that a
common reason for inconsistencies between a victim's testimony on the stand and
statements made during an interview is the phrasing of the question asked.
Defense sought, both prior to trial and at trial, to question Brazil about the victim's
brother's claims. Counsel for defendant argued that such questioning was necessary to
support the defense theory that the victim and her siblings were coached by their mother
to claim sexual abuse. The brother told Brazil that he had been "raped" but he could not
tell Brazil what he meant by rape. The trial court excluded the evidence on several
grounds including hearsay. The trial court ruled that the defense had failed to comply
with SDCL 19-16-38(now SDCL 19-19-806(1))(a South Dakota rule of evidence
allowing the admissibility of child hearsay statements regarding sexual abuse under
certain circumstances), by failing to give notice so that a hearing could be conducted at
which the statement must be shown to be reliable and the child must testify or be shown
to be unavailable. The trial court also excluded the proffered evidence based upon lack
of relevance, and under Rule 403,finding that any relevance was substantially
outweighed by confusion ofthe jury and the resulting trial within a trial.
The pediatrician who examined the victim following the forensic interview
testified that there were no physical findings consistent with abuse and that physical
findings were rare in sexually abused children who claim only touching occurred.
One of the investigating officers testified that, upon questioning Craig about the
victim's claims, Craig admitted that there had been an instance of accidental contact
when he thought he was touching his wife. During the testimony ofthe investigating
officers, counsel for Craig was able to elicit testimony that Craig denied sexually abusing
the victim, that Craig claimed that the sexual abuse allegations were made in retaliation
after Craig allegedly caught the victim's mother stealing from Craig, and that the victim
had been living with many different men during the time she lived with her mother.
Counsel elicited testimony that the victim's mother told law enforcement that she was
afraid Craig was trying to get custody of her children, that she first contacted social
services with a claim that Craig had spanked or otherwise physically abused the children,
and that a day or two later she made a report to social services of suspected sexual abuse.
Counsel's questions also elicited testimony that no investigation was ever made into
Craig's claims that the charges were retaliatory or that some other person may have been
the source of the victim's sexual knowledge.
Craig did not testify at trial." Following the presentation of the prosecution's case,
the defense rested without putting on any evidence. Outside the presence of the jury, the
trial judge asked Craig whether he had discussed his right to testify with counsel and
Craig stated that he had. The Court asked Craig whether he understood that it was his
decision whether or not to testify and Craig stated it was his own decision and that it was
his choice not to testify. Trial counsel thereafter made a record with the court reporter .
wherein Craig stated that he understood he had a right to testify or not and that he
understood the risks of both testifying and not testifying. Counsel stated "And the
decision that we made is that you would not be testifying in this case?' to which Craig
responded "That is right, I believe our case is made."
4
During deliberations, the jury requested an opportunity to again view portions of
the video recording ofthe victim's interview at Child's Voice. The trial court overruled
defense counsel's Confrontation Clause objection and allowed the jury to come into the .
courtroom and view the video. Only the judge, court reporter, and jury were present.
After resuming deliberations the jury sent a second request to view a portion of the video.
Without further consulting with counsel, the trial court again brought the jury into the
courtroom to view the requested portion. The parties were advised about the second
viewing prior to the jury returning to court with their verdicts.
Following conviction, Craig requested the court allow him to fire his court
appointed attorney and proceed pro se during the sentencing phase.' He was allowed to
do so after a hearing at which he was given the warning suggested by the United States
Supreme Court in Faretta v. California. 422 U.S. 806, 95 S.Ct. 2525,4 L.Ed.2d 562
(1975). Craig thereafter refused to cooperate with the presentence interview ,or with the
state law mandated psycho-sexual evaluation. An additional hearing was held at which
Craig was further warned of the perils of proceeding pro se at sentencing.
