Pudelski v. Wilson

• Decision Date: 14 August 2009
• Docket Number: No. 07-3856.,07-3856.
• Parties: John J. PUDELSKI, Petitioner-Appellant, v. Julius WILSON, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

576 F.3d 595

John J. PUDELSKI, Petitioner-Appellant, v. Julius WILSON, Respondent-Appellee.

No. 07-3856.

United States Court of Appeals, Sixth Circuit.

Argued: April 22, 2009.

Decided and Filed: August 14, 2009.

ARGUED: Edwin J. Vargas, The Vargas Law Firm, Cleveland, Ohio, for Appellant. Thelma Thomas Price, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. ON BRIEF: Edwin J. Vargas, The Vargas Law Firm, Cleveland, Ohio, for Appellant. Thelma Thomas Price, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

Before: CLAY and McKEAGUE, Circuit Judges; HOLSCHUH, District Judge.^*

HOLSCHUH, D.J., delivered the opinion of the court, in which McKEAGUE, J., joined. CLAY, J. (pp. 615-20), delivered a separate dissenting opinion.

OPINION

HOLSCHUH, District Judge.

Petitioner John J. Pudelski ("Pudelski") was convicted in state court of the murder of his infant daughter, and after appealing that conviction to the state courts he filed a 28 U.S.C. § 2254 petition for habeas corpus relief. The district court, adopting the magistrate judge's Report and Recommendation in full, found no merit in Pudelski's claims and dismissed the petition. Pudelski now appeals. Although the magistrate judge and district court improperly found that habeas relief was not available to Pudelski on his first ground for relief, we reach the merits of that ground and find that it does not warrant habeas relief. Additionally, we find no merit in Pudelski's second ground for relief, and consequently we affirm the dismissal of Pudelski's habeas petition.

I.

The Ohio Eighth District Court of Appeals found the following facts on direct appeal, and we accept them as true because they are unrebutted, see 28 U.S.C. § 2254(e)(1):

John J. Pudelski was charged in a two-count indictment filed April 14, 1999. Count one charged him with aggravated murder in violation of R.C. 2903.01 specifically, purposely causing the death of his infant daughter, Ellie Marie Pudelski. Count two charged him with murder; that is, causing the infant's death as a proximate result of committing or attempting to commit felonious assault, a first or second degree felony that is an offense of violence.

[Pudelski] moved the court to suppress oral statements he made to the police, to dismiss the death penalty specification on count one, and to dismiss the murder charge contained in count two of the indictment. After a hearing on the motion to suppress, the court denied all three motions. However, the state was given leave to remove the death penalty specification from the indictment on July 23, 1999.

The case proceeded to trial on August 23, 1999. In addition to the charges of murder and aggravated murder, the jury was also instructed on the lesser included offense of involuntary manslaughter as a proximate result of child endangering. The jury returned a verdict finding [Pudelski] not guilty of aggravated murder but guilty of murder. The court sentenced him to fifteen years' [sic] to life imprisonment and overruled his motions for acquittal and for a new trial. [Pudelski] timely appealed his conviction and the denial of his post-verdict motions.

In the state's case at trial, the jury heard testimony from [Pudelski's] wife (who was also the mother of the infant victim), medical personnel involved in the delivery and postnatal care of the infant, paramedic and emergency room personnel who responded to the 9-1-1 call regarding the child's death, the county coroner and assistant coroner, and a police officer who investigated the matter.

The mother testified that the infant girl was delivered by Caesarian section on March 17, 1999, and she took her home four days later. The infant fed [sic] every four hours, approximately two and one-half to three ounces of formula or breast milk at each feeding, and behaved normally. The mother never noticed any injury to the infant's head.

The neonatologist who was present at the infant's birth had noted a caput or bruise under the scalp but above the skull bone on the back of her head. This is a common injury in newborns and does not have any serious effects on the infant's health. A pediatrician who saw the infant on March 18 and 20 reported that he saw no abnormalities. He would not necessarily have noted a caput in his records unless it was an unusual one. He did not note one here. Neither physician noted any cepahlohematoma, or swelling and bleeding of the tissue under the bone, which would have been a more serious injury. A home nurse reported that the baby appeared normal and had no bumps or bruises on her head when the nurse saw her on March 23.

