Dingle v. Secretary for Dept. of Corrections, 05-13408.

Citation480 F.3d 1092
Decision Date08 March 2007
Docket NumberNo. 05-13408.,05-13408.
PartiesRichard Allen DINGLE, Petitioner-Appellant, v. SECRETARY FOR THE DEPARTMENT OF CORRECTIONS, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Janice Bergmann, Federal Public Defender, Ft. Lauderdale, FL, Kathleen M. Williams, Federal Public Defender, Miami, FL, for Petitioner-Appellant.

Douglas J. Glaid, Miami, FL, for Respondent-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before EDMONDSON, Chief Judge, and BARKETT and COX, Circuit Judges.

COX, Circuit Judge:

Richard Allen Dingle appeals the denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. His petition is grounded on an ineffective-assistance-of-counsel claim. The district court denied relief. We affirm.

I. FACTS AND PROCEDURAL HISTORY

In November of 1991, Dingle was caring for his girlfriend's eight-month old daughter for several hours. During that time, the baby became flaccid and listless. Dingle admits he picked up the child and patted her on her back three to five times. When she continued to choke, he put the child on her back on the bed and blew into her mouth and nose until food came up through her mouth and nose. He testified that the baby was not crying and not moving. Dingle said that he never shook the baby, but that when he was holding her under her armpits and patting her on her back to revive her, her head was bouncing a little because she was flimsy. But her head did not move enough to "pop" anything. He said that he did not hit her too hard, but he did pat her with light strikes or a tapping motion. When the baby was still choking and not breathing, Dingle called 911. The baby was taken to the hospital and died.

Dingle was arrested, gave a voluntary statement to the police, and was charged with first-degree murder and aggravated child abuse.1 Because the baby had never been alone with Dingle other than the few hours on the day of her death, the timing of her injuries was a crucial issue at trial. Attorney Scott Sakin was appointed to represent Dingle.

At Dingle's trial, the State presented three experts to support its theory that Dingle inflicted the fatal injuries, but the court denied Sakin's request for the appointment of two additional expert witnesses, leaving Sakin with only two experts. The experts who testified on Dingle's behalf were Dr. Wayne Ross, a chief pathologist for three counties in Pennsylvania, but not board certified in neuropathology or clinical pathology, and Dr. Raul Vila, the deputy chief medical examiner of Broward County who is board certified in forensic pathology. The additional experts that Sakin requested be appointed were Dr. Joe Burton, the chief forensic pathologist in Atlanta, and Dr. Rhonda Kessler, a pediatric radiologist.

Drs. Roger Mittleman, Michael Tidwell, and Ronald Kim testified for the State. Dr. Mittleman, a county medical examiner, testified that his autopsy showed massive bruising on her lower back and buttocks, with fresh, massive hemorrhaging indicative of recent very prominent trauma, lower spinal column and spinal cord injury, and a fractured sacrum at the lower end of the spinal column. He believed that the injuries to the lower back and buttocks showed that a great deal of force must have been applied to these areas to cause such injuries, and these injuries were inconsistent with the child accidentally falling off the bed. Instead, the injuries would have been caused by punching, kicking, or pressing extremely hard. Because he found blood clots and hemorrhages in various locations of the baby's brain, Dr. Mittleman suspected shaken baby syndrome, but also said that if trauma to the spinal cord is sufficient, it can travel upward into the brain. The blood on the brain was fresh and consistent with having occurred in one incident. Further, Mittleman believed that the fact that the child ate the morning she was with Dingle showed that she was not then suffering from any brain injury. Additionally, he testified that her injuries were consistent with being slammed down and her head snapping back, causing the spinal cord to be compressed. He agreed with the defense experts that the child had a wrist fracture that could have been one to two weeks old when she died, but also believed that the injury to her spinal cord could not have taken place any earlier than when she was in Dingle's care. In short, Mittleman believed Dingle's story was inconsistent with the autopsy findings.

