Ramirez, Antonio v. Tegels, Lizzie

Filing 32

ORDER that Petitioner Antonio Ramirez's motion to expand the record, Dkt. 27 , is GRANTED. Respondent has until December 21, 2018 to show cause why petitioner is not entitled to relief on his claim that postconviction counsel was ineffecti ve for failing to raise a confrontation clause argument under Crawford v. Washington, 541 U.S. 36 (2004). The court will appoint counsel to represent petitioner for the remainder of these proceedings. Once counsel is appointed, the court will set a deadline by which petitioner may file a reply in support of his petition. Signed by District Judge James D. Peterson on 11/29/2018. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

ANTONIO G. RAMIREZ,
Petitioner,
v.

OPINION and ORDER
14-cv-802-jdp

LIZZIE TEGELS,
Respondent.

In Kenosha County Case No. 1999CF950, petitioner Antonio G. Ramirez was
convicted, after a jury trial, of two counts of first-degree sexual assault of a child, first-degree
sexual assault causing great bodily harm, and child enticement. The child victim did not testify
at Ramirez’s trial, but a police officer and a hospital nurse testified about statements made by
the child and the child’s mother describing the sexual assaults. Ramirez’s lawyer objected on
hearsay grounds, but the lawyer did not argue that the out-of-court statements violated
Ramirez’s right under the Sixth Amendment’s Confrontation Clause to cross-examine adverse
witnesses. Ramirez’s postconviction and appellate counsel likewise did not raise Confrontation
Clause arguments.
Ramirez sought postconviction relief in state court, arguing that his postconviction and
appellate counsel was ineffective for failing to raise confrontation arguments in light of the
United States Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004). The
circuit court and Wisconsin Court of Appeals rejected Ramirez’s arguments, concluding that
the hearsay statements were admissible under the Confrontation Clause precedent that
controlled at the time of Ramirez’s trial.

Ramirez now seeks a writ of habeas corpus under 28 U.S.C. § 2254, asserting the same
Confrontation Clause and ineffective assistance of counsel claims that he raised in the state
courts. After the state filed an answer, along with records from the relevant state court
proceedings, both parties submitted briefing. Ramirez has also filed additional documents from
the state court record that I have considered. Dkt. 27. As explained below, I conclude that
Ramirez’s claim that postconviction counsel should have raised a confrontation argument
under Crawford appears to have merit. Because the state failed to adequately address the merits
of this claim, however, I will give the state an opportunity to supplement its briefing on this
claim. In the interim, I will appoint counsel to represent Ramirez for the remainder of this case.

BACKGROUND
The following facts are taken from the petition and the state court records provided by
Ramirez and the state.
A. Arrest and trial
Petitioner Antonio G. Ramirez was arrested on September 5, 1999, after his wife
reported to the police that she believed Ramirez had sexually assaulted her eight-year-old
daughter, Ramirez’s stepdaughter. The child later reported to a police officer that when her
mother left the house that evening, Ramirez told her to go into her bedroom, that he removed
her shorts and underwear, and that he touched her with his penis. The victim also revealed
that a vaginal injury that had been surgically repaired in November 1998 was not a bathtub
accident, as originally reported, but that Ramirez had caused it.
For the November 1998 assault, Ramirez was charged with first-degree sexual assault
of a child under the age of 13 by a person responsible for the child’s welfare and first-degree

