321 F.3d 110 (2nd Cir. 2003), 99-2261, EZE v. Senkowski

Docket Nº:99-2261.
Citation:321 F.3d 110
Party Name:Louis EZE, Petitioner-Appellant, v. Daniel A. SENKOWSKI, Superintendent, Clinton Correctional Facility, Respondent-Appellee.
Case Date:February 12, 2003
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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321 F.3d 110 (2nd Cir. 2003)

Louis EZE, Petitioner-Appellant,

v.

Daniel A. SENKOWSKI, Superintendent, Clinton Correctional Facility, Respondent-Appellee.

No. 99-2261.

United States Court of Appeals, Second Circuit

February 12, 2003

Argued: Dec. 10, 2002.

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Brian Sheppard, New Hyde Park, NY, for Petitioner-Appellant.

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Joseph Kilbridge, Assistant District Attorney (Frank J. Clark, District Attorney, Erie County, J. Michael Marion, Assistant District Attorney, on the brief), Buffalo, N.Y., for Respondent-Appellee.

Before: OAKES, CABRANES, KATZMANN, Circuit Judges.

KATZMANN, Circuit Judge.

The sexual abuse of children is heinous beyond words. It is intolerable as it is reprehensible. For that reason, justice demands that the perpetrators of such conduct be prosecuted to the fullest extent of the law, and that the penalties be appropriately severe for those whose actions are so destructive of young lives.

The prosecution of child sexual abuse cases is challenging. With third-party witnesses often unavailable, these cases frequently hinge on judgments about credibility in which jurors must choose between contradictory stories proffered by the defendant and the complainants. Just as the complainants are entitled to effective advocacy, so too are those charged, especially given the consequences of conviction. Thus, we have underscored the importance of effective representation for defendants in child sexual abuse prosecutions. See generally Pavel v. Hollins, 261 F.3d 210 (2d Cir. 2001); Lindstadt v. Keane, 239 F.3d 191 (2d Cir. 2001). The teaching of the law in this Circuit is that defense counsel is obliged, wherever possible, to elucidate any inconsistencies in the complainant's testimony, protect the defendant's credibility, and attack vigorously the reliability of any physical evidence of sexual contact between the defendant and the complainant.

Once again, before us now is someone convicted of child sexual abuse related crimes whose quality of trial representation causes us serious concern. Petitioner appellant Louis Eze ("Eze") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254vacating his conviction in New York Supreme Court, Erie County, of multiple counts pertaining to the alleged sexual abuse of his distantly-related nieces, twin girls by the names of Chendo and Nnedi Okongwu. Eze was convicted almost entirely based on the girls' allegations at trial, supplemented with expert testimony substantiating their credibility and medical evidence suggesting that the girls may have been victims of sexual assault. Although defense counsel performed competently in certain respects, various apparent omissions of Eze's counsel leave us troubled. Several obvious pieces of evidence that would have cast doubt upon Eze's guilt were inexplicably neglected at trial, even though defense counsel was aware of them and their admissions apparently would not have interfered with the defense's overall strategy. Further, virtually all the testimony that linked Eze to the crime related to the omissions to which we refer.

Eze, of course, faces the heavy burden of showing ineffective assistance set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), enhanced by the added hurdle posed by the highly deferential review accorded state court adjudications under the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996) (codified at 28 U.S.C. § 2254(d)(1) (2000)). Notwithstanding these obstacles, if certain omissions cannot be explained convincingly as resulting from a sound trial strategy, but instead arose from oversight, carelessness, ineptitude, or laziness, we would find the quality of representation sufficiently deficient to grant the writ. With the record before us, however, we lack the benefit of an explanation of Eze's trial counsel's reasoning and cannot conclude now that no plausible trial

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strategy justified her actions. See Sparman v. Edwards, 154 F.3d 51, 52 (2d Cir. 1998) (stating that "a district court facing the question of constitutional ineffectiveness of counsel should, except in highly unusual circumstances, offer the assertedly ineffective attorney an opportunity to be heard and to present evidence, in the form of live testimony, affidavits, or briefs"); see also Bloomer v. United States, 162 F.3d 187, 194 (2d Cir. 1998) (same). We therefore vacate the District Court's denial of a writ of habeas corpus and remand for an evidentiary hearing at which Eze's trial counsel be allowed to explain her trial strategy. The District Court then should determine whether such strategy can justify those omissions.

