Sanchez-Torres v. Smith
Filing
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ORDER signed by Judge Lynn Adelman on 5/31/11 DENYING 1 Petition for Writ of Habeas Corpus filed by Juan A Sanchez-Torres. The Clerk of Court shall enter final judgment. (cc: all counsel, via USPS to petitioner)(dm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JUAN A. SANCHEZ-TORRES,
Petitioner,
v.
Case No. 09-C-0715
JUDY P. SMITH, Warden, Oshkosh
Correctional Institution,
Respondent.
DECISION AND ORDER
Juan A. Sanchez-Torres seeks a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. In February 2006, he was convicted by a Wisconsin court of two counts of firstdegree sexual assault of a child in connection with the sexual abuse of his two nephews,
who were under the age of thirteen at the time of the abuse. Sanchez-Torres alleges that
he is entitled to habeas relief because he was denied his right to effective assistance of
trial counsel, in violation of the Sixth Amendment. He argues that his trial counsel made
three errors: (1) failing to properly object to the admission of preliminary hearing testimony
of one of the victims; (2) failing to object to the admission of statements the victims made
to the police; and (3) stipulating to certain facts without first conducting an adequate
investigation into the facts’ accuracy.
I. BACKGROUND
During the trial, Sanchez-Torres’s nephews, Jesus (who went by the name Michael)
and Antonio (who went by the name Tony), testified that Sanchez-Torres sexually abused
them over a period of about two years. They testified that when they spent the night at his
house he slept in the same bed as them. They testified that on numerous occasions he
touched their penises and anal areas with his hands and penis, and that he made them
touch his penis. Each boy also testified that he saw Sanchez-Torres molest the other.
Sanchez-Torres testified in his defense and denied his nephews’ allegations. There was
no physical evidence and no testimony from third parties saying they witnessed the abuse,
and thus the question for the jury was to decide whom to believe – the boys or SanchezTorres.
The strategy of Sanchez-Torres’s trial counsel was to attack the boys’ credibility.
He established that each boy’s testimony was, at times, inconsistent with the other’s, and
that the boys’ trial testimony was inconsistent with statements they gave to the police when
they reported the abuse. Trial counsel also emphasized the inconsistent testimony by
various witnesses about a sore that Michael supposedly had on his penis – which Michael
said developed after Sanchez-Torres pinched his penis – and about Michael’s visit to a
doctor to determine whether he was exhibiting signs of sexual abuse.
The first error counsel is alleged to have committed is failing to properly object to
the admission of Tony’s preliminary hearing testimony. After defense counsel attacked the
boys’ credibility during cross-examination, the prosecutor informed the trial judge that she
intended to introduce the preliminary hearing testimony as a prior consistent statement.
The judge asked defense counsel whether he had any objection to the admission of the
preliminary hearing testimony, and in response defense counsel said he did object but that
he could not articulate any grounds for his objection. Based on counsel’s failure to support
the objection, the trial judge allowed the prosecutor to read Tony’s preliminary hearing
testimony to the jury. This testimony was both consistent and inconsistent with Tony’s trial
testimony. During closing arguments, defense counsel pointed to the inconsistencies
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between Tony’s trial and preliminary hearing testimony as a reason for believing SanchezTorres rather than the boys.
The second alleged error is counsel’s failure to object to the testimony of Sergeant
Michael Dooley regarding statements the boys made to him when they reported SanchezTorres’s abuse. During the State’s case, the prosecutor elicited testimony from Dooley
about these statements, and defense counsel did not object.
However, on cross-
examination and again during closing arguments, defense counsel pointed out the
numerous ways in which the boys’ trial testimony was inconsistent with their statements
to Dooley.
The final alleged error is counsel’s stipulation to facts that a doctor would have
testified to had the State called him as a witness. During the trial, the parties learned for
the first time that the boys’ grandmother had taken Michael to see a doctor after he had
reported that he was being abused by Sanchez-Torres. The prosecutor attempted to
locate this doctor to find out what he knew and have him testify at trial, if necessary.
