Rozenski v. Smith

• Decision Date: 11 March 2012
• Docket Number: Case No. 9-C-775
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: JAMES ROZENSKI, Petitioner, v. JUDY SMITH, Warden Oshkosh Correctional Institution Respondent.

JAMES ROZENSKI, Petitioner,

v.JUDY SMITH, Warden Oshkosh Correctional Institution Respondent.

Case No. 9-C-775

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

Dated: March 11, 2012

DECISION AND ORDER

On August 11, 2009, petitioner James Rozenski filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner was convicted of two counts of sexual assault/use of force, one count of false imprisonment, and one count of misdemeanor battery. On January 21, 2005, the petitioner was sentenced to a ten-year prison term consisting of seven-years imprisonment and three-years extended supervision for each count of sexual assault, a three-year prison term consisting of one-year imprisonment and two-years extended supervision for the false imprisonment account, and nine-months imprisonment for the misdemeanor battery count, all to be served concurrently.

The court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 because the matter arises under federal statutes. Venue is proper under 28 U.S.C. § 1391. The case was assigned according to the random assignment of civil cases pursuant to 28 U.S.C. § 636(b)(1)(B) and General Local Rule 3 (E.D. Wis.). The parties have consented to UnitedStates magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c) and General Local Rule 73 (E.D. Wis.).

In his petition, the petitioner states nineteen grounds for relief. Ground one alleges that the state trial court applied the wrong legal standard to the petitioner's claim of ineffective assistance of counsel. Grounds two through six and nine through fifteen allege ineffective assistance of counsel based on counsel's failure to do the following: to review and present exculpatory evidence (ground two); to research, obtain, and present additional exculpatory evidence (ground three); to research or seek expert opinions concerning the medical findings, specifically, the lack of any physical evidence to support the victim's claims of a brutal rape (ground four); to object to the prosecutor's improper closing arguments, specifically, the prosecutor's vouching for the state's witnesses, the prosecutor's claim of facts not in evidence, the prosecutor's expression of her opinion of the petitioner's guilt or credibility, and the prosecutor's remarks designed to inflame the jury (ground five); to object to the submission of the victim's statement to the jury during deliberations (ground six); to object to the testimony of the State's expert witness, Dr. Nielsen (ground nine); to conduct adequate discovery (ground ten); to object to the State's motion in limine (ground 11); to object to the admission of the petitioner's underwear (ground 12); to object to repetitious hearsay testimony by the State's witnesses (ground 13); to move for a mistrial (ground 14); and, to object to State Criminal Jury Instruction 140, which instructed the jury to search for the truth (ground 15).

Grounds seven, eight, and sixteen through nineteen assert that the prosecutor engaged in prosecutorial misconduct by: suggesting that the jury had to choose between the petitioner's version of events or the version presented by the state's witnesses (ground seven); using perjured testimony to obtain a conviction and suppressing evidence in violation of Brady v.Maryland, 373 U.S. 83 (1963) (ground eight); soliciting hearsay testimony and failing to adhere to the trial court's repeated admonishments (ground 16); making improper remarks during closing arguments (ground 17); and focusing on facts not in evidence (ground 18), all in violation of the petitioner's due process rights.

Finally, ground nineteen asserts that the state circuit court denied the petitioner an impartial jury. The petitioner contends that the size of the jury pool was too small, that six of the twelve jurors were intrinsically connected with each other, that Rochelle Drehmel was observed talking to one of the jurors during trial, and that inadmissible evidence was submitted to the jury during deliberations. (Petition for a Writ of Habeas Corpus at 60).

United States District Judge Rudolph T. Randa conducted a preliminary examination of the petition in accordance with Rule 4 of the Rules Governing § 2254 Cases on September 27, 2009. Judge Randa dismissed the petitioner's first ground for relief because it "is included in the standard for review of the merits of state habeas corpus petitions and does not constitute a separate ground for relief." (Court's Order of September 27, 2009). He then consolidated the petitioner's remaining grounds for relief into the following three grounds: (1) ineffective assistance of counsel, (2) prosecutorial misconduct, and (3) denial of the right to be tried by an impartial jury. After consolidating the petitioner's claims, Judge Randa determined that each of the three claims stated a cognizable constitutional ground for relief.

