Amerson, Cleophus v. Farrey, Catherine J.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2971
CLEOPHUS AMERSON,
Petitioner-Appellant,
v.
CATHERINE J. FARREY, Warden,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 05 C 271—Lynn Adelman, Judge.
____________
ARGUED MAY 24, 2007—DECIDED JULY 5, 2007
____________
Before POSNER, KANNE, and ROVNER, Circuit Judges.
KANNE, Circuit Judge. Cleophus Amerson was convicted
in the Milwaukee County Circuit Court of two counts of
first-degree sexual assault of a child and was sentenced
to twenty years’ imprisonment. He argues that his trial
counsel was ineffective because the counsel failed to
investigate a prior assault of the victim and failed to
procure a rebuttal witness during the trial. The district
court denied Amerson’s petition for a writ of habeas
corpus under 28 U.S.C. § 2254 and we affirm.
2 No. 06-2971
I. HISTORY
In December 1993, Amerson and Denise M. were dating.
Denise was the mother of then nine-year-old Tawanda.
Denise testified at trial that on the evening of December
20, 1993, Tawanda and Amerson walked to a local store.
Tawanda returned home by herself a few minutes ahead of
Amerson. Denise testified that Tawanda looked scared
and hurt. Denise asked Tawanda what was wrong but
before Tawanda could answer Amerson returned home.
Denise then stopped questioning Tawanda and waited
for Amerson to leave the home. She then took Tawanda
into the bathroom. Apparently, Amerson’s six-year-old
nephew, Robert Amerson, was also in the home and Denise
wanted to question Tawanda in private.
Once in the bathroom, Denise again asked Tawanda
what was wrong. According to Denise, Tawanda was
afraid to tell her what was wrong. Denise then inspected
Tawanda’s vaginal area and discovered that Tawanda’s
vagina was red and swollen. Denise also witnessed white
fluid on Tawanda and the fluid smelled like semen. Denise
then hugged Tawanda and told her that everything would
be all right. Tawanda then told Denise that Amerson
touched her and hurt her. Denise and Tawanda both cried
during this conversation.
Amerson returned to the home approximately fifteen
minutes later. Denise confronted Amerson with the
allegation and he denied having sexual contact with
Tawanda. Denise and Amerson then got into a physical
fight and Denise pulled a knife on Amerson. Amerson
overpowered Denise and took the knife from her. Denise’s
son then called the police and Amerson left the home.
Police Officer Ivory Britton arrived at the home in
response to the call. Denise told Officer Britton that
Amerson had raped Tawanda. Officer Britton interviewed
Tawanda outside of Denise’s presence. Officer Britton
No. 06-2971 3
testified at trial that during this interview Tawanda
seemed terrified and kept ducking her head down while
she was talking. Tawanda described penis-to-vagina
intercourse to Officer Britton and said that Amerson had
done this to her. Tawanda also described a second penis-to-
vagina incident involving Amerson that had occurred in
August 1993. Tawanda informed Officer Britton that
she had been too scared to tell anyone about the August
1993 incident.
Tawanda was then taken to the hospital where she was
interviewed by Detective Stawicki. Tawanda repeated her
allegations about the prior and current assaults to Detec-
tive Stawicki. She said that the August 1993 assault
occurred inside a burned out and abandoned house. The
current assault occurred earlier that evening in a parking
lot. Detective Stawicki then took Tawanda and Denise to
the Warner Cable parking lot where Tawanda said that
the assault had occurred. Tawanda pointed out an opening
in the fence surrounding the lot through which she and
Amerson entered the parking lot. Tawanda then led
Detective Stawicki to a spot in the parking lot between two
trucks where she said the current assault had occurred.
Tawanda was then returned to the hospital and exam-
ined by Dr. Ellen Klandrud. Dr. Klandrud testified that
she examined Tawanda and discovered that Tawanda’s
hymen was red and swollen leading Dr. Klandrud to
conclude that Tawanda had suffered recent trauma. Dr.
Klandrud also discovered two healed tears to Tawanda’s
hymenal ring and this lead Dr. Klandrud to conclude that
Tawanda had also experienced prior trauma. Tawanda
also recounted the allegations as to the August 1993 and
December 1993 assaults by Amerson to Dr. Klandrud.
After trial and through the state direct appeal and post-
conviction review process, Amerson sought to present
new evidence that was not presented during his trial.
4 No. 06-2971
Amerson argued that Tawanda had recanted her allega-
tions and suggested that Denise had pressured Tawanda
into making the allegations for Denise’s own personal
reasons. However, a state social worker suggested that
the family had pressured Tawanda into recanting her
allegations and thus questioned whether the recantation
was reliable.
Amerson also sought to present evidence about whether
Robert Amerson might have heard Denise and Tawanda’s
initial conversation in the bathroom. Amerson suggested
that Robert could testify that Tawanda had originally
said that nothing was wrong and only began to make the
allegations against Amerson after Denise had threatened
to whip Tawanda with a belt. Robert was originally
scheduled to testify during the trial and appeared at court
during the first day of trial. However, Robert did not
return for the second day and ultimately did not testify.
Amerson’s counsel relied on Robert’s family to get him
to court to testify. Amerson’s attorney apparently made a
handful of phone calls to see where Robert was when he
did not appear to testify but otherwise did not take any
other actions to insure his appearance at trial.