Eventually, the prosecutor was able to obtain notes from the doctor visit. After the parties
and the judge examined the doctor’s notes, and pursuant to the judge’s suggestion, the
parties agreed to stipulate to what the doctor would have testified to had he been called
as a witness. The stipulation stated that Michael told the doctor that he did not feel safe,
that Michael said that he had a history of sexual abuse by penile and anal means, and that
the doctor did not find any physical evidence of abuse but noted that a lack of physical
evidence of abuse is seen in a majority of cases. After Sanchez-Torres was convicted,
post-conviction counsel learned that the doctor would not have testified that Michael told
him that he did not feel safe and that he had a history of abuse by penile and anal means.
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It turns out that it was Michael’s grandmother, rather than Michael himself, who told the
doctor these facts. Sanchez-Torres argues that trial counsel was ineffective for failing to
conduct an investigation to verify the accuracy of the stipulation before agreeing to it.
Sanchez-Torres raised these three errors before the Wisconsin Court of Appeals,
which affirmed the conviction after finding that Sanchez-Torres had not been prejudiced
by any of trial counsel’s alleged errors. In his petition for review in the Wisconsin Supreme
Court, Sanchez-Torres raised only the first two alleged errors and did not complain about
trial counsel’s stipulation regarding the doctor visit. The Wisconsin Supreme Court
declined review of the two issues Sanchez-Torres did raise.
In earlier proceedings in this case, respondent moved to dismiss Sanchez-Torres’s
claim based on trial counsel’s stipulation regarding the doctor visit on the ground that
Sanchez-Torres had procedurally defaulted this claim by failing to present it to the
Wisconsin Supreme Court. In denying the respondent’s motion to dismiss this claim, I
determined that although Sanchez-Torres had procedurally defaulted the claim, he was
arguing that his default should be excused in order to avoid a miscarriage of justice – i.e.,
because he was actually innocent. In accordance with Dretke v. Haley, 541 U.S. 386,
393-94 (2004), I determined that before I addressed Sanchez-Torres’s claim of actual
innocence I should first resolve his other ineffective-assistance claims on the merits. Thus,
the issues before me now are the merits of Sanchez-Torres’s first two ineffectiveassistance claims and whether actual innocence excuses the default of his third ineffectiveassistance claim.
II. DISCUSSION
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Because the Wisconsin courts resolved Sanchez-Torres’s exhausted ineffectiveassistance claims on the merits, I may grant his habeas petition only if the Wisconsin Court
of Appeals’s decision was contrary to, or involved an unreasonable application of, clearly
established federal law as determined by the Supreme Court of the United States. See
28 U.S.C. § 2254(d)(1). A decision is “contrary to” established federal law as determined
by the Supreme Court if “the state court arrives at a conclusion opposite to that reached
by [the Supreme Court] on a question of law,” or “if the state court confronts facts that are
materially indistinguishable from a relevant Supreme Court precedent and arrives at a
result opposite” to that reached by the Supreme Court. Williams v. Taylor, 529 U.S. 362,
405 (2000). A state court decision involves an unreasonable application of Supreme Court
precedent when the court “correctly identifies the governing legal rule but applies it
unreasonably to the facts of a particular prisoner's case.” Id. at 407-08.
The Supreme Court precedent relevant to the present case is Strickland v.
Washington, 466 U.S. 668 (1984), and related cases governing claims of ineffective
assistance of counsel. To prevail on an ineffective-assistance claim, Sanchez-Torres must
show that his trial counsel’s performance was deficient and that the deficient performance
prejudiced his defense. Id. at 689-92. To show that counsel’s deficient performance
prejudiced his defense, Sanchez-Torres must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different. Id. at 694.
A.
