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Howard v. Humphreys

United States District Court, W.D. Wisconsin

June 1, 2017

ALBERT L. HOWARD, Petitioner,
ROBERT HUMPHREYS, Warden Kettle Moraine Correctional Institution, Respondent.


          BARBARA B. CRABB District Judge

         Petitioner Albert Howard, an inmate at the Kettle Moraine Correctional Institution, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The subject of his petition is his November 3, 2005 conviction in the Circuit Court for Dane County, Wisconsin for first degree sexual assault of a child, for which petitioner is serving a sentence of 20 years of initial confinement followed by 20 years of extended supervision. Petitioner has been allowed to proceed on the following claims: (1) the evidence adduced at trial was insufficient to support his conviction; (2) his trial counsel committed a number of errors that amounted to constitutionally ineffective assistance; and (3) his due process rights were violated when the state destroyed certain biological specimens.

         The state concedes that petitioner has exhausted his available state court remedies and that his petition is timely. It asks this court to deny habeas relief on petitioner's first two claims on the ground that the state courts' adjudication of these claims was consistent with and not contrary to controlling Supreme Court precedent, making habeas relief unavailable under 28 U.S.C. § 2254(d). With respect to the third claim, the state argues that petitioner failed to raise it properly in the state courts and therefore the claim is procedurally defaulted. Because I agree that petitioner cannot prevail on the merits of his first two claims and that his third claim is procedurally defaulted, I am denying the petition.

         I. BACKGROUND

         A. State Court Proceedings

         On or about April 27, 2005, the State of Wisconsin charged petitioner with first-degree sexual assault of a child. The victim was seven years old at the time of the alleged assault, which was alleged to have occurred between February 1, 2005 and March 27, 2005. The assault was discovered when the child's mother took her to the doctor for a suspected vaginal infection that turned out to be gonorrhea, a sexually-transmitted disease. After the child disclosed that it was petitioner who assaulted her, petitioner was arrested. Testing of a biological sample provided by petitioner showed that he had gonorrhea.

         During voir dire, a prospective juror, Meghan O., indicated that her sister had been a victim of sexual assault. Thereafter, the trial court questioned her individually as to whether she could be fair and impartial in light of this experience. When asked whether she thought what happened to her sister would affect her ability to give both sides a fair trial, she replied, “I would hope not, but that's my best answer.” Tr. of Jury Selection, dkt.#31, exh. 31, at 43:1-6. Under further questioning, when asked whether she could decide the case based on the evidence and according to the law, she said, “Yes, actually. Yes.” Id. at 44.19. She further stated that she understood that what had happened to her sister was irrelevant to petitioner's case and that she believed she could give both sides a fair trial. Id. at 44:20-45:1. When pressed further by petitioner's lawyer about her ability to be fair, Meghan stated:

I guess I will put it this way. Knowing my background, I really hope that after all my years living with my dad, that I would be able to do that. Do I think I would be thinking about my sister and, therefore, my daughter, yeah. But do I think - could I separate it, I certainly would hope so.

Id. at 47:2-7.

         Outside the presence of the jury, petitioner's lawyer moved to strike Meghan O. for cause. The trial court denied the request. It found no reason to think that Meghan was not being truthful in saying she could be fair and that there was no basis on which to presume she could not be impartial because of what had happened to her sister. Id. at 50-51. Counsel elected not to use a peremptory challenge to strike Meghan, and she was ultimately selected to serve on the jury.

         At trial, the state presented a videotaped interview of A.S. in which she described having genital to genital sexual contact with a man she knew as “Little Al.” Testifying in court at the trial, A.S. identified petitioner as “Little Al.” In addition, the jury heard testimony from the victim's pediatrician, her mother, and the lab technicians who tested the samples collected from the victim and petitioner. Petitioner testified in his own defense and denied assaulting A.S., although he admitted spending a lot of time with the family and being at the home at times when the mother was sleeping. The jury returned a guilty verdict. Subsequently, petitioner was given a sentence of 20 years to be followed by 20 years of extended supervision.

         Petitioner was appointed new counsel for postconviction proceedings and appeal. That lawyer filed a no-merit report, in which he identified sufficiency of the evidence and the propriety of the sentence as the only potential appealable issues, but concluded neither was meritorious. Petitioner filed several responses to the no-merit report in which he raised the following additional arguments: (1) the evidence presented at the preliminary hearing conflicted with the complaint and information concerning the approximate time of the offense, which deprived him of his due process right to notice; (2) use of the child's videotaped interview rather than the child's testimony in court deprived him his right to confrontation; (3) counsel provided ineffective representation in several respects; (4) the state violated the discovery order by withholding medical records; and (5) the evidence was insufficient to convict because the state failed to prove the specific date of the assault.

         On October 23, 2008, the court of appeals issued an order summarily affirming petitioner's conviction. State v. Howard, 2006AP1903, slip op. (Wis. Ct. App. Oct. 23, 2008), at 2, attached to state's response to pet., dkt.#31, exh. L. After reviewing the briefs and the record, the court of appeals determined that the evidence was sufficient to support the verdict, the sentence imposed was valid and none of the issues identified by Howard had any arguable merit. On February 10, 2009, the Wisconsin Supreme Court denied his petition for review.

