Schaff v. Snyder

• Decision Date: 20 August 1999
• Docket Number: No. 97-3759,97-3759
• Citation: 190 F.3d 513
• Parties: (7th Cir. 1999) PAUL W. SCHAFF, Petitioner-Appellant, v. DONALD SNYDER, <A HREF="#fr1-*" name="fn1-*">* Respondent-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 513

190 F.3d 513 (7th Cir. 1999)

PAUL W. SCHAFF, Petitioner-Appellant, v. DONALD SNYDER,^* Respondent-Appellee.

No. 97-3759

United States Court of Appeals, Seventh Circuit

Argued October 30, 1998

Decided August 20, 1999

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 C 2249--Suzanne B. Conlon, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before POSNER, Chief Judge, and EASTERBROOK and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Paul W. Schaff was tried by a jury and found guilty of the criminal and aggravated criminal sexual assault of a 7 year- old boy. See 720 ILCS 5/12-13(a)(2); 5/12- 14(b)(1). On September 14, 1990, he was sentenced to ten years of imprisonment. After serving five years, he was placed on mandatory supervised release; in addition, until March 2005, he is subject to the requirements of the Sex Offender Registration Act, 730 ILCS 150/1, and the Child Sex Offender and Murderer Community Notification Law, 730 ILCS 152/125.

Mr. Schaff filed a petition for writ of habeas corpus in the district court on April 1, 1997. See 28 U.S.C. sec. 2254. The court denied Mr. Schaff's petition but granted a certificate of appealability with respect to one claim in his petition. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I BACKGROUND

A. Trial Evidence

The State of Illinois initiated its case against Mr. Schaff after 7 year-old K.A. told therapists at the Children's Advocacy Center that he had been assaulted sexually by Mr. Schaff. The events that form the basis of this case occurred in July and August 1989. Mr. Schaff and his wife had bought an apartment building in January of that year; they lived in it and leased the remaining apartments. In the apartment building next door to the Schaffs', K.A. lived with his father, mother and older brother. The central courtyard between the buildings of the apartment complex was a play area for the children living in the apartments. According to K.A.'s testimony, sometime after the Fourth of July, 1989, while K.A. was riding his bike in that courtyard, Mr. Schaff approached him and told him to come to one of his apartments. When they were in the apartment, K.A. testified, Mr. Schaff told him to go into the bedroom and to take off his clothes. According to K.A., Mr. Schaff said he would kill him if K.A. failed to comply. K.A. then described two sexual acts performed on him by Mr. Schaff. Afterwards, K.A. testified, Mr. Schaff warned K.A. that he would kill K.A.'s parents if he told them. K.A. reported his subsequent loss of appetite, stomach aches, nightmares and fear of telling his parents about the incident. He testified that he eventually revealed the occurrence to treatment specialist Larry Disch and psychotherapist Pamela Klein at the Children's Advocacy Center.

The next State's witness was K.A.'s mother. As the Illinois appellate court's opinion on post- conviction review stated:

The victim's mother testified at trial that she watched a "broadcast on television about symptoms for sexual abuse" on July 31, 1989. She then called the Hanover Park Police Department because she believed her son exhibited some of the symptoms described in the program. The police referred her to the children's advocacy center. She testified that she called the center on August 1, 1989, and brought her son to the center the same day.

People v. Schaff, 666 N.E.2d 788, 790 (Ill. App. Ct. 1996) ("Schaff II"). His mother testified that K.A. spent 1½ hours at the Center on August 1, 1989, and attended weekly counseling sessions thereafter with treatment specialist Larry Disch. On September 7, 1989, she took K.A. to the Center on an emergency basis after he had refused to eat for three or four days and had been suffering from stomach aches, nightmares and bed wetting. Pamela Klein, the Director of the Center, saw K.A. on that date because Larry Disch was not at the Center. She testified "that the victim told her in a private session that he had been sexually abused by the defendant." Id.

Other witnesses presented by the State included K.A.'s father, who testified about his son's behavioral problems, and Larry Disch, who testified about K.A.'s statements to him, including the boy's statement on September 12, 1989, detailing the defendant's sexual assault on him. State's witness Dr. Sharon Ahart, an expert in pediatric ecology, was the physician who physically examined K.A. She testified that she found evidence of mildly lax rectal tone, an abnormality consistent with penile penetration of an adult to a child. Officer Daniel Driscoll testified that, on September 13, 1989, K.A. told him of the defendant's sexual assault on him. The State's final witness was Dr. Jon Conte, a qualified "expert in the field of child sexual assault from a therapeutic viewpoint." Tr. at 534. He opined, from examining K.A.'s records and conversing with Larry Disch, that K.A. could be diagnosed as suffering from post-traumatic stress disorder precipitated by sexual abuse.

