Caccavallo v. Duckworth

• Decision Date: 19 November 1984
• Docket Number: No. S 83-571.,S 83-571.
• Parties: Peter CACCAVALLO, Petitioner, v. Jack R. DUCKWORTH, Indiana Attorney General, Respondents.
• Court: U.S. District Court — Northern District of Indiana

626 F. Supp. 427

Peter CACCAVALLO, Petitioner, v. Jack R. DUCKWORTH, Indiana Attorney General, Respondents.

No. S 83-571.

United States District Court, N.D. Indiana, South Bend Division.

November 19, 1984.

Peter Caccavallo, pro se.

David A. Arthur, Deputy Atty. Gen., Indianapolis, Ind., for respondents.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

This petition for writ of habeas corpus was filed pursuant to 28 U.S.C. § 2254 by Peter Caccavallo, an inmate incarcerated at the Indiana State Prison in Michigan City, Indiana. The matter is now before this court on respondents' motion to dismiss, filed as part of their Return to Order to Show Cause. In accord with the dictates of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the complete state court record has been filed with, and carefully examined by, this court.

A careful examination of the underlying state court record and the opinion of the Supreme Court of Indiana, 436 N.E.2d 775 (1982), on transfer, reveals that petitioner has exhausted his available state court remedies per 28 U.S.C. § 2254(b), (c); Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982). Both sides having briefed their respective positions, this petition is now ripe for ruling.

Petitioner was convicted in a state court jury trial of child molesting for which he received a determinate sentence of eight years. This conviction was unanimously affirmed on appeal by the Supreme Court of Indiana. Following unfavorable action on his post-conviction filings in state courts, petitioner now brings this petition for a federal writ of habeas corpus.

Petitioner raises the following issues in this application for habeas relief:

1. Conviction obtained by use of evidence gained pursuant to an unconstutional search and seizure.

2. Ineffective assistance of counsel-trial.

3. Due process of law, (a) right to confrontation-depositions, (b) denial of right to testify, (c) erroneous sentencing, (d) inadmissable evidence.

4. Impartiality of judge.

5. Illegal detention.

6. Cruel and unusual punishment.

Each will be addressed in its turn.

I.

On September 19, 1980, the petitioner was charged with the crime of child molesting for acts of October 31, 1979. The petitioner filed a motion to suppress evidence prior to trial, alleging an illegal search of his residence. The motion was denied after a hearing before the trial court.

On the first day of trial, the petitioner moved for a continuance in order to depose the victim. The motion was denied. The trial proceeded and petitioner was found guilty of said charge on December 9, 1980 by a jury. The petitioner was sentenced by the trial court on January 27, 1981, at which time he was given the maximum possible term of years for the crime of which he was convicted.

Petitioner appealed his conviction to the Court of Appeals of Indiana, Fourth District, which reversed the trial court conviction on grounds that 15 of the photographs admitted into evidence should not have been so admitted. A request for rehearing by the State was denied. The Supreme Court granted transfer and affirmed the conviction and sentence.

The petitioner then filed a pro se petition for post-conviction relief which was denied on the pleadings on September 27, 1982. After filing of and denial of several other motions, petitioner appealed to the Court of Appeals of Indiana, and said appeal was filed in the Third District. The appeal to the Third District, Court of Appeals, was denied on November 23, 1983 as to each issue with one exception concerning whether effective assistance of counsel was rendered during the direct appeal. This issue was sent back to the trial court because it is an issue of fact for which no facts were before the trial court.

II.

For his first claim petitioner alleges that a search and seizure of his residence was unconstitutional. He alleged the unconstitutionality of the search and seizure in his motion to correct errors following the original trial. However, a careful review of the record does not show where petitioner at any time pursued this issue within the state appeal. An issue that is available for a direct appeal but is not argued is waived under Indiana law. Cummings v. State, Ind., 434 N.E.2d 90, 91 (1982). An allegation of error that is waived under state law is unavailable to a petitioner in the federal courts. Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594, reh. denied, 434 U.S. 880, 98 S.Ct. 241, 54 L.Ed.2d 163 (1977); Blenski v. LaFollette, 581 F.2d 126, 130 (7th Cir.1978); United States ex rel. Barksdale v. Sielaff, 585 F.2d 288, 292-93 (7th Cir.1978). The State did nothing to foreclose the appeal. See, United States ex rel. Maxey v. Morris, 591 F.2d 386, 389 (7th Cir.1979).