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sexual assault causing great bodily harm. For the September 1999 assault and a domestic fight
that followed, he was charged with child enticement, first-degree sexual assault of a child under
the age of 13 by a person responsible for her welfare, intentionally causing harm to a child
(based on allegations that Ramirez attacked his son), battery, false imprisonment, and resisting
or obstructing an officer.
Ramirez pleaded not guilty and proceeded to a jury trial. At trial, a police officer testified
that he had been dispatched to the home of Ramirez’s mother-in-law on the night of the assault
in September 1999, and that Ramirez’s wife had told him that she believed her daughter had
been sexually assaulted by her husband, Ramirez. Dkt. 14-27 at 126–27. The officer testified
that Ramirez’s wife was “very emotional, sad, crying, [and] concerned,” id., explained that she
had returned home and found that “the door was locked with a chain which was not normal,”
and that she “had to force the back door open.” Id. at 127–28. Upon entering, “she saw
[Ramirez] coming out of [her daughter’s] bedroom pulling up his shorts” and “also saw [her
daughter] sitting on the toilet [with] a look on her face.” Id. The wife reported to the officer
that Ramirez had bit her on the shoulder, pushed her, and refused to let her leave, and that
her son reported seeing Ramirez with the victim on her bed. Id. at 128. The officer explained
that he took the wife and the child victim to the hospital. Id. at 130. Ramirez’s counsel objected
to the officer testifying as to what the son reported seeing, but the court overruled the
objection. Id. at 128.
A nurse who examined the child also testified at trial, describing the child as being “very
distraught,” “scared,” and “very, very frightened.” Dkt. 14-25 at 99. According to the nurse,
the child told her that Ramirez had sexually assaulted her and that afterward, she went to the
bathroom and wiped herself with some tissue and threw it in the wastepaper basket. Id. at 105–

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06. The nurse also testified that the child told her that Ramirez had caused her previous vaginal
injury, but that she had not told anyone because Ramirez had threatened to hurt her little
brother, mother, or grandmother if she did. Id. at 107–08. Ramirez’s trial counsel objected to
the admission of out-of-court statements of Ramirez’s wife and the child victim to the nurse.
Dkt. 14-25 at 100, 107–08. The circuit court overruled the objections and concluded that the
statements were admissible under Wis. Stat. § 908.03(4) as statements made for purposes of
medical diagnosis and treatment. Id.
A doctor who examined the child also testified regarding the child’s condition, stating
that the child’s vaginal area was red and irritated and had an abnormal discharge. Dkt. 14-27
at 24. Two doctors also testified about the injury the child victim suffered on November 8,
1998, stating that although the injury had been diagnosed as a “straddle injury” and no sexual
abuse report had been made, the injury was “inconsistent with a straddle injury” and was more
consistent with sexual abuse. Dkt. 14-26 at 126–27.
Another police officer testified that while Ramirez’s wife and stepdaughter were at the
hospital, the officer went to their apartment to gather evidence. Dkt. 14-25 at 142. The officer
took pictures of the apartment, including a broken latch on the door that the wife had reported
breaking, and he recovered a tissue paper from the bathroom trash can, consistent with one
the child had described using to wipe herself after the assault. Id. The photographs and the
toilet paper were admitted into evidence. Id. at 8–9. The state also introduced DNA evidence
through the testimony of a crime lab forensic scientist, who testified that DNA recovered from
the child’s underwear and toilet paper matched Ramirez’s DNA. Dkt. 14-26 at 107–10.
The state also called Ramirez’s mother-in-law and wife as witnesses. During the motherin-law’s testimony, Ramirez’s counsel made a hearsay objection to testimony about the wife’s

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statements to her mother on the night of the September 1999 assault. Dkt. 14-25 at 161–177.
The court ruled the statements were admissible under the excited-utterance exception to the
hearsay rule, Wis. Stat. § 908.03(2). During her testimony, Ramirez’s wife recanted all of her
previous statements against Ramirez. In particular, she testified that she had lied to the police
about seeing Ramirez pulling up his shorts at the door to her daughter’s room and had told her
daughter to lie about being sexually assaulted. She also testified that she had lied about being
attacked by Ramirez and had lied about her son being attacked. Dkt. 14-26 at 51–78. She
stated that she had made up the entire incident because she was angry at Ramirez for excessive
drinking and being unfaithful and that she wanted him to go to prison, id. at 65–68; Dkt. 1427 at 98, but she denied planting DNA on the victim. Dkt. 14-27 at 98. The court permitted
the prosecution to introduce previous statements that Ramirez’s wife had made to the police
and hospital staff to impeach her trial testimony. Dkt. 14-25 at 9–10.1
The jury found Ramirez guilty of the two counts of sexual assault and one count of child
enticement, but the jury found him not guilty on all other counts. Ramirez was sentenced to
two concurrent 40-year prison terms on two of the sexual assault charges, 30 years of probation
on the other sexual assault charge, and a consecutive 10-year sentence on the child enticement
charge.
B. Postconviction and appellate litigation in state court
The state public defender appointed counsel to handle Ramirez’s appeal. Appellate
counsel filed a no-merit brief under Wis. Stat. § 809.32, which is Wisconsin’s procedure for

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The victim, Ramirez’s stepdaughter, apparently also wrote a letter to the state court recanting
her accusations against Ramirez. Dkt. 14-25 at 175. The victim did not testify at trial and her
written recantation was not admitted as evidence.

