Olesen v. Class
| Decision Date | 17 January 1997 |
| Docket Number | No. Civil 95-3014.,Civil 95-3014. |
| Parties | Jerry OLESEN, Plaintiff/Petitioner, v. Joseph CLASS, Warden, South Dakota State Penitentiary, Mark Barnett, Attorney General, State of South Dakota, Defendants/Respondents. |
| Court | U.S. District Court — District of South Dakota |
Timothy M. Engel, May, Adam, Gerdes & Thompson, Pierre, SD, for Olesen.
Ann C. Meyer, Assistant Attorney General, Pierre, SD, for Joe Class and Mark Barnett.
ORDER DENYING AMENDED PETITION FOR WRIT OF HABEAS CORPUS
Petitioner, an inmate at the South Dakota State Penitentiary, filed a motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2254, and this Court previously assigned this matter to U.S. Magistrate Judge Mark A. Moreno, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B). Magistrate Judge Moreno filed a Report and Recommendation, Doc. 48, ("the Report") recommending that petitioner's amended petition for writ of habeas corpus, Doc. 19, be denied in all respects and dismissed with prejudice. A copy of the Report was served upon the parties as required by 28 U.S.C. § 636. Petitioner filed written objections thereto. Doc. 49.
The Court has made a de novo review of the record and transcripts herein and determines that petitioner's objections should be overruled and the findings and recommendations of Magistrate Judge Moreno as contained in the Report, Doc. 48, should be accepted and petitioner's amended petition for writ of habeas corpus, Doc. 19, be denied in all respects and dismissed with prejudice.
Petitioner's first objection to the Report is that petitioner's fundamental foundational arguments concerning L.Z.'s statements to Dr. Sutliff were not adequately addressed and Dr. Sutliff's interview with L.Z. was mischaracterized. This Court finds that the Report correctly discusses the test for determining whether admitted hearsay testimony is admissible pursuant to S.D.C.L. § 19-16-8 (similar to Fed.R.Evid. 803(4)), and therefore overrules petitioner's objection on lack of foundation. See Doc. 48 at 8-19. The Court, having reviewed Dr. Sutliff's testimony, finds that the characterization of Dr. Sutliff's interview with L.Z. as contained in the Report, Doc. 48 at 8-19, is accurate and therefore overrules petitioner's objection on this ground.
Petitioner's second objection to the Report involves the magistrate judge's conclusion that admission of the testimony of L.Z. did not violate the confrontation clause of the United States Constitution because the subject statements were not trustworthy. The Court agrees with the magistrate judge's findings as to the trustworthiness of these statements. See Doc. 48 at 10-19, and 26-28. Petitioner's second objection is therefore overruled.
Petitioner's third objection is that the magistrate judge erred in concluding that errors by petitioner's trial counsel concerning pretrial investigation and witness preparation were harmless because the truthfulness of L.S. was a central issue in the case. The magistrate judge concluded that although trial counsel's pretrial investigation and witness preparation were deficient, petitioner did not show that he was prejudiced by such deficiency to the extent that it had an adverse effect on petitioner's defense or the ultimate outcome of the case, or that the deficient performance undermined the result of the trial. See Doc. 48 at 31-35. The Court agrees with the magistrate's conclusion that trial counsel was not constitutionally ineffective because trial counsel called several witnesses for petitioner to attack L.S.'s credibility and her reputation for truthfulness or lack thereof, including L.S.'s brother, foster mother, aunt, mother and petitioner himself. The case cited by petitioner, United States v. Azure, 801 F.2d 336, 341 (8th Cir.1986), does not support petitioner's argument that the failure to fully and adequately prepare witnesses for testimony cannot be characterized as harmless error. Petitioner's objection on this ground is overruled.
Petitioner's fourth objection relates to the magistrate judge's conclusion that trial counsel was not constitutionally ineffective in cross-examining L.S. about her prior inconsistent statements. As referenced in the Report, Doc. 48 at 35-38, trial counsel did cross-examine L.S. about her prior inconsistent statements. This Court agrees with the magistrate judge's conclusion that trial counsel's decision regarding the breadth of his cross examination of L.S. was a tactical decision and was a professionally reasonable judgment under the circumstances. Id. Petitioner's objection on this ground is overruled.
