Walters v. Maschner

Citation151 F.Supp.2d 1068
Decision Date11 July 2001
Docket NumberNo. C97-1025-MWB.,C97-1025-MWB.
PartiesErnest F. WALTERS, Petitioner, v. Herb MASCHNER, Respondent.
CourtUnited States District Courts. 8th Circuit. Northern District of Iowa

Stephen A. Swift, Klinger, Robinson & Ford, L.L.P., Cedar Rapids, Iowa, for Petitioner.

Ernest F. Walters, pro se.

Robert P. Ewald, Assistant Iowa Attorney General, Des Moines, Iowa, for Respondent.

MEMORANDUM OPINION AND ORDER REGARDING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE ON PETITION FOR WRIT OF HABEAS CORPUS

BENNETT, Chief Judge.

                TABLE OF CONTENTS
                I. INTRODUCTION ...............................................................1071
                     A. Factual Background.......................................................1071
                     B. Procedural Background....................................................1072
                 II. LEGAL ANALYSIS .............................................................1073
                     A. Standard Of Review ......................................................1073
                     B. "Abandoned" Claims ......................................................1074
                     C. Alleged Errors By The Trial Court .......................................1075
                        1. Denial of request for expert to aid in jury selection ................1076
                        2. Admission of evidence of "uncharged crimes" ..........................1076
                           a. The claim, the recommended disposition, and the objections ........1076
                           b. Reviewability of state rulings on admissibility of evidence .......1078
                           c. Due process review in this case ...................................1081
                     D. Alleged Errors By Trial And Appellate Counsel ...........................1084
                        1. Trial counsel's failure to strike a juror for bias ...................1084
                           a. The claim, the recommended disposition, and the objections.........1084
                
                b. Prongs of the "ineffective assistance" analysis....................1086
                               i. Professional performance ......................................1087
                              ii. Prejudice......................................................1088
                        2. Ineffective assistance concerning insufficiencies in the trial
                information ........................................................1094
                           a. Characterization of the claims ....................................1094
                           b. Recommended findings and disposition ..............................1097
                           c. Counsel's objections and requisite review .........................1100
                               i. Lack of notice ................................................1101
                              ii. Evidence of intent to kidnap Cheryl Beck.......................1105
                III. CONCLUSION .................................................................1107
                

Seeking relief from his convictions in state court for murder, burglary, robbery, and kidnapping, the petitioner filed a petition for a writ of habeas corpus from this federal court pursuant to 28 U.S.C. § 2254. The petitioner asserts, inter alia, that the state trial court violated his right to due process by denying his request for an expert to aid in jury selection and by admitting evidence of uncharged crimes; his trial counsel was ineffective in failing to strike a biased juror and in failing to argue that the trial information gave insufficient notice of the murder and burglary offenses with which petitioner was charged; and his appellate counsel was ineffective in failing to preserve trial counsel's error with regard to the insufficiency of the trial information. A magistrate judge recommends that relief be denied on all of the grounds asserted by the petitioner, and the petitioner asserts various objections to that recommendation, both pro se and through counsel. Therefore, this court must undertake a de novo review of the findings of fact and conclusions of law of the magistrate judge to which objections have been made.

I. INTRODUCTION
A. Factual Background

As Magistrate Judge Paul A. Zoss observed in his February 7, 2001, Report and Recommendation in this matter, the Iowa Supreme Court found the following facts on petitioner Ernest F. Walters's direct appeal of his October 18, 1985, convictions for first-degree murder, first-degree burglary, first-degree robbery, and two counts of second-degree kidnapping:

Defendant Ernest Walters and Cheryl Beck lived with each other for several years. A son, Elijah, was born to them. In April 1985 Cheryl left Walters and moved back in with her parents, taking Elijah with her.

In June 1985 Walters abducted Ruth Corcoran. After forcing Corcoran to drive to St. Louis and then to Chicago, Walters and Corcoran drove to the home of Cheryl Beck's parents, in Jackson County[, Iowa]. Carrying a handgun, Walters forced his way into the Beck house. Walters shot and killed Cheryl's father, Robert Beck, and shot and wounded Cheryl's mother and sister. Walters then fled, taking Corcoran, Cheryl and Elijah with him. At one point Walters sexually abused Cheryl. After two days Walters was apprehended in Missouri.