Based in part upon Craig's failure to accept responsibility for his actions, the trial
court sentenced him in July 2013, to three consecutive terms of50 years on each of three
counts ofrape and ten years each on three counts of sexual contact with a child and one
count of incest, those sentences to run concurrently with the 150 year total sentence on
the rape counts. The trial court held that the crimes were "severe" and that the
psychological effects on the victim would likely last for her lifetime. The trial court
placed emphasis on the fact that the child had been placed in petitioner's care "and
instead of protecting the victim, he took advantage of that fact and victimized her." The
trial court compared petitioner's case with the sentences imposed in other state cases.
Craig appealed to the South Dakota Supreme Court with the assistance of new
counsel. He contended on appeal that the trial court abused its discretion in restricting his
questioning of Brazil, that the trial court abused its discretion in allowing him to proceed
pro se at sentencing because he did not knowingly, intelligently, and voluntarily waive
his right to counsel,- that his sentence constitutes cruel and unusual punishment, and that
5
he received ineffective assistance of counsel. The South Dakota Supreme Court
^ affirmed. State v. Craig. 850 NW2d 828(SD 2014).
Craig argued on appeal that the trial court erred in disallowing his proffered
questioning of Brazil concerning the victim's brother's claim that he was "raped" by
Craig. Craig sought to elicit testimony that Brazil found such report to be "unreliable."
The South Dakota Supreme Court held that the testimony sought from Brazil as to the
victim's younger brother was not hearsay since it was offered to show that both the
victim and her brother were coached, not for the truth of what the child told Brazil (that
he was raped). Thus, any failure of counsel to timely raise a hearsay exception and
comply with SDCL 19-16-38 was irrelevant. Id. at 833-34. However, the Supreme Court
affirmed the trial court's exercise of its discretion in excluding the evidence based upon
Rule 403 because "whether one child made an allegation that was substantiated or not
does not prove or disprove that another child was or was not abused." State v. Craig, 850
NW2d at 834. The Supreme Court further noted that the proffered testimony would have
been improper in any case because Brazil would have been precluded from testifying as
to a witness' truthfulness. Id.
Craig argued on appeal that the trial court erred in allowing him to proceed
without counsel at sentencing. The South Dakota Supreme Court held that Craig had
voluntarily, knowingly, and intelligently waived his Sixth Amendment right to counsel
after having been provided the "five-factor warning" required by South Dakota Supreme.
Court precedent. State v. Craig. 850 NW2d at 835-36.
Craig argued on appeal that the trial court failed to comply with state law
sentencing requirements, including the requirement that a psycho-sexual assessment be
completed and that his sentence constitutes cruel and unusual punishment in violation of
the Eighth Amendment. The South Dakota Supreme Court held that any claim that the
trial court lacked adequate information required to sentence the defendant lacked merit
because Craig had refused to fully participate in the presentence investigation and
evaluation. Id. at 837. The Court further found that the trial court did have sufficient
information to determine that Craig had not accepted responsibility for his crime and that
6
his rehabilitation prospects were minimal. Id. Finally, the Court held that defendant's
sentence was not disproportional to his conduct in repeatedly sexually abusing a relative
child placed in his care, characterizing Craig's conduct as "heinous." Id.
Finally, Craig raised claims,that counsel was ineffective for failing to subpoena
the victim's brother and mother (in order to support his claim that the brother lied about
and was coached about sexual abuse) and for failing to present evidence attacking the
victim's identification of Craig's penis, Apparently one ofthe details testified to by the
;
!
victim by way of the playing ofthe video recording of the interview was the victim's
description ofthe defendant's penis as circular and long and having a point that would
stick out at the tip. Following conviction and throughout all post-conviction proceedings,
Craig has asserted that counsel was ineffective in failing to present evidence that Craig's
penis was circumcised and did not match the description given by the victim. He has
suggested that his wife should have been called to testify to that fact.^ The South Dakota
Supreme Court held on direct appeal that such claims were not ripe for review. Id. at
839.
