April 13, 2016
from the United States District Court for the Southern
District of Indiana, Indianapolis Division. No.
l:14-cv-1097-JMS-TAB - Jane E. Magnus-Stinson, Judge.
Easterbrook, Manion, and Rovner, Circuit Judges.
ROVNER, Circuit Judge.
a bench trial in Indiana state court, William Hinesley, III,
was convicted of molesting his 13 year-old former foster
daughter, V.V. After exhausting his state court remedies,
Hinesley petitioned for a writ of habeas corpus, contending
that his trial counsel deprived him of effective
representation when he allowed the inculpatory out-of-court
statements of the two principal witnesses against him into
evidence without objection and likewise posed no objection to
the admission of two statements in which witnesses vouched
for V.V.'s credibility. Hinesley also raised an argument
of cumulative ineffectiveness based on these and other
purported errors on the part of his lawyer. The district
court denied his petition. Hinesley v. Knight, No.
1:14-cv-1097-JMS-TAB, 2015 WL 1969643 (S.D. Ind. Apr. 29,
2015). We affirm.
there was no physical evidence of Hinesley's guilt, the
State's case rested almost entirely on the testimony of
the victim, V.V., and, to a lesser extent, her (former)
foster brother, William Hinesley, IV, who was known as Billy.
Prior to trial, both witnesses had made statements that
conflicted with the initial accounts they had given to the
investigating detective. It had also become known that V.V.
and Billy were in a sexual relationship with one another at
the time of the charged offense and, because that
relationship was unlawful (given their respective ages), they
wanted to keep the relationship hidden. When the case came to
trial, it was defense counsel's strategy to allow all of
the prior statements V.V. and Billy had made into evidence
without objection or limitation in order to lay bare the
inconsistencies in those statements and to argue that neither
witness was credible in view of the conflicts. The State
understood that this was the defense strategy and at trial
elicited the initial, inculpatory out-of-court statements of
V.V. and Billy at some length, with no objection by the
defense. Defense counsel also made no objection to the
admission of statements by the investigating detective and by
Billy that they believed V. V.'s account. The defense
took every opportunity to highlight the ways in which V.V.
and Billy subsequently had changed their stories and to
suggest that the investigation of V. V.'s allegations was
inadequate. The trial judge nonetheless convicted Hinesley
finding that V V.'s testimony was credible. His
counsel's strategy having failed, Hinesley now contends
that his attorney was ineffective for permitting the State to
elicit the out-of-court statements of V.V. and Billy as
substantive evidence, rather than eliciting the statements
himself on cross-examination as impeachment, and in allowing
the two instances of vouching by the State's witnesses.
These and certain other omissions form the basis for a
separate assertion of cumulative ineffectiveness.
begin with a summary of the facts relevant to Hinesley's
conviction. V.V. had been taken into the Hinesley family as a
foster child. V.V. was happy in the Hinesley home, but
Hinesley's wife Sharon eventually concluded that the
placement was not a good one, as there was some tension
between herself and V.V. In the autumn of 2008, V.V. was
removed from the Hinesley household and placed with
Hinesley's parents. But V.V. continued to periodically
visit Hinesley and his family. (She is thus frequently
described in the record as Hinesley's foster daughter
notwithstanding the change in placement.) V.V. was present
for such a visit in the Hinesley home on the evening of
Friday, January 16, 2009, when the assault underlying
Hinesley's conviction occurred. The facts forming the
basis for Hinesley's conviction were summarized by the
Indiana Court of Appeals in affirming the conviction on
On the night of January 16, 2009, the Hinesley family was at
home in Paragon, Indiana. Hinesley, his son, William J.
Hinesley, IV ("Billy"), who was twenty years old at
the time, a foster daughter, V.V., who was thirteen years old
at the time, and others were present. Eventually, Hinesley
and V.V. were the only ones awake. They sat on a couch in the
living room and talked as they watched a movie. Next,
Hinesley got up and went into the kitchen. When he returned,
he approached V.V. and pulled down her pants and underwear.
Hinesley got on top of V.V. and put his penis in her vagina.
After a short period of time, V.V. tried to push Hinesley
away, and he got up and left the room. V.V. got up and pulled
up her pants.
Meanwhile, Billy was going to the kitchen to get a glass of
water. He encountered V.V, who told him that she had just had
sex with Hinesley. Billy sent V.V. to the master bedroom
while he woke his sister, S.H., and had her go into the
master bedroom with him and V.V. In the morning, Billy
contacted his uncle, who was a police officer in Mooresville,
Indiana, and the local police were contacted.
Hinesley v. State, 957 N.E.2d 217 (table), 2011 WL
5117056, at *1 (Ind.Ct.App. Oct. 27, 2011) (unpublished).
and Billy both gave videotaped statements the following
morning to Morgan County Sheriff's Detective Dan Downing.
V.V. described the events as recounted above. Billy indicated
in his statement that he had approached the living room just
as V.V. was pulling her pants up. He asked V.V, "[D]id I
see what I thought I saw?" and V.V. nodded and told him
that he had. State Ex. 2 at 12:04. It was then that V.V.
informed him that Hinesley had sexually assaulted her.
neither V.V. nor Billy disclosed to Downing was that they
were engaged in a sexual relationship with one another. In
fact, although she did not yet know it, V.V. was pregnant
with Billy's child (she gave birth in August 2009) at the
time of the assault by Hinesley. The relationship between
V.V. and Billy is described as consensual, but given their
respective ages, it constituted child molestation as a legal
matter. Billy would eventually plead guilty to that offense
once the relationship came to light.
both V.V. and Billy made statements that were either wholly
or partially inconsistent with what they had told Downing.