Failure to Object to Preliminary Hearing Testimony
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The first alleged instance of deficient performance is defense counsel’s failure to
meaningfully object to the admission of Tony’s preliminary hearing testimony. As noted,
after defense counsel cross-examined Michael and Tony and pointed out the various
inconsistencies in their statements, the prosecutor sought to introduce Tony’s testimony
from the preliminary hearing. The prosecutor argued that this testimony constituted a prior
consistent statement that was admissible under Wis. Stat. § 908.01(4)(a)2., which provides
that a statement is not hearsay if “the declarant testifies at the trial or hearing and is
subject to cross-examination concerning the statement, and the statement is . . .
[c]onsistent with the declarant’s testimony and is offered to rebut an express or implied
charge against the declarant of recent fabrication or improper influence or motive.” The
prosecutor’s position was that defense counsel had through cross-examination charged
Tony with recent fabrication and that therefore the preliminary hearing testimony could be
used to rebut the charge. Defense counsel seemed to agree that the testimony was
admissible on this ground, but he nonetheless objected to the prosecution’s request to use
it, albeit without developing any argument as to why it was inadmissible. (Trial Tr. [Answer
Ex. 9] at 3-6.) Because of defense counsel’s failure to provide a reasoned objection, the
court ruled that the testimony was admissible. The testimony was then read to the jury in
question-and-answer form: the prosecutor read the questions, and a member of the
prosecutor’s staff read Tony’s answers.1
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Sanchez-Torres describes this presentation as a “dramatic reading” of the
preliminary hearing testimony, but I do not understand him to be arguing that the manner
in which the testimony was read to the jury was improper.
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During Sanchez-Torres’s direct appeal, the Wisconsin Court of Appeals did not
determine whether the preliminary hearing testimony was properly admitted under Wis.
Stat. § 908.01(4)(a)2. Instead, it assumed that the testimony was not properly admitted
and that defense counsel performed deficiently by failing to support his objection.
However, the court determined that the failure to properly object to the preliminary hearing
testimony was not prejudicial because, although the testimony was cumulative of Tony’s
trial testimony, it had impeachment value that defense counsel was able to exploit.
Specifically, at trial Tony testified that Sanchez-Torres had molested him countless times
over the course of two years, but at the preliminary hearing, Tony testified that there were
only between two and four instances of abuse. (See Trial Tr. [Answer Ex. 11] at 70-71 .)
The Wisconsin Court of Appeals did not unreasonably apply Strickland in
determining that defense counsel’s failure to object to the admission of Tony’s preliminary
hearing testimony was not prejudicial.
The court reasonably determined that the
inconsistent portions of the testimony were useful for impeachment purposes. Although
admission of the consistent portions of the testimony did not help the defense, neither was
it particularly harmful. The consistent statements did not add anything to the State’s case
that Tony had not already provided during his trial testimony, and the mere repetition of
Tony’s testimony against Sanchez-Torres did not bolster its veracity.2
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Accordingly,
That repetition does not bolster veracity can be seen by examining the case law
interpreting the federal counterpart of Wis. Stat. § 908.01(4)(a)2. – Federal Rule of
Evidence 801(d)(1)(B). The case law holds that a prior consistent statement is not
admissible unless it was made before the declarant’s motive to fabricate existed. See
United States v. Harris, 761 F.2d 394, 399 (7th Cir. 1985). The reason for this is that the
purpose of allowing admission of prior consistent statements is to rebut a charge of recent
fabrication – i.e., to show that the declarant’s present testimony is consistent with
statements he made before his motive to fabricate existed. If the prior consistent
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counsel’s failure to properly object to the admission of the preliminary hearing testimony
is not grounds for habeas relief.
B.
