Cossel v. Miller

• Decision Date: 12 October 2000
• Docket Number: No. 98-1355,98-1355
• Citation: 229 F.3d 649
• Parties: (7th Cir. 2000) Timothy Cossel, Petitioner-Appellant, v. Charles Miller, Respondent-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 649

229 F.3d 649 (7th Cir. 2000)

Timothy Cossel, Petitioner-Appellant, v. Charles Miller, Respondent-Appellee.

No. 98-1355

In the United States Court of Appeals For the Seventh Circuit

Argued July 12, 2000

Decided October 12, 2000

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. EV 97-87-C-B/H--Sarah Evans Barker, Chief Judge.

Before Ripple, Rovner, and Williams, Circuit Judges.

Williams, Circuit Judge.

Timothy Cossel filed this habeas corpus petition challenging his 1989 state convictions for rape, criminal confinement, criminal deviate conduct, battery, and burglary, in part on the ground that his trial counsel rendered constitutionally ineffective assistance of counsel by failing to properly object to testimony by the victim relating to her identification of him as her attacker. In state post-conviction proceedings, the state courts rejected this claim, reasoning that the victim had an independent basis for her in-court identification of Cossel, which eliminates any argument that trial counsel could have been ineffective in failing to object to her testimony. The federal district court dismissed Cossel's habeas corpus petition with prejudice on the ground that the Indiana Court of Appeals did not misapply federal law. Because we cannot agree, we reverse.

I

State court findings of fact are presumed correct unless the petitioner rebuts the presumption with "clear and convincing" evidence. 28 U.S.C. sec. 2254(e)(1). Cossel does not challenge the state court findings regarding the facts of the crime, so they control. The state appellate court found as follows

On April 25, 1983, shortly after 10:15 p.m., K.D. put her child to bed and went to bed herself. She was awakened shortly thereafter when a man removed her covers, pulled up her nightgown and jumped on her, putting a knife to her back. The attacker then threatened to kill both her and the child if she resisted.

The attacker attempted to engage in anal sex, which was extremely painful for K.D. The man then warned her not to look at his face, turned her over and covered her face with a pillow. He then raped K.D. He then turned her back over, jabbed her in the back with the knife and told her if she reported the assault that he would kill her and the child. The man then left.

Cossel v. State, 675 N.E.2d 355, 358 (Ind. Ct. App. 1996) (quoting earlier unpublished order affirming Cossel's conviction).

Although the police originally suspected another man, they eventually turned their attention to Cossel. In July 1984, police officer Joe Davis arranged for K.D. to view a photographic array that included a picture of Cossel.¹ When K.D. was unable to identify any of the people in the photographs as the attacker, Officer Davis singled out Cossel's picture, identified the photo as a picture of Tim Cossel, and showed it to K.D. Again, K.D. did not recognize Cossel. Cossel's picture was the only one K.D. remembered Officer Davis singling out to show her.

Almost two years later, in May 1986, Officer Davis had K.D. accompany him to Owensboro, Kentucky, to view a lineup. K.D. testified that Officer Davis told her the reason for this lineup was that Cossel was in Owensboro. K.D. was under the impression that Cossel would be in the lineup and she was to see if she could recognize him. K.D.'s husband had told her that he believed Cossel was the attacker, and K.D. testified at trial that she was under the impression that Officer Davis believed that as well. K.D. did identify Cossel in the lineup, but she did not recognize his voice. Based on K.D.'s identification, the state charged Cossel with rape, criminal confinement, criminal deviate conduct, battery, and burglary.

Prior to trial, defense counsel did not move to suppress or otherwise limit trial testimony relating to K.D.'s identification of Cossel as her attacker, despite having notice of the circumstances surrounding that identification. At trial, therefore, the state elicited testimony from K.D. and Officer Davis regarding the photo array, the one-photograph show-up, and the Owensboro lineup. K.D. also identified Cossel in court during the trial. Counsel failed to make a contemporaneous objection to the admission of either the out-of-court identification procedures or K.D.'s in-court identification. Instead, counsel waited to object until the close of K.D.'s testimony and then later moved to dismiss at the close of the state's case-in-chief. The trial court overruled the objection and denied the motion. In denying the motion to dismiss, the court explained

This court was extremely careful in listening to the identification evidence because the police officer involved, Officer Davis, has repeatedly and consistently ruined cases by impermissibley [sic] suggestive conduct. I do think in this case the evidence is sufficient for several reasons that this case need not be thrown out because of an impermissibley [sic] suggestive i.d., lineup. Therefore, I'll let the matter go and if there's a conviction I'm sure that matter will be carefully looked at by the Court of Appeals.

