Hyatt v. Weber
| Citation | 468 F.Supp.2d 1104 |
| Decision Date | 21 December 2006 |
| Docket Number | No. CIV 05-3029.,CIV 05-3029. |
| Parties | Russell HYATT Petitioner, v. Douglas WEBER, Warden, South Dakota State Penitentiary, Respondent. |
| Court | U.S. District Court — District of South Dakota |
The Court submitted the above-entitled matter to U.S. Magistrate Judge Mark A Moreno and the magistrate judge submitted his report and recommendation to me on August 25, 2006, Doc. 27. The report and recommendation was served on the petitioner as required by 28 U.S.C. § 636. Petitioner timely filed objections, Doc. 32, on September 13, 2006.
The Court has conducted a de novo review of the file and finds that the report and recommendation of the magistrate judge should be accepted and the case dismissed.
Petitioner's primary objection is that the magistrate determined that an evidentiary hearing was not required to determine whether trial counsel was ineffective. Petitioner contends that the factual record was not sufficiently developed at the state court evidentiary hearing on his state court habeas petition because no expert attorney testified as to trial counsel's performance. Petitioner contends that expert testimony from an attorney experienced in the defense of child sexual abuse allegations was necessary to judge whether trial counsel provided ineffective assistance.
Pursuant to the 1996 Anti-Terrorism and Effective Death Penalty Act ("AEDPA"):
when a habeas petitioner "has failed to develop the factual basis of a claim" in the state courts, the federal district court may not hold an evidentiary hearing unless the applicant shows that the claim relies on "a factual predicate that could not have been previously discovered through the exercise of due diligence" and that "the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense." 28 U.S.C. § 2254(e)(2) (2000).
Osborne v. Purkett, 411 F.3d 911, 915 (8th Cir.2005) (emphasis in original). Petitioner's recent desire to elicit expert attorney opinions at an evidentiary hearing do not meet the standards required in order for the federal district court to hold an evidentiary hearing in this case. Petitioner was free to develop a factual basis in state court and did not do so. An expert witness (a lawyer) brings little, if anything to the table when experienced judges are free to judge and capable of judging trial counsel's performance.
Petitioner also objects to the magistrate's findings that trial counsel was not deficient in (1) recommending petitioner waive a jury trial, (2) failing to request recusal of the trial judge, (3) failure to conduct pre-trial interviews of three children in the household, and (4) the presentation of impeachment evidence at trial. These contentions were raised in the state court habeas petition and were decided against petitioner by the state court habeas judge.
Under AEDPA[,] habeas relief cannot be granted on any claim "adjudicated on the merits in State court proceedings unless the adjudication of the claim ... resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
Hall v. Luebbers, 296 F.3d 685, 691-92 (8th Cir.2002). Petitioner has not made such a showing.
1. The report and recommendation of the U.S. Magistrate Judge filed August 25, 2006, Doc. 27, shall be and is hereby adopted as the findings of fact and conclusions of law herein.
2. The petitioner's objections, Doc. 32, are overruled.
3. The petition for a writ of habeas corpus is denied.
IT IS HEREBY CERTIFIED that there does not exist probable cause of an appealable issue with respect to the Court's order denying petitioner's petition for a writ of habeas corpus. No certificate of appealability will be granted. 28 U.S.C. § 2253(c). This in no way hampers the petitioner's ability to request issuance of the certificate by a circuit judge pursuant to Fed. R.App. P. 22.
The above-captioned 28 U.S.C. § 2254 case was referred to this Court by the District Court1 pursuant to 28 U.S.C. § 636(b)(1)(B) for purposes of appointing counsel, if appropriate, conducting necessary hearings, including an evidentiary hearing, and submitting to the latter court proposed findings of fact and recommendations for disposition of the case.
After careful review of the records on file, including the state court filings and transcripts in Hughes County CR. No. 02-412 and CIV. No. 03-486, and based on the totality of the circumstances present, the Court does now make the following findings of fact and report and recommendations for disposition in accordance with the District Court's referral Order.
