Bitzan v. Wachtendorf

MARK BITZAN, Petitioner, v. PATTI WACHTENDORF and IOWA STATE PENITENTIARY, Respondents.

No. 18-CV-0031-LRR

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA CEDAR RAPIDS DIVISION

August 27, 2020

ORDER

TABLE OF CONTENTS

I. INTRODUCTION ...................................... 2

II. FACTUAL AND PROCEDURAL HISTORY .................... 2

A. Trial and Conviction ................................. 2

B. Direct Appeal ...................................... 3

C. Postconviction Relief ................................. 5

D. Federal Habeas ..................................... 7

III. STANDARDS OF REVIEW ............................... 8

IV. DISCUSSION ........................................ 9

V. CERTIFICATE OF APPEALABILITY ....................... 25

VI. CONCLUSION ...................................... 26

I. INTRODUCTION

The matter before the court is Petitioner Mark Bitzan's pro se "Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus" ("Petition") (docket no. 1).

II. FACTUAL AND PROCEDURAL HISTORY

A. Trial and Conviction

On June 19, 2011, a trial information was filed in the Iowa District Court for Monona County alleging kidnapping in the first degree (Count 1) in violation of Iowa Code Sections 710.1(3) and 710.2 and sexual abuse in the second degree (Count 2) in violation of Iowa Code Sections 709.3(1) and 901A.2.¹ See Trial Information (docket no. 11-6) at 8. On July 21, 2011, an amended information was filed, which, among other things, detailed the predicate offense for Count 2 as a 2006 conviction for third degree sexual assault in the Seventh Judicial District of Wyoming, case no. 16720-C. See Amended Trial Information (docket no. 11-6) at 13. A jury trial was held commencing on January 10, 2012 and ending on January 17, 2012. See Trial Transcript Vol. I (docket no. 11-1) at 1. Petitioner elected not to testify on his own behalf at trial, and he confirmed during a colloquy with the trial judge that he fully understood the decision. See Trial Transcript Vol. IV (docket no. 11-4) at 41-42. On January 17, 2012, the jury returned a verdict of guilty on Count 1, kidnapping in the first degree. See Verdict (docket no. 11-6) at 272. The jury answered a special interrogatory, finding that a dangerous weapon was displayed during the first-degree kidnapping offense. See id. The jury also found that Petitioner was convicted of a prior offense under Iowa Code Section 902.14 as alleged in Count 2 of the Amended Trial Information.² See id. at 275; Judgment andSentence (docket no. 11-6) at 320. On March 16, 2012, Petitioner was sentenced to life in prison. See Judgment and Sentence at 321.

B. Direct Appeal

On direct appeal, the Iowa Court of Appeals thoroughly summarized the trial evidence as follows:

During the evening of December 17, 2010, Bitzan was inside the women's handicap stall at an interstate restroom when nineteen-year-old Natasha stopped at the rest area and used the restroom. As she stood at the sink and washed her hands, Bitzan exited the stall, walked up behind her, placed one hand over her mouth, placed the other hand around her torso, and kissed the top of her head. After asking her if she was "going to be quiet," Bitzan forced Natasha away from the sink area and into the handicap stall at the back of the restroom. Bitzan reached back and latched the stall door as he pushed her up against the wall. Bitzan stood in front of her, between Natasha and the stall door, and began asking questions in a calm voice, for example, "Where are you going?" "Are you alone?" "Do you have people waiting for you or are people expecting you?"

When Natasha would not tell Bitzan her name and slapped his hands away from the zipper on her hoodie, Bitzan responded by changing his body language, reaching into his pocket, and pulling out a collapsible pocketknife. Natasha then gave a name, and Bitzan put the knife away and asked more questions. When Bitzan reached for her pants and she slapped his hand away, Bitzan displayed "frustration or anger" and stated, "This will just be easier if you cooperate." Natasha asked, "Are you going to hurt me?" Bitzan replied, "Not if you cooperate." Bitzan then asked personal questions, "Are you on birth control?" and "Is this a bad time of the month?" When Natasha hesitated in her response to his questions or to his demands, Bitzan gestured toward the knife in his pocket. At some point, Natasha asked herself, "What can I do to live?"

Bitzan proceeded to remove Natasha's boots, pants, and underwear. Bitzan began touching Natasha's genitals as she begged him to stop. Bitzan ordered Natasha to the floor, and he confirmed that she was not visible from outside the handicap stall. Natasha testified, "so I'm lying in that corner, and I remember him remarking ... 'good, you are out of sight,' because hekind of glanced off to the side to ... check under the stalls to see if I would be visible." Bitzan pulled down his pants, raped Natasha, and ejaculated inside her. Bitzan wiped himself off and ordered Natasha to remain in the stall until he left. Natasha waited for a few minutes after she heard the bathroom door close, dressed, and drove away.