Judge Randa also reviewed the petition to determine whether the petitioner exhausted each of his claims in state court. After such review, he determined that it was not possible at that juncture in the proceedings to determine whether the petitioner had presented each of his contentions regarding ineffective assistance of counsel, prosecutorial misconduct, and an impartial jury to the Wisconsin state courts. Judge Randa then concluded that dismissal of thepetition under Rule 4 was not warranted, and ordered the respondent to answer the petition for a writ of habeas corpus. The respondent answered the petition on October 28, 2009. The parties subsequently briefed the petition. Therefore, the petition is ready for disposition and will be addressed herein.

RELEVANT FACTUAL BACKGROUND

The Wisconsin Court of Appeals set forth the relevant facts in its March 4, 2008 decision:

Rozenski was charged with sexually assaulting Rochelle Drehmel in Wausau on February 22, 2002. Drehmel told police that she and Rozenski had been dating for about a year but their relationship ended several weeks prior to the assault. Drehmel stated they had a fight the night before New Year's Eve, and she went out on New Year's Eve with other friends, including Jeremy Zilisch, whom she eventually began dating.

At trial, Drehmel testified that she had agreed to take care of Rozenski's parents' cats in Wausau while they were on vacation. At this time, Rozenski was attending Marquette University in Milwaukee but drove up to Wausau the night before the assault, looking for Drehmel. Rozenski knocked on the door of Drehmel's parents' house at 1:17 a.m., inquiring as to Drehmel's whereabouts. Drehmel's mother testified that Rozenski stated, "Rochelle and I, we are having some difficulties in our relationship, and I thought I would try to come up and work some things out with her." Rozenski also went to Drehmel's workplace in the early morning hours looking for her. Scott DeBroux testified that he was in the break room when Rozenski came up to the window and knocked. Rozenski indicated he was looking for Drehmel. Rozenski then drove to Antigo searching for Drehmel, returning back to Wausau at 4:45 a.m. During this period, Rozenski telephoned Drehmel on several occasions and left messages. Drehmel stayed at Zilisch's that night.

On the morning of the assault, Drehmel fed the cats and then went to a hair appointment. Rozenski telephoned her when she was at the hair appointment and asked her to return to his parents' house. Drehmel agreed, and when she arrived, Rozenski wanted to know where she had been the night before. Rozenski also talked about working out their relationship but Drehmel told him the relationship was over and he needed to move on.

Drehmel and Rozenski sat on the couch and Rozenski leaned over and grabbed her by the coat, pulling her over to him. Rozenski started to hug and kiss her. She pushed away and told him that his actions were not going to help their relationship. Rozenski released her and she moved back to the other end of the couch. Rozenski then grabbed her again, preventing her from moving away from him. She again told him his actions were not going to help their relationship, andhe released her. Rozenski pulled her over a third time onto his lap, and tried to pull her jacket off.

Rozenski then pinned her down by forcefully holding her wrists while she attempted to push away. Rozenski took one hand and put it down her workout pants and inserted his finger into her vagina. He then picked her up and carried her into the bedroom where he used his hands to cross her wrists and pin her hands above her head while pulling down her pants. He then put his penis inside her, while she pushed and screamed at him to stop. Rozenski pulled her hair and became more aggressive until he ejaculated. Rozenski then started crying and saying, "I love you, I love you," while hugging her. Rozenski also said, "You wouldn't let me walk away from you once, and I'm not going to let you walk away from me...." Rozenski then let Drehmel up but held onto her to prevent her from getting off the bed while continuing to say that he loved her.

Rozenski finally allowed Drehmel to get up and get dressed. He said, "Just stop, I want to talk to you, you know, I love you. Let's just talk about this. We can work things out." While Rozenski was talking, Drehmel's cellular phone rang, and Rozenski demanded to know who was calling. A fight ensued over the phone and Rozenski eventually got the phone out of her pocket, trying to determine from the caller identification feature who telephoned. Rozenski kept asking, "Who's calling? How do I find out who called?" They continued to struggle and the phone rang a second time. Rozenski grabbed it, and ran into another room, and said, "Oh, Jeremy." Drehmel then got up and screamed, "Jeremy, help me." Rozenski turned to her and said, "You bitch," then grabbed Drehmel and took her into the bedroom a second time. While straddling her on the floor, he demanded to know who "Jeremy" was and took both hands and began to squeeze her neck.

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