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Ramirez v. Tegels

United States District Court, W.D. Wisconsin

September 26, 2019

LIZZIE TEGELS, Respondent.



         Petitioner Antonio G. Ramirez was convicted, after a jury trial, of two counts of first-degree sexual assault of a child, first-degree sexual assault causing great bodily harm, and child enticement in Kenosha County No. 1999CF950. The child victim did not testify at Ramirez’s trial, but police officers and hospital personnel testified about statements made by the child, the child’s mother, and the child’s brother. Ramirez’s lawyer objected on hearsay grounds, but the lawyer did not argue expressly that the out-of-court statements violated Ramirez’s right under the Sixth Amendment’s Confrontation Clause to cross-examine adverse witnesses. Ramirez’s postconviction and appellate counsel likewise did not raise Confrontation Clause arguments.

         Ramirez now seeks a writ of habeas corpus under 28 U.S.C. § 2254. In an earlier opinion, I dismissed three of Ramirez’s arguments, but concluded that the Wisconsin Court of Appeals applied federal law unreasonably when it analyzed Ramirez’s claim that postconviction and appellate counsel should have raised a confrontation argument under Crawford v. Washington, 541 U.S. 36 (2004). I directed the state to file a brief addressing the merits of Ramirez’s Crawford claim, and I appointed counsel to represent Ramirez for the remainder of this case. The parties have submitted briefing and the matter is now ready for a decision. Because I conclude that postconviction and appellate counsel provided ineffective representation to Ramirez, I will grant Ramirez’s petition. The state must either release Ramirez from custody or grant him a new appeal in which he will have the opportunity to advance the Confrontation Clause arguments that his appellate counsel should have raised.


         The following facts are taken from the petition and the state court records provided by Ramirez and the state. Additional background facts were included in the court’s November 29, 2018 opinion and order, Dkt. 32.

         A. Arrest and charges

         Petitioner Antonio G. Ramirez was arrested on September 5, 1999, after his wife, Cynthia Ramirez, reported to the police that Ramirez had assaulted her and that she believed Ramirez had sexually assaulted her eight-year-old daughter, Ramirez’s stepdaughter. The child, M.R., later told a police officer that when her mother left the house that evening, Ramirez told her to go into her bedroom, that he removed her shorts and underwear, and that he touched her with his penis. M.R. also revealed that a vaginal injury that had been surgically repaired in November 1998 was not a bathtub accident, as she originally reported, but that Ramirez had caused it.

         For the November 1998 assault, Ramirez was charged with first-degree sexual assault of a child under the age of 13 by a person responsible for the child’s welfare and first-degree sexual assault causing great bodily harm. For the September 1999 assault and domestic fight that followed, he was charged with child enticement, first-degree sexual assault of a child under the age of 13 by a person responsible for her welfare, intentionally causing harm to a child (based on allegations that Ramirez attacked his five-year-old son), battery and false imprisonment (based on allegations that Ramirez physically assaulted and restrained Cynthia), and resisting or obstructing an officer. Ramirez pleaded not guilty and proceeded to a jury trial.

         B. Trial evidence

         At trial, the reporting police officer, George Larsen, testified that he had been dispatched to the home of Ramirez’s mother-in-law on the night of the assault in September 1999, and that Ramirez’s wife Cynthia had told him that she believed her daughter had been sexually assaulted by Ramirez. Dkt. 14-27 at 126–27. Officer Larsen testified that Cynthia was “very emotional, sad, crying, [and] concerned, ” id., explained that she had returned home and found that “the door was locked with a chain which was not normal, ” and that she “had to force the back door open.” Id. at 127–28. Upon entering, “she saw [Ramirez] coming out of [M.R.’s] bedroom pulling up his shorts” and “also saw [M.R.] sitting on the toilet [with] a look on her face.” Id. Cynthia also told Officer Larsen that Ramirez had bit her on the shoulder, pushed her, and refused to let her leave, and that her son reported seeing Ramirez with M.R. on her bed. Id. at 128. Officer Larsen determined a sexual-assault evaluation was needed, so he took Cynthia and M.R. to the hospital. Id. at 130. At the hospital, Cynthia and M.R. met with a nurse, Donna Karpowicz-Halpin, along with Officer Larsen. M.R. described to Nurse Karpowicz-Halpin and Officer Larson what had happened, including that Ramirez had “put her face down on the bed” and “put his private by her pooh-pooh.” Id. Officer Larson testified that M.R. pointed to parts on a teddy bear to indicate where Ramirez had touched her. Id. at 132. Officer Larsen remained in the examination room until M.R. had to get undressed. Id. at 132–33.

