Williams v. Warden

          OPINION AND ORDER

          JAMES T. MOODY UNITED STATES DISTRICT COURT.

         Robert E. Williams, a prisoner without a lawyer, filed a habeas corpus petition challenging his conviction and 95-year sentence for murder with a habitual offender enhancement by the Marion Superior Court on September 30, 2011, under cause number 49G04-1003-MR-23231. (DE # 1.)

         I. BACKGROUND

         In deciding the petition, the court must presume the facts set forth by the state courts are correct. 28 U.S.C. § 2254(e)(1). It is Williams's burden to rebut this presumption with clear and convincing evidence. Id. Williams does not dispute the Court of Appeals of Indiana's summary of facts underlying this case:

On the morning of September 19, 2009, teacher Sandra Bartenbach failed to show up at the elementary school in Indianapolis where she worked. An assistant to the school principal, Kimberly Brown, went to Bartenbach's house to determine why she was not at school. Upon arriving at the house, Brown noticed that the front door was ajar and the rear sliding door also was open. Brown then decided to call 911. A police officer arrived on the scene and went into the house, where he discovered Bartenbach's lifeless body in a pool of blood in a bathroom. Bartenbach had been stabbed approximately twenty-five times.

Williams lived across the street from Bartenbach with his girlfriend, Sandra Emous, and Emous's parents. On September 20, 2009, police went to Emous's house after Williams became a person of interest in the investigation. Emous told a detective that Williams had gone with a cousin to Fort Wayne on the afternoon of September 19. Emous also told the detective that she was aware of Williams having been in Bartenbach's house only once, about a year and a half before, when he helped Bartenbach move a dresser into the house. Bartenbach's ex-husband confirmed that Williams had helped move furniture on that occasion. Williams submitted to an interview by police on September 21, 2009, in which he stated that he had been in the house on a few other occasions as well, in response to police questioning that falsely implied that his fingerprints had been found throughout the house.

Emous and Williams also told police that on the evening of September 18, 2009, they had stayed at home, except for going to a Meijer store at around 8:00 p.m. for approximately one hour. Ten months after this original statement, Emous told police that they also had gone to a Walmart store at about 1:00 a.m. on September 19, 2009. Records of a cell phone belonging to Emous, however, showed that the phone had been used during the evening of September 18th and early morning hours of September 19th at locations other than Emous's house, the Meijer store, or the Walmart store.

David Lucas of the Indianapolis-Marion County Crime Lab (“Crime Lab”) swabbed various areas of Bartenbach's house where there appeared to be blood stains, as well as other areas where DNA from skin cells might be expected to be found. Included among the items that Lucas swabbed was the inside and outside of the front door doorknob, which he determined had blood on it. The entire doorknob itself was removed and taken to the Crime Lab. Lucas also attempted to lift fingerprints in various areas of the house, but no fingerprints matching Williams were recovered.

Judith Macechko, a serologist with the Crime Lab, examined most of the items or swabs that Lucas had collected to confirm whether any of them contained human blood or seminal material. She did not, however, test the front door doorknob for human blood because Lucas had already collected blood samples from it. Any items that she confirmed were blood were marked for further DNA testing; she found no seminal material. She also swabbed the front doorknob for possible skin cell samples, which were marked for further DNA testing. Tonya Fishburn with the Crime Lab completed the DNA testing on the items submitted by Lucas and Macechko. Fishburn determined that blood from the front door doorknob collected by Lucas was Williams's, based on the DNA profile. Williams's DNA was not found in samples from other locations in the house. On March 23, 2010, Williams was charged with the murder of Bartenbach, as well as Class A felony robbery. The State subsequently added a habitual offender allegation. Williams was already in the Marion County Jail on another charge before this date. Williams spoke with Emous on the phone several times, and they were recorded discussing whether Williams's DNA might be found in Bartenbach's house. Emous did some research on forensic DNA testing and told Williams that DNA could be left at a scene by sweating. Williams responded, “Nah I wasn't, wasn't none of that, ain't none of that going on.” Ex. 195, 195(a).

