Kuchinskas v. Winkelski
Decision Date | 29 September 2020 |
Docket Number | Case No. 16-1054-pp |
Parties | EDWARD KUCHINSKAS, Petitioner, v. DAN WINKELSKI, Respondent. |
Court | U.S. District Court — Eastern District of Wisconsin |
ORDER ADOPTING REPORT AND RECOMMENDATIONS (DKT. NO. 15); OVERRULING OBJECTIONS (DKT. NO. 16); DISMISSING CASE AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
On August 9, 2016, the petitioner, an inmate at New Lisbon Correctional Institution who is represented by counsel, filed a petition for writ of habeas corpus under 28 U.S.C. §2254 challenging his 2011 judgment of conviction in Milwaukee County Circuit Court for one count of child neglect and two counts of child abuse with the intent to cause great bodily harm. Dkt. No. 1 at 1-2. He paid the $5.00 filing fee. The clerk's office assigned the case to Magistrate Judge William E. Duffin, who screened the petition under Rule 4 of the Rules Governing Section 2254 Cases, allowed the petitioner to proceed and ordered the respondent to answer the petition. Dkt. No. 4. The respondent responded on October 27, 2016. Dkt. No. 8. About three months after that, the respondent filed a brief in opposition to the petition. Dkt. No. 11. The petitioner replied on March 31, 2017. Dkt. No. 13.
In May of 2018, the court referred the case to Judge Duffin for a report and recommendation. Dkt. No. 14. On August 2, 2019, Judge Duffin issued a report recommending that this court deny the petition. Dkt. No. 15. Two weeks later, the petitioner filed objections, disputing the standard and recommendations in Judge Duffin's report. Dkt. No. 16. The court will overrule the petitioner's objections, adopt Judge Duffin's report and recommendation, dismiss the case and decline to issue a certificate of appealability.
The petitioner does not object to the factual recitations in Judge Duffin's report and recommendation, and this court adopts them. As Judge Duffin recounted the facts underlying the petitioner's charges:
On the morning of July 10, 2010, nine-week-old O.K. was rushed from his home to Children's Hospital of Wisconsin. Doctors there diagnosed O.K. with extensive physical injuries: bruises on his back, thigh, knee, groin, and both sides of his head (ECF No. 8-13 at 47-48, 51, 53); a skull fracture (ECF No. 8-13 at 54); 22 separate rib fractures, with some ribs being broken more than once (ECF No. 8-13 at 58); a broken leg (ECF No. 8-13 at 59); bleeding between his brain and skull (ECF No. 8-13 at 60); extensive retinal hemorrhages (ECF No. 8-13 at 62); two lacerations to his liver (ECF No. 8-13 at 66); and his optic nerve was disconnected, resulting in blindness in his right eye (ECF No. 8-13 at 63). A physician with expertise in child abuse (ECF No. 8-13 at 45) concluded that O.K.'s injuries must have resulted from abuse. (ECF No. 8-13 at 64.)
Dkt. No. 15 at 1-2. Judge Duffin observed that between the petitioner and Erin Sabady, who were O.K.'s parents, Sabady took care of O.K. "90 to 95 percent of the time." Id. at 2 (citing Dkt. Nos. 8-11 at 14, 85; 8-13 at 5). The three of them lived with the petitioner's grandmother, Beverly Kehoss, and a friend "who would occasionally watch O.K," Steve Stessl. Id. Judge Duffin explained that the injuries occurred during the night of July 9, 2010, after the petitioner, Sabady, Kehoss and O.K. went shopping at Sam's Club. Id. ( ). As Judge Duffin described:
Id. at 2-3. Sabady wanted to call 911, but the petitioner "was reluctant." Id. at 3. According to Judge Duffin, the petitioner, while panicked, "wanted Sabady to wait to see if O.K. would improve." Id. At some point, the petitioner told Sabady that "he fell with O.K," and that "he was concerned they would be blamed for hurting O.K. and that O.K. would be taken away from them." Id. ( ). "According to Sabady, [the petitioner] said, 'They're going to say that, you know, we're drug addicts; and they're going to try and say I was high.'" Id. ( ).
After Sabady eventually called 911, the petitioner "refused to be present when the paramedics arrived" and instead hid in "his grandma's bedroom." Id. ( ). Judge Duffin described the ensuing investigation:
Dkt. No. 15 at 1-4. The State charged the petitioner with two counts of child abuse with the intent to cause great bodily harm and one count of child neglect resulting in great bodily harm. Id. at 4.
At trial, the petitioner argued that someone else must have abused O.K. Id. At the start of the second day, the court addressed some evidentiary issues, including the admissibility of testimony of Sabady's drug use. Dkt. No. 8-10 at 3-4. The court asked the petitioner's trial attorney, Rick Steinberg, how the instances of drug use would be admissible:
Id. at 21-22. The court then asked Attorney Steinberg to address how Sabady's drug use could be relevant for other purposes:
Id. at 23-24. The parties and the court discussed the Sabady's drug use within the context of O.K.'s medical appointments that the family either missed or canceled, and a detective's interview of Sabady. Id. at 24-28. The court then explained its decision to reserve ruling on the issue:
THE COURT: . . . The problem here is that it is very difficult to connect these things in time. We don't know exactly when these injuries occurred. We don't know exactly when Ms. Sabady was using these drugs. We don't know what kind of drugs. We don't know what level of intoxication occurred. We don't know whether in fact her ability to perceive and recall was impaired. . . . I am not going to make any ruling until predicate facts come in . . . [T]here is some relevance to motive. I agree that if she was using drugs and not properly caring for the child, she might have a motive to blame somebody else for the state of the child. And then I would have to decide whether the probative value of that is...
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