The fifth objection raised by petitioner is that the magistrate judge erroneously concluded that petitioner's trial counsel was not constitutionally ineffective in failing to object to the opinion testimony of Angini Tapscott. The magistrate judge concluded that trial counsel's performance was deficient for failing to object to Tapscott's testimony in light of the evidentiary rules and the case law in 1986. However, after considering several factors, the magistrate judge concluded that this deficiency did not prejudice petitioner to the extent that it rendered the result of the trial unreliable or the proceeding fundamentally unfair. See Doc. 48 at 38-46. The Court agrees with these conclusions.
Petitioner cites Azure, 801 F.2d at 341, in support of his argument that the erroneously admitted testimony of Tapscott was not harmless error. The court in Azure, supra, was considering whether the admitted testimony amounted to harmless error. In this case, the Court is considering whether the deficient performance of petitioner's trial counsel was "so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The Magistrate's Report contains numerous factors which the Court must evaluate in making this determination. See Doc. 48 at 42-43. The Court in Azure, supra, did not discuss these various factors in reaching its conclusion that the erroneously admitted testimony was not harmless error. In this case, a careful evaluation of the appropriate factors leads to the conclusion that petitioner was not deprived of a fair trial. The trial result was reliable. Therefore, petitioner cannot establish ineffective assistance of his trial counsel. See Doc 48 at 38-46. Petitioner's objection on this ground is overruled.
Petitioner objects to the magistrate judge's conclusion that petitioner's trial counsel was not ineffective, considering the cumulative effect of trial counsel's claimed errors. Based on Wainwright v. Lockhart, 80 F.3d 1226, 1233 (8th Cir.1996), the Court overrules petitioner's objection because "[n]either cumulative effect of trial errors nor cumulative effect of attorney errors are grounds for habeas relief." Id.
Based on all of petitioner's specific objections, petitioner objects generally to the conclusions and recommendations as contained in the Report. This objection is overruled based on the discussion above concerning petitioner's specific objections.
(1) The Report and Recommendations For Disposition of U.S. Magistrate Judge Mark A. Moreno, Doc. 48, filed October 17, 1996, is hereby adopted as the Findings of Fact and Conclusions of Law herein.
(2) The objections of petitioner to the Report and Recommendation, Doc. 49, are overruled.
(3) Petitioner's amended petition for writ of habeas corpus, Doc. 19, is denied in all respects and dismissed with prejudice.
(4) Respondents's motion for more definite statement with respect to petitioner's amended petition for writ of habeas corpus, Doc. 29, is denied as moot.
(5) Respondent's motion to dismiss petitioner's amended petition for writ of habeas corpus for failure to exhaust state remedies or, in the alternative, to dismiss two of petitioner's procedurally defaulted claims, Doc. 31, is denied as moot.
References to the record in this case will be made using the docket number assigned by the Clerk to each document or set of documents filed (e.g., Docket No. ____). References to the transcript of the state jury trial held on May 13, 1986 and to the grand jury proceedings held on November 24, 1986 and January 9, 1986 will be made using the abbreviations "TTr", "GrJ Tr(1)", "GrJ Tr(2)", respectively, followed by the page in the transcripts. Exhibits received into evidence at the May 13, 1986 jury trial will be referred to as "Tr Ex" followed by the letter designated for each exhibit. Citations to the settled record in the underlying criminal case (Haakon County Crim. No. 86-2) will be made using the letters "CrR" followed by the numbered page found in the record. References to the record of the first state habeas corpus case (Haakon County Civ. No. 87-18) and the first state habeas corpus hearing held on June 15, 1987 will be made using the abbreviations "HR(1)" and "HTr(1)", respectively, followed by the appropriate pages in the record or transcript. References to the record of the second state habeas corpus action (Haakon County Civ. No. 91-5) and to the second state habeas corpus hearing, held on May 22, 1993, will be referred to using the abbreviations "HR(2)" and "HTr(2)", respectively, followed by the corresponding pages in the record or transcript.
The above-captioned matter1 was referred to this Court on September 26, 1995 by the District Court2 pursuant to 28 U.S.C. § 636(b)(1)(B) for the submission to the latter Court of proposed Findings of Fact and Recommendations for Disposition of the matter. Docket No. 20.
Having carefully reviewed and considered all of the records on file in both the state and federal...
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