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Reese v. Zetecky

United States District Court, S.D. Indiana, Indianapolis Division

March 26, 2018

GEORGE A. REESE, Petitioner,
v.
DUSHAN ZETECKY Superintendent, Respondent.

          ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

          Hon. Jane Magnus-Stinson, Chief Judge

         Petitioner George A. Reese is serving a 70-year sentence for his 2012 Harrison County, Indiana conviction for child molestation. He brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons that follow, Mr. Reese's petition for a writ of habeas corpus is denied and the action dismissed with prejudice. In addition, the Court finds that a certificate of appealability should not issue.

         I. Factual and Procedural Background

         District court review of a habeas petition presumes all factual findings of the state court to be correct, absent clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1); Daniels v. Knight, 476 F.3d 426, 434 (7th Cir. 2007). On direct appeal, the Indiana Court of Appeals summarized the relevant facts:

K.J., born in March 1996, lived with her family in New Albany, Floyd County. In May 2008, the family met Reese at a cookout. Reese moved in with them in New Albany, and when they moved in June 2008 to a four-bedroom one-bathroom house in Palmyra, Harrison County, Reese moved with them. The household in Palmyra consisted of five children and seven adults: K.J., her older brother R.J., her older sister L.J., her younger brother M.J., her younger sister S.J., her father Robert, her stepmother Christina, her stepmother's cousin Tommy, Tommy's wife Angela, Tommy's brother Michael Priddy, Michael Devore, and Reese. While in Palmyra, Reese asked Robert and Christina if they knew “where he could get some young pussy.” Tr. p. 1087. Robert and Christina said no.
Reese, who was fifty-two years old, flirted with twelve-year-old K.J., bought her ice cream and other items, and treated her differently from the other children. He also hugged her, which made her uncomfortable.
Robert was cooking out in the backyard one day when he sent K.J. into the kitchen for some ketchup. Upon walking into the kitchen, she saw Reese there. Reese asked K.J. to give him a blow job and pulled down his pants. Scared, K.J. knelt down and put her mouth on his penis. When S.J. appeared at the back door and saw them, K.J. stopped and went to her room, mad and humiliated that her little sister had to see her like that.
About a month after the family moved to Palmyra, S.J. told Christina what she had seen. When Robert learned about it, he confronted Reese, who admitted what he had done with K.J. Robert kicked Reese out of the house.
Robert invited Reese back to Palmyra sometime after the wind storm in September 2008 because he wanted to find out his last name. At some point, K.J. told L.J. about what Reese made her do. L.J. eventually stuck a knife to Reese's throat and ordered him out of the house. When Robert and Christina asked where Reese was, L.J. said she put a knife to his throat and kicked him out because he had been making K.J. do things to him. Robert called Reese and threatened him.
When Reese lived with the family, he gave them money for groceries and also bought them an above-ground pool. Several months after L.J. kicked him out at knifepoint, Reese called Robert and offered to buy the family some furniture. Robert said they did not need anything from him. Reese then asked to talk with K.J. Robert allowed it but monitored the call from another phone in the house. Reese asked K.J. “how his dick tasted in her mouth.” Id. at 1085. Robert angrily interjected that he would rip Reese's heart out and feed it to him. Reese hung up.
Indiana State Police Detective William Wibbels began investigating the case in November 2009. During his investigation, he spoke with K.J., who had since been removed from the home and was staying at a youth shelter. K.J. told Detective Wibbels that Reese made her perform oral sex on him about two hundred times. The State filed numerous charges against Reese but dismissed all but one count of Class A felony child molesting and one count of being a habitual offender. Before trial, Reese filed a motion in limine seeking to prohibit the State from presenting evidence of his alleged uncharged misconduct, which the court granted. Reese was tried in February 2012, but the jury deadlocked and the court declared a mistrial. Before the second trial, Reese took a polygraph examination, which he had been demanding to take since he was first charged. The examiner asked Reese in three different ways whether he had engaged in oral sex with K.J. Each time, Reese responded no and the examiner determined he was being untruthful.
K.J. and others testified for the State on retrial. K.J. testified that Reese asked her for a blow job and pulled down his pants, and she complied. On cross, Reese verified with K.J. that she had initially told Detective Wibbels that she was forced to perform oral sex on Reese about two hundred times but was now telling the jury that it happened only once. The following exchange then occurred:
Q: Why would you lie to Officer Wibbels and tell him it happened two hundred times and then today say it only happened once?
A: We were talking about several different me [sic] so ...
Q: Okay. So if you're talking about several different people that means it's okay to lie about what George did to you?
A: It wasn't practically lying.
Q: Pardon me?
A: It wasn't lying. It was mis-confusion.
Id. at 833. Reese then pointed out several inconsistencies between K.J.'s deposition testimony and trial testimony. On redirect, K.J. acknowledged the inconsistencies but testified that she had never wavered about the fact that Reese put his penis in her mouth when she was twelve years old. She further said that she had been abused by a lot of men and that it was difficult to keep everything straight. On recross, K.J. testified that five men, including Reese, had sexually abused her. On redirect, the State asked K.J. whether there were certain things she could not discuss at trial, and K.J. responded affirmatively. She said that those rules made it more difficult to answer questions.
Reese and others testified for the defense. Reese denied that any oral sex with K.J. occurred. He stated that the last time he stayed with K.J.'s family was for a few days in October 2008. One morning during that time, he thought he heard Robert asking K.J.'s sister L.J. in the kitchen, “[D]o you want me to lick your pussy[?]” Id. at 1649. Reese testified that he confronted Robert about it by phone in February or March 2009, and Robert hung up on him. Reese claimed that no one thought he had done anything wrong until he accused Robert of wrongdoing.
The jury found Reese guilty of Class A felony child molesting and subsequently found him guilty of being a habitual offender. The trial court sentenced him to seventy years: forty years for the Class A felony enhanced by thirty years for the habitual offender finding.

Reese v. State, 988 N.E.2d 405, 2013 WL 2293671, *1-3 (Ind.Ct.App. 2013).

         Mr. Reese appealed raising three issues: (1) whether the prosecutor committed misconduct by repeatedly informing the jury that inadmissible evidence was being withheld; (2) whether the State injected improper vouching testimony to bolster the victim's credibility; and (3) whether the trial court erred in determining that Mr. Reese opened the door to uncharged and highly prejudicial misconduct evidence. On May 23, 2013, the Indiana Court of Appeals affirmed Mr. Reese's conviction and sentence. Id. Mr. Reese sought further review by the Indiana Supreme Court. The Indiana Supreme Court denied transfer on August 22, 2013.

         On October 21, 2013, Mr. Reese petitioned pro se for state post-conviction relief. He filed an amended petition by counsel on April 8, 2016, alleging ineffective assistance of trial counsel. The trial court ...


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