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

EDWARD KUCHINSKAS, Petitioner, v. DAN WINKELSKI, Respondent.

Case No. 16-cv-1054-pp

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

November 23, 2020

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.

I. Background

A. Underlying Case

1. Pre-trial

The petitioner does not object to the factual recitations in Judge Duffin's report and recommendation, and this court adopts them. Judge Duffin recounted:

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 recounted 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 lived with the petitioner's grandmother, Beverly Kehoss, and a friend, Steve Stessl, "who would occasionally watch O.K." 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. (see also dkt. no. 8-4 at 42-43). Judge Duffin related that

[a]t about 10:30 P.M., a neighbor was awoken by the sounds of O.K. screaming: "Very short, shrill at the top of the lungs screams. Not like a cry. Just short bursts of loud, shrill screams." (ECF No. 8-10 at 40.) He looked out his window and saw [the petitioner] with O.K. outside their home. (ECF No. 8-10 at 41.) At about 1:30 A.M., the neighbor was again awoken by O.K.'s screams and again looked outside to see [the petitioner] with O.K. (ECF No. 8-10 at 43.) And again at about 3:30 A.M. the neighbor awoke to O.K.'s screams and saw [the petitioner] outside with O.K. (ECF No. 8-10 at 43.)

Between 5:00 A.M. and 6:00 A.M., Sabady awoke and saw [the petitioner] and O.K. asleep in the living room. Sabady went outside to smoke. When Stessl came home, he joined her. Soon thereafter, Sabady heard O.K. start to cry and went inside. An alarm on a breathing monitor O.K. wore was going off. Sabady saw [the petitioner] standing over O.K., panicked, trying to figure out what was wrong with O.K. They then realized that the cord connecting the sensor to the monitor had become disconnected, causing the alarm to go off. (ECF No. 8-11 at 34.) Sabady observed that O.K. looked very pale, was having difficulty breathing, and was making a grunting sound. (ECF No. 8-11 at 40.) Although his eyes were open, they were fixed and unreactive. (ECF No. 8-11 at 40-41.)

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. (citing dkt. no. 8-11 at 42). "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. (citing dkt. no. 8-11 at 43).

After Sabady eventually called 911, the petitioner "refused to be present when the paramedics arrived" and instead hid in "his grandma's bedroom." Id. (citing dkt. no. 8-11 at 44). Judge Duffin described the ensuing investigation:

Medical personnel at Children's Hospital notified the police of their suspicions of child abuse. Police investigated, recovering bloody baby linens from the home and speaking with the members of the household. All denied intentionally injuring O.K. However, [the petitioner] acknowledged that on July 5, 2010, he was bathing O.K. in a sink when O.K. slipped from his hands and fell, landing so that he straddled the divider in the sink. (ECF No. 8-13 at 17, 51-52.) [The petitioner] also again said that he fell with O.K. on the morning of July 10, 2010. (ECF No. 8-13 at 36.) [The petitioner] reported that O.K. fell first, maybe striking his head on a rocking chair, landing on the carpeted floor, and then Kuchinskas landed on top of O.K. with his hand on O.K.'s chest. (ECF Nos. 8-13 at 47; 8- 14 at 41-42.)

A physician, Dr. Angela Rabbit, opined that nearly all of O.K.'s injuries occurred no more than 10 days before his admission to the hospital and could have happened very recently—within hours. (ECF No. 8-13 at 57-59.) The only exception was a single rib fracture that probably occurred at least a week prior. (ECF No. 8-13 at 58-59.)

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.

2. Trial in Milwaukee County Circuit Court

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:

THE COURT: . . . Mr. Steinberg, how are these items relevant to any of the permissible purposes under the [Sullivan]¹ analysis?

MR. STEINBERG: They provide opportunity, intent. They provide an explanation, knowledge.

THE COURT: Okay. So let me go through them one at a time. How does her using drugs create more of an opportunity for her to have abused this child?

MR. STEINBERG: I think any person who uses drugs, just like when we talk about alcohol and drinking and driving, is more of a danger. I think anybody who uses drugs is more of a danger to the child. I think anybody who is using drugs—

THE COURT: Mr. Steinberg, that is a propensity analysis . . . . You can't use this drug use for that purpose. That is specifically what the statute precludes.

Id. at 21-22. The court then asked Attorney Steinberg to address how Sabady's drug use could be relevant for other purposes:

THE COURT: . . . You also mentioned motive?

MR. STEINBERG: Motive to—Right. I think the drug use goes to motive to—Well, I don't know if motive is the right word. Intent and knowledge as far as she could forget about it. If she is on drugs she can forget about something that happened, especially if you are up for three days leading up to July 10th . . . .

THE COURT: Okay. So, basically, then you are just attacking the basic ability to perceive and recall?

MR. STEINBERG: Right.

THE COURT: Okay.

MR. STEINBERG: I think it is a motive to lie. I think it is a motive because you know you are on drugs and you are thinking to yourself, gee whiz, something terrible could have happened to the child when I had the child.

THE COURT: Okay. So motive to lie is a permissible purpose. All right.

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.

Id. at 29-30.

After the State's direct examination of Sabady and outside the presence of the jury, the court returned to the issue of her drug...