Opinion
Case No. 99-CV-71560-DT
May 18, 2000
OPINION
Petitioner Kenneth Wynieniko, a state prisoner currently confined at the Ryan Correctional Facility in Detroit, Michigan, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his 1994 state court convictions for one count of breaking and entering, one count of armed robbery, and fifteen counts of first-degree criminal sexual conduct. In his petition, petitioner asserts several grounds for ineffective assistance of counsel. For the following reasons, the petition for a writ of habeas corpus shall be denied.
Background
On July 14, 1994, petitioner was arrested in Clinton Township, Michigan, for misdemeanor stalking of his ex-girlfriend, Cathy Witcher. While being held on the stalking charge, petitioner was informed by the police that he resembled a composite drawing of the person suspected of robbing and raping Diane Klug on April 30, 1994. Petitioner, as a suspect of the April 30, 1994 robbery/rape was placed in a line-up and identified by Ms. Klug as her assailant. Despite Ms. Klug's identification, petitioner was released and allowed to return home. Petitioner, however, was arrested on a robbery/rape charge the next day.
On October 25, 1994, the day petitioner's trial was scheduled to begin, petitioner complained to the trial judge that his court appointed counsel, Laurence Peppler, was not effectively pursuing his case and was unprepared to defend petitioner. The trial judge allowed attorney Peppler to withdraw and appointed attorney Albert Markowski as petitioner's new counsel. Six days later, on October 31, 1994, petitioner's trial commenced.
Petitioner contends that attorney Markowski began representing him on the day of trial, October 31, 1994, and apparently had only the Saturday and Sunday prior to the start of trial to prepare. (Pet'r Br. at 11).
At trial, petitioner was convicted by a jury on one count of breaking and entering, one count of armed robbery, and fifteen counts of first-degree criminal sexual conduct. Petitioner was sentenced to ten to fifteen years imprisonment on the breaking and entering conviction, fifteen to twenty-five years imprisonment on the armed robbery conviction, and forty to sixty years imprisonment on each criminal sexual conduct conviction, to be served concurrently. Petitioner appealed his convictions asserting, inter alia, ineffective assistance of counsel. The Michigan Court of Appeals affirmed petitioner's convictions in an unpublished per curiam opinion. See People v. Wyniemko, No. 183157 (Mich.Ct.App. Mar. 7, 1997). Petitioner's application for leave to appeal to the Michigan Supreme Court was denied. See People v. Wyniemko, 457 Mich. 857 (1998).
Petitioner did not include an ineffective assistance of counsel claim in his original appeal; however, petitioner's substitute appellate counsel did raise it in a supplemental brief to the court of appeals.
Petitioner also filed a motion to remand the case to the trial court for an evidentiary hearing regarding his ineffective assistance of counsel claim, which was denied on procedural grounds. People v. Wyniemko, No. 183157 (Mich.Ct.App. Aug. 27, 1996).
On April 2, 1999, petitioner filed a petition for a writ of habeas corpus with this Court, asserting claims of ineffective assistance of trial and appellate counsel. On October 1, 1999, respondent filed an answer to the petition, contending that the petition should be dismissed for failure to exhaust state court remedies as to the ineffective assistance of appellate counsel claim. On November 1, 1999, the parties stipulated to the dismissal, without prejudice, of petitioner's unexhausted claim of ineffective assistance of appellate counsel. Thereafter, respondent filed a second answer to the petition on December 10, 1999, asserting that petitioner's ineffective assistance of trial counsel claim should be dismissed for lack of merit.
Standard of Review
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), govern this case because petitioner filed his habeas petition after the AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct. 2059, 2068, 138 L.Ed.2d 481 (1997). The AEDPA provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254 (d).
In Williams v. Taylor, ___ U.S. ___, 120 S.Ct. 1495, ___ L.Ed.2d ___ (2000), the Supreme Court undertook a detailed analysis of the correct standard of review under the AEDPA. According to the Supreme Court:
Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied — the state-court adjudication resulted in a decision that (1) "was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Id. at 1523 (O'Connor, J., delivering the opinion of the Court with respect to this issue).
