Wilkinson v. Hofmann
| Decision Date | 19 August 2008 |
| Docket Number | No. 1:06-CV-234.,1:06-CV-234. |
| Citation | 572 F.Supp.2d 470 |
| Court | U.S. District Court — District of Vermont |
| Parties | Ricky WILKINSON, Petitioner v. Robert HOFMANN, Commissioner, Vermont Department of Corrections, Respondent. |
Henry B. Hinton, Jr., Office of the Defender General, Seth E. Lipschutz, Rebecca N. Turner, Vermont Defender General's Office, Montpelier, VT, William A. Nelson, Middlebury, VT, for Petitioner.
Kurt A. Kuehl, Vermont Attorney General's Office, Waterbury, VT, for Respondent.
The Magistrate Judge's Report and Recommendation was filed July 18, 2008. (Paper 20.) After de novo review and absent objection, the Report and Recommendation is AFFIRMED, APPROVED and ADOPTED. See 28 U.S.C. § 636(b)(1). The petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is GRANTED. The petitioner shall be released unless the State retries him within 90 days of the date of this Order.
SO ORDERED.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
(Paper 4)
Petitioner Ricky Wilkinson has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Wilkinson contends that his constitutional rights were violated during his state court trial which resulted in his aggravated assault conviction. Out-of-court statements by Wilkinson's stepson Tom, the victim, were introduced as evidence against him but the trial court did not allow Wilkinson to call Tom as a witness. Tom was barred from testifying because he had a perjury conviction and Vermont law at the time did not allow convicted perjurers to testify. Vt. Stat. Ann. tit.13, § 2907 (1947)(repealed 2006). Wilkinson's conviction was upheld by the Vermont Supreme Court, State v. Wilkinson, 178 Vt. 174, 879 A.2d 445 (2005), and he now seeks post-conviction relief in federal court. Wilkinson argues that the introduction of Tom's out of court statements violated the Confrontation Clause and his right to present a defense under the Sixth Amendment. For the reasons set forth below, I recommend that Wilkinson's petition be GRANTED.
On February 11, 2003, Wilkinson was convicted of first-degree aggravated domestic assault for threatening to kill his stepson, Tom, while pointing a gun at him. Wilkinson, 178 Vt. at 175, 879 A.2d 445. He was sentenced to 10-15 years in prison. The Vermont Supreme Court summarized the facts of the case as follows:
The charge arose from events that took place at defendant's home while he was intoxicated. Defendant and his wife had an argument that escalated to the point where defendant threatened to kill the family dog. Someone present in the home at the time called the police, and defendant fled. The police arrived and eventually took defendant's wife to the police station so that she could give a statement. When the wife returned home, she saw Tom and a friend outside. The friend warned her that defendant had a gun. At some point, Tom and defendant's daughter went inside the home and found defendant with a gun, yelling, "[s]omebody's going to die today." Defendant pointed the gun at Tom. The police were summoned again and arrived shortly thereafter.
On the morning before Wilkinson's trial the defense learned for the first time that the prosecution would not call Tom as a witness. Instead, the prosecution intended to introduce Tom's out-of-court statements about the incident. Tom made the statements to Wilkinson's cousin shortly after the incident. Id. at 175-76, 879 A.2d 445. Tom told the cousin that: "(1) he was afraid; (2) defendant had pulled a gun on him; (3) he had never been so scared in his whole life; and (4) he thought defendant was going to kill him." Id. at 176, 879 A.2d 445. The trial court allowed these statements into evidence as excited utterances. Id.
Faced with the admission of Tom's out-of-court statements, Wilkinson requested to call Tom as a witness and cross-examine him. The prosecution raised the issue of Tom's preclusion under 13 V.S.A. § 2907, which provides that "[t]he oath of a person convicted of perjury ... shall not be received in a proceeding in court." Tom had been previously convicted of perjury and therefore his testimony would be barred by the plain language of the statute. The prosecution declined to waive the testimonial bar, noting that it was unclear whether it could be waived. The court therefore did not allow Wilkinson to call Tom as a witness. Wilkinson's cousin testified to Tom's statements.
Arguing that his constitutional rights to confront his accuser and to present defense evidence were violated by not allowing him to call Tom as a witness, Wilkinson appealed his conviction to the Vermont Supreme Court, which affirmed the conviction.
