Lee v. Kolb, 88-C-504.

• Decision Date: 20 February 1989
• Docket Number: No. 88-C-504.,88-C-504.
• Citation: 707 F. Supp. 399
• Parties: Tony Hanif LEE, Plaintiff, v. Darrell KOLB, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

707 F. Supp. 399

Tony Hanif LEE, Plaintiff, v. Darrell KOLB, Defendant.

No. 88-C-504.

United States District Court, E.D. Wisconsin.

February 20, 1989.

Tony Hanif Lee, Waupun, Wis., pro se.

Donald J. Hanaway, Atty. Gen. of Wis. by Sharon Ruhly, Asst. Atty. Gen., Madison, Wis., for defendant.

DECISION and ORDER

MYRON L. GORDON, Senior District Judge.

On January 17, 1989, I granted Mr. Tony Hanif Lee's petition for a writ of habeas corpus on the ground that his conviction for first degree murder, party to a crime, was obtained in violation of his sixth amendment right to confrontation of witnesses against him, 707 F.Supp. 394. The issuance of the writ was stayed for a period of seventy days so as to enable the state to commence a retrial; if a retrial is commenced, the issuance of the writ shall be permanently stayed. Entry of judgment has been delayed until completion of the seventy day period.

The respondent has filed a motion to reconsider and to alter the judgment pursuant to Rules 52(b) and 59(e), Federal Rules of Civil Procedure. Although no judgment has been entered in this action, the court has nevertheless considered the motion under the court's inherent power to reconsider and alter a nonfinal decision and order. Cf. G. Heileman Brewing Co. v. Joseph Oat Corp., 848 F.2d 1415, 1419 (7th Cir. 1988); Danenberger v. Johnson, 821 F.2d 361, 363 (7th Cir.1987). However, for the reasons stated herein, the motion will be denied. The background facts are fully set forth in this court's decision and order dated January 17, 1989, and therefore will not be repeated.

The respondent asserts two grounds for reconsideration: first, that this court erred in failing to afford a presumption of correctness under 28 U.S.C. § 2254(d) to the state appellate court's "factual finding" that the jury did not misuse the hearsay aspects of the out of court accusation; and second, that the circumstantial evidence contained in trial court transcripts not before this court are sufficiently overwhelming so as to render the violation of Mr. Lee's sixth amendment rights harmless error.

The factual findings of the state trial court, as well as, those of the state appellate court are subject to a presumption of correctness under 28 U.S.C. § 2254(d). Sumner v. Mata, 449 U.S. 539, 546, 101 S.Ct. 764, 769, 66 L.Ed.2d 722 (1981). Subsequently, in Sumner II, 455 U.S. 591, 597-98, 102 S.Ct. 1303, 1306-07, 71 L.Ed.2d 480 (1982), the Supreme Court held that in the context of § 2254(d), mixed questions of fact and law are subject to a de novo review. The issue of whether a petitioner's sixth amendment confrontation right has been violated is a mixed question of fact and law and is, therefore, subject to independent federal review. Burns v. Clusen, 798 F.2d 931, 941 (7th Cir.1986); Haggins v. Warden, 715 F.2d 1050, 1055 (6th Cir.1983); United States ex rel. Scarpelli v. George, 687 F.2d 1012, 1015 (7th Cir. 1982).

The respondent nevertheless argues that the state appellate court made a factual finding that the curative instruction given by the state trial court prevented misuse of the out of court accusation and that this finding requires due deference by this court. This assertion is without merit. Whether a limiting instruction is sufficient to prevent a violation of the confrontation clause is a constitutional determination, Bruton v. United States, 391 U.S. 123, 129-36, 88 S.Ct. 1620, 1624-28, 20 L.Ed.2d 476 (1968); United States v. Keplinger, 776 F.2d 678, 695 (7th Cir.1985), and as such it is not subject to a presumption of correctness. Burns, supra, 798 F.2d at 941.

Counsel for the respondent acknowledge that it was the state's obligation to place all relevant portions of the transcript before the court. The prosecution's belated (and feeble) contention is that other sections of the transcript were not submitted because the court requested specific portions. The state now contends that the full transcript, which it failed to file, is crucial to a proper...