Failure to Object to Statements to Police
The second alleged instance of deficient performance is counsel’s failure to object
to portions of Sergeant Dooley’s testimony about the statements Michael and Tony made
to him when they reported the abuse. During direct examination and without objection from
defense counsel, Dooley summarized his interview with Michael and Tony and even read
statements from his police report. Most of the specific details he testified about were
consistent with Michael and Tony’s trial testimony and thus constituted prior consistent
statements. However, some of the details that Dooley related had not been mentioned
during the boys’ testimony or during any other part of the trial. Other details that Dooley
related were inconsistent with the boys’ trial testimony, and these inconsistent statements
formed a key part of defense counsel’s closing argument. (Trial Tr. [Answer Ex. 11] at 6469.)
Sanchez-Torres argues that defense counsel should have objected to all of the
testimony concerning the boys’ statements to Dooley other than the prior inconsistent
statements on hearsay grounds. The Wisconsin Court of Appeals assumed that defense
counsel’s failure to do so was deficient performance, but it concluded that this error did not
rise to the level of prejudice under Strickland. Regarding the prior consistent statements,
statement did not occur before a motive to fabricate existed, then the statement has no
probative value because it merely shows that the declarant said the same thing at trial as
he or she did on a prior occasion, and “mere repetition does not imply veracity.” Id.
(quoting United States v. McPartlin, 595 F.2d 1321, 1351 (7th Cir. 1979)). Thus, because
Tony’s consistent preliminary hearing statements were not made before any motive to
fabricate arose, they did not bolster the veracity of his accusations.
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the court found that since these statements merely repeated accusations the boys had
made during their trial testimony, their admission was not prejudicial. I conclude that this
determination was not an unreasonable application of Strickland for reasons similar to
those discussed above in connection with the preliminary hearing testimony: although the
admission of prior consistent statements not made before a motive to fabricate existed is
not helpful to the defense, it is not prejudicial because mere repetition of testimony does
not imply veracity.
I also conclude that the Wisconsin Court of Appeals reasonably determined that
defense counsel’s failure to object to the parts of the boys’ statements to Dooley that
described details of the abuse that the boys did not mention at trial was not prejudicial.
Sanchez-Torres identifies four details about the abuse that were admitted through Dooley
but not Michael and Tony’s trial testimony. The first is Michael’s statement that the first
time Sanchez-Torres abused him, Sanchez-Torres put his finger in Michael’s buttocks near
his anus and rubbed it. The admission of this statement was not prejudicial because
Michael testified at trial to a similar fact. Specifically, Michael testified that during the first
incident, Sanchez-Torres touched Michael’s buttocks with his hands and his penis. (Trial
Tr. [Answer Ex. 8] at 90.) Although Sergeant Dooley added a bit of graphic detail to
Michael’s testimony about this incident by mentioning that Sanchez-Torres rubbed
Michael’s anus, this additional detail was not so prejudicial that there is a reasonable
probability that had it been omitted the result of the trial would have been different.
The second detail which Sanchez-Torres claims Dooley related but the boys did not
is that the last time Sanchez-Torres had sexual contact with Michael he pinched Michael’s
penis so hard that it left a mark. However, Michael testified during direct examination at
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trial that Sanchez-Torres pinched his penis so hard that it left a mark. (Trial Tr. [Answer
Ex. 8] at 103.) Although Michael did not precisely identify when this pinching occurred,
Dooley’s testimony about the time when it occurred could not possibly have prejudiced
Sanchez-Torres’s defense.
The third statement that Dooley testified about involved potential additional
witnesses to the abuse. Dooley testified that Michael told him that on a couple of
occasions two of his friends spent the night at Sanchez-Torres’s apartment with him.
Michael said that to his knowledge Sanchez-Torres did not abuse his friends, but that it
was possible that his friends witnessed some of incidents involving Michael and Tony.
Dooley added that his department tried to locate the two friends but were unsuccessful.
