Gordon Sussman v. Larry Jenkins

Filing 25

ORDER granting 22 Motion for Certificate of Appealability with respect to petitioner's claim of ineffective assistance of counsel and denied with respect to petitioner's due process and confrontation clause claims. Signed by Chief Judge Barbara B. Crabb on 12/1/09. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN

G O R D O N SUSSMAN, P e ti ti o n e r , v. JO D IN E DEPPISCH, Warden, Fox Lake Correctional Center, R espo nd ent. OR DER 0 9 - cv -3 5 - b b c

G ord on Sussman asks this court to issue a certificate of appealability permitting him to appeal from this court's order and judgment entered October 26 and October 29, 2009, resp ectively, adopting the magistrate judge's report and recommendation and denying Sussm an's petition for a writ of habeas corpus. Petitioner contended that his state court con viction for two counts of repeated sexual assault of the same child violated his rights to the effective assistance of counsel, to due process and to confrontation. This court rejected his claims, finding that the state appellate court had not applied the rule of Strickland v. W ashingto n, 466 U.S. 668 (1984), unreasonably when it denied petitioner's Sixth Am endm ent claims and that petitioner had procedurally defaulted his confrontation and due process claims. Petitioner seeks a certificate of appealability on the same three claims he raised in his petition.

A certificate of appealability shall issue "only if the applicant has made a substantial show ing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). In order to make th is showing, a petitioner must "sho[w] that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further.'" Slack v. M cD an iel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n.4 (19 83 )). H avin g reviewed the report and recommendation and petitioner's arguments in favor o f a certificate of appealability, I am granting the certificate with respect to his claim of ineffective assistance of counsel. Petitioner insists that he was prejudiced by his lawyer's failure to 1) introduce a note from the victim's therapist indicating that the victim had d en ied that petitioner had sexually assaulted him; and 2 ) file a pretrial motion seeking permission to introduce evidence that the victim had made and then recanted allegations that his father had touched him inappropriately when the victim was young and showering with his father. Although this case is not particularly close, reasonable jurists could debate whether counsel's errors combined to create a reasonable probability of a different outcome. I am denying the certificate with respect to petitioner's challenge to the trial court's adm ission of the opinions of friends of the victim's mother to the effect that the victim acted as if he had been sexually abused. Even if reasonable jurists might disagree whether

petitioner presented this challenge in terms clear enough to alert the state courts that he was 2

raising federal due process and confrontation clause challenges, they would not agree with petition er that his constitutional claims have any merit in light of his opportunity to crosse xam in e the victim's mother, the prosecutor's failure to exploit the statements and the overall insignificance of the second-hand opinions in light of the other evidence adduced at tr ia l.

OR DER IT IS ORDERED that the motion of petitioner Gordon Sussman for a certificate of ap pealab ility is GRANTED with respect to his claim of ineffective assistance of counsel and D EN IED with respect to his due process and confrontation clause claims. E n tered this 1s t day of December, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ B AR B AR A B. CRABB D istrict Judge

3