United States District Court, W.D. Wisconsin
RICHARD H. HARRISON, JR., Petitioner,
LIZZIE TEGELS, Respondent.
OPINION AND ORDER
BARBARA B. CRABB DISTRICT JUDGE
2011, petitioner Richard Harrison, Jr. was charged with
repeated sexual assault of his then stepdaughter, D.M.K.
There were no third-party witnesses to the alleged assaults
and no physical evidence. Instead, the state relied entirely
on a recorded interview that D.M.K. gave to the police and
the trial testimony of D.M.K.'s mother, Kimberly, who
recounted what D.M.K. allegedly told her about the assaults.
theory of the case was that D.M.K.'s mother persuaded her
daughter to fabricate the allegations because petitioner and
Kimberly were divorcing and she wanted to prevent petitioner
from gaining custody over several children that they shared.
In his opening statement, petitioner's counsel promised
the jury that he would reveal many inconsistencies in
D.M.K.'s and Kimberly's allegations, showing them to
be incredible. Counsel broke this promise. Although he
presented evidence that D.M.K.'s mother had made false
accusations against petitioner in the past, counsel failed to
present evidence of numerous and significant inconsistent
statements that both D.M.K. and Kimberly made about almost
every aspect of the alleged assaults, such as the type of
conduct involved, the frequency of the assaults, their
location and what petitioner allegedly said to D.M.K. during
the assaults. In addition, counsel failed to object to
D.M.K.'s statement at trial that petitioner often hid
from the police around the time that the alleged assaults
occurred, even though it was undisputed that the
petitioner's hiding had nothing to do with the alleged
jury convicted petitioner and the state court sentenced him
to 30 years in prison. After exhausting his remedies in state
court, petitioner filed a petition under 28 U.S.C. §
2254 for a writ of habeas corpus, which is fully briefed and
ready for review. Now represented by the Wisconsin Office of
the State Public Defender, petitioner challenges his
conviction on the ground that the Wisconsin Court of Appeals
applied Strickland v. Washington, 446 U.S. 668
(1984), unreasonably when it rejected his argument that his
trial counsel provided ineffective assistance by failing to
(1) impeach D.M.K. and her mother with prior inconsistent
statements and (2) object to inadmissible character evidence.
considering any petition for a writ of habeas corpus, a
federal court must balance carefully a petitioner's
rights under the Constitution with the state's and the
alleged victim's right to finality. Particularly when the
alleged conduct involves a heinous crime against a young
victim, it is difficult to set aside thoughts about the
hardship that the child may have to endure if the case is
tried a second time. On the other side of the scale is the
petitioner's right to a fair trial, a right that exists
to prevent innocent persons from being convicted unjustly
and, as in prisoner's case, being sentenced to 30 years
in prison. When the interests on both sides are so important,
a mistake in overemphasizing either finality or certainty can
have serious consequences.
and the Supreme Court have created a legal framework that
informs federal courts how to weigh the interests in
punishing criminal conduct against the interests in
preventing wrongful convictions. Federal courts can grant
relief to prisoners challenging a state conviction, but only
in narrow circumstances. 28 U.S.C. § 2254(d). In light
of the deference a federal court must give both trial counsel
and the state court, it is a rare case in which a federal
court may grant a habeas petition in the context of a claim
for ineffective assistance of counsel. Harrington v.
Richter, 562 U.S. 86, 105 (2011).
one such rare case. By failing to present evidence on the
very issue he told the jury would prove his client's
right to acquittal, petitioner's trial counsel deprived
petitioner of the ability to present a defense and receive a
fair trial. Counsel has admitted that his failure to
introduce what could have been critical impeachment evidence
was the result of his ignorance of the law of evidence, not
trial strategy. Further, because witness credibility was the
key issue at trial, counsel's failure crippled
petitioner's defense, sending the message to the jury
that counsel needed to mischaracterize the evidence because
he knew that the evidence supporting petitioner was weak.
inconsistent statements were not related simply to minute
details that could be dismissed easily by the jury as
misstatements or the result of a diminished memory. Some of
the differences were fundamental and dramatic, such as the
change in D.M.K.'s statement that petitioner assaulted
her hundreds of times (the statement the jury heard)
to a revised estimate of between one and five
assaults (the statement the jury could not consider).
