Day v. Quarterman

• Citation: 566 F.3d 527
• Decision Date: 27 April 2009
• Docket Number: No. 07-40699.,07-40699.
• Parties: Denise Ann DAY, Petitioner-Appellant, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

566 F.3d 527

Denise Ann DAY, Petitioner-Appellant, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.

No. 07-40699.

United States Court of Appeals, Fifth Circuit.

April 27, 2009.

Sean R. Buckley, DeGuerin & Dickson, Houston, TX, John C. Bennett (argued), Amarillo, TX, for Peitioner-Appellant.

Jon R. Meador (argued), Matthew Dennis Ottoway, Carrie Elizabeth Parsons, Tommy Lee Skaggs, Postconviction Litigation Div., Austin, TX, for Respondent-Appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before SMITH and SOUTHWICK, Circuit Judges, and RODRIGUEZ¹, District Judge.

RODRIGUEZ, District Judge:

Denise Ann Day, the Petitioner-Appellant, appeals a district court order that dismissed her habeas corpus application filed pursuant to 28 U.S.C. § 2254. Day was convicted in Texas state court on three counts of injury to a child in violation of Texas Penal Code § 22.04(a)(1). Following an unsuccessful appeal of the convictions and the denial of a state court habeas petition, Day filed her federal writ petition, arguing in part that her trial counsel rendered ineffective assistance by failing to examine adequately the prosecution's medical evidence prior to trial, failing to cross-examine adequately the State's medical experts, and failing to obtain a defense medical expert to challenge the State's medical expert testimony. The district court dismissed the petition. Day contends on appeal that the district court's ruling with respect to her ineffective assistance claim was erroneous because the district court failed to consider properly this Court's holding in Draughon v. Dretke, 427 F.3d 286 (5th Cir.2005). Finding no reversible error, we affirm.

I.

A. The Trial Proceedings²

On January 22, 1999, Day was convicted in Texas state court on three counts of injury to a child in violation of Texas Penal Code § 22.04(a)(1). The evidence presented at trial showed that during the relevant time-frame, Day provided daycare for children, including the victims, Nathan Taylor and Emma Russell. Tina Taylor, Nathan's mother, testified that Nathan was born in January 1997 and that she left Nathan in Day's daycare periodically between April 7, 1997 and May 22, 1997. Between May 14 and May 22, Mrs. Taylor observed that Nathan was displaying "fussy" behavior, that Nathan could not put weight on his right leg, and eventually, that Nathan would scream and cry whenever he was moved. After multiple visits to a pediatrician and a visit to a pediatric orthopedic surgeon, the surgeon determined that Nathan's leg was fractured and immediately performed surgery to repair the fracture. Nathan spent three weeks in a full body cast. Nathan's mother, father, and half-sister each testified that nothing had happened to Nathan in their presence that would account for the fracture.

Mrs. Taylor called Day to find out what had caused the break. Day did not offer an explanation at first but later told Mrs. Taylor that a toddler whom she called "Big Nathan" had fallen on Nathan's leg. At the request of the police, Mrs. Taylor allowed them to record a subsequent phone call she made to Day. In the call, Day again said that Big Nathan had fallen on Nathan.

Kris Russell, Emma's mother, testified that Day cared for her two children, Fes and Emma. Emma was born on February 19, 1997, and Day began looking after Emma in April of 1997. After seeing Emma vomit repeatedly during May and June of 1997, Mrs. Russell decided to take Emma to a doctor. Dr. Mosier examined Emma, discovered that Emma had an "enlarged head," concluded Emma had gastrointestinitis, and sent Emma home. Day continued to care for Emma, yet Emma's condition continued to decline, so Mrs. Russell took Emma to a hospital emergency room and subsequently to a pediatrician. Although Emma was tested for meningitis, those who examined Emma concluded that Emma was merely suffering from a virus.

Mrs. Russell again left Emma and Fes in Day's care on Monday, June 23. While at work, Mrs. Russell received a message from Day telling her that Emma was being "fussy" and that Fes had pushed Emma out of a swing and possibly injured Emma's leg. Mrs. Russell would later notice that Emma would not "stand" on her lap and that Emma's legs "looked a little bit bent." Emma's parents took Emma back to the emergency room, where a doctor discovered Emma had two broken femurs. Emma was placed in traction to straighten her femurs. Over the next week, Emma underwent a number of tests, received two bilateral subdural taps to relieve the swelling in her head, and had a subdural shunt surgically implanted in her head to drain fluid. After Emma was removed from traction, she was placed in a body cast for two weeks. The shunt was removed eight months later. Emma's mother and father each testified that neither knew of anything that occurred in their presence that could have caused Emma's injuries.