In evaluating a state court decision under the "unreasonable application" clause, the Supreme Court further stated that a federal habeas court "should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 1522. "Under § 2254(d)(1)'s `unreasonable application' clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id.
The Supreme Court also solidified that the phrase "clearly established Federal law, as determined by the Supreme Court of the United States," refers only to "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Id. at 1523. Therefore, in determining what constitutes clearly established federal law, a federal habeas court is restricted to pertinent United States Supreme Court precedent.
Discussion
Petitioner asserts that trial counsel was ineffective because he failed to (1) participate in an impromptu meeting between the police, the prosecutor, and the victim, Ms. Klug, which took place during his line-up, (2) adequately prepare for trial, (3) sufficiently cross-examine a witness, (4) call two alibi witnesses, (5) object to the admission of certain evidence, (6) sufficiently cross-examine the victim, (8) request DNA testing of semen found on the victim's bed, and (7) request an alibi instruction. (Pet'r Br. at 3-10).
In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court established a two-prong test for evaluating ineffective assistance of counsel claims. First, petitioner must prove that counsel's performance was deficient. This requires a showing that "counsel made errors so serious that he was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S. Ct at 2064. To prove deficient performance, petitioner must identify acts that were "outside the wide range of professionally competent assistance." Id. at 690, 104 S.Ct. at 2066. The reviewing court's scrutiny of counsel's performance is highly deferential. Id. at 689, 104 S.Ct. at 2065. Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. at 689-90, 104 S.Ct. at 2064-65.
Second, petitioner must establish that counsel's deficient performance prejudiced his defense. Id. at 687, 104 S.Ct. at 2064. This requires a showing "that counsel's errors were so serious as to deprive the defendant of a fair trial." Id. To prove prejudice, 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. at 694, 104 S.Ct. at 2068. "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the [proceeding] cannot be relied on as having produced a just result." Id. at 686, 104 S.Ct. at 2064.
1. Counsel's Representation During Pre-Charge Line-Up
Petitioner first argues that counsel's performance during petitioner's pre-charge line-up was ineffective because counsel failed to participate in a discussion between the victim, a police officer, and the prosecutor, during the line-up proceedings. (Pet'r Br. at 3). According to petitioner, Ms. Klug left the room prior to making an identification, spoke to a police officer and the prosecutor, and then returned to the room and identified petitioner as her assailant. (Pet'r Br. at 3-4).
In this case, petitioner is challenging conduct that took place prior to his formally being charged with the underlying offense. There is no sixth Amendment right to counsel at pre-charge line-ups. See United States v. Powell, 853 F.2d 601 (8th Cir. 1988). "Only those identification confrontations which occur after the defendant has been formally charged with the offense for which identification testimony is sought require presence of counsel." Id. at 604. See also United States v. Moody, 206 F.3d 609, 612-16 (6th Cir. 2000) (discussing point at which Sixth Amendment right to counsel attaches and holding that Sixth Amendment right to counsel does not attach to preindictment plea negotiations). Because there is no constitutional right to counsel during a pre-charge line-up, a habeas petitioner cannot rely upon a claim of ineffective assistance of counsel during such proceedings to establish entitlement to habeas relief. See Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 2566, 115 L.Ed.2d 60 (1991); Ritchie v. Eberhart, 11 F.3d 587, 591-92 (6th Cir. 1993), cert. denied, 510 U.S. 1135, 114 S.Ct. 1111, 127 L.Ed.2d 422 (1994). Accordingly, petitioner's first argument is rejected.
2. Counsel's Trial Preparation
Petitioner next argues that he was denied the effective assistance of counsel because his original trial counsel, Laurence Peppler, failed to properly prepare for trial. Petitioner relatedly asserts that substitute counsel, Albert Markowski, who was appointed one week prior to trial, did not have sufficient time to prepare for trial. (Pet'r Br. at 4).