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implementing Anders v. California, 386 U.S. 738 (1967). The Wisconsin Court of Appeals
rejected the no-merit brief and remanded the case after counsel failed to file a supplemental
report. Dkts. 27-1 and 27-2.
While the no-merit proceeding was ongoing, the United States Supreme Court decided
in Crawford v. Washington, 541 U.S. 36 (2004), that the Confrontation Clause of the Sixth
Amendment requires that a criminal defendant have the opportunity to confront adverse
witnesses. Therefore, testimonial statements from a witness unavailable for trial may not be
admitted against a criminal defendant unless the defendant had a prior opportunity to crossexamine the witness. Id. at 54.
Crawford was decided before Ramirez’s new postconviction counsel filed a
postconviction motion in the circuit court, but postconviction counsel did not raise any
argument under Crawford or the Confrontation Clause. Postconviction counsel did argue that
the trial court erred by admitting the hearsay statements of Ramirez’s wife and the child victim
based on hearsay exceptions. Dkt. 14-4 at 37–38. The circuit court denied the motion after a
hearing, Dkt. 14-4 at 58, and counsel appealed.
On appeal, counsel again challenged the circuit court’s decision to allow testimony
about hearsay statements of Ramirez’s wife and the child victim. Dkt. 14-4 at 37–38. But
appellate counsel did not argue that the out-of-court statements failed the confrontation test
in Crawford or that trial counsel was ineffective for failing to object to admission of these
statements on confrontation grounds. Dkt. 14-4. The Wisconsin Court of Appeals affirmed the
conviction and the circuit court’s order denying postconviction relief. Dkt. 14-7. As to the
hearsay claim, the court of appeals concluded that the circuit court properly exercised its
discretion in admitting the wife’s and victim’s out-of-court statements as “excited utterances,”

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and rejected Ramirez’s argument that the exception did not apply because too much time had
passed between the wife’s discovery of the assault and the wife’s and victim’s statements to the
police, medical personnel, and Ramirez’s mother-in-law. Dkt. 14-7 at 8–10. The Wisconsin
Supreme Court denied Ramirez’s petition for review. Dkt. 14-10.
Ramirez then filed a pro se petition for a writ of habeas corpus under State v. Knight,
168 Wis. 2d 509, 484 N.W.2d 540 (1992), in the Wisconsin Court of Appeals, raising several
claims of ineffective assistance of postconviction and appellate counsel, including that
postconviction counsel should have raised a Crawford argument with respect to the out-of-court
statements of the victim and Ramirez’s son, because Crawford was decided before his conviction
was finalized on appeal. Ramirez also argued that postconviction counsel should have argued
that trial counsel was deficient in not raising a confrontation objection to the admission of the
hearsay statements of his son and the victim. Dkt. 14-11 at 13–24. The court of appeals denied
the petition on grounds that his petition belonged in circuit court because Ramirez’s claims of
ineffectiveness concerned counsel’s failure to make arguments in the postconviction motion
she filed in circuit court. Dkt. 14-12 at 5.
In accordance with the court of appeals’ decision, Ramirez filed a pro se postconviction
motion under Wis. Stat. § 974.06 in the circuit court, arguing that postconviction counsel was
ineffective for “failing to bring a postconviction motion before the trial court alleging that
defendant’s right to confront his accusers was violated” when the trial court admitted out-ofcourt statements of the victim to various individuals. Dkt. 23-2 at 64. Ramirez relied primarily
on Crawford, 541 U.S. 36, in arguing that his constitutional right to confront his accusers had
been violated. Id. at 66. Ramirez also argued that postconviction counsel was ineffective for