Craig filed an application for a writ of habeas corpus pursuant to SDCL 21-27 in
June 2015. He raised only claims of ineffective assistance of counsel. The state court
appointed counsel and an evMentiary hearing was held. The state court found that all
decisions regarding the case were made after conferring with Craig, that counsel's
decisions were reasonable trial strategy, that counsel was not deficient, and that Craig
was not prejudiced by any decision made by trial counsel. The petition was denied. Both
. the habeas court and the South Dakota Supreme Court denied a certificate of probable
cause. Craig thereafter filed the within petition for a writ of habeas corpus pursuant to 18
U.S.C. § 2254.
^ Following the conclusion of his state court habeas case, Craig went so far as to submit a letter
from a fellow inmate,and sex offender at the South Dakota State Penitentiary, who described
himself as an expert in identifying child predators, describing Craig's penis as small and non
existent and stating in his expert opinion that Craig is actually innocent.
7
DECISION
I. STATE LAW CLAIMS.
The federal district courts !'shall entertain an application for a writ of habeas
corpus in behalf of a person in custody pursuant to the judgment of a State court 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. The United States Supreme Court has "repeatedly
held that 'federal habeas corpus relief does not lie for errors of state law.'" Wilson v.
Corcoran, 562 U.S. 1,5, 131 S. Ct. 13, 16, 178 L. Ed. 2d 276(2010)
Estelle v.
McGuire, 502 U.S. 62, 67, 112 S.Ct. 475,479, 116 L.Ed.2d 385 (1991){quoting in turn
Lewis V. Jeffers. 497 U.S. 764, 780, 110 S.Ct. 3092, 3102, 111 L.Ed.2d 606 (1990))).
Petitioner contends that the prosecutor improperly subpoenaed petitioner's wife as
a witness at petitioner's trial. As a possible witness, she was subject to the trial court's
sequestration order. She was not actually called as a witness at the trial. Petitioner
contends that the prosecutor's action in subpoenaing his wife as a witness deprived him
of the ability to show the jury that she was supportive of him by having her sit in the
courtroom. He claims that her absence from the courtroom violated his spousal privilege.
Petitioner has not raised a cognizable federal habeas claim as to the state trial court's
sequestration order.
In any event, petitioner contends that it was his understanding and intent that his
attorney was going to call his wife as a witness. She would have been sequestered based
upon being on petitioner's witness list notwithstanding whether the prosecution had
subpoenaed her.
Petitioner also contends that the trial cpurtjudge should have recused based upon
a conflict of interest. Petitioner alleges that the trial judge presided over an abuse and
neglect proceeding involving the victim in his criminal case. This claim likewise raises
no federal constitutional claim cognizable in a federal habeas case.
Petitioner contends that he was sentenced in violation of a state law.that requires
the completion of a psycho-sexual evaluation prior to sentencing. This claim is not
cognizable in a federal habeas proceeding. In any event, the state court files show that
petitioner refused to cooperate in the psycho-sexual evaluation. He cannot claim the trial
court erred in sentencing him without a complete evaluation when his actions are the
reason the evaluation was not complete. See State v. Craig, 850 NW2d at 837("Craig's
argument that the evaluation lacked necessary information is without merit").
11. FIFTH AMENDMENT CLAIM
Petitioner contends that the admission of his statement to investigators that he had
what he characterized as "innocent contact" with the victim violated his Fifth
Amendment rights. He contends that, at the time he made the statement, he was in a
sheriffs office and that he asked for counsel at that time.
