Jones, Elijah v. Wallace, Pamela ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1470
ELIJAH JONES,
Petitioner-Appellant,
v.
PAMELA WALLACE,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 05-C-172—Aaron E. Goodstein, Magistrate Judge.
____________
ARGUED MARCH 4, 2008—DECIDED APRIL 29, 2008
____________
Before CUDAHY, KANNE, and EVANS, Circuit Judges.
PER CURIAM. Elijah Jones was convicted in Wisconsin
state court of first degree sexual assault of a child. After
exhausting state post-conviction remedies, Jones sought
federal habeas corpus relief under 28 U.S.C. § 2254. He
argues that his counsel was ineffective at trial for failing
to discover and introduce evidence that would have
impeached the testimony of the victim—the only evid-
ence offered by the prosecution. The district court denied
Jones’s petition without holding an evidentiary hearing.
Jones now asks us to remand for a hearing so that he
might further develop his claims. But Jones does not
2 No. 07-1470
allege facts that, if proven, would warrant relief. There-
fore we affirm.
Jones’s conviction was based exclusively on the testi-
mony of his victim, “K.J.” According to K.J.’s trial testi-
mony, she was 12 years old when Jones assaulted her.
At the time, Jones was dating her mother. K.J.’s family
did not have a clothes washer and dryer, so K.J. went to
Jones’s apartment to do the family’s laundry. Jones picked
her up at home and drove her to his apartment. During
the drive, Jones asked whether she had boyfriends or
was sexually active.
While at the apartment, K.J. watched television on the
couch. Jones sat down next to her and covered them both
with a blanket. Under the blanket, he began to rub her
thigh and then her vagina, over her clothes. She asked
him to stop, and he did. He then took a shower and
emerged naked. He asked her to look at his body and asked
if she had pubic hair like he did. After K.J. had been at
Jones’s apartment for about two hours, he took her
home. He told her not to tell anyone what had happened
or they would both get in trouble. Within two days,
however, she told her cousin, and her mother eventually
found out and questioned her, resulting in a report to
the police.
There were four discrepancies between K.J.’s testimony
at trial and her previous statements to officers and at a
preliminary hearing: (1) whether the security guard at
Jones’s apartment building momentarily came to the
door to talk to Jones around the time of the assault;
(2) whether K.J.’s mother had warned her to be careful
around Jones because he “might try something;” (3)
whether Jones was naked when he touched her; and,
most important for this appeal, (4) whether K.J.’s mother
No. 07-1470 3
called Jones’s apartment while K.J. was there and, if she
did, whether K.J. spoke to her. Counsel’s failure to fully
exploit the fourth discrepancy is the basis for Jones’s
collateral attack.
At trial, defense counsel emphasized three of these
discrepancies: whether the security guard came to the
door, whether Jones was naked during the assault, and
whether K.J. spoke with her mother when she called.
Counsel argued that the inconsistencies collectively
undermined K.J.’s credibility. What counsel failed to do,
however, was to investigate Jones’s cell phone and land
line records to determine if the call from K.J.’s mother
actually occurred. Jones now produces call records for
his cell phone that do not show an incoming call from
K.J’s mother, as well as a letter from one phone company
stating that its records show that Jones did not have a
land line at the time of the offense. Jones argues that
counsel could have used these records to impeach K.J.
more effectively, changing the question whether she
talked to her mother to whether her mother even called.
Jones claims this change would have more persuasively
undermined K.J.’s account and may even have suggested
she fabricated her testimony. Depending on its nature,
additional impeachment in this case could be of great
importance because Jones was convicted based only
on K.J.’s testimony.
Though the trial judge was without the benefit of the
phone records, she considered the other three discrepan-
cies argued by counsel when determining Jones’s guilt.
She determined, however, that they did not impair K.J.’s
credibility as to the actual assault. Instead, the judge
focused on K.J.’s demeanor and the fact that her testi-
mony regarding the assault itself was vivid and con-
4 No. 07-1470
sistent at all times. The judge noted that any discrepancies
between K.J.’s trial testimony and earlier statements
during her initial report to police were of little con-
sequence because the officer who interviewed K.J. did not
have a clear recollection of his conversation with her
and because he merely conducted a brief screening inter-
view before directing her to the appropriate officers
for a complete investigation. The judge also pointed to
numerous other specific details that K.J. testified to,
such as the layout of the room, that Jones had offered her
a Klondike bar, the timing of the event, where he was in
the room, what he wore, and other like details that
were undisputed and bespoke her powers of observa-
tion. The judge determined that K.J.’s testimony contained
far more consistencies than inconsistencies and that the
consistencies outweighed any discrepancies in minor
details that were extraneous to the assault. The judge
also found that K.J. was credible because she did not
embellish her story. After finding Jones guilty, the judge
sentenced him to 28 years in prison.