Considering the importance of credibility to the trial, the
large number of the inconsistencies and their significance
and trial counsel's announcement to the jury that he had
ample evidence to show that D.M.K. could not be believed, I
conclude that the failure by counsel to impeach D.M.K. and
her mother was both deficient and prejudicial and that the
conclusion of the Wisconsin Court of Appeals to the contrary
was unreasonable. Although counsel's failure to object to
the inadmissible character evidence may have been a less
serious error, it increases the likelihood that petitioner
course, a conclusion that petitioner is entitled to habeas
relief does not mean that petitioner is innocent of the
crimes of which he is accused. I am not deciding whether
D.M.K. and her mother should be believed, only that
petitioner's counsel failed to present important evidence
that the jury should have been able to consider. The state
retains the right to try petitioner again for the serious
crimes alleged, but before petitioner is subjected to a
30-year prison sentence, he should have the opportunity to
present a full defense.
was married to the mother of the alleged victim for
approximately six years. (I will follow the parties' lead
in referring to the mother as “Kimberly” and the
alleged victim as “D.M.K.”) D.M.K. was
Kimberly's daughter from a previous relationship. She was
two 1years old when petitioner and Kimberly met; during the
relevant time period (2009 and 2010), she was eight or nine
years old. Petitioner and Kimberly had four other children
during their marriage.
in 2010 (several months after Kimberly and petitioner stopped
living together), Kimberly filed for divorce against
petitioner. Shortly thereafter, Kimberly contacted the
police, alleging that petitioner had sexually assaulted
September 30, 2010, a police officer, Christine Giacomino,
interviewed D.M.K. about this allegation. In February 2012,
after petitioner was criminally charged, D.M.K. provided a
second statement about the alleged assaults at
petitioner's preliminary hearing. (The parties do not
explain the long passage of time between the report to the
police and petitioner's preliminary hearing.)
petitioner's criminal trial in October 2012, defense
counsel's theory of the case in his opening statement was
that Kimberly prompted D.M.K. to fabricate allegations of
abuse so that Kimberly would get custody of the children when
they divorced. (Although petitioner would have no claim of
custody over D.M.K. because she was not his biological
daughter, a conviction for sexual assault would eliminate any
chance that petitioner would win custody of his own
children.) Counsel promised the jurors that they would hear
many different, inconsistent versions of events from D.M.K.
Dkt. #6-19 at 106.
state called D.M.K. to testify, but she had little
substantive testimony to offer. When asked whether she
“remember[ed] what happened between [her] and
[petitioner], ” she stated, “Not really, because
I don't really think about it.” Dkt. #6-19 at
153-54. Instead of live testimony, the state presented its
case primarily through a tape recorded interview that D.M.K.
gave to officer Giacomino on September 30, 2010, more than
two years earlier. Neither the state nor petitioner entered
into evidence D.M.K.'s testimony from the preliminary
hearing in February 2012. Petitioner's counsel cross
examined D.M.K. about one difference between her testimony at
the hearing and her statements during the interview. In
particular, D.M.K. stated during the interview that
petitioner had assaulted her outdoors multiple times, but on
cross examination at trial, she admitted that she had stated
at the preliminary hearing that she could not remember
whether any assaults occurred outdoors. Dkt. #6-19 at 148.
addition to D.M.K. and officer Giacomino, the only witness
the state called was D.M.K.'s mother, Kimberly. On cross
examination, Kimberly admitted that she contacted the police
about petitioner's alleged sexual assaults shortly after
she filed for divorce. Id. at 171-72. In addition,
she admitted that she had filed and then withdrawn two
restraining orders against petitioner during their marriage
and that she had requested the dismissal of one of the
restraining orders on the ground that she lied about it.
Id. at 167. Petitioner's counsel did not cross
examine Kimberly about inconsistencies between her trial
testimony and statements that she gave the police.
case, petitioner called three witnesses: Adrian Cruz (a
doctor who examined D.M.K.), Patricia Harrison
(petitioner's mother) and petitioner himself. Cruz
testified that he saw no evidence of trauma or infection
during his gynecological examination of D.M.K. and that her
hymen appeared normal for a girl her age. Dkt. #6-20 at 6-9.