I conclude that the admission of this part of Michael’s statement to Dooley does not rise
to the level of prejudice under Strickland. Although mentioning the possibility that two other
boys may have observed Sanchez-Torres abuse Michael and Tony was somewhat
prejudicial, I cannot say that this detail was so prejudicial that there is a reasonable
probability that had it been excluded the result of the proceeding would have been
different, much less that the Wisconsin Court of Appeals’s conclusion that it was not was
unreasonable.
The remaining detail admitted through Dooley was Michael’s statement that he and
Tony had talked about Sanchez-Torres’s abuse, agreed that what was happening to them
was wrong, and decided to report the abuse to a different uncle, Juan Morales. It is hard
to see any way in which this statement prejudiced the defense. Juan Morales testified at
trial and stated that he was the first person the boys approached about the abuse, and so
Michael’s statement to Dooley about the boys’ agreement to tell Juan Morales added
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nothing to the State’s case. The rest of Michael’s statement – that the boys talked to each
other about the abuse and agreed that it was wrong – was not prejudicial.
C.
Doctor’s Visit/Actual Innocence
Sanchez-Torres’s remaining claim is that defense counsel committed prejudicial
error when he stipulated to facts the doctor would have testified to had he been called as
a witness. As discussed above and in my prior opinion in this case, Sanchez-Torres
procedurally defaulted this claim when he failed to raise it in his petition for review in the
Wisconsin Supreme Court. However, he claims that he is actually innocent and that
therefore I should reach the merits of this issue to avoid a fundamental miscarriage of
justice. To show actual innocence, a petitioner must show that “in light of new evidence,
‘it is more likely than not that no reasonable juror would have found petitioner guilty beyond
a reasonable doubt.’” House v. Bell, 547 U.S. 518, 537 (2006). Moreover, for the claim of
actual innocence to be credible, the petitioner must present “new reliable evidence –
whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence – that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324
(1995).
In the present case, Sanchez-Torres has no “new reliable evidence” whatsoever,
much less new evidence indicating that it is more likely than not that no reasonable juror
would have found him guilty beyond a reasonable doubt. Rather, he rests on his own
assertion of innocence and his claim that Tony and Michael are lying. This is not sufficient
to come within the actual innocence exception, and for this reason I conclude that he is
bound by his procedural default.
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In any event, even if I set aside the default and considered the merits of petitioner’s
claims, I could not grant habeas relief because counsel’s alleged error does not rise to the
level of prejudice under Strickland. The inaccurate fact in the stipulation was that Michael
told the doctor that he was being sexually abused. It turns out that it was Michael’s
grandmother who told the doctor that Michael was being abused rather than Michael
himself. This is not a trivial difference, but neither does it call the jury’s finding of guilt into
doubt. It was undisputed that by the time Michael was taken to see the doctor he had
already reported his allegations of abuse to several adults, including his grandmother and
uncle. Whether or not Michael also told his doctor that he was being abused does not
substantially affect the credibility of his allegations. Thus, there is not a reasonable
probability that, but for the inaccurate stipulation, the result of the proceeding would have
been different.
D.
Cumulative Effect of Counsel’s Errors
The Wisconsin Court of Appeals determined that the cumulative effect of defense
counsel’s alleged errors was not prejudicial within the meaning of Strickland. I conclude
that this determination was not an unreasonable application of Strickland or any other
Supreme Court precedent. As explained above, each of the individual errors were, at
most, only slightly prejudicial. Aggregating the prejudice caused by these errors does not
result in a reasonable probability that, but for the errors, the result of the proceeding would
have been different.
III. CONCLUSION
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For the reasons stated, IT IS ORDERED that the petition for writ of habeas corpus
is DENIED. The Clerk of Court shall enter final judgment. Pursuant to Rule 11 of the
Rules Governing § 2254 Cases, I find that petitioner has not made the showing required
by 28 U.S.C. § 2253(c)(2), and therefore I will not issue a certificate of appealability.
Dated at Milwaukee, Wisconsin, this 31st day of May, 2011.
/s__________________________________
LYNN ADELMAN
District Judge
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