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failing to argue that trial counsel was deficient for not objecting to the admission of hearsay
statements on confrontation grounds. Dkt. 23-2 at 69.
The circuit court denied the motion without an evidentiary hearing in a February 21,
2013 decision and order. Dkt. 23-2 at 18–23. The court noted that Ramirez was arguing that
postconviction counsel was ineffective both for (1) failing to raise an argument under Crawford,
and (2) failing to argue that trial counsel should have made a Confrontation Clause argument.
Id. at 21. The court concluded that because most of the out-of-court statements at issue were
admitted as “excited utterances or for the purpose of medical diagnosis or treatment,” they
were not “testimonial in nature” and did “not offend the confrontation clause.” Id. at 22. The
court further concluded that any statements that were testimonial in nature were “cumulative,”
such that their admission “was harmless error in light of other overwhelming evidence of the
defendant’s guilt.” Id. at 23.
Ramirez appealed, Dkt. 23-2 at 1–16, and the court of appeals affirmed on May 26,
2014. Dkt. 14-19. The court concluded that Crawford did not apply to Ramirez’s ineffective
assistance of counsel claims because it was decided after Ramirez’s trial and did not apply
retroactively on a motion brought under Wis. Stat. § 974.06. Id. The court further concluded
that under the law in effect at the time of Ramirez’s trial, the hearsay statements did not violate
Ramirez’s confrontation rights. Id. at 3–5. Ramirez filed a petition for review, arguing, among
other things, that the court of appeals failed to address whether postconviction counsel should
have raised a Crawford claim, independent of whether trial counsel was ineffective, in light of
the fact that Crawford was decided while Ramirez’s case was pending on direct appeal. Dkt. 1420 at 12. The Wisconsin Supreme Court denied Ramirez’s petition for review. Dkt. 14-22.
Ramirez filed his habeas petition in this court on November 20, 2014.

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ANALYSIS
In his habeas petition, Ramirez raises four grounds for relief, all of which are based on
his Sixth Amendment right to confront his accusers. Specifically, Ramirez seeks relief on the
grounds that: (1) the admission of out-of-court statements by the assault victim and her brother
violated Ramirez’s right to confront his accusers under Crawford v. Washington, 541 U.S. 36
(2004); (2) trial counsel provided ineffective assistance by failing to challenge the admission
of the hearsay statements on confrontation grounds; (3) postconviction counsel was ineffective
for failing to raise the confrontation arguments during postconviction proceedings and on
direct appeal; and (4) the state courts violated Ramirez’s right to due process by denying his
Wis. Stat. § 974.06 motion alleging ineffective assistance of postconviction counsel without
conducting an evidentiary hearing.
The state argues that claims 1 and 2 are unexhausted and procedurally defaulted,
because Ramirez never presented a confrontation claim to the state courts that was
independent of his claim that postconviction counsel was ineffective. The state also argues that
Ramirez is not entitled to relief on claim 4, because the state court’s decision not to hold on
evidentiary hearing on Ramirez’s claim of postconviction counsel ineffectiveness was a state
law decision that cannot be challenged in a federal habeas case.
After reviewing the state court record, I conclude that the state appears to be correct
that Ramirez never raised Confrontation Clause claims outside the context of challenging
postconviction counsel’s performance. Specifically, he first raised his confrontation claims
when he filed his Knight petition challenging the effectiveness of postconviction and appellate
counsel. After his Knight petition was dismissed as procedurally improper, Ramirez filed his pro
se motion under Wis. Stat. § 974.06 making the same challenges to postconviction counsel’s

