UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

PAUL J. KOCIELKO, 

 Petitioner, 

v. CAUSE NO.: 3:15-CV-436-RLM-MGG 

SUPERINTENDENT, 

 Respondent. 

OPINION AND ORDER 

 Paul J. Kocielko, a prisoner without a lawyer, filed a habeas corpus 

petition to challenge his conviction for two counts of sexual misconduct with a 

minor under Cause No. 20D03-708-FB-59. On February 4, 2010, after a jury 

trial, the Elkhart Superior Court sentenced Mr. Kocielko as a habitual offender 

to fifty years of incarceration. 

FACTUAL BACKGROUND 

 In deciding this petition, the court must presume the facts set forth by the 

state courts are correct unless they are rebutted with clear and convincing 

evidence. 28 U.S.C. § 2254(e)(1). The Court of Appeals of Indiana summarized 

the evidence presented at trial: 

On August 8, 2007, Kocielko took his fourteen-year-old 

stepdaughter, A.Q., to a Knights Inn in Elkhart and rented a room 

with one double bed. Kocielko gave A.Q. several drinks of 

peppermint flavored whiskey until A.Q. was dizzy and “out of it, 

drunk.” After the two watched television and exchanged back rubs, 

Kocielko stated that he was tired and turned out the lights. 

A.Q. was lying on the bed with her back to Kocielko when Kocielko 

took her left hand, placed it on his penis, and “moved it around in a 

circular motion.” Kocielko pulled down A.Q.’s basketball shorts and 
2 

underwear to her mid-thigh. He then penetrated A.Q.’s anus with 

his penis causing her “horribly bad” pain. 

The next day, Kocielko took A.Q. to her step-grandparents’ house. 

A.Q. bathed, changed clothes, and hid the bloodied underwear that 

she had worn the night before. Initially, Kocielko and A.Q. agreed 

not to tell anyone about the drinking or sexual activity and A.Q. 

assured Kocielko that she had thrown away her underwear. 

However, after a few days passed, A.Q. told her aunt about the 

molestation and showed her the previously-hidden underwear. With 

the assistance of her aunt and mother, A.Q. went to the police 

station, handed over the underwear, and gave a statement 

implicating Kocielko. 

On August 27, 2007, Kocielko was charged with three counts of 

Sexual Misconduct with a Minor, with one count alleging that 

Kocielko committed deviate sexual conduct upon A.Q., one count 

alleging that Kocielko submitted to fondling of his penis by A.Q., and 

one count alleging that Kocielko fondled A.Q. by touching her breast. 

The State also alleged Kocielko is a habitual offender. Kocielko was 

brought to trial on October 29, 2007. The trial ended with a hung 

jury as to the first two counts and an acquittal on the count of 

Sexual Misconduct with a Minor by fondling of A.Q.’s breast. 

Kocielko’s retrial, as to the counts involving deviate sexual conduct 

and fondling by touching of Kocielko’s penis, commenced on 

January 4, 2010. Kocielko elected to represent himself, with standby counsel having been appointed to conduct legal research. The 

jury found Kocielko guilty of both charges, and also found him to be 

a habitual offender. 

On February 4, 2010, Kocielko was sentenced to twenty years 

imprisonment on Count I (deviate sexual conduct), enhanced by 

thirty years, and eight years on Count II (fondling), enhanced by 

thirty years. The trial court ordered the sentences to be served 

concurrently, providing for an aggregate sentence of fifty years. 

Kocielko appeals. 

ECF 6-5 at 2-4; Kocielko v. State, 938 N.E.2d 243, 248–49 (Ind. Ct. App. 2010). 