Petitioner bears the burden of alleging and establishing the violation of a federal constitutional right. Scruggs v. Williams, 903 F.2d 1430, 1435 (11th Cir. 1990). Conclusory allegations of ineffective assistance of counsel, without explanation or factual support, are insufficient to establish a constitutional issue. See Green v. Johnson, 160 F.3d 1029, 1042 (5th Cir. 1998), cert. denied, 119 S.Ct. 1107, 143 L.Ed.2d 106 (1999); Prewitt v. United States, 83 F.3d 812, 819-20 (7th Cir. 1996); James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994).
Petitioner's conclusory allegations that original counsel failed to properly prepare for trial and that substitute counsel had insufficient time to prepare for trial are insufficient to support a claim of ineffective assistance of counsel. Petitioner fails to specify how his original trial counsel's performance was deficient, as well as how counsel's alleged deficient performance prejudiced his defense. Furthermore, given the fact that petitioner's original trial counsel did not try the case, the Court is convinced that even if petitioner had properly alleged that counsel's performance was deficient, petitioner would be unable to prove prejudice.
In addition, petitioner fails to explain how substitute counsel was unprepared for trial, or what further preparation substitute counsel should have performed if given additional time. Petitioner relies solely upon the fact that substitute counsel had only the Saturday and Sunday prior to trial to prepare. (Pet'r Br. at 19). Petitioner, however, has offered no evidence to prove that counsel could not adequately prepare for trial in that time period. Conclusory allegations of misconduct, without adequate evidentiary support, do not provide a basis for habeas relief. Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998), cert. denied 120 S.Ct. 264, 145 L.Ed.2d 221 (1999). Accordingly, petitioner's second argument is also rejected.
3. Counsel's Cross-Examination of Petitioner's Ex-Girlfriend
Petitioner next contends that trial counsel was ineffective for failing to sufficiently cross-examine petitioner's ex-girlfriend, Cathy Witcher, regarding petitioner's sexual preferences. (Pet'r Br. at 4). The Court, however, is satisfied that trial counsel adequately cross-examined Witcher regarding her sexual relationship with petitioner. Trial counsel cross-examined Witcher regarding petitioner's dialogue during sex, his sexual preferences, and the specific sexual acts in which they engaged. (11/3/94 Trial Tr. at 36-38). In addition, counsel elicited testimony from Witcher that distinguished some of petitioner's sexual acts from those perpetrated by Ms. Klug's assailant. ( Id. at 38). This Court concludes that trial counsel's cross-examination of Witcher fell within the wide range of reasonably competent assistance and, therefore, petitioner is not entitled to relief on this claim.
The Michigan Court of Appeals, addressing only petitioner's argument that trial counsel was ineffective for failing to properly cross-examine Witcher regarding the time that petitioner returned home on the night of the assault, found counsel's questioning to be a matter of trial strategy and therefore, not ineffective. People v. Wyniemko, No. 183157 at 3.
Petitioner also contends that he "was not allowed by trial counsel to vigorously deny [Witcher's] allegations." (Pet'r Br. at 19-20). Defendant, however, did testify at trial. (11/7/94 Trial Tr. at 3-28). Furthermore, counsel specifically questioned petitioner regarding his relationship with Witcher, how he would describe his sexual relations with Witcher, and his pet name for Witcher, which Witcher had also testified to. ( Id. at 3-9). Petitioner also testified to the fact that after his relationship with Witcher had ended, she told him that "she was going to ruin [him]." ( Id. at 16).
Matters of trial strategy, such as determinations regarding which witnesses to present and what questions to ask, are presumed correct and are generally not evaluated in hindsight or second-guessed upon habeas review. McQueen v. Scroggy, 99 F.3d 1302, 1311 (6th Cir. 1996), cert. denied, 520 U.S. 1257, 117 S.Ct. 2422, 138 L.Ed.2d 185 (1997). Instead, matters of trial strategy are evaluated within the circumstances at the time of the alleged error. Id. The Court is satisfied that, after reviewing both petitioner's and Witcher's testimony, counsel's performance was not deficient. Counsel elicited testimony from Witcher that distinguished some of petitioner's sexual acts from those of Ms. Klug's assailant. Furthermore, in what appears to be an attempt to attack the credibility of Witcher's testimony, counsel elicited from petitioner that his sexual relations with Witcher were "very consensual," and that after petitioner and Witcher's relationship ended, Witcher exhibited great animus toward petitioner. The Court cannot say that counsel's decision to attack the credibility of Witcher's testimony in this manner, instead of allowing petitioner to "vigorously deny the allegations," fell "outside the wide range of professionally competent assistance." Accordingly, defendant's third argument is also rejected.
