On Appeal from the United States District Court for the Western District of Wisconsin. No. 87-C-946-S -- John S. Shabaz, Judge.
Coffey, Easterbrook, and Ripple, Circuit Judges.
In January 1978, a Wisconsin state-court jury convicted petitioner Peter Galowski of two counts of first degree murder. On direct appeal the Wisconsin Court of Appeals affirmed the judgment of conviction, see Galowski v. State, 99 Wis. 2d 805. Ct.App.(1980), and the Wisconsin Supreme Court denied Mr. Galowski's petition for review. See Galowski v. State, 99 Wis. 2d 812, 306 N.W.2d 252 (1981). The Wisconsin courts also denied Mr. Galowski's petition for post-conviction relief.*fn1 Mr. Galowski is serving two consecutive life sentences in the Columbia Correctional Institution in Portage, Wisconsin.
In December 1987, Mr. Galowski filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Western District of Wisconsin. The district court denied habeas relief. Galowski v. Murphy, No. 87-C-946-S (W.D.Wis. Feb. 17, 1988) [hereinafter USDC Mem. op.]. Mr. Galowski now appeals and raises two issues for our consideration: whether the petitioner was denied effective assistance of counsel at trial and whether the petitioner's trial attorney prevented Mr. Galowski from exercising his constitutional right to testify.*fn2 We conclude that the petitioner was not denied effective assistance of counsel, and that the trial attorney did not unilaterally waive the petitioner's right to testify.*fn3 The judgment of the district court denying the petition for a writ of habeas corpus is affirmed.
Mr. Galowski was charged with murdering, during the early morning hours of July 29, 1977, Francine Flowerette and David Dethardt. After being charged with the murders, Mr. Galowski declined appointed counsel and instead hired as his attorney Mary Sfasciotti, a former Assistant United States Attorney with over four years of trial experience.
A. The State Criminal Proceeding
John Harrington was the principal state witness and provided a substantial part of the state's case.*fn4 According to Harrington's testimony, he was first introduced to Peter Galowski by Richard Feltz in May 1977 when Feltz took him to Mr. Galowski's to purchase some marijuana. On the evening of July 28, 1977, Harrington met Wasyl ("Billy") Deneka and Mr. Galowski for a drink at an establishment called the Corner Bar. During their conversation, Mr. Galowski stated that he wanted to go to Mr. Dethardt's trailer to collect $235 that Mr. Dethardt owed him. Harrington and Mr. Galowski left the bar around 1:40 a.m. and went to Mr. Galowski's house. Mr. Galowski entered his house and, when he returned to the car, he was wearing a black leather jacket. Harrington had become tired while waiting for the petitioner and had decided that he did not want to go to Mr. Dethardt's trailer. However, when he returned, he announced he was going to drive and jumped into the driver's seat. The two men arrived at the trailer park at approximately 2:30 a.m. and went into the Dethardt/Flowerette trailer home. Once in the living room, Mr. Galowski asked Mr. Dethardt if he had the money, and Mr. Dethardt responded by laughing. Harrington testified that he then heard a shot and saw a flash of light across the living room; a few seconds later he heard a scream coming from Ms. Flowerette's bedroom followed by another shot and a flash of light.
The state also called as a witness Billy Deneka. He testified that he was with Harrington and Mr. Galowski at the bar, and that Harrington became agitated and began saying that he wanted to "waste" David Dethardt. Some time later Deneka and Mr. Galowski left the bar and went to Mr. Galowski's house. A short while later, Deneka heard a car pull up to the house, and Mr. Galowski left the house. Mr. Galowski did not return for at least thirty minutes. When he returned, Mr. Galowski appeared a "little mad or shooken [sic] up, nervous." St.R.119A at 67.*fn5
The defense produced Ray Stewart, a friend of Mr. Dethardt's, who testified that he was with the decedent a week and a half before the murders. Stewart testified to conversing with Mr. Dethardt, who stated that he knew he was going to be killed because he was involved in a gun transaction and had "ripped a guy off" for $1000. St.R.121 at 111. Stewart further testified that he and Mr. Dethardt went out drinking because, in Mr. Dethardt's words, it was his "[last] fling, last spree." Id. The defense also produced a Wisconsin Justice Department investigator to testify about statements of the trailer court residents to police, and Harrington's former supervisor to impeach Harrington's testimony regarding his employment.