         In December 2008, petitioner moved for postconviction DNA testing under Wis.Stat. § 974.07, seeking testing of the specimen collected from the victim to determine whether that specimen contained petitioner's DNA. In response, the state filed an affidavit by David Haselow, a Middleton Police Department detective, who averred that the victim's specimen had been collected, tested and destroyed by a non-government clinic and that the evidence had never been in the government's possession. Dkt. #32, exh.16. In February 2009, the circuit court denied the motion, explaining that petitioner had failed to show that the specimen was in the government's possession, as required by Wis.Stat. § 974.07(2)(b). Petitioner filed an appeal, but it was dismissed as untimely.

         In May 2009, petitioner filed a postconviction motion under Wis.Stat. § 974.06, Wisconsin's collateral attack statute, asserting prosecutorial misconduct and ineffective assistance of counsel based on the use of the positive gonorrhea evidence at trial, which petitioner asserted was barred under Wisconsin's rape shield law. He also argued that his defense lawyer should have requested independent testing of the victim's miscellaneous culture specimen and that his appellate lawyer was ineffective for failing to raise the issue on appeal. Petitioner acknowledged that the culture specimen was destroyed by the clinic or private laboratory before his arrest, but asserted that he did not learn this until after his trial. Petitioner argued that, had his lawyer filed a motion for retesting of the culture sample, he would have learned that the sample had been destroyed and he could have moved to suppress the evidence on that basis.

         The circuit court denied the motion, and the court of appeals affirmed on appeal.

         The court of appeals determined that petitioner's claims were procedurally barred under State v. Escalona-Naranjo, 185 Wis.2d 168, 517 N.W.2d 157 (1994), because petitioner could have raised them in his responses to the no-merit report during the direct appeal. State v. Howard, 2009 AP 2591, slip op. (Wis. Ct. App. Oct. 13, 2010), dkt.#31, exh. Q. In a footnote, the court remarked that petitioner's trial lawyer could not “have provided ineffective assistance by failing to request additional tests on samples that, according to Howard's own allegations, had already been destroyed prior to his arrest.” Id. at n.3.

         In January 2011, petitioner moved again for retesting of both the victim's and his own biological specimens that showed that both he and the victim had gonorrhea. The circuit court denied his motion. On appeal, the court of appeals affirmed the circuit court, explaining that petitioner had not shown that it was reasonably probable that he would not have been prosecuted or convicted absent the test results showing that both petitioner and the victim had tested positive for gonorrhea. The court noted that “[t]he victim reported that Howard had genital to genital sexual contact with her, which was presented to the jury through a videotaped interview of the victim and the victim's in-court testimony.” State v. Howard, 2011AP1981-CR, slip op. (Wis. Ct. App. Jan. 16, 2013), at 3, dkt. #31, exh. V. In light of that evidence, the court found that “it is not reasonably probable that, absent the biological evidence, Howard would not have been prosecuted or convicted.” Id. It further noted that it appeared from the record the evidence was not in the possession of the government. Id.

         In May 2013, petitioner moved for a new trial based on newly discovered evidence, asserting that he had discovered after trial that the state had never had custody of the victim's biological sample and that the state had violated Brady v. Maryland, 373 U.S. 83 (1963), when it failed to inform him of the sample's destruction. Both the circuit and appellate courts rejected this claim, finding that it was procedurally barred because petitioner could have raised it in his May 2009 postconviction motion. Moreover, the appellate court noted that it had already rejected the premise that petitioner would not have been convicted had the biological material been excluded. State v. Howard, 2013AP2084-CR, slip op. (Wis. Ct. App. Mar. 12, 2015), at 6, dkt. #31, exh. BB.

         B. Proceedings in this Court

          Petitioner filed his federal habeas corpus petition on November 28, 2011. In an order entered January 13, 2012, I allowed petitioner to proceed on his claims that the evidence was insufficient to support the jury's verdict and that his trial counsel had rendered ineffective assistance, but refused to allow him to proceed on claims related to certain evidentiary errors at trial. Dkt. #3. On March 2, 2012, I granted petitioner's motion for reconsideration, closing the case administratively and staying proceedings on the habeas petition while petitioner pursued DNA testing in the state courts and exhausted any constitutional claims he might have as a result of that testing. Dkt. #11. Eventually, on April 21, 2016, petitioner informed the court that he no longer had any constitutional claims left to be exhausted in the state courts and asked the court to reopen his case. Dkt. #23. On May 26, 2016, I issued an order reopening the case and allowing petitioner to proceed on one additional claim, namely, that the state had violated his right to due process by destroying the biological specimens in bad faith. Dkt. #24, at 4.



         Petitioner argues that the jury should have found the victim's testimony and videotaped interview unreliable because there was evidence that her mother bribed her to reveal the identity of the perpetrator and the interviewer asked the victim leading questions during the videotaped session. In addition, he argues that there were reasons to question the accuracy of the lab results and that the state did not present evidence to show that he was alone with the child in her home during the time frame in which she said the assault occurred. Pet. Br. in Supp., dkt. #32, at 2-7.

         This court's review of the petition is governed by the Antiterrorism and Effective Death Penalty Act, which strictly limits the circumstances in which this court may grant habeas relief. When, as here, a state court has ruled on a petitioner's claim, habeas relief is available only if the state court's adjudication of that 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 ...

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