4. Counsel's Choice of Witnesses
Petitioner next contends that trial counsel was ineffective for failing to call two of petitioner's ex-girlfriends, Kelly Leader and Elaine Stobal, to testify at trial. (Pet'r Br. at 20). Petitioner asserts that these witnesses would have testified that he did not engage in sexual practices similar to those engaged in by Ms. Klug's assailant. ( Id.). Petitioner, however, has submitted no statements by these witnesses that would support his claim. Furthermore, given the evidence presented against petitioner, the Court is not convinced that there is a reasonable probability that the result of the proceeding would have been different had these witnesses testified.
As previously stated, matters of trial strategy, such as determinations regarding which witnesses to present at trial, are presumed correct and are generally not evaluated in hindsight or second-guessed upon habeas review. McQueen, 99 F.3d at 1311. Instead, matters of trial strategy are evaluated within the circumstances at the time of the alleged error. Id. Both Ms. Leader and Ms. Stobal were listed as prosecution witnesses. Therefore, counsel may have reasonably decided not to call them as defense witnesses due to concerns that they would testify in an unfavorable manner. Trial counsel may also have reasonably determined that additional testimony regarding petitioner's sex life would have been unproductive or harmful to petitioner's defense.
Petitioner asserts that because trial counsel did not call Ms. Stobal or Ms. Leader, "the testimony of Cathy Witcher was obviously taken as true by the jury." (Pet'r Br. at 20). The Court, however, is not convinced that testimony regarding petitioner's sexual practices with Ms. Leader or Ms. Stobal would have necessarily negated or discredited Ms. Witcher's testimony regarding her sexual relationship with petitioner. This Court therefore concludes that petitioner has not overcome the strong presumption that counsel's trial strategy, i.e., counsel's decision not to call Ms. Leader or Ms. Stobal, was reasonable. Accordingly, petitioner is not entitled to habeas relief on this claim.
5. Counsel's Failure to Object to Admission of Certain Evidence
Petitioner next asserts that trial counsel was ineffective for failing to object to the admission of a cocaine sniffer recovered from the search of petitioner's home. The Michigan Court of Appeals found that petitioner was not prejudiced by counsel's failure to object, stating that there was other substantial evidence against petitioner. Wyniemko, No. 183157 at 3. This Court cannot say that the court of appeals's application of the Strickland standard was objectively unreasonable. Accordingly, petitioner's argument fails.
6. Counsel's Cross-Examination of Victim
Petitioner also argues that trial counsel was ineffective for failing to properly cross-examine the victim regarding variations in her original description of the assailant and her description at trial, as well as variations between the victim's description of her assailant and petitioner's physical characteristics. At trial, Ms. Klug estimated that her assailant was approximately six feet tall and weighed 200 pounds. (11/2/94 PM Trial Tr. at 21). According to petitioner, Ms. Klug's police statements described her assailant as being six feet to six feet-two inches tall, weighing 200 to 225 pounds, and ranging from 30 to 35 years old. (Def.'s Mot. to Remand at 8-9). The Court, however, does not find that trial counsel was deficient for electing not to cross-examine the victim regarding such slight variations.
Petitioner also asserts that counsel was ineffective for failing to properly cross-examine the victim regarding variations in her original physical description of the assailant and petitioner's physical characteristics. Petitioner asserts that the victim "originally told police officers that her assailant was as tall as 6'2", weighing up to 230 lbs, with a cleft chin, beer belly, no body hair and no scars." (Pet. Br. at 5). Petitioner describes himself as "smaller, lighter, without a belly, with hair and with a noticeable knee scar." ( Id.). Petitioner also asserts that he is only 5'11" tall, weighs 198 pounds, and was forty-three years old at the time of trial. (Pet'r Mot. to Remand at 8-9). Again, the Court does not find that counsel was deficient for electing not cross-examine the victim regarding such discrepancies.