Jones pursued a direct appeal as well as collateral relief
in the Wisconsin courts, arguing the ineffectiveness of
his trial counsel. See State of Wisconsin v. Jones, No. 02-0554-
CR (Wis. Ct. App. Sept. 30, 2003). At his post-conviction
proceeding, Jones first produced his cell phone records
showing that no call was placed to his phone during
the time that K.J. was at his apartment on the day of the
incident (though he did not yet produce the land line
records he now contends counsel should have investi-
gated). Jones argued that his attorney should have investi-
gated his cell phone records and used them to impeach
K.J. regarding her testimony that her mother had called
the apartment.
No. 07-1470 5
The Wisconsin Court of Appeals rejected Jones’s claims
without an evidentiary hearing. It found that the evid-
ence would not have sufficiently undermined K.J.’s
credibility to change the outcome of Jones’s trial and
thus counsel’s failure to discover it was not prejudicial.
The court noted that counsel had already mounted an
unsuccessful attack on K.J’s credibility based on similar
discrepancies, and that even if counsel had discovered
and admitted Jones’s cell phone records, the records did
not preclude the possibility that the call from K.J’s mother
was placed on a land line.
Jones next sought relief in the district court under
§ 2254. He again produced the cell phone records, but
added a letter from a telephone company stating that he
did not have a land line at the time of the incident. He
reiterated his argument that, had counsel investigated
and examined K.J. on this discrepancy, especially when
combined with other inconsistencies in her testimony,
there is a reasonable probability that the outcome of trial
would have been different. The district court determined
that the evidence did not show that counsel’s failure to
procure the phone records was prejudicial. It also denied
an evidentiary hearing because Jones did not allege facts
that would entitle him to relief, and thus he was not
entitled to a hearing.
On appeal, Jones argues that he was entitled to an
evidentiary hearing in the district court to prove counsel’s
ineffectiveness, and he asks us to remand for a hearing. The
state courts refused Jones’s request for a hearing. Accord-
ingly, he is not at fault for failing to develop the factual
record, and we look only to whether, if proven, his pro-
posed facts would entitle him to relief. See Richardson v.
Briley, 401 F.3d 794, 800 (7th Cir. 2006); Davis v. Lambert,
6 No. 07-1470
388 F.3d 1052, 1059-62 (7th Cir. 2004); Matheney v. Anderson,
253 F.3d 1025, 1038-39 (7th Cir. 2001).
To obtain relief, Jones must demonstrate that the Wis-
consin Court of Appeals’ decision was either contrary to,
or an unreasonable application of, Supreme Court prece-
dent. See Davis, 388 F.3d at 1058-59; Harris v. Cotton, 365
F.3d 552, 555 (7th Cir. 2004). Jones proceeds under the
theory that the state court’s conclusion was an unreason-
able application of the correct precedent. To be unreason-
able, the decision must not only be incorrect, but so
incorrect that it lies outside of the range of reasonable
conclusions. Dixon v. Snyder, 266 F.3d 693, 700, 703 (7th
Cir. 2001); Matheney, 253 F.3d at 1041; Washington v. Smith,
219 F.3d 620, 628 (7th Cir. 2000).
Because Jones must show facts that would warrant
relief if proven, the reasonableness inquiry folds into his
request for a hearing, leaving us to ask: if Jones success-
fully proved all he claims he would prove at a hearing,
would his evidence establish that the Wisconsin Court
of Appeals’ decision that counsel performed effectively
was unreasonable? If so, then we must remand for a
hearing.
Jones’s telephone records do not undermine the reason-
ableness of the Wisconsin Court of Appeals’ decision.
Though counsel’s failure to investigate impeaching evi-
dence can constitute deficient performance, see Harris,
365 F.3d at 556; Washington, 219 F.3d at 628, Jones cannot
show that he was prejudiced, that is, he cannot show
that the existence of his phone records undermines confi-
dence in his conviction, see Davis, 388 F.3d at 1064; Harris,
365 F.3d at 555. The question of the phone call is too far
afield from the central facts of the assault. Moreover,
the evidence he presents is not actually impeaching.