The Court may grant a writ of habeas corpus if the state courts unreasonably applied clearly established federal law. 28 U.S.C. § 2254(d)(1). Wilkinson argues that the state courts unreasonably applied the Sixth and Fourteenth Amendments of the United States Constitution by not allowing him to cross-examine Tom.
Wilkinson argues that admitting Tom's out-of-court statements, without the opportunity to cross-examine, violated the Confrontation Clause. He relies on the Supreme Court's holdings in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) and Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). The state responds that Tom's statements were not testimonial and therefore there was no Confrontation Clause violation. Further, the state argues that Crawford is not to be applied retroactively and therefore cannot be applied to this case.
Crawford was issued on March 8, 2004, after Wilkinson was sentenced but prior to the Vermont Supreme Court's decision. The Vermont Supreme Court applied Crawford in its opinion and found the statement to be non-testimonial. In Davis the United States Supreme Court clarified the meaning of "testimonial". Davis distinguished between statements about "what is happening", which are nontestimonial in nature, and statements about "what happened", which are testimonial in nature. 547 U.S. at 830, 126 S.Ct. 2266.
The Supreme Court in Whorton v. Bockting held that Crawford announced a "new rule" of constitutional law that is not to be applied retroactively. ___ U.S. ___, 127 S.Ct. 1173, 1180-81, 167 L.Ed.2d 1 (2007). Therefore, Crawford is only applicable to cases on direct review. Whorton, 127 S.Ct. at 1180 (citing Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)). However, Crawford was decided while this case was on direct appeal to the Vermont Supreme Court and therefore Crawford was properly applied.
However, Davis was decided after the Vermont Supreme Court upheld the conviction. Therefore, the retroactivity rule of Whorton does not apply here.
Habeas relief may not be granted based on law that was not clearly established at the time that the conviction became final. See 28 U.S.C. § 2254(d)(1). While Tom's statements could possibly be seen as testimonial under Davis, Davis was not clearly established law when Wilkinson's conviction became final. Therefore, the court must review the decision using Crawford but not Davis.
The Vermont Supreme Court, applying Crawford, found that Tom's statements to his cousin were not testimonial and therefore there was no Confrontation Clause violation. Wilkinson, 178 Vt. at 177 ¶ 7, 879 A.2d 445.
In Crawford, the Supreme Court explicitly declined to comprehensively define "testimonial" statements. 541 U.S. at 68, 124 S.Ct. 1354. The Court did give examples of what would clearly be considered testimonial: formal, out of court statements to government officials; ex parte examinations; affidavits; depositions; prior testimony; confessions; and statements made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. Id. at 51-52, 124 S.Ct. 1354.
The Vermont Supreme Court distinguished Tom's statements from the examples given in Crawford. Wilkinson, 178 Vt. at 178, 879 A.2d 445. The court noted that the statements were not given to the police, in the presences of the police, or in the course of a police investigation; were given to someone with no relationship to the prosecution; were not given under oath; were not part of the adversarial process; were not made in a structured environment; no one was examining Tom for the purpose of collecting information; and Tom was in an excited state. Id.
Without the benefit of the Davis decision to clarify the meaning of "testimonial", the Vermont Supreme Court applied Crawford reasonably by relying on facts that distinguished Tom's statement from the examples given in Crawford. Therefore, habeas relief on Confrontation Clause grounds cannot be granted.
Wilkinson claims that his right to present a defense was violated when 13 V.S.A. § 2907 restricted him from calling Tom as a witness.
State prisoners seeking federal habeas review ordinarily-must first exhaust available state remedies. See 28 U.S.C. § 2254(b) and (c); see also Daye v. Attorney Gen. of N.Y., 696 F.2d 186, 190 (2d Cir.1982). The exhaustion requirement "springs primarily from considerations of comity" between the federal and state governments. Daye, 696 F.2d at 191. To meet the requirements of exhaustion, a petitioner must fairly present the claims he seeks review of to the highest state court available. Id.
The State argues that Wilkinson has failed to exhaust his Confrontation Clause claim, but it has failed to raise the exhaustion issue in regard to his right to present a defense claim. Wilkinson raised the issue with the Vermont Supreme Court and has therefore exhausted his state court remedies. See Wilkinson, 178 Vt. at 179-80, 879 A.2d 445.
The State argues that...
To continue reading
Request your trial