Defense counsel also impeached Harrington with inconsistencies in his preliminary hearing testimony. At trial, Harrington testified that on the night of the murders he threatened Claus Anderson, one of his drug customers; at the preliminary hearing he had denied any threat. Further, defense counsel brought out that Harrington accompanied Mr. Galowski with the intention of collecting money that the murder victims owed him; Harrington had denied at the preliminary hearing such an intention. Defense counsel concentrated on one other inconsistency: at the preliminary trial, Harrington testified that he heard the gunshots and saw flashes, but never saw the gun; at trial, he testified that he did see a gun in Mr. Galowski's hand as the shots were fired.
B. The State Post-Conviction Proceedings
1. Mr. Galowski's Alibi Defense
In October 1981, Mr. Galowski moved for post-conviction relief in state court pursuant to Wis. Stat. § 974.06. On May 1, 1986, Judge Conway of the Portage County Circuit Court held a hearing on this matter.*fn6 Mr. Galowski testified that he had presented to his trial attorney an alibi defense. He testified that, on the evening of the murder, he went to a drive-in movie with his girlfriend Julie Wypych and his friend Billy Deneka. They left the movie around 12:30 a.m. and decided to go for a drink. On their way, Ms. Wypych's car began to malfunction and they decided to go instead to Mr. Galowski's home. When they arrived, Deneka and Ms. Wypych went into the house and the petitioner stayed outside to examine the car. Mr. Galowski was outside for about ten minutes when he was called inside to answer a telephone call. The caller was a friend of Mr. Galowski's who told him that Mr. Galowski's old roommate was in town. Ms. Wypych declined Mr. Galowski's invitation to go into town and meet his friend so Deneka went with him instead.
While barhopping, Deneka and Mr. Galowski met Harrington and the three of them went to the Corner Bar. Around 2:00 a.m. the petitioner and Deneka returned to Mr. Galowski's house. Mr. Galowski testified that he had another beer, had sexual intercourse with his girlfriend, and then returned to the living room where Deneka was watching television. Around 2:30 a.m., Mr. Galowski went outside to work on Ms. Wypych's car. While he was working on the car, Mr. Galowski's neighbors, later identified as Gerald and Kathy Hanson,*fn7 drove into the driveway and the three exchanged waves. The petitioner testified that, after fixing the car, he returned to the house, cleaned up, had another beer, exchanged a few words with Deneka, and then went to bed around 3:00 a.m.
The petitioner also testified that he informed Ms. Sfasciotti that the black leather jacket he had once owned was ruined in a motorcycle accident. He testified that he explained to Ms. Sfasciotti the facts underlying the accident. He claims he also told her that both the accident and the fact that the leather jacket was ruined could be verified by a police report and by his friends, Gary Johnson and Steve Betro.
As part of his post-conviction case, Mr. Galowski also testified that he had asked his attorney to let him testify, but was told that, if he testified, his prior burglary conviction would become known to the jury.*fn8 Mr. Galowski testified that Ms. Sfasciotti did not allow him to make the decision nor did she inform him that it was his constitutional right to make the decision.
2. The Findings of the Portage County Circuit Court
The basis for Mr. Galowski's claim to post-conviction relief was that he was denied effective assistance of trial counsel. He alleged seven specific deficiencies in Ms. Sfasciotti's performance. The deficiencies that are pertinent to this action are as follows:
First, that the defense counsel failed to interview alibi witnesses, [neighbors] Gerald and Kathy Hanson. Second, the defense counsel failed to interview the other witnesses, Steve Betro and Gary Johnson . . . concerning the black leather jacket . . . . Fourth, that the defendant was not allowed to take the stand by his counsel, although he wished to do so, and that counsel did not inform the defendant of his constitutional right to take the stand . . . . [And ...