No. 07-1470 7
First, Jones’s proposed impeachment evidence is periph-
eral to the central facts of the crime and does not rise to
the level of other cases in which this court found ineffec-
tive assistance for failure to investigate and impeach. For
instance, in Davis, the defendant’s attorney failed to
investigate or present any eyewitnesses to support the
defendant’s theory of self-defense, including the only
sober eyewitness to the altercation in question. Davis,
388 F.3d at 1056, 1062-64. Similarly, in Harris, the defen-
dant’s attorney did not investigate a toxicology report
which showed that the victim was under the influence
of cocaine and alcohol, evidence that would have signifi-
cantly strengthened the defendant’s claim of self-defense.
Harris, 365 F.3d at 554, 556-57. In Washington, counsel did
not investigate or present several eyewitnesses who
corroborated the defendant’s alibi as well as his argument
that the murder weapon did not belong to him. Washington,
219 F.3d at 629-31. Lastly, in Dixon, the defendant was
charged with murder, but the only eyewitness recanted
his statement to police that incriminated the defendant.
Dixon, 266 F.3d at 696, 704. Counsel did not impeach the
earlier statement by cross-examining the witness with the
later recantations. Id. at 704. The unifying theme in these
cases is that the overlooked evidence or impeachment
involved facts central to the actual crime.
Unlike these cases, Jones’s counsel failed to investigate
phone records that did not dispute the central facts of
Jones’s assault on K.J. Their use to impeach K.J. could
undermine only her recollection of the phone call, which
itself is only loosely related by temporal proximity to the
assault. It is the type of peripheral fact about which a
witness could understandably be mistaken without
undermining the credibility of her testimony about the
8 No. 07-1470
assault. Next to her clear and consistent accounts of the
assault, any mistaken recollection about the phone call is
of minor importance.
Instead, this case more closely resembles Murrell, in
which the defendant argued that his counsel was ineffec-
tive for failing to impeach a night club security guard
with prior testimony. Murrell v. Frank, 332 F.3d 1102,
1107-08, 1112-13, 1115. But the inconsistency was slight
(whether the guard saw the defendant before he dropped
a gun or saw him next to the gun immediately after he
dropped it) such that it would not have undermined
the guard’s credibility on the central issue of whether
the defendant was the shooter. Id. Similarly, in Lowery,
counsel’s failure to impeach a prosecution witness was
inconsequential because the witness’s credibility had
already been damaged by his admission that he was
receiving prosecutorial leniency in exchange for his
testimony. Lowery v. Anderson, 225 F.3d 833, 843-44 (7th
Cir. 2000). Moreover, his testimony on the critical points
was consistent and was corroborated by the defendant’s
own admissions to police and to his cell mate. Id.Like these cases, the details of the phone call and even
the question of its existence are of little importance to the
central facts of the case. Moreover, the Judge did con-
sider impeachment already in the record regarding K.J.’s
recollection of the call, and found her arguable inconsis-
tency overshadowed by her confident demeanor and
consistent recollection about the specific details of how,
when, and where Jones actually touched her. While we
are mindful that K.J.’s testimony was uncorroborated, a
fact that adds appreciable weight and urgency to Jones’s
arguments, we require a more effective attack on her
credibility before we will deem the Wisconsin Court of
Appeals’ decision unreasonable.
No. 07-1470 9
Second, the evidence on which Jones relies would not
show prejudice because it is not in fact impeaching. The
evidence does not show conclusively that K.J. lied or
was mistaken because the phone records do not preclude
the existence of another phone in the apartment—either
another cell phone that Jones possessed or borrowed
for which he did not produce call records, or a land line
from a company other than the one whose letter he sub-
mits. Jones could have deposed K.J.’s mother and asked
if she called, or presented additional evidence that no
other phones were present, but he did not. At argument,
Jones opined that such additional supporting evidence
could possibly be produced if we granted a hearing. But
this argument puts the cart before the horse. It is Jones’s
burden to show that the facts he alleges would warrant
relief before we can remand for a hearing. Now, not later,
is the time to produce the evidence that the Wisconsin
Court of Appeals’ decision was unreasonable. At best,
Jones’s records rule out some ways that the call may
have occurred, but they do not disprove, or even neces-
sarily oppose, K.J.’s testimony that her mother called.
Jones’s phone record evidence, even if true, does not
sufficiently undermine the reliability of his trial and, thus,
the Wisconsin Court of Appeals’ ruling on counsel’s
adequacy was reasonable. Therefore, Jones is not en-
titled to a hearing, and the judgment of the district court
is AFFIRMED.
USCA-02-C-0072—4-29-08