 Mr. Kocielko argues that he is entitled to habeas corpus relief, alleging that 

the Double Jeopardy Clause barred his second trial; that the Double Jeopardy 

Clause barred multiple sentences for crimes that occurred within a single 
3 

encounter;1 that he didn’t knowingly and intelligently waive his right to trial 

counsel; and that he was improperly denied a DNA expert to prepare for the 

second trial. Mr. Kocielko presented these claims to the Indiana Supreme Court 

and the Court of Appeals of Indiana. ECF 6-3, 6-8. He has properly exhausted 

his State court remedies, and the court will consider his claims on the merits. 

STANDARD OF REVIEW 

 “Federal habeas review . . . exists as a guard against extreme malfunctions 

in the state criminal justice systems, not a substitute for ordinary error 

correction through appeal.” Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) 

(quotations and citation omitted). 

 An application for a writ of habeas corpus on behalf of a 

person in custody pursuant to the judgment of a State court shall 

not be granted with respect to any claim that was adjudicated on 

the merits in State court proceedings unless the adjudication of the 

claim— 

 (1) resulted in a decision that was contrary to, or involved an 

unreasonable application of, clearly established Federal law, as 

determined by the Supreme Court of the United States; or 

 (2) resulted in a decision that was based on an unreasonable 

determination of the facts in light of the evidence presented in the 

State court proceeding. 

28 U.S.C. § 2254(d). 

[This] standard is intentionally difficult to meet. We have explained 

that clearly established Federal law for purposes of §2254(d)(1) 

includes only the holdings, as opposed to the dicta, of this Court’s 

decisions. And an unreasonable application of those holdings must 

be objectively unreasonable, not merely wrong; even clear error will 

not suffice. To satisfy this high bar, a habeas petitioner is required 

to show that the state court’s ruling on the claim being presented in 

 

1 Mr. Kocielko didn’t list this ground on his federal habeas petition form, but he presented it in 

the attached memorandum and at each level of the State courts. Though the claims about the second trial 

and multiple sentences are similar and, at times, conflated, the court liberally construes the habeas 

petition in consideration of Mr. Kocielko’s pro se status. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). 
4 

federal court was so lacking in justification that there was an error 

well understood and comprehended in existing law beyond any 

possibility for fairminded disagreement. 

Woods v. Donald, 135 S. Ct. at 1376 (quotation marks and citations omitted). 

Criminal defendants are entitled to a fair trial but not a perfect one. Rose v. 

Clark, 478 U.S. 570, 579 (1986). To warrant relief, a state court’s decision must 

be more than incorrect or erroneous; it must be objectively unreasonable. 

Wiggins v. Smith, 539 U.S. 510, 520 (2003). “A state court’s determination that 

a claim lacks merit precludes federal habeas relief so long as fairminded jurists 

could disagree on the correctness of the state court’s decision.” Harrington v. 

Richter, 562 U.S. 86, 101 (2011) (quotation marks omitted). 

ANALYSIS 

Double Jeopardy

 Mr. Kocielko argues that the state courts made an unreasonable 

determination that the Double Jeopardy Clause didn’t bar his second trial. At 

the first trial, Mr. Kocielko was charged with three counts of sexual misconduct 

with a minor: Count I for anal intercourse; Count II for causing the victim’s hand 

to touch and move his penis; and Count III for touching the victim’s breasts. 

Appeal App. 149-50. He argues that his acquittal on Count III at the first trial 

barred the second trial on Counts I and II, reasoning that Count III constituted 

a lesser included offense with respect to Count I. Mr. Kocielko further argues 

that the Indiana courts made an unreasonable determination that he wasn’t 

subjected to multiple punishments for a single offense, reasoning that the 

charged conduct occurred within a single encounter. 
5 

The Double Jeopardy Clause protects against: a second prosecution for 

the same offense after acquittal; a second prosecution for the same offense after 

conviction; and multiple punishments for the same offense. United States v. 

