Austin v. Smith
| Decision Date | 28 April 2022 |
| Docket Number | 15-C-272 |
| Parties | DAVID D. AUSTIN, Petitioner, v. JUDY P. SMITH, Respondent. |
| Court | U.S. District Court — Eastern District of Wisconsin |
After a jury trial in Winnebago County Circuit Court, David D. Austin was convicted of one count of first-degree sexual assault of a child in violation of Wis.Stat. § 948.02(1) for the molestation of JFF, the nine-year-old daughter of his girlfriend, Lee Foulkes. Austin filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 on March 9 2015. After significant delay, the petition is now fully briefed. Because each claim for relief raised in the petition is procedurally defaulted, and Austin cannot demonstrate cause for and prejudice stemming from the defaults or his actual innocence, I must deny his petition.
Austin moved in with Foulkes and her two daughters, including JFF, after being evicted from his residence in Milwaukee. About a month later, Foulkes left JFF alone with Austin. Foulkes returned home and became suspicious because both JFF and Austin had showered. She asked JFF if anything had happened between her and Austin, and JFF denied any impropriety.
A few days later, JFF told her mother that something had, in fact, happened. She stated that Austin had made her touch his penis. Foulkes confronted Austin, who denied the accusation. When JFF was asked to explain further, she said she had lied.
Foulkes decided to take JFF to counseling. At one of the counseling sessions with Debra Conway, JFF denied that Austin had touched her. Foulkes eventually told Perry Sharpe, her former boyfriend, and a father figure to JFF, about the accusation. Sharpe reported the incident to the police.
As part of the investigation, Detective April Hinke spoke with JFF in her police car. JFF initially denied that anything had occurred but then admitted that Austin had touched her. Hinke took JFF to the police station and recorded an interview with her. In that interview, JFF stated that Austin had been lying on the couch when he told her to join him for “you and me time.” She laid down beside him, and he asked if she had any questions about sex. He then grabbed her hand and placed it on his penis. She pulled her hand away after a few seconds. Austin then touched her vagina with his fingers. The touching stopped after a few seconds when JFF told Austin she needed to take a shower. When asked why she had told her mother that she lied about the accusation, JFF stated that she “felt freaked.” She also stated that she initially denied the accusations to Hinke because she was scared. Days later, Rod Schraufnagel, a child protective service worker, recorded another interview with JFF in which she provided a similar account of the incident.
Austin was arrested in June 2007 and charged with one count of first-degree sexual assault of a child in violation of Wis.Stat. § 948.02(1). At a pretrial hearing, Austin's attorney, James J. Skyberg, moved to dismiss the case, arguing that Austin was arrested without a warrant in violation of the Fourth Amendment. The circuit court denied the motion, holding that an illegal arrest does not affect the court's jurisdiction to hear a criminal case. At the same hearing, the state moved to exclude two of Austin's expert witnesses, Dr. Christopher Tyre and Dr. Robert Barahal. The state argued that Attorney Skyberg had not provided the prosecution with adequate summaries of the experts' opinions as required by Wis.Stat. § 971.23(2m). The circuit court agreed and excluded Dr. Tyre and Dr. Barahal as expert witnesses.
The state's theory was that JFF was a credible victim whose denials and recantations were the product of fear. JFF's testimony was consistent with the account provided in her recorded interviews. In addition to JFF's in-court testimony, the jury also watched the two recorded interviews and heard from Hinke and Schraufnagel. The state's final witness was Stephanie Hueseman, an expert who testified about the phenomenon of delayed sexual abuse reporting and victim recantations.
Austin's theory was that JFF was lying about the incident. On cross examination, Jasmine admitted that she had denied that Austin touched her to Foulkes on the night of the incident, to Sharpe, and to Conway during a counseling session. She also admitted that she was not always truthful with her mother. On direct examination, both Foulkes and Sharpe also testified that JFF was not always truthful to them. Austin testified on his own behalf and flatly denied JFF's version of events. He also testified that JFF was sent to her room on several occasions for lying.
Austin also tried to discredit the interviews conducted by Hinke and Schraufnagel as suggestive. He sought to call James Dillon as an expert who would testify about “problems that exist in interviewing children and in particular the problematic process undertaken in this particular case.” However, Attorney Skyberg had not provided an adequate summary of Dillon's findings to the prosecution as required by Wis.Stat. § 971.23(2m), so the circuit court excluded Dillon from testifying as an expert witness. Instead, because he had interviewed Foulkes and Sharpe, Austin was permitted to use Dillon as an impeachment witness.
