United States District Court, W.D. Wisconsin
ANTONIO G. RAMIREZ, Petitioner,
LIZZIE TEGELS, Respondent.
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE
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.
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.
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.
Arrest and charges
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.
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.
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.
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.
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.
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.
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.
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.)
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.
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.
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
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.
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.
Postconviction and appellate ...