After a bench trial was held in October, 2002, Petitioner, Russell Hyatt ("Hyatt") was found guilty of sexual contact with a child under the age of 16 (Count I), in violation of SDCL 22-22-7, and of rape in the first degree (Count II), in violation of SDCL 22-22-1(1). Two months later, the trial court sentenced Hyatt to prison terms of 55 years, on the rape offense, and 15 years, on the sexual contact offense, to be served consecutively.
In his direct appeal to the South Dakota Supreme Court, Hyatt raised one issue, namely, whether there was sufficient evidence to sustain his sexual contact and rape convictions. The State Supreme Court summarily affirmed both convictions, concluding that it was manifest on the face of the briefs and the record that his appeal was without merit because the issues on appeal:
1. Were clearly controlled by settled South Dakota law or federal law binding upon the states;
2. Were factual and there clearly was sufficient evidence to support the findings of fact below; and
3. Were ones of judicial discretion and there clearly was not an abuse of discretion.
See State v. Hyatt, 703 N.W.2d 670 (S.D. 2003) (Table).
Subsequently, Hyatt sought habeas relief in Hughes County Circuit Court. In his state habeas petition, Hyatt alleged that he received ineffective assistance of counsel because his trial counsel:
1. Advised him to waive his right to a jury trial;
2. Failed to investigate and call witnesses 3. Failed to cross-examine and present impeaching evidence; and
4. Failed to spend sufficient time with him to properly prepare his defense.
Hyatt also alleged that his sentenced amounted to cruel and unusual punishment. Following an evidentiary hearing, the state habeas court entered findings of fact, conclusions of law and an order denying the claims raised in Hyatt's petition and denying his additional claim that the trial judge should have sua sponte recused himself based upon his personal knowledge of the case.
Once again, Hyatt appealed to the South Dakota Supreme Court raising, with one exception2 the same issues that had been presented to and decided by the habeas court and in addition, contending that the court erred in not allowing him to call the prosecutor as a witness during the evidentiary hearing. The State Supreme Court summarily affirmed for the same reasons it had done so before. See Hyatt v. Weber, 705 N.W.2d 266 (S.D.2005) (Table).
Thereafter, Hyatt filed a pro se Petition under § 2254, for a writ of habeas corpus, alleging, inter alia, the issues he earlier presented to the South Dakota Supreme Court in connection with his state habeas corpus petition. The District Court directed that Respondent, Douglas Weber, Warden of the South Dakota State Penitentiary ("State") to file an answer or responsive pleading. After the State filed its Answer and copies of the state court criminal and habeas files, the District Court referred the case to this Court. The latter Court then conducted a review of the record and appointed counsel for Hyatt pursuant to Rule 8(c) of the Rules Governing § 2254 Cases in the United States District Courts (2004) ("2254 Rules") and 18 U.S.C. § 30006A(a)(2)(B).
On June 29, 2002, Hyatt came to Pierre, South Dakota, to live with his half brother, Gary Irwin. Irwin had a 9-year-old daughter, E.I., who lived elsewhere in Pierre with her mother, Judy Assman. Because Irwin "had Mondays and Tuesdays off," E.I. stayed with him from Sunday until Tuesday evening each week.
At the time, E.I. had an IQ of 55 ("moderate to severe" mental retardation), had seizures, ADHD and was diabetic. Mentally, she functioned at the level of a 4- or 5-year-old.
While at Irwin's house, Hyatt kissed E.I., carried her to a bedroom, removed her "shorts and panties," and touched her "privates" (vaginal perineal area). E.I. also revealed that she had to suck his (Hyatt's) "weiner." When she did this, his penis was "sticking out" and something "icky and green" came out of it, which she swallowed.
After he was finished, Hyatt told E.I. not to tell anyone or he would punish her. He also said that if E.I. told anyone, he would go to jail and never get out.
During the time period charged in the Indictment, Irwin's girlfriend, Karen Van Rooyen, observed Hyatt and E.I. laying under a blanket together on a basement couch. Van Rooyen felt uncomfortable about this and she and Irwin told E.I. to go lie down elsewhere.
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