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performance. Thus, it appears that Ramirez’s claims 1 and 2 are barred by the doctrine of
procedural default. See 28 U.S.C. § 2254(b)(1)(A); Perruquet v. Briley, 390 F.3d 505, 514 (7th
Cir. 2004). The state also appears to be correct that Ramirez’s claim 4 raises an issue of state
procedural law that may not be challenged on federal habeas review. See Arnold v. Dittmann,
901 F.3d 830, 835 (7th Cir. 2018) (“[E]rrors of state law are not cognizable on habeas
review.”).
However, even if I assume that Ramirez cannot obtain relief on claims 1, 2, or 4, claim
3 appears to have merit. In claim 3, Ramirez contends that postconviction counsel was
ineffective within the meaning of Strickland v. Washington, 466 U.S. 668 (1984), for failing to
raise Confrontation Clause arguments in a postconviction motion or on direct appeal.
Ramirez’s claim of postconviction counsel ineffectiveness has two parts. First, he argues that
postconviction counsel should have challenged trial counsel’s failure to object to the use of the
out-of-court statements of his wife, son, and the child victim on confrontation grounds. Second,
Ramirez argues that postconviction counsel should have raised a Crawford argument in the trial
court and on direct appeal, independent of any claim that trial counsel’s performance was
ineffective. Ramirez contends that the introduction of the out-of-court statements at trial was
clearly barred by the rule announced in Crawford, 541 U.S. 36, that out-of-court statements
cannot be admitted against a criminal defendant unless the declarant is unavailable and the
defendant had a prior chance to cross-examine the declarant.
Under Strickland’s familiar two-pronged standard, Ramirez must show both that his
counsel’s performance was deficient and that he was prejudiced as a result. Harrington v. Richter,
562 U.S. 86, 104 (2011). To demonstrate deficient performance, Ramirez must show “that
counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466

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U.S. at 687–88. “This means identifying acts or omissions of counsel that could not be the
result of professional judgment.” Sussman v. Jenkins, 636 F.3d 329, 349 (7th Cir. 2011) (internal
quotation marks and citations omitted). To demonstrate actual prejudice, Ramirez must show
“a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 499 U.S. at 694.
Because the Wisconsin Court of Appeals decided that postconviction counsel’s
performance was not deficient, my review of the Strickland analysis is subject to the deferential
standard of review under § 2254(d)(1). Sussman, 636 F.3d at 350–51. Under § 2254(d)(1),
“The bar for establishing that a state court’s application of the Strickland standard was
‘unreasonable’ is a high one, and only a clear error in applying Strickland will support a writ of
habeas corpus.” Id. See also Richter, 562 U.S. at 104 (“[T]he question is not whether counsel’s
actions were reasonable. The question is whether there is any reasonable argument that counsel
satisfied Strickland’s deferential standard.”).
The Wisconsin Court of Appeals rejected Ramirez’s claim of ineffective assistance of
postconviction counsel on the ground that, had trial counsel made a Confrontation Clause
objection to the out-of-court statements, it would have been rejected by the trial court based
on the governing law in effect at the time of Ramirez’s trial. Dkt. 14-19 at 4. As the court of
appeals correctly noted, the governing Confrontation Clause precedent at the time of Ramirez’s
trial was Ohio v. Roberts, 448 U.S. 56 (1980). Under Roberts, the Confrontation Clause barred
the use of hearsay statements if the declarant did not testify at trial, unless (1) the declarant
was unavailable, and (2) the statement bore adequate “indicia of reliability.” Id. at 66–67.
Reliability could be inferred under the Roberts test if the hearsay evidence fell within a “firmly

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rooted hearsay exception” or the statement was accompanied by “particularized guarantees of
trustworthiness.” Id.
Applying the test from Roberts, the Wisconsin Court of Appeals concluded that any
objection by trial counsel to the hearsay statements of the victim, the victim’s mother, and the
victim’s brother would have been unsuccessful. Dkt. 14-7 at 9–10. The trial court admitted the
statements under the “excited utterance” and “medical examination” exceptions to the hearsay
rules, and the United States Supreme Court has concluded that both exceptions are firmly
rooted hearsay exceptions. White v. Illinois, 502 U.S. 346, 350 n.8 (1992). Further, when the
declarant’s statement qualifies under these exceptions, proof of unavailability is not required.
Id. at 355–57.
With respect to Ramirez’s claim that postconviction counsel should have challenged
trial counsel’s failure to raise confrontation objections, I conclude that the court of appeals’
analysis is not an unreasonable application of Strickland or the controlling Confrontation Clause
precedent. The court of appeals explained why the timing and context of the statements
satisfied the exited utterance exception statements and were admissible under state and federal
law. Dkt, 14-7 at 9–10. See also White, 502 U.S. at 349–50 (statements of child sexual assault
victim to babysitter, mother, police officer, and emergency room personnel made between a
few minutes and several hours of assault were admissible under spontaneous declaration and
medical examination exceptions to hearsay rule).
However, the court of appeals appears to have unreasonably applied federal law when
rejecting the second part of Ramirez’s claim, based on postconviction counsel’s failure to raise
a Crawford argument regardless of trial counsel’s failure to do so. As Ramirez argued repeatedly
in the state courts, Crawford was decided before his conviction became final on direct review

