Charles Cianciola v. Mike Dittmann ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1867
C HARLES R. C IANCIOLA ,
Petitioner-Appellant,
v.
M IKE D ITTMANN,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 05 C 1264—Aaron E. Goodstein, Magistrate Judge.
A RGUED O CTOBER 27, 2009—D ECIDED JANUARY 28, 2010
Before EASTERBROOK, Chief Judge, and EVANS and
W ILLIAMS, Circuit Judges.
E VANS, Circuit Judge. Charles Cianciola was convicted
of sexual assault of a child by Wisconsin state juries in
both Milwaukee and Outagamie Counties. In the Milwau-
kee case, which was tried first, Cianciola was sentenced
to a term of 12 years in prison. The Outagamie County
trial followed, and in 2002 he received a 15-year sen-
tence consecutive to the 12 he was already serving. This
2 No. 09-1867
appeal, arising from the conviction in Outagamie County,
contests the district court’s denial of Cianciola’s petition
for a writ of habeas corpus. His petition asked the
district court to return his case to state court for a new trial.
Cianciola’s habeas petition hinges on a claim that he
was denied his Sixth Amendment rights to the effective
assistance of counsel. The state trial judge rejected that
claim (and others) during postconviction proceedings,
and the Wisconsin Court of Appeals affirmed that ruling
in 2004. The Wisconsin Supreme Court declined to
review the case.
Pursuant to the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), we evaluate the decision
of the last state court to adjudicate a habeas petitioner’s
claim. Starkweather v. Smith, 574 F.3d 399 (7th Cir. 2009).
We may grant relief to a petitioner only if the state court
ruling on a federal constitutional claim was based on an
unreasonable view of the facts or was contrary to, or an
unreasonable application of, clearly established federal
law as determined by the United States Supreme Court.
Williams v. Taylor, 529 U.S. 362, 376-77 (2000).
The standard for considering Cianciola’s ineffec-
tiveness claim is the well-known one announced in Strick-
land v. Washington, 466 U.S. 668, 688 (1984). How well-
known? Well, even though Strickland was decided
25 years ago, we cite it often—over 50 times in published
opinions over the last three years. In the jury trial
context, Strickland requires a habeas petitioner to show
that his state trial counsel’s performance was objec-
tively unreasonable and that counsel’s errors affected the
No. 09-1867 3
verdict. In short, Strickland demands that a petitioner
satisfy both a performance and a prejudice standard.
We will return to this later, but first, the facts.
The alleged victim of the sexual abuse in the case was
Cianciola’s daughter, who we will call Jane. She lived
with her mother but had visitations with Cianciola at his
home in Appleton, Wisconsin, the county seat of
Outagamie County. Jane testified that Cianciola touched
her breasts and vagina while she was lying on her bed
during a visitation in August 1999. She testified that
similar incidents happened at other times, beginning
when she was six or seven. One of those incidents
occurred during a trip to Milwaukee to see a hockey
game. During that incident, she said, her father had the
smell of alcohol on his breath.
Jane testified that her father touched her, inappropri-
ately, almost every time she visited him in Appleton. She
also said Cianciola threatened to kill her or her mother
if she ever told anyone about the assaults. A police
officer also testified that Cianciola said the assaults
could have happened “maybe if [I] was totally blacked
out.” The officer also testified that he detected the
smell of alcohol on Cianciola during the interview.
Although we are concerned here with Cianciola’s
federal claim under the Sixth Amendment, we pause
now to briefly discuss how Wisconsin law handles
expert testimony in child sexual assault cases.
Before the trial got underway, Cianciola’s counsel asked
the court to order that Jane submit to a psychological
examination by a defense expert. That request was consis-
4 No. 09-1867
tent with Wisconsin law which endeavors to “level the
playing field” when the State intends to call an expert (in
this case a therapist named Beth Young-Verkuilen) to
testify that the victim’s behavior was consistent with
the behavior of other children who have been sexually
assaulted. State v. Maday, 179 Wis. 2d 346 (Wis. App. 1993).
Because the State indicated that it wanted to elicit testi-
mony of that nature from its expert, the trial court ex-
pressed its intent to grant the defense motion for an
independent examination.
Wisconsin law, however, does not force a child in a
sexual assault case to comply with the order to submit
to a court-ordered examination by a defense expert. But if
she declines, the prosecution “may not introduce
evidence of the behavior of the victim through its ex-
amining expert.” Maday, 179 Wis. 2d at 361-62. Because
Jane’s family did not want her to submit to the defense
expert’s examination, the prosecution advised the
court that it would not elicit the therapist’s expert com-
parison of Jane’s behavior to the behavior of other
sexual assault victims.
Now back to the facts. After Jane testified, the prosecu-
tion asked the court to allow her therapist to testify
about the reasons a child might delay reporting a sexual
assault for two-and-a-half years and why she might
continue to visit with the man who molested her. The
State argued that the defense opened the door to that
testimony by cross-examining Jane about those issues.
