Kuchinskas v. Winkelski, Case No. 16-cv-1054-pp
Decision Date | 23 November 2020 |
Docket Number | Case No. 16-cv-1054-pp |
Parties | EDWARD KUCHINSKAS, Petitioner, v. DAN WINKELSKI, Respondent. |
Court | U.S. District Court — Eastern District of Wisconsin |
ORDER ADOPTING JUDGE DUFFIN'S RECOMMENDATION (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 conviction in Milwaukee County Circuit Court on 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. The clerk's office assigned the case to Magistrate Judge William E. Duffin, who screened the petition, allowed the petitioner to proceed and ordered the respondent to answer. Dkt. No. 4. The respondent answered on October 27, 2016. Dkt. No. 8. Shortly after, the case was reassigned to this court. The respondent then filed his brief in opposition to the petition. Dkt. No. 11. The petitioner replied on March 31, 2017. Dkt. No. 13.
In May 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. The petitioner timely filed objections. Dkt. No. 16. The court will overrule the objections, adopt Judge Duffin's 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. Judge Duffin recounted:
Id. at 2-3. Sabady wanted to call 911, but the petitioner "was reluctant." Id. at 3. 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 Sabady's drug use in 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 that it would 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 substantially outweighed by the danger of unfair prejudice, and I can't really make that determination until more evidence has come in.
After the State's direct examination of Sabady and outside the presence of the jury, the court returned to the issue of her drug...
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