Petitioner's Fifth Amendment claim is procedurally defaulted. He neither raised it
before the trial court, the South Dakota Supreme Court, nor the state habeas court. The
United Sates Supreme Court has "long and consistently affirmed that a collateral
challenge may not do service for an appeal." United States v. Fradv. 456 U.S. 152, 165,
102 S. Ct. 1584, 1593, 71 L. Ed. 2d 816 (1982). "The doctrine of procedural default
prevents criminal defendants from reviving forfeited claims without a showing of cause
and prejudice in order to 'conserve judicial resources and to respect the law's important
interest in the finality ofjudgments.'" Baraias v. United States. 877 F.3d 378,383 (8th
Cir. 2017)(duotins Massaro v. United States. 538 U.S. 500, 504, 123 S.Ct. 1690, 155
L.Ed.2d 714 (2003)). "Habeas review is an extraordinary remedy and 'will not be
allowed to do service for an appeal.'" Bouslev v. United States. 523 U.S. 614, 621, 118
S. Ct. 1604, 1610,140 L. Ed. 2d 828 (1998)(auotins KQed y. Farlev. 512 U.S. 339, 354,
114 S.Ct. 2291,2300, 129 L.Ed.2d 277(1994) and Sunal v. Large. 332 U.S. 174, 178,67
S.Ct. 1588, 1590-1591, 91 L.Ed. 1982(1947)).
"The procedural-default rule is neither a statutory nor a constitutional requirement,
but it is a doctrine adhered to by the courts to conserve judicial resources and to respect
the law's important interest in the finality ofjudgments." Massaro v. United States. 538
U.S. at 504, 123 S.Ct. 1690.
Though petitioners seeking habeas relief must fairly present the
substance of their claims to the state court to avoid defaulting them.
a showing of cause and prejudice can excuse a procedural default
and open the door to our review. Cause typically turns on whether
some objective circumstance external to the defense impeded
counsel from raising the claim.
Kennell v. Dormire, 873 F.3d 637,640(8th Cir. 2017)(internal citations omitted).
Petitioner did not set forth any cause for failure to raise the issue before the state courts.
III. EIGHTH AMENDMENT CLAIM.
Petitioner contends that his sentence of 150 years for a first offense sex crime
violates the Eighth Amendment. Petitioner was convicted of three offenses each having a
mandatory minimum sentence of 15 years and a maximum sentence of life imprisonment.
The trial court sentenced petitioner to 50 years on each count, to run consecutively to
each other. The sentences for four other crimes were imposed to run concurrently.
The United States Supreme Court has held that the "Eighth Amendment, which
forbids cruel and unusual punishments, contains a 'narrow proportionality principle' that
'applies to noncapital sentences.'" Ewing v. California. 538 U.S. 11, 20, 123 S. Ct. 1179,
1185, 155 L. Ed. 2d 108 (2003) fauoting Harmelin v. Michigan. 501 U.S. 957, 996-997,
111 S.Ct. 2680, 115L.Ed.2d836 (1991)). See also, Solem v. Helm.463 U.S. 111. 284.
103 S.Ct. 3001, 3006, 77 L.Ed.2d 637(1983)(the Amendment "prohibits not only
barbaric punishments, but also sentences that are disproportionate to the crime
committed"). "It is exceedingly rare for an offense that does not have a capital sentence
to violate the Eighth Amendment." United States v. Wiest. 596 F.3d 906,911 (8th Cir.
2010).
Petitioner claims his sentence violates the Eighth Amendment because his crime
was a first offense. Petitioner was not sentenced based upon one offense but based upon
a course of conduct. His sentence was also based upon his failure to accept any
responsibility for his crimes and the resulting limited prospect of rehabilitation.
Petitioner was of course not required to admit his guilt at sentencing if he intended to
appeal his sentence. Maintaining one's innocence comes at a price, however, as he was
not entitled to any leniency accorded those who are remorseful for their offenses.
10
Petitioner could have received a life sentence without parole for merely one count
of rape of a child. Instead, he received a sentence of a term of years for all his conduct.
His sentences are the functional equivalent of a life sentence because he will not be.
parole eligible until he serves 65% ofthe first 50 year sentence and 75% of the remaining
sentences. However, his sentence is not grossly disproportionate to the crimes committed
and this is not one of those exceedingly rare circumstances where there is a violation of
the Eighth Amendment.