DiFrancesco, 449 U.S. 117, 129 (1980). It doesn’t prevent a second prosecution 

for the same offense following a mistrial. Yeager v. United States, 557 U.S. 110, 

118 (2009). An acquittal is implied if “it results from a verdict convicting a 

defendant on lesser included offenses rendered by a jury charged to consider 

both greater and lesser included offenses.” Ohio v. Johnson, 467 U.S. 493, 502 

(1984). “The applicable rule is that, where the same act or transaction 

constitutes a violation of two distinct statutory provisions, the test to be applied 

to determine whether there are two offenses or only one, is whether each 

provision requires proof of a fact which the other does not.” Blockburger v. 

United States, 284 U.S. 299, 304 (1932). “If each [charged crime] requires proof 

of a fact that the other does not, the Blockburger test is satisfied, notwithstanding 

a substantial overlap in the proof offered to establish the crimes.” Brown v. Ohio, 

432 U.S. 161, 166 (1977). 

 “The Double Jeopardy Clause is not such a fragile guarantee that 

prosecutors can avoid its limitations by the simple expedient of dividing a single 

crime into a series of temporal or spatial units.” Id. at 169. “With respect to 

cumulative sentences imposed in a single trial, the Double Jeopardy Clause does 

no more than prevent the sentencing court from prescribing greater punishment 

than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366 (1983). 
6 

 At the first trial, the victim testified that Mr. Kocielko touched her breasts 

as he gave her a massage in the hotel room. Tr. 474-502. She further testified 

that he later declared he was tired and turned off the television and the lights. 

Id. She testified that, as they lay in bed, he placed her hand on his penis and 

moved it around and shortly thereafter subjected her to anal intercourse. Id.

Following the first trial, the jury acquitted Mr. Kocielko on Count III but couldn’t 

reach a verdict on Counts I and II. Appeal App. 201-03. At the second trial, the 

jury convicted Mr. Kocielko on Counts I and II. Id. at 972-973. The trial court 

sentenced Mr. Kocielko to twenty years for Count I and eight years for Count II 

and also imposed sentence enhancements as a result of finding him to be a 

habitual offender. Id. at 1020. 

On appeal, the Court of Appeals of Indiana found no implied acquittal 

regarding Count III, reasoning that an implied acquittal under a lesser-included 

offense theory would have required a conviction at the first trial. ECF 6-5 at 4-

9. The appellate court also found that although double jeopardy principles 

barred multiple sentences for crimes arising from a single encounter, they don’t 

prohibit a second trial after an acquittal even if the charged conduct at each trial 

arose from a single encounter. Id. The appellate court applied the Blockburger

test to each count and found that they were established with independent facts 

and concluding that the Double Jeopardy Clause did not bar the second trial. 

Id. The appellate court initially found that Mr. Kocielko’s dual sentences violated 

the federal and state constitution because the anal intercourse and touching of 
7 

his penis occurred during a single encounter.2 Id. at 9. The appellate court 

reheard this issue and affirmed the sentences, reasoning that the sentences were 

a fair reflection of the episodic nature of the crimes. ECF 6-7. 

 This court can’t conclude that the state courts’ decisions about the second 

trial and sentencing were objectively unreasonable. At base, the critical inquiry 

is whether Counts I, II, and III are the same offense. Though the counts are each 

supported by evidence of independent acts, the United States Supreme Court 

has also rejected attempts to evade the Double Jeopardy Clause by parsing a 

single crime into units in a manner that is inconsistent with the applicable 

criminal statutes. Brown v. Ohio, 432 U.S. 161, 169 (1977). To assess claims of 

this nature, “we look to the applicable criminal statute to see what the allowable 

‘unit’ of prosecution is—the minimum amount of activity for which criminal 

liability attaches.” Sanchez-Rengifo v. Caraway, 798 F.3d 532, 537 (7th Cir. 

2015); United States v. Two Elk, 536 F.3d 890, 898 (8th Cir. 2008). 

Subsection (a) of the Indiana criminal statute for sexual misconduct with 

a minor prohibits the performance of or submission to “sexual intercourse or 

other sexual conduct,” which includes “an act involving a sex organ of one (1) 

person and the mouth or anus of another person.” Ind. Code. 35-42-4-9. 