One week after the incident, V.V. told Hinesley's mother
that she had made the whole thing up. When later deposed by
defense counsel in advance of trial, V.V. acknowledged the
recantation but then testified that Hinesley had, in fact,
assaulted her. But she also professed uncertainty as to
certain key details of the assault, including whether
Hinesley had actually placed his penis into her vagina. Billy
was also deposed prior to trial, and during his deposition he
said that he could no longer remember whether he had seen
V.V. pulling up her pants in the immediate aftermath of the
have said, there was no physical evidence confirming
V.V.'s account of the assault. Both V.V. and Hinesley
were examined on the morning after the assault, but in
neither case was the presence of DNA from the other
individual detected. On the other hand, Hinesley had shaved the
pubic hair from his body at some point prior to his
examination (he would later testify that he and his wife both
did this as a matter of routine). Also, during a search of
the Hinesley home on the morning after the incident, police
discovered a pair of still-wet pajama pants and underwear in
the dryer by themselves, despite there being dirty clothing
piled in the hallway nearby and throughout the house.
Hinesley had been wearing pajama pants and underwear the
previous evening, although police were unable to determine
whether the pajamas and underwear in the dryer were the ones
Hinesley had been wearing.
morning of trial, the State offered to drop the multiple
child molestation charges against Hinesley if he agreed to
plead guilty to a misdemeanor charge of battery, with credit
for the time Hinesley had already served in jail prior to
trial along with a period of probation, and with no
requirement that he register as a sex offender. Hinesley
rejected the offer against his attorney's advice.
case proceeded to trial on three child molestation charges:
(1) that Hinesley had engaged in sexual intercourse with a
child less than 14 years of age, in violation of Indiana Code
§ 35-42-4-3(a)(1), then a Class A felony; (2) that he had
engaged in deviate sexual conduct with a child under 14 years
of age, in violation of the same statute, again a Class A
felony; and (3) that he had touched or fondled a child under
14 years of age with intent to arouse or satisfy the sexual
desires of either himself or the child, in violation of
§ 35-42-4-3(b), a Class C felony. The State previously
had dismissed a fourth charge- that Hinesley had touched or
fondled his biological daughter, S.H. The parties agreed that
the case would be tried to the bench.
have mentioned, it was defense counsel's strategy to
elicit all of the various pre-trial, out-of-court statements
that both V.V. and Billy had made so as to establish the
changing nature of their accounts and to suggest that they
were not credible as to the alleged assault by Hinesley.
Defense counsel thus posed no objection when, during the
State's case, the prosecution asked both Downing and
Billy to recount certain out-of-court statements that both
V.V. and Billy had made. We shall return to these statements
after we first summarize the trial testimony of witnesses
Downing, V.V, and Billy.
was the first of these witnesses to testify for the State. He
described his interviews of both V.V. and Billy, and
recounted in full what they had told him about the assault.
During his testimony, the video recording of Billy's
30-minute interview was played for the court in its entirety.
was the second of these witnesses to take the stand. She
testified, consistently with her original statement to
Downing, that after she and Hinesley were left alone in the
living room of the Hinesley residence on the evening of
January 16, 2009, the two of them watched a movie, with V.V.
resting her head in Hinesley's lap. At some point,
Hinesley had gotten up and gone into the kitchen. When he
returned to the living room, he pulled down her pajama pants
and underwear, placed himself on top of her, pinned down her
shoulders, penetrated her vagina with his penis, and began to
have intercourse with her. Stunned and not knowing at first
what to do, V.V. after a moment "got a hold of
[her]self, " told Hinesley she wanted to go to bed,
shoved him off of her, and then pulled up her pants. Tr. 117.
As V.V. prepared to leave the room, she saw Billy in the
nearby hallway, and he beckoned her over to him with a
gesture. V.V. testified that Billy was "freaking out
kind of, like he was upset and mad, " Tr. 118, and he
asked her if he had just seen what he thought he saw. She
told him yes. At that point, he directed her to the master
bedroom, where she informed Billy, using slang terminology,
that Hinesley had sexually assaulted her.
cross-examination, V.V. was confronted with the multiple
statements she had made prior to trial that were inconsistent
with her testimony (and her original interview with Downing).
She acknowledged the recantation she had made to her foster
grandmother one week after the incident; that recantation,
she said, was a lie. She acknowledged that at her deposition,
she had expressed an inability to recall whether Hinesley had
placed his penis into her vagina. At first, she confirmed
that she was uncertain about this point at the time of her
deposition. Ultimately, however, she conceded that her
professed inability to recall was a lie. She acknowledged
having lied about various other points during her deposition.
She also admitted that she was engaged in a sexual
relationship with Billy at the time of the assault and that
she knew it was wrong.
reiterated at trial that V.V. told him his father had
sexually assaulted her, but he professed uncertainty as to
whether he had seen V.V. pulling up her pants as he had told
Downing he had on the day after the incident. Although he
recalled what he had told Downing, Billy testified that
"[a]t this point in time I do not remember what I
saw." Tr. 170. When pressed on that point by defense
counsel, he allowed that he "could have" lied about
that to Downing, Tr. 179, and agreed with Hinesley's
attorney that "there's a good chance that [he]
didn't see anything at all, " Tr. 178. He
acknowledged that when he was interviewed by the police, he
knew that he himself could be charged criminally for his
conduct with V.V, was afraid of being exposed, and that he
had lied to the police ...