Natasha, who was in ROTC at college, called her commanding officer for advice. The officer advised Natasha to go directly to a hospital, and she stayed on the phone while Natasha drove to the hospital. Natasha called her mother, and her parents came to the hospital. The hospital was not equipped to perform a sexual assault exam, so the family went to a nearby hospital where Natasha provided samples for a sexual assault kit. The samples were analyzed by the Iowa DCI laboratory. The DNA in the samples matched Bitzan's profile. Bitzan's DNA was in the data bank as a result of a previous sexual abuse conviction in Wyoming.

State v. Bitzan, 837 N.W.2d 679 (Table), 2013 WL 3273813, at *1 (Iowa Ct. App. June 26, 2013).

On direct appeal, Petitioner's primary argument was that the evidence at trial was insufficient to support a finding of kidnapping or use of a dangerous weapon. See Appellant's Brief (docket no. 11-7) at 29-54. The Iowa Court of Appeals affirmed Petitioner's conviction for first-degree kidnapping. See Bitzan, 2013 WL 3273813, at *5. In reaching its decision, the Iowa Court of Appeals reviewed Iowa precedent on kidnapping and concluded that there was "substantial evidence from which a rational jury could find the period of confinement or the distance of removal exceeded what is normally incident to the commission of a sexual abuse." Id. at *3-*4. The Iowa Court of Appeals specifically noted that the victim was moved from the open area of the restroom to a stall, the door was latched, and she was further secluded beside a toilet, thus the risk of detection or interruption was significantly reduced. Id. at *4. Petitioner also argued that counsel was ineffective for failing to challenge a sentence enhancement or an action during the enhancement portion of the trial. The Iowa Court of Appeals bypassed the arguments because it concluded that no enhancement was applied to Petitioner's sentence. Petitioner sought further review but was denied. Procedendo issued on September 23, 2013.

C. Postconviction

Petitioner initiated postconviction proceedings on August 15, 2014. Petitioner subsequently retained counsel, who filed multiple amended petitions. See docket no. 11-14 at 52-66 (Amended Application for Postconviction Relief), 68-83 (Second Amended Application for Postconviction Relief). Ultimately, Petitioner argued that: (1) trial counsel was ineffective for failing to do a pretrial investigation; (2) trial counsel was ineffective regarding Petitioner's right to testify; (3) trial counsel was ineffective for failing to challenge certain jurors; (4) trial counsel was ineffective for failing to protect confrontation rights; (5) trial counsel was ineffective for failing to file a motion in limine regarding testimony on a possible sexual assault spree; (6) trial counsel was ineffective for failing to object to the in-court identification by the victim; (7) the state committed a Brady violation; (8) trial counsel was ineffective for failing to call an expert on victim credibility; (9) trial counsel was ineffective for failing to raise prosecutorial misconduct; (10) trial counsel was ineffective for failing to challenge Nurse Wear's vouching testimony; and (11) trial counsel was ineffective for failing to call a medical expert regarding vaginal tears. See Second Amended Postconviction Petition at 68-83.

On August 17 and 18, 2016, the Iowa District Court for Monona County conducted a two-day evidentiary hearing on Bitzan's postconviction relief petition. Postconviction Transcript Vol. I and II (docket nos. 24-1 and 24-2). Bitzan's original trial counsel, Dean Stowers, and Nick Sarcone, both testified at the postconviction hearing. Petitioner also testified on his own behalf for the first time. Counsel testified at the hearing that the theory of the case had been that the sexual encounter was consensual in the rest stop bathroom.

By contrast, Petitioner testified, at the postconviction hearing, that during their representation of him counsel refused to listen to his version of the events. See Postconviction Transcript Vol. II (docket no. 24-2) at 11. Petitioner proceeded to testify that he first met the victim at the Sonic restaurant in Sioux Falls, South Dakota, where the two agreed to drive in a caravan. Id. at 10-16. About 40 minutes into the drive, thevictim pulled off at a rest stop and invited Petitioner into her vehicle where flirting quickly escalated to consensual intercourse in the back seat. Id. at 17-21. Petitioner testified that his travel companion and best friend, Louis Hamilton, was in his vehicle right next to the victim's and certainly would have seen the sexual encounter. Id. at 24.

Petitioner further testified that, at trial Mr. Stowers:

pushed [him] to testify. If we went to court and I testified to what he was telling me, like a story that I had met her

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