Subsection (b) of this statute prohibits the performance of or submission to “any 

 

2 Though the appellate court references federal constitutional law, it is not clear that the appellate 

court’s rulings on this issue rested on federal grounds. Notably, federal double jeopardy principles do not 

necessarily bar multiple sentences for crimes arising from a single encounter. See Missouri v. Hunter, 459 

U.S. 359 (1983) (affirming convictions for robbery and armed criminal action based on the same conduct); 

Sanchez-Rengifo v. Caraway, 798 F.3d 532, 537 (7th Cir. 2015) (affirming multiple sex offense convictions 

based on a single encounter); United States v. Two Elk, 536 F.3d 890, 898 (8th Cir. 2008) (same). 
8 

fondling or touching, of either the child or the older person, with the intent to 

arouse or to satisfy the sexual desires of either the child or the older person.” Id.

The plain statutory language suggests that the Indiana General Assembly 

intended to punish separately each act of anal intercourse and each act of 

fondling. Moreover, the victim’s testimony provides evidentiary support for the 

conduct as charged: one act of anal intercourse and two separate acts of 

fondling. Even if, hypothetically, a charge of fondling or touching could be a 

lesser-included offense of a charge of sexual intercourse or other sexual conduct, 

it wouldn’t matter for purposes of this double jeopardy analysis because Counts 

I, II, and III each focused on separate acts of sexual misconduct. See Blockburger 

v. United States, 284 U.S. 299, 304 (1932); United States v. Schiro, 679 F.3d 

521, 525 (7th Cir. 2012). Because Counts I. II, and III aren’t the same offense, 

Mr. Kocielko hasn’t demonstrated a violation of the Double Jeopardy Clause. Mr. 

Kocielko’s claims regarding the second trial and multiple sentences are not a 

basis for habeas relief. 

Waiver of Trial Counsel 

 Mr. Kocielko argues that the State courts made an unreasonable 

determination that he knowingly and intelligently waived his right to trial 

counsel. He argues that the waiver wasn’t knowing or intelligent because the 

trial court did not advise him of the challenges presented by DNA evidence. 

Criminal defendants may waive the right to trial counsel if the waiver is made 

knowingly and intelligently. Faretta v. California, 422 U.S. 806, 835 (1975). 

“Waiver of the right to counsel, as of constitutional rights in the criminal process 
9 

generally, must be a knowing, intelligent act done with sufficient awareness of 

the relevant circumstances.” Iowa v. Tovar, 541 U.S. 77, 81 (2004). A waiver is 

knowing and intelligent “if the defendant fully understands the nature of the 

right and how it would likely apply in general in the circumstances—even though 

the defendant may not know the specific detailed consequences of invoking it.” 

United States v. Ruiz, 536 U.S. 622, 629 (2002). “The information a defendant 

must possess in order to make an intelligent election, our decisions indicate, will 

depend on a range of case-specific factors, including the defendant’s education 

or sophistication, the complex or easily grasped nature of the charge, and the 

stage of the proceeding. Iowa v. Tovar, 541 U.S. at 88. 

 At the first trial, DNA analyst Tabitha Ann Bullock testified that, on the 

victim’s underwear, she found a DNA profile consistent with Mr. Kocielko’s DNA 

profile. Tr. 163-64. She described the four-step method for reaching her 

conclusion, which included extraction, quantification, amplification, and 

polymerase chain reaction analysis. Id. at 157-59. She testified that the chances 

of the DNA profile occurring were 1 in 3 quintillion in the national AfricanAmerican population, 1 in 461 quadrillion in the national Caucasian population, 

and 1 in 1 quintillion in the national Hispanic population. Id. at 164-165. 

 At the conclusion of the first trial, Mr. Kocielko told the trial court that he 

intended to proceed pro se at the second trial: 

Trial Counsel: Mr. Kocielko wishes to discharge me from further 

service and go pro se at this time. 