The defense presented one witness, Dr. Jack Arbit, an expert in clinical psychology. In his opinion, the Children's Advocacy Center followed none of the professionally accepted procedures when evaluating K.A. Moreover, Dr. Arbit testified, K.A.'s statements of September 7, 1989, were not "reliable within a reasonable degree of scientific psychological certainty." Tr. at 702. He testified, based on the records of the Children's Advocacy Center, of Mount Sinai Hospital (where Dr. Ahart gave K.A. a physical examination), and of the police, that he was unable to diagnose K.A. as suffering from post- traumatic stress disorder because there was insufficient basic data from which to make the diagnosis.

B. Jury Deliberations

The jury deliberated for two days, June 25 and 26, 1990. It made three requests of the court, all of which were denied.¹ After lunch on the second day, the foreperson stated that he did not believe it was reasonably probable that a verdict could be reached. The trial court asked him to report the number of ballots taken thus far and the numerical breakdown of the last ballot without indicating which side was favored. The court was told there had been six ballots and the count was 7 to 5. The trial court then gave the jury a supplemental instruction and told it to continue its deliberations.

The defense made five motions for mistrial on that second day, all of which were denied. At 3:45 p.m., the jury foreperson stated that the jury was still unable to reach a verdict but that he would like another half-hour or so. The trial court again asked for the last count without indicating which side was favored; the foreperson stated that the count was 11 to 1. When the requested half-hour was over, the defense raised its fifth motion for mistrial. Although the court denied it, the court told defense counsel that it would declare a mistrial if the jury did not reach a verdict by 4:30. At 4:22, the jury requested new verdict forms; the court tendered the forms at 4:30, and the jury returned its verdict of guilty ten minutes later.

C. Post-Trial Evidence

On September 12, 1994, four years after Mr. Schaff had been sentenced, a thirteen year-old friend of K.A. filed an affidavit reporting a conversation he had had with K.A. He stated that K.A. had told him that Mr. Schaff never had touched him. According to the affidavit, some of K.A.'s friends also had said that K.A. lied at trial because his mother had wanted to get Mr. Schaff in trouble. The affiant stated that he told two neighbors and then told Mrs. Schaff, by telephone, what K.A. had said. In her affidavit, dated September 15, 1994, Mrs. Schaff stated that she believed she gave that information to her husband's trial defense counsel shortly after she received it. Mr. Schaff asserts that his trial counsel neither investigated that information nor raised K.A.'s recantation in his post-trial motion.

D. Appellate Review

Mr. Schaff, with new counsel, appealed the state court conviction. The state appellate court affirmed the conviction on direct appeal.² See People v. Schaff, 618 N.E.2d 566, 567 (Ill. App. Ct. 1993) ("Schaff I"). The Illinois Supreme Court denied Mr. Schaff's petition for leave to appeal. See People v. Schaff, 622 N.E.2d 1223 (Ill. 1993), cert. denied, 510 U.S. 1201 (1994). The Cook County Circuit Court then denied his petition for post-conviction relief, and the Illinois Appellate Court affirmed.³ See People v. Schaff, 666 N.E.2d 788, 792 (Ill. App. Ct. 1996) ("Schaff II"). The Illinois Supreme Court also denied the petition.⁴ See People v. Schaff, 671 N.E.2d 740 (Ill. 1996).

On April 1, 1997, Mr. Schaff filed a petition for writ of habeas corpus in the district court. He raised the same seven grounds he had raised in his post-conviction petition. The district court denied habeas relief but issued a certificate of appealability ("COA") with respect to one of the seven claims. Mr. Schaff appeals that claim and seeks a COA with respect to the six other issues for which a COA was not granted.

II DISCUSSION

A.

Mr. Schaff contends that he was convicted of a crime that he did not commit because the jury never heard critical information contradicting the State's case. Central to his claims is evidence that was not presented at trial, evidence of a plan by one of Mr. Schaff's disgruntled tenants to "set up" Mr. Schaff by accusing him of child abuse. In his appellate brief, Mr. Schaff recites the information that he believes should have been presented to the jury. He states that Kathy Ulber, who lived in Mr. Schaff's building with her daughters and boyfriend, was angry because Mr. Schaff evicted her at the end of her lease. She told her neighbor Jennie Ramirez that she was going to get her revenge by accusing Mr. Schaff of being a child molester. On July 25, 1989,...