II. INEFFECTIVE ASSISTANCE OF COUNSEL.
Petitioner contends that he received ineffective assistance of counsel during his
state court trial proceedings. To support a claim of ineffective assistance of counsel, a
two prong test must be met. "To succeed on this claim,[petitioner] must show
ineffective assistance—that counsel's representation fell below an objective standard of
reasonableness." Wilcox v. Hopkins. 249 F.3d 720. 722 (8th Cir. 2001)(auotins Hill v.
Lockhart. 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). Petitioner."must also
prove prejudice by demonstrating that absent counsel's errors there is a reasonable
probability that the result of the proceeding would have been different." Delgado v.
United States. 162 F.3d 981, 982(8th Cir. 1998),(citins Strickland v. Washington. 466
U.S. 668,694, 104 S. Ct. 2052, 2068,80 L. Ed. 2d (1984)). The burden of establishing
ineffective assistance of counsel is on the petitioner. Delgado v. United States. 162 F.3d
at 982. Petitioner "'faces a heavy burden' to establish ineffective assistance of counsel."
DeRoo V. United States. 223 F.3d 919, 925 (8th Cir. 2000)(quotim United States v.
Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996)), "The Sixth Amendment guarantees
reasonable competence, not perfect advocacy judged with the benefit of hindsight."
Yarboroughv. Gentry. 540 U.S. 1, 8, 124 S. Ct. 1, 6, 157 L. Ed. 2d 1 (2003).
The law applicable to habeas claims under 28 U.S.C. § 2254 is well known. The
United States Court of Appeals for the Eighth Circuit has instructed:
The first filter through which we evaluate claims of ineffective
assistance of counsel is Strickland v. Washington, 466 U.S. 668, 687,
104 S.Ct. 2052, 80 L.Ed.2d 674(1984). Under Strickland, the
11
petitioner must show first, "that counsel's performance was
deficient," and second,"that the deficient performance prejudiced
the defense," in order to establish that counsel was ineffective. Id at
687, 104 S.Ct. 2052. Because both prongs must be met for the
petitioner to succeed,"a court need not determine whether counsel's
performance was deficient before examining the prejudice suffered
by the defendant as a result of the alleged deficiencies." Id. at 697,
104 S.Ct. 2052. The prejudice prong olStrickland is only met where
there is "a reasonable probability that, but for counsel's
unprofessional errors, the result ofthe proceeding would have been
different." Id. at 694, 104 S.Ct. 2052. For there to be a reasonable
probability that the result would have been different,"[i]t is not
enough 'to show that the errors had some conceivable effect on the
outcome of the proceeding.'" Harrington v. Richter, 562
^6,
104,131 S.Ct. 770, 178 L.Ed.2d 624(2011)(citing Strickland, 466
U.S. at 693, 104 S.Ct. 2052). "A reasonable probability is a
probability sufficient to undermine confidence in the outcome."
Strickland, 466 U.S. at 694, 104 S.Ct. 2052.
We then review the state court's application ofStrickland under the
Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C.
§ 2254(d), which requires us to defer to the state court's application
ofStrickland to the facts ofthe case. See Bell v. Cone, 535 U.S. 685,
698-99, 122 S.Ct. 1843,152 L.Ed.2d 914(2002); § 2254(d). Thus,
we must affirm unless we find that the state reached "a decision that
was.contrary to or ...[under] an unreasonable application of, clearly
established Federal law" or "based on an unreasonable determination
offacts," § 2254(d), when it decided that there was not "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, 104 S.Ct. 2052. Under § 2254(d), the "pivotal question is
whether the state court's application ofthe Strickland standard was
unreasonable." Harrington, 562 U.S. at 101, 131 S.Ct. 770. Thus,if
fairminded jurists could agree with the state court's decision
regarding prejudice, we must affirm. Id.(citing Yarborough v.
Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938
(2004)). "It bears repeating that even a strong case for relief does
not mean the state court's contrary conclusion was
unreasonable." Id. at 102, 131 S.Ct. 770 (citing Lockyer v. Andrade,
538 U.S. 63, 71, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)).
Tavlorv. Kellev. 825 F.3d 466,469-70(8th Cir. 2016).
