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Kuchinskas v. Winkleski

United States District Court, E.D. Wisconsin

August 2, 2019

EDWARD S. KUCHINSKAS, Petitioner,
v.
DAN WINKLESKI, [1] Respondent.

          REPORT AND RECOMMENDATION

          WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE

         1. Facts and Procedural History

         On the morning of July 10, 2010, nine-week-old O.K. was rushed from his home to Children's Hospital of Wisconsin. Doctors there diagnosed O.K. with extensive physical injuries: bruises on his back, thigh, knee, groin, and both sides of his head (ECF No. 8-13 at 47-48, 51, 53); a skull fracture (ECF No. 8-13 at 54); 22 separate rib fractures, with some ribs being broken more than once (ECF No. 8-13 at 58); a broken leg (ECF No. 8-13 at 59); bleeding between his brain and skull (ECF No. 8-13 at 60); extensive retinal hemorrhages (ECF No. 8-13 at 62); two lacerations to his liver (ECF No. 8-13 at 66); and his optic nerve was disconnected, resulting in blindness in his right eye (ECF No. 8-13 at 63). A physician with expertise in child abuse (ECF No. 8-13 at 45) concluded that O.K.'s injuries must have resulted from abuse. (ECF No. 8-13 at 64.)

         Erin Sabady, O.K.'s mother, took care of him 90 to 95 percent of the time. (ECF Nos. 8-11 at 14, 85; 8-13 at 5.) Covering much of the remainder of the time was O.K.'s father, Edward Kuchinskas. Also living with Sabady and Kuchinskas were their friend, Steve Stessl, who would occasionally watch O.K., and Beverly Kehoss, Kuchinskas's grandmother.

         On the evening of July 9, 2010, Sabady, Kuchinskas, and Kehoss went shopping with O.K. Later that evening, Kuchinskas offered to take care of O.K. so Sabady could get some sleep. O.K. had not been sleeping the last three days and, consequently, neither had Sabady. (ECF No. 8-13 at 8-9.) At about 10:30 P.M., a neighbor was awoken by the sounds of O.K. screaming: “Very short, shrill at the top of the lungs screams. Not like a cry. Just short bursts of loud, shrill screams.” (ECF No. 8-10 at 40.) He looked out his window and saw Kuchinskas with O.K. outside their home. (ECF No. 8-10 at 41.) At about 1:30 A.M., the neighbor was again awoken by O.K.'s screams and again looked outside to see Kuchinskas with O.K. (ECF No. 8-10 at 43.) And again at about 3:30 A.M. the neighbor awoke to O.K.'s screams and saw Kuchinskas outside with O.K. (ECF No. 8-10 at 43.)

         Between 5:00 A.M. and 6:00 A.M., Sabady awoke and saw Kuchinskas and O.K. asleep in the living room. Sabady went outside to smoke. When Stessl came home, he joined her. Soon thereafter, Sabady heard O.K. start to cry and went inside. An alarm on a breathing monitor O.K. wore was going off. Sabady saw Kuchinskas standing over O.K., panicked, trying to figure out what was wrong with O.K. They then realized that the cord connecting the sensor to the monitor had become disconnected, causing the alarm to go off. (ECF No. 8-11 at 34.) Sabady observed that O.K. looked very pale, was having difficulty breathing, and was making a grunting sound. (ECF No. 8-11 at 40.) Although his eyes were open, they were fixed and unreactive. (ECF No. 8-11 at 40-41.)

         Sabady wanted to call 911, but Kuchinskas was reluctant. Although panicked, begging O.K. to get better, Kuchinskas wanted Sabady to wait to see if O.K. would improve. Eventually, Kuchinskas told Sabady that he fell with O.K. (ECF No. 8-11 at 42.) Kuchinskas told Sabady that he was concerned they would be blamed for hurting O.K. and that O.K. would be taken away from them. According to Sabady, Kuchinskas said, “They're going to say that, you know, we're drug addicts; and they're going to try and say I was high.” (ECF No. 8-11 at 43.)

         After first calling her mother, who lived nearby, Sabady called 911. According to Sabady, Kuchinskas refused to be present when the paramedics arrived and instead “went into his grandma's bedroom and hid.” (ECF No. 8-11 at 44.)

         Medical personnel at Children's Hospital notified the police of their suspicions of child abuse. Police investigated, recovering bloody baby linens from the home and speaking with the members of the household. All denied intentionally injuring O.K. However, Kuchinskas acknowledged that on July 5, 2010, he was bathing O.K. in a sink when O.K. slipped from his hands and fell, landing so that he straddled the divider in the sink. (ECF No. 8-13 at 17, 51-52.) Kuchinskas also again said that he fell with O.K. on the morning of July 10, 2010. (ECF No. 8-13 at 36.) Kuchinskas reported that O.K. fell first, maybe striking his head on a rocking chair, landing on the carpeted floor, and then Kuchinskas landed on top of O.K. with his hand on O.K.'s chest. (ECF Nos. 8-13 at 47; 8-14 at 41-42.)

         A physician, Dr. Angela Rabbit, opined that nearly all of O.K.'s injuries occurred no more than 10 days before his admission to the hospital and could have happened very recently-within hours. (ECF No. 8-13 at 57-59.) The only exception was a single rib fracture that probably occurred at least a week prior. (ECF No. 8-13 at 58-59.)

         The state charged Kuchinskas with two counts of child abuse - intentionally causing great bodily harm, and one count of neglecting a child resulting in great bodily harm. (ECF No. 1-1.) Following a jury trial at which his defense was that someone else must have abused O.K., Kuchinskas was found guilty and sentenced to a total term of incarceration of 36 years-25 years of initial confinement and 11 years of extended supervision. (ECF No. 8-1 at 1.)

         Kuchinskas unsuccessfully appealed (ECF No. 1-3) and the Wisconsin Supreme Court denied review (ECF No. 8-3). He argued on appeal and he argues before this court that he was unconstitutionally denied the right to present a defense when he was prevented from introducing evidence that O.K. suffered from neonatal abstinence syndrome (i.e., drug withdrawal) following his birth, and that Sabady reported to a detective that she used drugs five times in the two months following O.K.'s birth. The court has no further details on Sabady's reported drug use, including when any specific use occurred. Kuchinskas also argues his trial counsel was ineffective for not again trying to introduce this evidence when he alleges the door was opened to its admission.

         2. Legal Standard

         A federal court may consider habeas relief for a petitioner in state custody “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(a). Following the passage of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal court generally may grant habeas relief only if the state court decision was “either (1) ‘contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,' or (2) ‘based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'” Miller v. Smith, 765 F.3d 754, 759-60 (7th Cir. 2014) (quoting 28 U.S.C. § 2254(d)(1), (2)).

         Kuchinskas argues for the first time in reply that the court should apply the pre-AEDPA standard set forth in 28 U.S.C. § 2243 (ECF No. 13 at 1-2), which applies “[w]hen ‘no state court has squarely addressed the merits' of a habeas claim, ” Morales v. Johnson, 659 F.3d 588, 599 (7th Cir. 2011) (quoting Kerr v. Thurmer, 639 F.3d 315, 326 (7th Cir. 2011)). This standard is more generous to ...


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