Harrison testified that she lived with petitioner and
Kimberly during the time of the alleged assaults, that she
rarely left the house and that she never observed or heard
any signs of the assaults. Id. at 23, 24, 51-52. She
said that it was easy for her to hear what was going on in
the bedrooms because of the way the home's ventilation
system was set up. Id. at 51. In addition, she said
that Kimberly did not have a job and she never left the house
without petitioner. Id. at 26.
his testimony, petitioner denied that he sexually assaulted
D.M.K. Id. at 65. During his brief cross
examination, the state's counsel did not ask petitioner
any questions about the alleged assaults.
closing arguments, petitioner's counsel tried to talk
about inconsistencies in D.M.K.'s statements, but the
state's counsel objected on the ground that the
statements were not in evidence. Id. at 111-12. The
court sustained the objection and directed the jury not to
consider any evidence that was not admitted. Id.
jury found plaintiff guilty of repeated sexual assault of a
child under Wis.Stat. § 948.025(1)(d). The court
sentenced petitioner to 30 years in prison, to be followed by
10 years of extended supervision. Dkt. #6-1. In post
conviction proceedings, petitioner challenged his conviction
on the ground that he had received ineffective assistance of
counsel. After holding a hearing in which petitioner's
trial counsel testified, the court found that counsel
performed deficiently. Dkt. #6-2 at 127. However, the court
wrote that it was “satisfied by only the thinnest of
margins that each layer of deficiency did not result
in” prejudice. Id. The Wisconsin Court of
Appeals affirmed the decision, and the Wisconsin Supreme
Court denied petitioner's request for review. State
v. Harrison, 2015 WI.App. 43, 362 Wis.2d 539, 865 N.W.2d
884, review denied, 2015 WI 91, 870 N.W.2d 463.
discuss the facts of the case in more detail as they become
relevant in the context of the opinion.
sole claim is that his trial lawyer provided him
constitutionally ineffective assistance. The Supreme Court
set forth the standard for such a claim in Strickland v.
Washington, 466 U.S. 668 (1984). First, petitioner must
show that counsel's performance was deficient under an
“an objective standard of reasonableness.”
Id. at 687-88. The general question under this prong
is whether counsel acted “within the range of
competence demanded of attorneys in criminal cases” in
light of “prevailing professional norms.” Id.
See also id. (question is “whether, in light of
all the circumstances, the identified acts or omissions were
outside the wide range of professionally competent
assistance”). In making this determination, a
court's “scrutiny of counsel's performance must
be highly deferential” and viewed from counsel's
perspective at the time. Id. at 689.
“[C]ounsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.”
petitioner must show prejudice, which the Court defined as
"a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." Id. at 694. This does not
require a showing that "counsel's deficient conduct
more likely than not altered the outcome in the case."
Id. Instead, a "reasonable probability is a
probability sufficient to undermine confidence in the
outcome." Id. See also Harrington v. Richter,
562 U.S. 86, 112 (2011) (“The likelihood of a different
result must be substantial, not just conceivable.”).
Making this probability determination requires consideration
of the "totality of the evidence before the judge or
jury, " Strickland, 466 U.S. at 695, so a
"verdict or conclusion only weakly
supported by the record is more likely to have been affected
by errors than one with overwhelming record support, "
id. at 696. See also Harrington, 562 U.S.
at 104 (reaffirming Strickland standard).
context of a petition for a writ of habeas corpus under
§ 2254, the standard for ineffective assistance of
counsel is “doubly deferential” in light of the
standard of review imposed by 28 U.S.C. § 2254(d).
Burt v. Titlow, 134 S.Ct. 10, 13 (2013). As relevant
to this case, a federal court may not grant a § 2254
petition unless the state court's decision was
“contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the
Supreme Court.” § 2254(d). “A decision is
‘contrary to' clearly established federal law if
the rule the decision applies differs from governing law set
forth in Supreme Court cases. A decision involves an
‘unreasonable application' of Supreme Court
precedent if the decision, while identifying the correct
governing rule of law, applies it unreasonably to the facts
of the case.” Bailey v. Lemke, 735 F.3d 945,
949-50 (7th Cir. 2013) (citing Bell v. Cone, 535
U.S. 685, 694 (2002), and Williams v. Taylor, 529
U.S. 362, 407 (2000)).
Strickland's high bar is never an easy task. And
establishing on habeas review that a state court unreasonably
applied Strickland under § 2254(d) is all the
more difficult." Harrington, 562 U.S. at 105
(internal quotations and citations omitted). Under
Strickland, a state court decision is not
unreasonable unless it is “so lacking in justification
that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded
disagreement." Id. at 103.
consider first whether petitioner has satisfied the
Strickland standard. If he does, I will consider
whether he meets the standard of review under § 2254.