Williams also told Emous what she should say to police, including “Just be like ‘He was home with me he did not go nowhere. And he was at home with me and my family was home.'” Ex. 196, 196(a). When Emous told Williams that police wanted to question her mother, Williams told Emous that she needed to “lace mama up . . . .” Ex. 198, 198(a). Eventually, Williams was forbidden from speaking with Emous on the phone. Williams then enlisted a fellow inmate to make calls to Emous and pass along coded messages to her. The inmate believed the messages were intended to emphasize to Emous that she be consistent in her statements to police. Also, after it was revealed that Williams's DNA was found in a blood stain at Bartenbach's house, Emous told investigators for the first time that she recalled Williams having helped Bartenbach unload groceries at her house two days before the murder and that he had accidentally cut himself while doing so, causing his knee to bleed. On April 4, 2011, the State filed a request that a video deposition of Macechko be scheduled to be used at trial in place of her live testimony. Specifically, the State asserted that Macechko would be unavailable to testify at trial because she had retired from the Crime Lab and moved to Cleveland, Ohio, to care for her gravely ill elderly mother. Williams objected to the request for a video deposition in lieu of Macechko's trial testimony. The trial court overruled this objection. On June 23, 2011, a deposition of Macechko was conducted using the internet video communication system known as Skype. Macechko was located in Cleveland along with a Marion County deputy prosecutor, a Cuyahoga County, Ohio, deputy prosecutor, and the lead police detective. Located in a courtroom in Indianapolis were the trial judge, Williams, his attorney, another deputy prosecutor, and IT personnel.

Williams's jury trial was held on September 6-12, 2011. Williams objected to the State's use of Macechko's Skype deposition in lieu of her live testimony, and the trial court overruled the objection. The jury found Williams guilty of murder but not guilty of robbery and also found that he is a habitual offender. The trial court sentenced Williams to a term of sixty-five years for murder, enhanced by thirty years for the habitual offender finding, for a total sentence of ninety-five years executed.

Williams v. State, 970 N.E.2d 267 (Ind.Ct.App. 2012)(table); (DE # 9-5 at 2-6).

         On direct appeal, Williams argued that the trial court abused its discretion when it determined that Judith Macechko was unavailable under Indiana Evidence Rule 804, and that the admission of her videotaped deposition at trial violated his right to meet the witnesses face to face under Article I, Section 13 of the Indiana Constitution. (DE # 9-3 at 9.) Williams also invoked the United States Constitution's Sixth Amendment Confrontation Clause for the first time in the body of his appellate brief. (DE # 9-3 at 15.) The Court of Appeals of Indiana addressed Williams's Sixth Amendment argument on the merits even though he had not raised it in the trial court and affirmed the trial court. Williams v. State, 970 N.E.2d 267 (Ind.Ct.App. 2012)(table); (DE # 9-5 at 2-6). Williams sought transfer to the Indiana Supreme Court, where he rephrased his argument to explicitly invoke the Sixth Amendment as follows:

The trial court erred when it found a critical State witness unavailable under Evidence Rule 804 in violation of Defendant's right of confrontation under the Sixth Amendment of the United States Constitution and the procedure used to take her testimony for use at trial violated his right of confrontation under Article I, Section 13 of the Indiana Constitution and such error was not harmless[.]

(DE # 9-6 at 3.) On August 30, 2012, the Indiana Supreme Court denied transfer. Williams v. State, 974 N.E.2d 476 (Ind. 2012)(table).

         Williams filed a petition for post-conviction relief on December 14, 2012, under cause number 49G04-1003-PC-023231. That petition was still pending when Williams filed his habeas petition in this court on October 13, 2015. (DE # 1.) After his habeas petition was filed here, Williams filed a motion in his post-conviction relief case asking to withdraw his petition, which the court granted on July 11, 2016.

         In his habeas petition, Williams raises only one ground for relief which can be simplified as follows: that the trial court erred in permitting Macechko's deposition testimony to be admitted at trial in violation of the Sixth Amendment's confrontation clause, and thereby denied him a fair trial, and the Court of Appeals of Indiana erred when it found that any error on the part of the trial court was harmless. (DE # 1.)

         II. PROCEDURAL DEFAULT

         Before considering the merits of a habeas petition, the court must ensure that the petitioner has exhausted all available remedies in state court. 28 U.S.C. § 2254(b)(1)(A); Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). Respondent concedes that ...