12
Under Strickland, the "defendant must show that there is a
reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome." Strickland, 466 U.S. at 694, 104 S.Ct. 2052. The question
for this court is not whether "The state court's determination' under
the Strickland standard 'was incorrect but whether that
determination was unreasonable—a substantially higher
standard.'" Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S.Ct.
1411, 173 L.Ed.2d 251 (2009), quoting Schriro v. Landrigan, 550
U.S. 465, 473,127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). A state
court "has even more latitude to reasonably determine that a
defendant has not satisfied that standard." Knowles, 556 U.S. at 1.23,
129 S.Ct. 1411.
White V. Kellev. 824 F.3d 753, 756-57(8th Cir. 2016).
Petitioner contends that counsel was ineffective in failing to object to the state trial
court's conflict of interest. Petitioner contends that the trial court's bias resulted in the
exclusion of evidence that the victim's brother made a non-credible sexual abuse claim
which would have bolstered his defense that the children had been coached by their
mother. He contends that he should also have been allowed to tell the jury that the
children were removed from the custody of their mother and present evidence of the
condition of the mother's home. He also contends the trial court's bias resulted in the
admission of evidence of his statement to law enforcement. Finally he claims that the
trial court's bias resulted in his being sentenced to cruel and unusual punishment when
"no evidence exists that proves a crime had even been committed."
Petitioner contends that counsel was ineffective in failing to object to the
sequestration of his wife during the trial, in failing to object to the reading of the
indictment during the trial, and in failing to object to the prosecution's use of his "mug
shot" during closing statements. He contends that there was clear evidence, based upon
the foregoing, that counsel colluded with the prosecutor. He claims that the prosecutor
tampered with thejury by going into the jury room during deliberations.
The state habeas court held an evidentiary hearing at which trial counsel and the
investigator hired by trial counsel to investigate the charges against petitioner testified.
13
The petitioner's wife and son also testified. The state habeas judge found that petitioner
was attempting to "retry" the case rather than present evidence of alleged attorney
malfeasance.
The state court habeas judge applied the test set forth in Strickland v. Washington.
The court concluded that all decisions made by trial counsel were made after conferring
with petitioner and were part of reasonable trial strategy. The court held that counsel was
not deficient in his performance of investigating and litigating the case. The court further
found that petitioner was not prejudiced by any decision made by trial counsel.
Therefore, the petition for a writ of habeas corpus was denied.
The state habeas court's decision was not based upon an unreasonable
determination of facts nor was it contrary to or an unreasonable application of clearly
established law.
Petitioner has, throughout his state and federal post-conviction filings, asserted
that he was convicted without proof that he sexually abused the victim. The victim
testified that petitioner sexually abused her on more than one occasion, in more than one
place, and in more than one particular manner. Such testimony is sufficient to support a
conviction. He contends that the trial court's evidentiary rulings were based upon the
court's conflict of interest. However, none ofthe evidentiary rulings have been shown to
be contrary to law. I have routinely excluded evidence that some other child was not
sexually abused by the defendant on the same basis that the state court excluded such
proffered evidence -lack ofrelevance and confusion ofthe issues. Finally, petitioner
contends that counsel failed to object to routine matters as to the presentation of evidence
and the conduct of the trial. Witnesses on both sides are routinely sequestered and, at
least until the prosecution rested, petitioner intended to have counsel call his wife as a
witness. Indictments containing the charges are routinely read to the jury. Counsel
routinely use photos or other evidence during closing arguments. None of petitioner's'
claims resulted in a probability that the result of the proceeding would have been
different." See Delgado v. United States, supra.
14
Based upon the foregoing,
IT IS ORDERED that the motion, Doc, 10, to dismiss is granted and the petition
for a writ of habeas corpus is denied.
DATED thi^^2^^ay of March,2018.
BY THE COURT:
CHARLES B. KORNMANN
United States District Judge
15
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