The jury returned a guilty verdict on August 9, 2007. Austin received a 20-year sentence comprised of a 10-year term of confinement followed by a 10-year term of extended supervision. He was placed on extended supervision on June 7, 2016, but was later revoked on June 28, 2018. ECF No. 65 at 2. Austin is currently confined at Dodge Correctional Institution. ECF No. 55.
Austin's postconviction history is extensive. He pursued a direct appeal or other postconviction relief in state court seven times. See State v. Austin, 2008-AP-2894; Austin v. Pugh, 2010-AP-1183; State v. Austin, 2011-AP-511; Austin v. State, 2011-AP-1580; State v. Austin, 2012-AP-2668; Austin v. Smith, 2013-AP-2751; Austin v. Smith, 2014-AP-992. Only four of those pursuits are particularly relevant for his current habeas petition.
Austin, represented by Catherine M. Canright, filed a motion for postconviction relief in Winnebago County Circuit Court. ECF No. 32-11 at 67. He claimed that Attorney Skyberg was ineffective for failing to comply with Wis.Stat. § 971.23(2m) and causing the exclusion of Dillon, Dr. Tyre, and Dr. Barahal. Id. After receiving the district attorney's response brief and interviewing the expert witnesses, Attorney Canright concluded that she could not demonstrate prejudice as required under Strickland. ECF No. 32-13 at 2829. She informed the circuit court that denial of the ineffective assistance of counsel claim was appropriate, and the circuit court denied the motion accordingly. Id. at 29-30.
Austin, still represented by Attorney Canright, appealed. See ECF No. 32-2. He raised two issues: (1) whether the circuit court erred in excluding James Dillon's expert testimony; (2) whether there was sufficient evidence to convict. Id. at 4. He did not raise the ineffective assistance of counsel claim. See id. The Wisconsin Court of Appeals affirmed Austin's conviction, ECF No. 32-5, and the Wisconsin Supreme Court denied his petition for review. ECF No. 32-8.
Austin, proceeding pro se, next filed a petition for a writ of habeas corpus in the Wisconsin Court of Appeals. ECF No. 32-9. He claimed that Attorney Skyberg was ineffective because he (1) failed to comply with the expert witness discovery statute, (2) did not object to the prosecution's discovery violations, and (3) “did not contest a number of constitutional violations that had taken place.” Id. at 20-21. He also claimed that Attorney Canright was ineffective for failing to preserve and present certain issues, including “1) Illegal arrest 2) Illegal search and seizure 3) Illegal bond and detention 4) Witness tam[p]erring by the A.D.A. 5) Jury tampering 6) Illegal court procedure 7) Ineffective counsel.” See ECF No. 32-10 at 4; see also ECF No. 32-9 at 30.
The court of appeals did not decide the merits of the ineffective assistance of trial counsel or postconviction counsel claims because it held that the circuit court was the appropriate forum for such claims. ECF No. 32-10 at 3-4. With respect to the ineffective assistance of appellate counsel claim, the court of appeals denied Austin's petition because it “fail[ed] to allege sufficient facts to permit th[e] court to meaningfully review his request for relief, ” as required by State v. Allen, 682 N.W.2d 433 (Wis. 2004). Id. at 5. The Wisconsin Supreme Court then denied Austin's petition for review. ECF No. 32-15.
Austin again proceeding pro se, filed a motion for postconviction relief under Wis.Stat. § 974.06 in Winnebago County Circuit Court. See ECF No. 74-1. According to his appellate brief, Austin raised numerous claims for relief. See id. at 16-19. He claimed that Attorney Skyberg was ineffective because he (1) “violated discovery twice, causing me not to have expert testimony at trial, ” (2) “failed to provide the court with the necessary information that would have allowed John Wallace III to testify, ” (3) “failed to move the court for a mistrial after [two] biased jurors were allowed to remain empaneled, ” (4) “refused to challenge jurisdiction and offered the court a half-hearted presentation when presenting illegal arrest to the court, ” (5) “failed to notify the court of the State's discovery violation, ” (6) “failed to utilize the letters written by Lee [Foulkes], ” and (7) “did not file a motion for discovery in this...
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