In order for this waived issue to be considered in a federal habeas corpus proceeding, petitioner must show both cause for his noncompliance and actual prejudice resulting therefrom. Wickcliffe v. Duckworth, 574 F.Supp. 979, 986 (N.D.Ind.1983) (citing Wainwright v. Sykes, supra; Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982)). The Seventh Circuit Court of Appeals in United States ex rel. Spurlark v. Wolff, 699 F.2d 354 (7th Cir. 1983) (en banc) applied the "cause and prejudice" standard of Wainwright v. Sykes, supra, to a state prisoner's failure to raise a claim on direct appeal. Williams v. Duckworth, 724 F.2d 1439, 1442 (7th Cir. 1984).

Notwithstanding his statements to the contrary, the petitioner has not met the requisite "cause + prejudice" criteria. The petitioner has thus waived any claim that the search and seizure was unconstitutional when he failed to pursue the available appeal.

The petitioner raised his second claim of ineffective assistance of counsel at trial during his direct appeal. He claimed the representation rendered on his behalf was ineffective due to counsel's inexperience, failure to depose the victim, failure to object to the victim's testimony concerning sexual conduct other than that specifically charged.

The Supreme Court of the United States has set forth the standards to be applied in a case where the effectiveness of counsel is challenged in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984), wherein the Court held:

The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness. Strickland v. Washington, supra, 104 S.Ct. p. 2065.

The Seventh Circuit Court of Appeals has recently followed the two-pronged test for determining whether a conviction must be set aside due to ineffective assistance of counsel in Crisp v. Duckworth, 743 F.2d 580, 582 (7th Cir.1984). The Crisp decision further held:

Though we examine each example of incompetence individually, we must also consider their cumulative effect in light of the totality of the circumstances. Strickland, 104 S.Ct. at 2069; United States v. Brown, 739 F.2d 1136, 1145 (7th Cir.1984).

The Seventh Circuit Court of Appeals has also recently held in Arrowood v. Clusen, 732 F.2d 1364 (7th Cir.1984):

This circuit has addressed the issue of ineffective assistance of counsel in a number of recent decisions. It is clear, from these cases, that there is a presumption of adequate representation and that the burden is on the criminal defendant to show that a trial counsel's performance was constitutionally inadequate. United States v. Zylstra, 713 F.2d 1332 (7th Cir.), cert. denied 464 U.S. 965, 104 S.Ct. 403 78 L.Ed.2d 344 (1983); United States v. Phillips, 640 F.2d 87, 92 (7th Cir.), cert. denied, 451 U.S. 991 101 S.Ct. 2331, 68 L.Ed.2d 851 (1981); Clyburt v. Rowe, 638 F.2d 1100, 1105 (7th Cir.1981); United States v. Fleming, 594 F.2d 598, 607 (7th Cir.), cert. denied, 442 U.S. 931 99 S.Ct. 2863, 61 L.Ed.2d 299 (1979).

This court having carefully reviewed the pleadings, transcript and record before it finds that the petitioner fails to establish that his trial counsel's representation fell within the purview set forth in Strickland and its progeny and thus, petitioner's claim does not state sufficient grounds for this court to grant habeas relief.

IV.

The petitioner further contends that his due process rights were denied when he was (a) denied the right to confrontation through the denial of the right to depose the victim, (b) denied the right to testify in his own behalf, (c) erroneously sentenced, and (d) when the judge admitted inadmissable evidence. Each of these will be discussed separately below.

In regard to the contention that the petitioner's due process rights were denied when the trial judge denied him the opportunity to depose the victim, the petitioner must demonstrate what prejudice he suffered from said decision. The record clearly indicates that the petitioner was granted the right to depose the victim and that the prosecuting attorney was willing to cooperate with any efforts made by petitioner, or his counsel, to depose the victim. Petitioner's counsel did not depose the victim prior to the trial. On the day of trial the attorney for petitioner requested a continuance in order to depose the victim witness. The court denied the motion on the grounds that there had been ample time for counsel to depose the victim prior to trial and a continuance was not warranted. Further, the Supreme Court of Indiana held that the petitioner did not make it clear on appeal how he might have used information acquired from deposition of the State's witnesses to impeach their credibility or otherwise cast aspersions on their testimony, Caccavallo v. State, 436 N.E.2d 775, 778 (Ind.1982), and...