497 F.3d 757 (7th Cir. 2007), 06-3288, McDowell v. Kingston

Docket Nº:06-3288.
Citation:497 F.3d 757
Party Name:Derryle S. McDOWELL, Petitioner-Appellant, v. Phillip A. KINGSTON, Warden, Respondent-Appellee.
Case Date:August 15, 2007
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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497 F.3d 757 (7th Cir. 2007)

Derryle S. McDOWELL, Petitioner-Appellant,


Phillip A. KINGSTON, Warden, Respondent-Appellee.

No. 06-3288.

United States Court of Appeals, Seventh Circuit.

August 15, 2007

Argued April 11, 2007.

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 05 C 498-William C. Griesbach, Judge.

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Christopher J. Cherella (argued), Milwaukee, WI, for Petitioner-Appellant.

Gregory M. Weber (argued), Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee.

Before CUDAHY, KANNE, and WOOD, Circuit Judges.

CUDAHY, Circuit Judge.

The petitioner, Derryle S. McDowell, was convicted of sexual assault, kidnapping and armed robbery and was sentenced to 200 years in prison. At trial, McDowell's trial counsel had him testify in a narrative form rather than lead him through a question and answer format. In considering McDowell's post-conviction motion, the Wisconsin Supreme Court applied Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and determined that McDowell's trial counsel's decision to have McDowell testify in a narrative format without knowing that he would testify untruthfully and without notifying

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McDowell of his decision to do so was deficient, but still denied relief finding no prejudice. The federal district court also denied the petition, holding, in part, that the Wisconsin Supreme Court's decision to apply Strickland, instead of presuming prejudice under United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), was not contrary to clearly established federal law. We agree and affirm the denial of McDowell's petition.

I. Background

On April 21, 1997, an 18-year-old woman was sexually assaulted by two men near a building at 4720 West Burleigh Street in Milwaukee. After the assault, the victim spat ejaculate onto the ground. Although the victim could not identify her attackers, the State based its case against the defendant Derryle McDowell on evidence collected from the victim's body, clothing and the scene. Namely, the police recovered a sample of the victim's saliva mixed with semen containing McDowell's DNA.

This appeal primarily concerns McDowell's testimony at trial. On the third day of trial, after the State had rested, McDowell's counsel, Attorney Ronald Langford, expressed reservations to the court about his ability to effectively proceed as counsel and asked to withdraw. Specifically, he implied that his concerns related to the possibility that McDowell would testify untruthfully. The trial court advised Attorney Langford of two options: (1) he could recommend to McDowell that he not testify if his intended account was untrue, or (2) take the "middle ground" by calling McDowell to testify in narrative form. (R. 74 at 6-7.) Attorney Langford's request to withdraw from the case was denied. After a short break, Attorney Langford informed the court that:

Judge, I have no reason to believe in light of what Mr. McDowell has told me that he will not get up there and testify as to the truth. Therefore when he takes the stand I will be asking him questions, specific questions with respect to his testimony before this jury.

(R. 74 at 12.)

Attorney Langford then gave his opening statement, in which he told the jury that McDowell would testify that he never assaulted the victim and that the area where the crime took place was behind the building where his father lived. Counsel further explained that McDowell had been in the area the night before the assault, had oral sex with his girlfriend and had ejaculated, which would account for his semen's being found at the scene.

After Attorney Langford completed his opening statement, McDowell took the stand. Shortly thereafter, while McDowell was still on the stand, Attorney Langford received a note from the public defender's office which stated: "Tyroler [an appellate attorney in the Office of the State Public Defender] says go with narrative. Tell that to the client. It must be by narrative." (R. 79 at 78.) McDowell's counsel began his examination in the question and answer format, asking three questions about McDowell's age and residence. He then stated, "Mr. McDowell, I want you to look at this jury and tell this jury about the events of April 20 and 21 of 1997. Take your time and speak loudly and clearly, please." (R. 74 at 20.)

The court, apparently confused by this change of plans, called a sidebar conference, after which the court instructed the jury not to consider the opening statements or closing statements of counsel as evidence and directed McDowell's counsel to restate the question. Attorney Langford said, "Again, Mr. McDowell, take your time and tell this jury what you would like for them to know regarding the allegations against you beginning with where you were and what you were doing on April 20,

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1997, through the early morning hours of April 21, 1997. Proceed, please." (R. 74 at 22.) In brief, McDowell testified that he and his girlfriend, Sunshine, "fooled around" and had oral sex behind his father's apartment the evening of April 20, 1997. His father caught them in the alley and became angry. He and his father eventually drove Sun-shine home, returned to the house later that evening and went to bed. McDowell claims that some key facts were missing from his account which could have been solicited in a question and answer format. The jury ultimately found McDowell guilty of one count of armed robbery, one count of kidnapping and five counts of first degree sexual assault with the use of a weapon. He was sentenced to 200 years in prison and forty years of probation.

McDowell filed a post-conviction motion in the circuit court claiming ineffective assistance of counsel. The circuit court held a Machner hearing to determine the validity of McDowell's claim.1At the hearing, Attorney Langford testified that he initially believed that McDowell was lying about this sexual activity with his girlfriend. He noted inconsistencies between their accounts, the fact that McDowell introduced this theory of defense only after learning about the DNA evidence and also recounted a conversation with McDowell in which McDowell told him, "I'll say what I need [to] say to help myself out and if I have to say something untruthful[,] I'll say that." (R. 79 at 109.) In preparation for McDowell's taking the stand, Attorney Langford testified that he warned McDowell that he might need to testify in a narrative form and, if he did, that McDowell should testify to everything he would want the jury...

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