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and thus, the rule in Crawford should have been applied to Ramirez’s case. See Griffith v.
Kentucky, 479 U.S. 314, 322 (1987) (“[F]ailure to apply a newly declared constitutional rule
to criminal cases pending on direct review violates basic norms of constitutional
adjudication.”). The court of appeals rejected this argument on the grounds that “the Supreme
Court has held that Crawford does not apply retroactively in a collateral attack upon a
conviction,” and because Ramirez’s § 974.06 petition was a “collateral attack,” he could not
raise a Crawford claim. Dkt. 14-19 at 4. The court of appeals cited Whorton v. Bockting, 549 U.S.
406 (2007), to support its conclusion that Crawford does not apply retroactively on collateral
review.
The court of appeals’ reliance on Whorton was misplaced. The court of appeals appears
to have interpreted Whorton as precluding petitioners from bringing Crawford claims in any
motion that constitutes a “collateral” proceeding. But that is not what Whorton says. Whorton
states that Crawford does not apply retroactively to cases that were already final and thus, on
collateral review, when the Crawford decision was issued. Whorton, 549 U.S. at 416. However,
Whorton makes it clear that Crawford applies to cases such as Ramirez’s that were still on direct
review when Crawford was decided. Id. Nothing in Whorton precludes a petitioner from raising
a claim of ineffective assistance of postconviction counsel based on Crawford in a collateral
proceeding, so long as the petitioner’s conviction was not final on direct review at the time of
the Crawford decision.
Besides citing Whorton, the state has not addressed Ramirez’s claim that postconviction
counsel should have raised a Crawford argument independent of whether trial counsel was
ineffective. Notably, the state has not suggested that the out-of-court statements of the victim
or Ramirez’s son would be admissible under the Crawford test. Nor has the state argued that

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postconviction counsel’s failure to raise a Crawford argument does not constitute deficient
performance under the Strickland standard. The state may be able to make a persuasive
argument that Ramirez was not prejudiced by counsel’s failure to make a Crawford argument,
particularly with respect to the charges arising from the September 1999 incident for which
DNA evidence linked Ramirez to the victim. On the other hand, without the victim’s out-ofcourt statements blaming Ramirez for her November 1998 injury, it appears there would be
little evidence linking Ramirez to that incident. Because the state relied entirely on the court
of appeals’ conclusion that Crawford did not apply to Ramirez’s case, the state has failed to
address these significant questions. Because these questions must be considered before I decide
whether Ramirez is entitled to habeas relief, I will give the state an opportunity to address the
merits of Ramirez’s claim.
C. Appointment of counsel
Finally, I will appoint counsel to represent Ramirez for the remainder of this case.
Because Ramirez qualified for a public defender during his state-court proceedings and has
been in prison for several years, I assume he is financially eligible for appointment. In light of
the potential merit of his claim and the potential complex legal or factual arguments that the
state may raise, I conclude that the appointment of counsel would serve the interests of justice.
18 U.S.C. § 3006A. Once the court finds counsel to represent Ramirez, I will direct counsel to
file a reply to the state’s supplemental briefing.

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ORDER
IT IS ORDERED that:
1. Petitioner Antonio Ramirez’s motion to expand the record, Dkt. 27, is GRANTED.
2. Respondent has until December 21, 2018 to show cause why petitioner is not
entitled to relief on his claim that postconviction counsel was ineffective for failing
to raise a confrontation clause argument under Crawford v. Washington, 541 U.S. 36
(2004).
3. The court will appoint counsel to represent petitioner for the remainder of these
proceedings. Once counsel is appointed, the court will set a deadline by which
petitioner may file a reply in support of his petition.
Entered November 29, 2018.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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