The court agreed that the door was opened with respect
to both issues. The court ruled that the expert could
No. 09-1867 5
provide testimony as to the behavioral patterns of
child sexual assault victims.
This ruling was consistent with Wisconsin law, which
holds that the cross-examination of a child witness
which suggests that she is fabricating a sexual assault
accusation, including examination about the child’s
behavior toward the defendant and about the child’s
delay in reporting the alleged assault, may be countered
by expert testimony explaining why child victims of
sexual assault often act in those ways. State v. Dunlap, 250
Wis. 2d 466 (1998) (when defense tried to use child’s
behaviors to imply that she was lying, expert was
properly permitted to testify about reasons children delay
reporting, among other behaviors). Today, Cianciola’s
appellate counsel argues that trial counsel failed to antici-
pate that his cross-examination strategy would open
the door to Young-Verkuilen’s expert testimony and that
he also failed to have an expert of his own available to
counter Young-Verkuilen’s testimony.
In making his preliminary ruling, the state trial judge
warned Cianciola that any evidence indicating that
Cianciola and Jane had a “normal” relationship during the
period of abuse would open the door for the State to
challenge that implication with whatever evidence it
had on the matter.
Despite this warning, Cianciola’s counsel brought out
on his cross-examination of Jane that she continued to
visit her father voluntarily during the period of abuse
and that she did not report the assaults for years. There-
fore, the State was allowed to put on two expert witnesses,
6 No. 09-1867
including Young-Verkuilen, to testify that delayed re-
porting and a continued willingness to visit the
perpetrator are common characteristics of sexual assault
victims. Jane’s counselor noted that delayed reporting
is probably more common than immediate reporting
and that if the perpetrator is a parent, the relationship
between the perpetrator and the victim may even
strengthen. The trial court did not allow the State’s wit-
nesses to offer expert conclusions with respect to Jane
specifically, but of course the jurors could easily make
the connection from victims in general to Jane in particu-
lar. The State’s experts likely bolstered Jane’s credibility
as their testimony implied it was not unusual for her
to continue visiting her father and not disclose the
abuse until years after it began.
Cianciola’s trial attorney made little attempt to cross-
examine the State’s experts on the issues of delayed
reporting or voluntary return to the perpetrator; nor did
he retain an independent expert. Cianciola claims that
these failures denied him his Sixth Amendment right to
the effective assistance of counsel.
As we noted, Strickland requires a showing of both
deficient performance and prejudice. To satisfy the per-
formance prong, a petitioner must show that his
attorney’s representation fell below minimal professional
standards. To establish prejudice, a petitioner must
show that there is a reasonable probability that the
result of the trial would have been different but for coun-
sel’s shortcomings. A reasonable probability is a prob-
ability sufficient to undermine confidence in the outcome.
No. 09-1867 7
In rejecting Cianciola’s claim, the Wisconsin Court of
Appeals relied primarily on the prejudice prong. Because
that is the shortest path we can take to the end of our
opinion, we will focus solely on that issue. The bottom
line is that Cianciola falls far short of establishing that
he was prejudiced by anything his trial counsel did or
didn’t do.
Prejudice occurs when the lawyer’s errors undermine
confidence in the outcome. The Wisconsin Court of Ap-
peals found that counsel’s failure to challenge the
State’s expert testimony was not prejudicial. Applying
AEDPA, we believe this was a reasonable application of
Strickland. A police officer testified that Cianciola said the
assaults could have happened if he was “totally blacked
out.” Although not a “confession,” this sort of statement
would most likely carry great weight with the jury. Plus,
the officer also testified that he smelled alcohol on
Cianciola’s breath during the interview. Further,
Cianciola himself testified that he had been treated for
alcohol abuse and had done a stint at the Betty Ford
Treatment Center a year before the trial.
Defending family sexual assault cases like this is an
extremely difficult task for any attorney. Once a young
girl gives courtroom testimony about a history of abuse
by a father, absent some evidence that she’s told tall
tales before on other important matters (and there
was not such credible evidence about Jane), an acquittal is
usually unlikely. And here, the State had something more:
two of Jane’s friends (Kayla Thompson and Ashley
Calhoun) testified that Jane told them, separately, that
8 No. 09-1867
her father touched her inappropriately and “molested” her
at a hotel, in his home in Appleton, and at her grand-
parents’ house.
So, what we had here was testimony about years of
abuse. Cases of this sort mostly turn on the credibility of
the victim, and there just isn’t any indication here that
Jane was anything other than credible. True, the State’s
experts may have bolstered her credibility, but we see
no way that either more vigorous cross-examination or a
defense expert to counter the State’s case would
have come close to tipping the jury in the direction of an
acquittal.
For these reasons, the judgment of the district court
is A FFIRMED.
1-28-10