State v. Walters, 426 N.W.2d 136, 137-38 (Iowa 1988); see also Report and Recommendation at 2-3 (quoting this portion of the Iowa Supreme Court's ruling). As Judge Zoss correctly observed, these facts are "presumed to be correct" for purposes of Walters's habeas corpus action. See 28 U.S.C. § 2254(e)(1). Moreover, none of Walters's claims for habeas corpus relief in the present action involves a challenge to any of these facts.

B. Procedural Background

Walters was tried before a jury in Iowa District Court for Muscatine County1 after the trial judge granted Walters's motion for a change of venue for his trial from Jackson County, owing to pre-trial publicity and the prominence of the alleged murder victim, Robert Beck, in Jackson County. See id. at 138.2 The jury convicted Walters on all five of the charges against him. Following his conviction, Walters was sentenced to life in prison on the murder charge and twenty-five years imprisonment on each of the other charges. The Iowa Supreme Court affirmed Walters's conviction on direct appeal on June 15, 1988, and dismissed as frivolous his appeal of denial of post-conviction relief, without an opinion, on March 15, 1993.

Walters then filed the present petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 in the United States District Court for the Southern District of Iowa. His petition was transferred to this court on June 9, 1997. On October 24, 1997, after initial review, the court ordered the respondent to answer the petition.3 The court also granted Walters's application for appointment of counsel. The respondent answered the petition on February 13, 1998. Walters filed a "Recasted Petition" on October 16, 1998, which the respondent answered on November 10, 1998. The parties then submitted briefs in support of and resistance to the claims asserted in the "Recasted Petition." In Walters's case, the briefs included submissions by counsel and by Walters pro se.

On May 25, 2000, the undersigned referred this matter to Magistrate Judge Paul A. Zoss pursuant to 28 U.S.C. § 636(b)(1)(B) for the filing of a report and recommended disposition of the petition. Judge Zoss heard oral arguments on the merits of Walters's petition on July 18, 2000, and submitted the Report and Recommendation currently under review on February 7, 2001, after receiving supplemental post-argument briefs from the petitioner, again through counsel and pro se.

Although Walters asserted eight grounds for relief in his "Recasted Petition," Judge Zoss concluded in his Report and Recommendation that Walters had abandoned grounds 4, 5, and 8. In his Report and Recommendation, Judge Zoss characterized the claims Walters is still pursuing as follows:

1. Walters received ineffective assistance of counsel in violation of his Fifth, Sixth, and Fourteenth Amendment rights because his trial counsel "failed to strike or [re]move for cause juror Edna Phillips whose relationship to the State's complaining witnesses cause this juror to be biased or otherwise tainted."

2. Walters was denied his right to due process under the Fourteenth Amendment because the trial court denied Walters's motion for an expert to aid in jury selection.

3. Walters was denied his right to a fair trial under the Fourteenth Amendment because the trial court denied Walters's motion in limine to exclude testimony of "uncharged crimes," to-wit: that Walters had sexually abused his wife [girlfriend Cheryl Beck].

* * * * * *

6. Walters's trial counsel was ineffective in failing to argue the felony underlying Count II of the indictment (first degree burglary) "was not defined or identified until the jury instructions were given."

7(a). Trial counsel was ineffective for failing to argue "lack of sufficient notice" in Count I of the indictment, the killing of Bob Beck.

7(b). Appellate counsel was ineffective for failing to preserve a claim that trial counsel was ineffective for failing to argue "lack of sufficient notice" in Counts I and II of the indictment.

Report and Recommendation at 4-5. Walters has not objected to Judge Zoss's characterization of the claims he is still pursuing. However, Walters does object to other portions of Judge Zoss's February 7, 2001, Report and Recommendation, which recommends denial of all of Walters's claims.

Specifically, on February 20, 2001, Walters's counsel filed objections to the portions of the Report and Recommendation pertaining to the grounds for relief identified above as 6, 7(a), and 7(b). See Plaintiff's Objections To Report And Recommendation, February 20, 2001 (Petitioner's Counsel's Objections). On March 26, 2001, after an extension of time to do so, Walters filed pro se objections to the portions of the Report and Recommendation pertaining to grounds for relief identified above as 1 and 3. See Plaintiff's Objections To Magistrate's Report And Recommendation, March 26, 2001 (Petitioner's Pro Se Objections). The...

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