On June 24, at the request of police, Mrs. Russell called Day twice. The phone conversations were recorded. In the first conversation, Day stated she saw Fes push a swing seat, causing Emma to fall from the seat onto her own legs.

Marie Brown testified she was a case manager for the Texas Department of Protective and Regulatory Services, Child Protective Services Division. She investigated Day and the allegation that Day caused Nathan's injuries. Day gave Brown different stories on different occasions, telling her Nathan's injuries were caused when a child bumped him out of a swing and onto the floor, when Big Nathan fell on him, or when he was in a walker.

Richie Rhyans, a child-care investigator for the Child Care Licensing Division of the Texas Department of Protective and Regulatory Services also investigated Nathan's injuries. She testified that Day told her that another child had fallen on Nathan's leg, causing the injury. While working on Nathan's case, Rhyans learned of Emma's injuries and began to investigate Emma's case as well. Day told Rhyans that Mrs. Russell had warned Day that Fes would pick on Emma. Day told Rhyans that on some unspecified date, Day was preparing to change Emma's diaper when Fes "jerked" Emma out of a swing and caused Emma to fall awkwardly on her legs.

Detective Michael Johnson testified that he arranged the taping of the parents' phone calls to Day and obtained two written statements from Day. Johnson also tape recorded an interview he had with Day, admitted and played for the jury, in which Day blamed Fes for Emma's injuries, contending Fes pushed Emma from a swing. She also blamed Big Nathan's fall for Nathan's injuries. Day also implied Mrs. Russell may have been responsible for Emma's injuries.

The prosecution presented the testimony of five doctors, each qualified as experts. Doctor Joel Leffler, a pediatric opthamologist, testified that he examined Emma on June 26, 1997 and found hemorrhages throughout both of her retinas and that her optic nerves were swollen due to cranial pressure. Leffler testified that retinal hemorrhaging was "quite common with shaken baby syndrome" and that Emma's hemorrhages were not very old. He also testified that retinal hemorrhaging in infants had several causes, but Emma did not display evidence of any cause other than shaken baby syndrome. Emma's hemorrhages did not clear up until November 1998.

Doctor David Klamer, a musculoskeletal radiologist who examined x-rays of Emma's legs and pelvis taken on June 23 and 24, 1997, testified that each of Emma's femurs had an acute spiral fracture. Klamer stated that a spiral fracture is caused by a twisting force, and would not be caused by a "direct fall." He described an acute fracture as a relatively recent fracture that does not show signs of healing. Klamer testified that multiple fractures of the type Emma suffered are considered indicative of child abuse.

Klamer also examined CAT scans of Emma's skull taken on June 25, 1997. Klamer testified that one scan showed a very large subdural hemorrhage that appeared to have been present several weeks to months before the scan was taken. According to Klamer, Emma's hemorrhage was indicative of "battered-child syndrome." Klamer also testified another scan taken on the 25th showed Emma had a fracture on the left side of her skull. Klamer stated that "a considerable amount of force" was required to cause the kind of skull fracture Emma suffered. Klamer said subsequent CAT scans showed Emma's subdural hemorrhage slowly getting smaller.

Dr. Christine Quatro, a pediatric orthopedic surgeon, testified that she took x-rays of Nathan's leg on May 23, 1997 and discovered a "short spiral fracture" in Nathan's right femur. Quatro testified that the break appeared to be healing, which indicated to Quatro that the fracture occurred seven to ten days before the x-ray was taken. Quatro opined that Nathan's fracture was caused by someone turning Nathan's right foot or ankle towards his left foot while holding his body still. She testified that a four-month-old baby, the age Nathan was at the time of his injury, would not be able to cause a femoral spiral fracture on his own, nor could the fracture be caused by "bouncing" in a walker.

Quatro testified that a four-month-old child has bones that are "very plastic," meaning they have some "give" and, as a result, require considerable force to actually break. She testified that spiral fractures of the femur are rare for children less than a year old because they are not yet walking on their own and do not have sufficient body weight to generate the force needed to cause a spiral fracture. When a child's femur breaks, the child will "immediately scream and cry," and there may be a snapping or a popping noise.

Quatro conceded that a thirty-five-pound child³ falling onto a four-month-old child could cause a spiral fracture of the femur, but thought that such an occurrence was unlikely. Quatro believed that such an...