Furthermore, trial counsel extensively cross-examined Ms. Klug on factors that affected her ability to identify her assailant, including the time of night, the darkness in her house, the fact that her assailant was wearing a mask, that she was blindfolded and facing away from her assailant during most of the assault, and the trauma of the event. (11/2/94 PM Trial Tr. at 58-78, 82-83). It was reasonable for trial counsel to focus upon whether Ms. Klug was able to sufficiently view her assailant in order to identify him with any degree of certainty, rather than the slight variations in her identifications. Trial counsel also extensively challenged Ms. Klug's identification during closing arguments. (11/7/94 Trial Tr. at 54-58). The Court does not find that counsel's cross-examination of the victim was deficient. Therefore, petitioner is not entitled to relief on this claim.
7. Counsel's Failure to Request Blood Type or DNA Testing
Petitioner further asserts that trial counsel was ineffective for failing to seek blood type or DNA testing of semen found on the victim's bed sheets. According to petitioner:
The investigating police officers found semen on the sheets of complainant's bed. The semen was not typed by blood type or DNA. The complainant was married and did have recent sexual relations with her husband in that bed. Defense counsel did not insist on typing the semen and obtaining blood type or DNA from [p]etitioner or the husband. Naturally, if neither matched the semen, it would eliminate [p]etitioner as the perpetrator.
Similarly, in his brief, petitioner asserts that "[t]he semen was never subjected to identification technique." (Pet'r Br. at 21).
(Pet. at 6).
Petitioner's contention, however, is without merit. Although no DNA testing was performed, the serological expert testified that he obtained "whole blood" samples from petitioner, the victim, and the victim's husband and that both petitioner and the victim were blood type O, and that the victim's husband was blood type A. (11/4/94 Trial Tr. at 11). When the expert analyzed the semen stains, he found blood type A. ( Id. at 12). Based upon the blood tests, the expert specifically stated that "these [semen stains] could not have originated from Ken Wyniemko because he's blood type O," and that he "did not find any semen stains that would have aligned to [petitioner] on the bed sheets." ( Id.). The jury was fully aware that the semen on the bed sheets was not petitioner's when it convicted him. Therefore, even if the Court were to find that counsel's performance was deficient, the Court is not convinced that there is a reasonable probability that the outcome would have been different had DNA testing been performed.
8. Counsel's Failure to Request an Alibi Instruction
Lastly, petitioner asserts that trial counsel was ineffective for failing to request an alibi instruction. At trial, petitioner testified that he was home with Ms. Witcher when the assault upon Ms. Klug occurred. (11/7/94 Trial Tr. at 17-19). Witcher, however, did not corroborate petitioner's testimony. Witcher testified that petitioner did not come home on the evening in question until three or four in the morning, that she and petitioner argued for approximately one-half hour, and that petitioner was not home when she awoke at 7:00 a.m. ( Id.). Given the nature of petitioner's alibi, which was based solely upon his own testimony and contradicted by Witcher's testimony, it was within trial counsel's discretion to forgo an alibi instruction. See Freeman v. Jago, 835 F.2d 878, 1987 WL 24110 at *2 (6th Cir. 1987).
Moreover, assuming that trial counsel did err by not requesting an alibi instruction, petitioner has not established that he was prejudiced. Petitioner testified that he was home at the time of the assault. Furthermore, counsel discussed petitioner's testimony and reiterated that he denied committing the assault or being in Ms. Klug's home on the evening of the assault in his closing argument. (11/7/94 Trial Tr. at 52-53). The Court is not persuaded that there is a reasonable probability that the result of the proceedings would have been different had an alibi instruction been given. Therefore, petitioner is not entitled to habeas relief on this claim either.
Conclusion
Having carefully considered all of the issues raised by petitioner, this Court does not conclude that the state court adjudication of petitioner's claims resulted in a decision that was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254 (d)(1). Therefore, petitioner's petition for a writ of habeas corpus must be denied.
An Order consistent with this Opinion shall issue forthwith.