The mother testified that the baby behaved normally throughout the day of Sunday, March 28, 1999. The mother fed her at 8:00 or 9:00 p.m.; the baby consumed almost three and one-half ounces at that time. The mother put the baby to bed at approximately 9:30 p.m., then took a cough medication, Nyquil, and went to bed herself. The baby's crib was located in the mother's bedroom.

The mother awakened around 12:00 midnight when the baby cried and got up to feed the child. [Pudelski], her husband, was not in the room when the mother awakened but came in and offered to feed the baby, although he normally went to bed at that time. This was the first time he had fed the baby; he normally paid no attention to her. The mother then went back to sleep.

The mother awakened at 7:00 a.m. and was immediately concerned because the child had not awakened for her normal feeding at 4:00 a.m. She went to the crib and found the baby in a corner with her head against the bumper pad. Her forehead was cold. The mother picked the baby up and felt for a heart beat but felt none. She observed a lump on the side of the baby's head.

The mother began to yell for [Pudelski] to wake up. It was unusual for [him] to be sleeping at this time; he was usually up at 6:30 a.m. [Pudelski] jumped up and took the baby from the mother and left the room, returning with the telephone. He ordered the mother to leave the bedroom and wait in the living room for paramedics to arrive.

Paramedics came and took the baby to Euclid Hospital. [Pudelski] and his wife delayed going to the hospital while [Pudelski] woke his two daughters from a prior marriage and readied them for school, then took them to his mother's house. [Pudelski] and his wife proceeded from there to the hospital.

At the hospital, they learned that the baby was dead. They went into a room to see the body, but [Pudelski] would not look at her. As they waited in the grieving room for the mother's mother to arrive, [Pudelski] said to his wife, Please don't leave me.

The coroner and assistant coroner testified that the baby died as a result of a cerebral edema, or swelling of the brain, which was caused by a blunt impact that also caused a fracture of the skull. They estimated the time of death at approximately 3:00 a.m., and approximately two to three hours after the injury was inflicted. They opined that she was injured after her midnight feeding. The assistant coroner testified that the child would have survived if medical attention had been sought immediately after the injury occurred.

The coroner and assistant coroner both opined that the fracture occurred very recently, certainly less than twenty-four hours before the baby's death. There were no signs of healing around it; the edges of the break were sharp and uncalloused and there was fresh blood at the site. There were no macrophages (clean-up cells) at the site of the fracture, though there were some in the adjacent scalp. They opined that these macrophages were present because of the caput that occurred at birth. There was no evidence the fracture was a new break at the same site as a fracture that had occurred earlier. Macrophages would have been present at the fracture site if the fracture were [sic] not new. The fracture could not have occurred after death because the body had to have been alive to pump the fresh blood that had oozed around the area.

The coroner opined that the death was a homicide. She reached this conclusion because the child had a fracture that was not a birth injury, she could not have caused the fracture herself, and nothing accidental had happened, so the injury had to have been inflicted.

Detective Raymond Jorz testified that [Pudelski] and his wife came in to the police station together voluntarily on March 31, 1999, and were interviewed separately. [Pudelski] was interviewed by Detective Jorz and Lieutenant Brooks. They asked [Pudelski] whether the baby had suffered any accidental injuries, and [Pudelski] said she had not. [Pudelski] related that he had fed the baby around midnight and stayed up with her until approximately 1:30 a.m., then put her in the crib after she went to sleep. He went to bed himself and awakened at approximately 3:30 a.m., used the bathroom, then returned to bed. He did not check on the baby at that time. His wife woke him up the following morning after she had found the baby cold and unresponsive.

When police informed [Pudelski] that the baby had a skull fracture, [Pudelski] suggested that the fracture was caused by the emergency medical technicians or that the coroner was examining the wrong child. He denied knowledge of any injury.

State v. Pudelski, No. 77172, 2001 WL 259215, at **1-3 (Ohio Ct.App. Mar. 15, 2001).

The jury convicted Pudelski of one count of murder, in violation of R.C. 2903.02(B), on September 4, 1999. He filed a motion for a judgment of acquittal or for a new trial on September 10, 1999, arguing that the verdict was not sustained by sufficient evidence and was rather based on impermissible double inferences. JA 90-104. The trial court overruled this motion on September 17, 1999, and on the same day sentenced Pudelski to 15 years to life in prison. JA 112.

Pudelski then filed a motion for a new trial based on newly discovered evidence pursuant to Ohio Criminal Rule 33(A)(6) on October 1, 1999. The day...