In reaching this conclusion, the trial court was presumably relying on the strength of K.D.'s testimony regarding what she was able to see the night of the attack and why, apart from the out- of-court identifications, she believed Cossel was her attacker. Her testimony in this regard was later summarized by the Indiana Court of Appeals

K.D. testified that although the house was "shadowy," she could clearly see because there was light from the moon and a street light shining into the house. K.D. observed Cossel's face for approximately ten seconds when she was being turned from her stomach to her back. While K.D. was lying on her back, she was able to view: Cossel's chin and mouth area. Because Cossel was on top of K.D., the distance between the two parties was not great. After seeing Cossel's face, K.D. "felt like [she] knew this person" and that he knew K.D. K.D. testified that she had seen Cossel three months earlier when she and her husband had purchased a vacuum cleaner.

Cossel, 675 N.E.2d at 361 (citations omitted).

The only other evidence linking Cossel to K.D.'s rape were the results of a serological analysis, which concluded that K.D.'s attacker was in a class of at least 32% of the population who are "non-secreters," and possibly an even larger segment of the population that includes "secreters" whose serological samples have been "diluted out." Cossel is a non-secreter. But the DNA tests were inconclusive, there were no fingerprint matches, and none of the hair strands taken from K.D.'s rape kit could have come from Cossel. There was, however, one strand of pubic hair that matched neither K.D. nor Cossel. Finally, a footprint outside of K.D.'s window was identified as that of the attacker. The print was from a lug-soled work boot and measured 13 inches in length. Cossel did not own any shoes or boots matching the footprint, and when the sole of his shoe was measured in court, it was only 12 inches long.² On the basis of the evidence against him, Cossel was found guilty by a jury and sentenced by the court to 148 years' imprisonment.

On direct appeal, Cossel was represented by trial counsel. Counsel appealed the district court's admission of K.D.'s identification testimony, and the state conceded that the out- of-court identification was impermissibly suggestive. The state argued, however, that an independent basis for K.D.'s in-court identification existed because she saw her attacker for ten seconds during the rape. The Indiana Court of Appeals declined to address the merits of this dispute because Cossel's counsel had waived the issue by not making a contemporaneous objection.

Cossel then filed a petition for state post- conviction relief, based in part on his claim that counsel was constitutionally ineffective for not objecting contemporaneously to K.D.'s identification of Cossel. The state post- conviction judge, who also had presided over Cossel's trial, ordered an evidentiary hearing at which Cossel's trial counsel testified. Counsel, who by that time had been suspended from the practice of law for reasons unrelated to Cossel's case, testified that he knew before trial that there were problems with the pretrial identifications being unduly suggestive. Counsel also stated that he thought the objection he made at the close of K.D.'s testimony would preserve the issue for appeal. Finally, when asked whether it was part of his strategy to withhold his objection to the identification testimony, counsel responded, "No, it was not a strategy move." Following the hearing, the state court denied Cossel's petition. Cossel appealed, and the Indiana Court of Appeals found that any error in admitting evidence of the impermissibly suggestive lineup identification was harmless because the in-court identification had sufficient independent support, and thus Cossel's counsel was not ineffective. It is unclear from the present record whether Cossel filed a petition for transfer to the Indiana Supreme Court.

Cossel next filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of Indiana. The district court dismissed the petition with prejudice, holding, in relevant part, that the Indiana Court of Appeals's application of Strickland v. Washington, 466 U.S. 668 (1984), to Cossel's ineffective assistance of counsel claims was a reasonable application of federal law. Cossel appealed and this court issued a certificate of appealability for Cossel's claim of ineffective assistance of counsel as it pertained to trial counsel's failure to properly object to the victim's identification of Cossel.

II

Before coming to the merits of Cossel's appeal, we must address the state's argument, made for the first time on appeal, that Cossel has procedurally defaulted the ineffective assistance of counsel claim he advances in this court...