The Court: All right. You want to go pro se, is that correct? 

Kocielko: Yes, sir. 
10 

* * * 

The Court: Mr. Kocielko, if you elect to represent yourself, number 

one, I don’t think that’s a good idea. I believe that a person who is 

charged with a serious criminal offense should be represented by 

counsel. If I were charged with a crime of any magnitude, I would 

hire a lawyer, and I was a deputy prosecutor for 20 years, I was a 

public defender for two years and I have been a judge of this court 

for 11 years. I know a lot about the criminal law. I’d still hire a lawyer 

to represent me. I would never attempt to represent myself. If you 

can’t afford a lawyer, I will be hap -- and you want counsel appointed 

to represent you, I’ll be happy to conduct an indigency hearing and 

if I determine that you are indigent, I will appoint a lawyer to 

represent you. If you persist in your desire to represent yourself, I 

have no reason to believe you’re incapable of doing so and I will 

permit it assuming that I agree -- that you are capable of doing so. 

But, you will be held to the same standards that a lawyer must -- 

the same standards of those which apply to a lawyer. 

So you’re going to have to abide by the court rules. You’re going to 

have to follow those rules when you file pleadings and you’re going 

to have to serve opposing counsel with those pleadings. Do you 

understand what I’m saying? 

Kocielko: I do. 

The Court: Do you intend to represent yourself? 

Kocielko: Umm, I’m going to confer with my family and on 

November 8, I‘ll give you an answer to what -- 

The Court: Pardon? 

Kocielko: I said on November 8 at our conference, I’ll give you an 

answer as to how I wish to proceed with this. 

The Court: Very well. 

Id. at 636-40. Eight days later, at the next status conference, Mr. Kocielko 

again asserted his intent to proceed pro se: 

The Court: Do you intend to hire counsel to represent you in 

connection with this matter? 
11 

Kocielko: As of today, I just wish to proceed pro se. 

The Court: I’ll give you the same admonition that I gave to Mr. 

McKnight. I believe you are making a serious mistake. If you proceed 

pro se, I will hold you to the same standards that I would hold a 

practicing lawyer. You are not trained as a lawyer. I cannot be your 

lawyer. I cannot give you legal advice. I won’t give you legal advice. 

If you make a mistake, I won’t tell you how to fix it. If you want to 

accomplish something and don’t know how to achieve it, I won’t tell 

you. If I were to do those things, I would be acting as your lawyer. 

That is an impermissible role for the trial judge. 

As I also told Mr. McKnight, I consider myself to be quite 

knowledgeable on Indiana criminal law due to my experience and 

my education. In spite of that fact, if I were in your position, charged 

with a Class B felony, I would hire a lawyer to represent me, because 

I know that there is a lot of truth old saying that a person who 

represents himself has a fool for a client. I strongly advise against it. 

At this point, I’m willing to permit it. I recall that DPA Snyder said 

that a prior case which you, in which you were involved resulted in 

a conviction that was reversed on appeal, because you represented 

yourself in a conviction that was reversed on appeal, because you 

represented yourself in that case, and you were found incompetent. 

If that is accurate, I may change my ruling. But it’s your -- at this 

point, in spite of my advice, it’s your desire to proceed pro se; is that 

correct? 

Kocielko: Yes, sir, it is. 

The Court: All right. At this point, I’ll allow it. 

Id. at 644-46. 

 At the second trial, Tabitha Ann Bullock and Michael Raymond, another 

DNA analyst, testified regarding the presence of DNA on the victim’s underwear. 

Id. at 1647-1670, 1674-1685. Their testimony at the second trial substantially 

resembled Ms. Bullock’s testimony from the first trial with respect to the 

methodology and the conclusions of the DNA analysis. Id. 