Dr. Tidwell, a pediatric orthopaedist, testified that a healthy infant has a very rapid healing process, including healing of fractures. That means, he said, that an expert not experienced in pediatric orthopaedics might mistake new fractures as older fractures. Additionally, Dr. Tidwell testified that a sacral fracture is so painful to a child that she would not have been able to move once the fracture occurred. He said that he could tell the date of the baby's fatal injury could not have been more than five days prior to the autopsy, which corresponded with the day that Dingle was taking care of her. Dr. Tidwell had no question in his mind that all of the baby's injuries occurred at the same time.

Finally, Dr. Kim, an expert in neuropathology and anatomic pathology, testified that the child "sustained severe trauma to the buttocks region most likely [caused] by being planted very hard on a hard surface in the sitting position, so to speak, which damaged the spinal cord, produced fractures in the sacral region, produced the . . . severe bruising in the buttocks and in the genital area, [and] caused the child to stop breathing." (Trial Tr., March 4, 1994 at 791.) At the same time, her head would have snapped back, resulting in her brain hemorrhaging and swelling. Dr. Kim concluded that all the baby's injuries could have occurred at the same time from a hard blow, and only could have occurred if she fell from a great height or was forcibly planted onto her buttocks. It was Dr. Kim's opinion that the baby's fatal injuries occurred during the time she was in Dingle's care.

The two doctors who testified on Dingle's behalf, Drs. Ross and Vila, testified the child died as the result of shock from injuries inflicted days before Dingle was caring for her. These injuries, Vila and Ross believed, caused the child's brain to swell continuously for a period of days, eventually causing her to stop breathing.

Dr. Ross testified that the child had fractures to her buttocks that were ten to 21 days old and hemorrhaging in the same area that was minimal and consistent with CPR efforts. He also testified that her spinal cord was not affected and she died as the result of swelling of the brain due to battered child syndrome. He believed that the fracture to the baby's sacral area would have been painful at first, but she would have been able to crawl eventually. Additionally, he testified that the swelling of the brain was caused by blunt trauma to the head or shaking that occurred up to one or two days before the swelling began. Thus, he believed, the brain injury could have occurred while the baby was with Dingle or prior to that time, but did not believe the timing of this injury could be scientifically determined. Further, Dr. Ross testified that this brain injury — not the spinal injury — was the sole cause of the baby's death.

Dr. Vila testified that the fractures to the baby's left arm and thumb were ten days to two weeks old and the injuries to her sacral area were sustained prior to the day she went to the hospital. Dr. Vila believed that there were no injuries to the spinal cord, but that there were fractures to the spinal column. He concluded that these injures to the spinal column were caused by blunt trauma, probably as the result of Dingle's efforts to dislodge food and resuscitate her.

The two experts that were the subject of Sakin's denied request to appoint additional experts, Drs. Kessler and Burton, both expressed the opinion that the baby had suffered injuries to the arm, wrist and sacrum that occurred before Dingle ever spent time alone with her. In fact, Dr. Kessler opined that the injuries were three to four weeks old, if not older. Thus, Dr. Kessler's testimony would have supported the conclusion that the child had been physically abused by someone other than Dingle prior to her death. Dr. Kessler further believed that the baby's preexisting injuries supported the conclusion that she had been physically abused by someone other than Dingle prior to her death. She would have testified that the baby's preexisting injuries might not have been apparent to Dingle or other laypersons, or even a trained nurse who frequently visited the child's home. Dr. Kessler disagreed with Dr. Tidwell's theory that some of the injuries were caused by intravenous lines inserted during hospitalization. Dr. Kessler would have testified that the baby's wrist fracture was at least two weeks old, but that she did not believe this injury contributed to the baby's death in any way. The district court found that Dr. Kessler could not testify as to when the child's fatal injuries occurred. However, she would have testified that these fatal injuries were brutal and showed that the child was either forcibly thrown or slammed down on a hard surface or that she was drop-kicked "like a football." Dr. Kessler could not determine the time of the child's spinal injuries, but deferred to the State's experts in that matter.

At the end of the trial, the jury found Dingle guilty of both first-degree murder and aggravated child abuse. On appeal to Florida's Third District Court of Appeal, the Public Defender's office represented Dingle. Dingle argued only that the trial court erred in denying Sakin's request to appoint two additional experts. The appellate court agreed and reversed and remanded for a new trial.

At the second trial, the subject of this petition, Sakin once again represented Dingle. Sakin...

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