         Nurse Karpowicz-Halpin also testified at trial, describing M.R. as being “very distraught, ” “scared, ” and “very, very frightened.” Dkt. 14-25 at 99. The nurse began her examination of M.R. by asking M.R. if she was in pain, listening to her lungs, looking in her mouth, and asking about school, “just to build a rapport.” Id. at 104. Then Nurse Karpowicz-Halpin asked M.R. what had happened. M.R. responded that Ramirez had “taken off her pants and [then] took off his pants, and she was laying on her belly on the bed.” Id. at 105. M.R. also said that Ramirez “put his pee-pee by her butt . . . like on top of her.” Id. After that, M.R. went to the bathroom and wiped herself with some tissue and threw it in the wastepaper basket. Id. at 105–06. Nurse Karpowicz-Halpin also testified that M.R. told her that Ramirez had caused her previous vaginal injury, but that she had not told anyone because Ramirez had threatened to hurt her little brother, mother, or grandmother if she did. Id. at 107–08. M.R. stated that Ramirez had injured her by “trying to put his pee-pee inside of her.” Id. at 107. Nurse Karpowicz-Halpin testified that Cynthia reacted to M.R.’s statements by “crying, ” and “[h]ugging” the child and encouraging her to “tell [them] the truth.” Id. at 105. Immediately after the sexual-assault examination, Nurse Karpowicz-Halpin gave police officers a statement recounting what M.R. had told her.

         An emergency room doctor, Suzanne Siegal, also testified. Dr. Siegal examined M.R. with both Nurse Karpowicz-Halpin and Cynthia Ramirez in the room. Dr. Siegel stated that M.R. did not have any physical injuries, but that M.R.’s vaginal area was red and irritated and had an abnormal discharge. Dkt. 14-27 at 24. Siegel also testified that when she put a blue lamp on M.R.’s leg, it lit up, indicating that there were “seminal fluids” present. Id. Siegel took swabs from M.R.’s vaginal and rectal areas that were sent to the hospital’s laboratory. Id. at 25. Siegel also placed M.R.’s clothing and swabs from her body into a “rape kit” that was sent to the state crime lab. Id. at 33. Siegel testified that when she asked M.R. what had happened, M.R. responded that Ramirez “had put his pee-pee” by her buttock area. Id. at 23. Siegel reviewed the medical records from M.R.’s November 1998 hospital visit and concluded that the injuries described in the records were consistent with sexual abuse. Siegel noted that the records indicated that M.R. had arrived with “an episiotomy like laceration” that had to be surgically repaired, and that such an injury was most consistent with sexual misuse or childbirth. Id. at 26.

         The state called three doctors to testify about the November 1998 incident. Dr. Michael Schellpfeffer, the surgeon who performed the surgical repair of M.R.’s vaginal injury in November 1998, testified that the child’s injuries were “certainly consistent possibly with a penetrating injury.” Dkt. 14-7 at 144. But Cynthia had told hospital staff that M.R. was injured in the bathtub. Id. at 146. The hospital had checked for seminal material and did not find any. Id. at 160. Dr. Schellpfeffer testified that the injury was “not at all typical” of straddle injuries he had seen before, but because Cynthia had told him that she did not know of any sexual abuse, the surgeon wrote in his notes that M.R. had suffered a “perineal laceration from straddle injury.” Id. at 145, 148, 152.