 On direct appeal, the Court of Appeals of Indiana rejected Mr. Kocielko’s 

argument that he wasn’t sufficiently warned about DNA evidence for purposes 
12 

of waiving his right to trial counsel. ECF 6-5 at 12-14. The appellate court noted 

that DNA evidence was presented at the first trial and that the trial court 

repeatedly warned Mr. Kocielko of the risks of self-representation. Id. The 

appellate court also noted that the trial court gave Mr. Kocielko time to consult 

with his family and that Mr. Kocielko had prior experience with criminal 

proceedings. Id. 

 After reviewing the record, this court can’t find that the State courts made 

an unreasonable determination by deciding that Mr. Kocielko knowingly and 

intelligently waived his right to trial counsel. Mr. Kocielko observed the first trial 

and was thus generally aware of how the second trial would proceed when he 

waived his right to trial counsel. DNA evidence presented at the first trial was 

substantially similar to the DNA evidence presented at the second trial, which 

suggests that Mr. Kocielko should have anticipated the DNA evidence presented 

at the second trial even without a specific warning from the trial court. Mr. 

Kocielko had prior experience with criminal proceedings, including prior felony 

convictions on two separate occasions. Appeal App. 989, 1001. Given the 

circumstances, the trial court’s statements sufficiently informed Mr. Kocielko of 

the dangers of proceeding pro se at the second trial. Mr. Kocielko’s claim that he 

did not knowingly and intelligently waive his right to trial counsel is not a basis 

for habeas relief. 

Request for DNA Expert 

 Mr. Kocielko argues that the State courts made an unreasonable 

determination by denying his request for funds for a DNA expert. He argues that 
13 

the absence of a DNA expert prejudiced his ability to effectively cross-examine 

the prosecution’s DNA expert witnesses. This court’s scope of review is limited to 

whether the State courts made an “unreasonable application of, clearly 

established Federal law, as determined by the Supreme Court of the United 

States.” 28 U.S.C. § 2254(d)(1). The Fourteenth Amendment Due Process 

Clause’s guarantee of fundamental fairness entails an indigent criminal 

defendant’s right to appointed counsel for criminal trial and direct appeal, 

Gideon v. Wainwright, 372 U.S. 335 (1963); Douglas v. California, 372 U.S. 353 

(1963), as well as the right to a psychiatric expert if “sanity at the time of the 

offense is likely to be a significant factor at trial.” Ake v. Oklahoma, 470 U.S. 68 

(1985). However, the Supreme Court has never determined that indigent criminal 

defendants are entitled to DNA experts. In the absence of applicable clearly 

established federal law, Mr. Kocielko’s claim that the State courts improperly 

denied him funds for a DNA expert is not a basis for habeas relief. 

CERTIFICATE OF APPEALABILITY 

 Under Section 2254 Habeas Corpus Rule 11, the court must grant or deny 

a certificate of appealability. To obtain a certificate of appealability under 28 

U.S.C. § 2253(c), the petitioner must make a substantial showing of the denial 

of a constitutional right by establishing “that reasonable jurists could debate 

whether (or, for that matter, agree that) the petition should have been resolved 

in a different manner or that the issues presented were adequate to deserve 

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 

For the reasons explained in this opinion for denying habeas corpus relief, there 
14 

is no basis for encouraging Mr. Kocielko to proceed further. For the same 

reasons, he may not appeal in forma pauperis because an appeal could not be 

taken in good faith. 

 For these reasons, the court DENIES the motion for discovery; DENIES 

the habeas corpus petition; DENIES a certificate of appealability pursuant to 

Section 2254 Habeas Corpus Rule 11; DENIES leave to appeal in forma pauperis 

pursuant to 28 U.S.C. § 1915(a)(3); and DIRECTS the clerk to enter judgment in 

favor of the Respondent and against the Petitioner. 

 SO ORDERED on April 5, 2018 

/s/ Robert L. Miller, Jr. 

JUDGE 

UNITED STATES DISTRICT COURT