BACKGROUND

A. Eze's State Trial

Dominic Okongwu ("Okongwu"), Eze, and Joy Wosu ("Wosu") were indicted by an Erie County Grand Jury on 68 counts related to the alleged sexual abuse of Chendo and Nnedi Okongwu. The three defendants were tried together in a seven day trial that commenced on November 12, 1993. Except as otherwise noted, the evidence adduced at trial established the following.

Okongwu and his wife are Nigerian citizens with twin daughters, Chendo and Nnedi, who were born on September 12,1984. At some point after Okongwu's wife became ill and returned to Nigeria, Chendo and Nnedi were placed under the foster care of Ms. Ollie McNair ("McNair"). In December 1990, a Family Court judge appointed Eze to supervise Okongwu's weekend visitation of his daughters.1 The court order required Eze to be in the girls' presence during the entirety of their visits with Okongwu and never to leave the girls unsupervised. The visits continued regularly every weekend until December 1991, at which time all contact between Okongwu and his daughters was terminated.

On December 12, 1991, McNair entered the girls' bedroom and found Nnedi lying on top of Chendo in a manner imitative of sexual contact. When McNair asked the girls what they were doing, Nnedi responded that "she was doing it because that's the same thing their father does to her when she goes to his house." McNair notified Child Protective Services, which commenced an investigation, and McNair received explicit instructions to keep Okongwu away from the children. At this point, the girls made no mention to McNair of Eze's involvement in any sexual abuse.

At trial, the girls testified to three instances of sexual abuse, with each incident bearing striking similarities.2 The first occasion occurred in June 1991, following a community celebration known as the June-teenth Festival. The girls testified that Eze picked them up at their foster home, and brought them to the festival with Okongwu and Wosu. On direct examination, both girls recalled that after the festival they returned to Okongwu's house; Eze and Wosu then left, at which point Okongwu, now alone with the girls, sexually abused them in his basement. On cross examination, however, Chendo testified that Eze and Wosu remained in Okongwu's house during the sexual abuse and that

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they came downstairs at one point. According to Chendo, Okongwu instructed them to shower and go downstairs to the basement and wait for him. The girls testified that, upon joining them, Okongwu directed Chendo to lie down on two mattresses that he had placed together, while he bound Nnedi by tying her arms and waist to a chair and taping her mouth shut. Both girls stated that, with Nnedi restrained, Okongwu inserted his penis into Chendo's vagina and forced Chendo to perform fellatio on him. The girls testified that Okongwu then had the girls switch roles. They said that Okongwu untied Nnedi and untaped her mouth, and bound Chendo to the chair in the same manner he had restrained her sister. The girls stated that Okongwu at this point engaged in oral sex and then intercourse with Nnedi. Afterwards, Okongwu instructed them, "you better not tell or I'll kill you," while brandishing a knife, belt, and scissors.3 According to the trial testimony, Okongwu then told both girls, who were now bleeding, to take a shower. Eze later brought the girls back to McNair's home. Chendo said she did not tell McNair about the abuse because she was scared that her father would kill her if she did.

The second incident about which the girls testified occurred on or about September 12, 1991, the date of their seventh birthday. According to the girls, Eze picked them up from McNair's house and, after stopping off at Okongwu's house, they attended a birthday party with Okongwu and Wosu at Okongwu's friend's house. Similar to the June 1991 incident, Okongwu, Eze, Wosu, and the girls went to Okongwu's house following the party. Upon arrival, Okongwu told the girls to get undressed and go downstairs to the basement. Chendo testified that Eze remained upstairs talking on the telephone and saw her walking downstairs naked. Nnedi, however, testified that Eze and Wosu left the house, leaving them alone with their father. The girls stated that Okongwu soon came downstairs, naked, and what followed mirrored the June 1991 incident. Okongwu again arranged the mattresses next to each other and engaged in coerced sexual acts with his daughters. Chendo testified that he first told her to lie down, while he tied Nnedi to a chair and taped her mouth. Okongwu proceeded to have sexual intercourse and oral sex with Chendo, ignoring her pleas for him to stop. Chendo testified that she then switched roles with her sister, as Nnedi was forced to have sexual intercourse and oral sex with Okongwu, while Chendo was bound. Chendo recalled that her father again threatened them, stating, "you better not tell or I'll kill you. "Nnedi testified to similar events, but according to Nnedi, her father first had sexual intercourse and oral sex with her, while her sister was bound, and then the...

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