Finally, Amerson argues that his trial counsel also failed
to investigate and present evidence at trial about a prior
sexual assault that Tawanda suffered in Chicago in 1987.
According to Amerson, his counsel failed to obtain medical
records from Mount Sinai Hospital about the assault. The
theory is that these records would have explained
Tawanda’s prior injuries and would also have provided an
alternate explanation for her sexual knowledge.
II. ANALYSIS
For purposes of habeas review in federal court, Amerson
claims that he has suffered from ineffective assistance of
No. 06-2971 5
trial counsel in violation of his Sixth Amendment rights.
We must determine whether Amerson’s trial counsel was
ineffective due to his failure to (1) procure Robert’s
testimony during the trial, and (2) investigate the prior
assault in Chicago from 1987.
“We review the district court’s denial of a habeas corpus
petition de novo.” Miller v. Martin, 481 F.3d 468, 472 (7th
Cir. 2007) (per curium) (citing Montgomery v. Uchtman,
426 F.3d 905, 909-10 (7th Cir. 2005)). “[A] federal court
may issue a writ of habeas corpus only if the state court
reached a decision that was either contrary to, or an
unreasonable application of, clearly established federal
law as determined by the Supreme Court.” Raygoza v.
Hulick, 474 F.3d 958, 963 (7th Cir. 2007) (citing 28 U.S.C.
§ 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 404-06
(2000)).
“A petitioner asserting an ineffective assistance of
counsel claim under Strickland [v. Washington, 466 U.S.
668 (1984),] must show that his counsel’s performance
was deficient and that the deficient performance preju-
diced the defense.” Goodman v. Bertrand, 467 F.3d 1022,
1027 (7th Cir. 2006). In terms of prejudice, “the defendant
must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confi-
dence in the outcome.” Raygoza, 474 F.3d at 963 (quoting
Strickland, 466 U.S. at 694).
Amerson cannot demonstrate prejudice and therefore
we need not determine whether his trial counsel’s perfor-
mance was deficient. Strickland, 466 U.S. at 697 (“In
particular, a court need not determine whether counsel’s
performance was deficient before examining the prejudice
suffered by the defendant . . . .”); see also United States
v. Birk, 453 F.3d 893, 898-99 (7th Cir. 2006). A key fact
6 No. 06-2971
demonstrating the absence of prejudice is Dr. Klandrud’s
medical examination of Tawanda. This examination
discovered evidence demonstrating that Tawanda had
recently experienced sexual trauma. The issue of whether
Denise tried to coach or threaten Tawanda to accuse
Amerson does not explain away the medical evidence.
Additionally, any testimony from Robert would do
nothing to refute the medical evidence. The reality of this
case is that there is clear evidence that Tawanda suffered
an assault in December 1993. Robert’s testimony would
have added little to the defense. At best, he would testify
that Tawanda was reluctant to acknowledge that any-
thing was wrong and that she made the allegations after
Denise threatened her. There is no evidence that Denise
encouraged Tawanda to name Amerson, or that Denise
otherwise told Tawanda what to say. The medical evidence
was consistent with Tawanda’s statement as to what
happened. Because Robert’s testimony was directed at
whether anything at all happened to Tawanda (a theory
inconsistent with the medical evidence), as opposed to the
identification of the responsible party, his testimony was
of particularly limited usefulness, and the failure to
procure it was not prejudicial.
In his reply brief, Amerson argues that Tawanda and her
brother had intercourse during the weeks leading up to
the December 1993 assault and this could explain the
redness in her genitalia reported by Dr. Klandrud. Argu-
ments raised for the first time in a reply brief are waived.
United States v. Adamson, 441 F.3d 513, 521 n.2 (7th Cir.
2006). Should we choose to reach the merits of this
issue, we would conclude that the argument about sexual
contact with the brother would also fail. This claim is part
of the larger argument that Amerson developed after
Denise and Tawanda recanted their allegations against
Amerson after the trial. However, the state court found
that this recantation was questionable and Amerson had
No. 06-2971 7
failed to provide sufficient evidence to cast doubt on the
original statements and trial testimony of Tawanda,
Denise, the responding police officer and detective who
interviewed Tawanda, and the doctor who examined
Tawanda in December 1993. Under habeas review, “state
court factual findings are presumed correct. A habeas
petitioner bears the burden of rebutting that presumption
by clear and convincing evidence.” Williams v. Bartow,
481 F.3d 492, 498 (7th Cir. 2007) (citing 28 U.S.C.
§ 2254(e)(1)). The state court was presented with an issue
on collateral review of whether to credit the original
statements and the trial testimony or the later recanta-
tions. The state court decided to credit the original state-
ments and trial testimony and Amerson has failed to
give us a reason to disregard this decision.
As for the 1987 assault in Chicago and the accompany-
ing medical record from Mount Sinai Hospital, trial
counsel’s failure to obtain this evidence and investigate
this incident did not prejudice Amerson. The medical
records from the 1987 assault reveal other injuries to
Tawanda different from those identified in the December
1993 examination and specifically do not mention the
two healed tears to Tawanda’s hymenal ring discovered by
Dr. Klandrud. Consequently, the 1987 medical records
would be of no use to Amerson in explaining the injuries
discovered in the December 1993 examination by Dr.
Klandrud.
III. CONCLUSION
The judgment of the district court is AFFIRMED.
8 No. 06-2971
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-5-07