         Two additional doctors provided expert testimony about the November 1998 injury, stating that although the injury had been diagnosed as a “straddle injury” and no sexual abuse report had been made, the injury was “inconsistent with a straddle injury” and was more consistent with sexual abuse. Dkt. 14-26 at 126–27. Both stated that “theoretically, ” the injuries could have non-assaultive causes. Id.; Dkt. 14-27 at 26, 32–38.

         Another police officer, Detective John Gregory, testified that he interviewed Cynthia Rameriz later in the evening of September 5, 1999, and that she described breaking the chain link to get into her home, finding Ramirez coming out of M.R.’s bedroom pulling up his shorts, and seeing M.R. in the bathroom. Dkt. 14-27 at 163–64. The next day, he obtained a statement from M.R. that was consistent with M.R.’s statements to Officer Larsen and hospital staff. Id. at 168. Gregory’s report of his conversation with M.R. was introduced into evidence. Id. Gregory relied on the statement to testify that M.R. had told him that Ramirez had taken off her clothes, lied her down on the bed, and rubbed his penis against her. Id. at 174–75. The detective also testified that the child’s brother told him that he saw his father take off his shorts and saw “white boogers on the bed.” Id. at 178–79. (Officers who collected evidence at the house did not find seminal material on the bed. Dkt. 14-25 at 149.)

         Another police officer testified that while Cynthia and M.R. were at the hospital, the officer went to their apartment to gather evidence. Dkt. 14-25 at 142. The officer took pictures of the apartment, including a broken latch on the door, and he recovered toilet paper from the bathroom trash can. Id. The photographs and the toilet paper were admitted into evidence. Id. at 8–9. The state introduced DNA evidence through the testimony of a crime lab forensic scientist, who testified that M.R.’s underwear and toilet paper had sperm cells, semen, or both. The forensic scientist testified that there was a one in 20 trillion chance that the DNA recovered from the tissues and on the underwear belonged to a Hispanic male other than Ramirez, and a one in 400, 000 chance that the DNA found on the vaginal swab belonged to a Hispanic male other than Ramirez. Dkt. 14-26 at 107–10.

         The state also called Cynthia as a witness. During her testimony, Cynthia recanted all of her previous statements against Ramirez. She testified that she had lied to the police about seeing Ramirez pulling up his shorts at the door to her daughter’s room and had told her daughter to lie about being sexually assaulted. She also testified that she had lied about being attacked by Ramirez and had lied about her son being attacked. Dkt. 14-26 at 51–78. She stated that she had made up the entire incident and had coached her children to lie because she was angry at Ramirez for excessive drinking and being unfaithful, and that she wanted him to go to prison. Id. at 65–68; Dkt. 14-27 at 98. Cynthia testified that she and Ramirez had sex on the morning of the incident, with a condom, and threw the used condom in the garbage, but she denied using the condom to plant DNA on M.R. Dkt. 14-27 at 98, 114. When asked about her statement to Detective Gregory that her daughter said during the medical exam that Ramierz had caused the November 1998 injury, Cynthia said, “We never talked about that.” Id. at 155–56. The court permitted the prosecution to introduce previous statements that Cynthia had made to the police and hospital staff to impeach her trial testimony. Dkt. 14-25 at 9–10.

         Cynthia did not bring M.R. to court the morning of trial despite a subpoena ordering her to do so. Dkt. 14-25 at 11. M.R. apparently wrote a letter to the state court recanting her accusations against Ramirez. Dkt. 14-25 at 175. M.R. did not testify at trial and her written recantation was not admitted as evidence.

         Defense counsel called Ramirez’s brother, who had lived with Ramirez and his family in September 1999. The brother testified that when he returned home on the date of the September 1999 incident, Ramirez was passed-out drunk, the children were watching television, and Cynthia was in the kitchen with “an attitude.” Dkt. 14-28 at 106.

         The jury found Ramirez guilty of the two counts of sexual assault and one count of child enticement, but the jury found him not guilty of the domestic assault charges and the charge relating to the alleged assault on his five-year-old son. Ramirez was sentenced to two concurrent 40-year prison terms on two of the sexual assault charges, 30 years of probation on the other sexual assault charge, and a consecutive 10-year sentence on the child enticement charge.

         C. Postconviction and appellate ...

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