Adams v. Bertrand

• Decision Date: 30 June 2006
• Docket Number: No. 05-1573.,05-1573.
• Citation: 453 F.3d 428
• Parties: Jarrett M. ADAMS, Petitioner-Appellant, v. Daniel BERTRAND, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 428

453 F.3d 428

Jarrett M. ADAMS, Petitioner-Appellant, v. Daniel BERTRAND, Respondent-Appellee.

No. 05-1573.

United States Court of Appeals, Seventh Circuit.

Argued February 21, 2006.

Decided June 30, 2006.

Rehearing Denied July 25, 2006.

COPYRIGHT MATERIAL OMITTED

Keith A. Findley (argued), Madison, WI, for Petitioner-Appellant.

Peggy A. Lautenschlager, Katherine L. Tripp (argued), Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee.

Before MANION, WOOD, and EVANS, Circuit Judges.

MANION, Circuit Judge.

A Wisconsin jury convicted Jarrett Adams, along with Dimitri Henley, of five counts of second-degree sexual assault, and Adams was sentenced to twenty-eight years in prison. Adams appealed his conviction to the Wisconsin Court of Appeals and the Wisconsin Supreme Court, neither of which granted him relief. Having exhausted his state court remedies, Adams filed a petition for a writ of habeas corpus in the Eastern District of Wisconsin, challenging both the sufficiency of the evidence and the effectiveness of his trial counsel. The district court denied his petition. We reverse the district court's decision based on the constitutional deficiencies of his trial counsel.

I.

In September 1998, Jarrett Adams, Dimitri Henley, and Rovaughn Hill, three men from Chicago, were selling cologne at the University of Wisconsin at Whitewater shortly before fall semester classes were to begin.¹ On the evening of September 5, the men were playing video games in the dorm room of Shawn Demain, a freshman whom they had met during their sales rounds. Meanwhile, S.E.S.², a female freshman who resided in the same dorm as Demain, and S.E.S.'s roommate, Heidi Sheets, were attending a party a few blocks away. While at the party, S.E.S. had approximately three or four beers. Upon returning to the dorm later that evening, the women went to Demain's dorm room, where they first met the three men from Chicago.

At trial,³ Sheets and S.E.S. offered different stories of what happened next. Sheets claimed that both women invited the men up to their room, which was located three floors above Demain's. While the men and S.E.S. proceeded to the room, Sheets went down the hall for approximately twenty-five minutes to speak with another friend. According to S.E.S., however, neither she nor Sheets invited the three men to their room. Rather, she left Demain's room by herself and went to her room. When she opened the door to her room, the three men suddenly appeared at the door and barged in, telling S.E.S. to put on music so that they could dance. After selecting a compact disc, the men took turns dancing provocatively with S.E.S., groping her breasts and grabbing her crotch. She claimed she did not resist because she was scared. The situation deteriorated further. One of the men pulled S.E.S. onto Sheets's bed, and Adams, standing before her, pulled down his pants, leaving him with only his boxers on.

At this point, Sheets entered the room. Both Sheets and S.E.S. testified that Sheets became upset and stormed out of the room. S.E.S. followed Sheets out of the room, and none of the men restrained her from doing so. Sheets entered another room on the same floor, but refused to let S.E.S. inside. Through the closed door, S.E.S. asked Sheets whether she was mad at her and overheard Sheets calling her a slut. During her time in the hall, S.E.S. never indicated that anything was amiss or attempted to enter another room. After waiting a few minutes, S.E.S. left the door and decided to go downstairs instead of returning to her room. Upon reaching the staircase, however, she came across Hill waiting for her. He turned S.E.S. around, directing her back to her room where the other men were waiting.

Upon returning to her room, the men ordered her to sit on the floor, and S.E.S. complied, sitting on the floor with her legs crossed "Indian style." Shortly thereafter Adams told her to lie down, which S.E.S. did. Adams tried to remove her pants, while S.E.S. kept her knees close together in an attempt to stop him. Eventually, however, in the face of Adams's continued tugging, she relaxed her legs. He removed S.E.S.'s pants and underwear, and then proceeded to have sex with her. After Adams stopped, the other men took turns having sex with S.E.S. During this time, one of the men also rubbed his penis against her face, telling her to "suck this," as S.E.S. turned her face to avoid it.

The three men left, and S.E.S. called her boyfriend, Joshua Lodwick. Although S.E.S. did not want to go to the hospital or talk to the police, Lodwick and others convinced her to do both. Adams, Hill, and Henley were eventually charged with second-degree sexual assault. They were first tried together in 1999, but that trial resulted in a mistrial after the state attempted to amend its charges after the close of evidence. Subsequently, Adams and Henley were tried together. Later, Hill was tried separately.

At the second trial, both John Fiske, Adams's lawyer, and Steve Luchsinger, Henley's lawyer, cross-examined S.E.S. about earlier statements to her treating doctor and at the first trial, pointing out inconsistencies among various accounts she had given. Adams and Henley offered no defense witnesses, choosing instead to rely on their perception that the state failed to prove all the elements of second-degree sexual assault. The jury, however, found Adams and Henley guilty on all five counts. Hill, on the other hand, called defense witnesses at his subsequent trial, including Demain, who testified that he saw S.E.S. smoking cigarettes with the three men after the alleged assault occurred. This trial ended in a hung jury. While the state renewed its prosecution of Hill later, the court eventually dismissed the case against Hill because the state had failed to turn over certain police investigation notes to the defense.

On appeal, Adams mounted a challenge to the sufficiency of the evidence, as well as various decisions made by his trial counsel. The Wisconsin Court of Appeals affirmed the conviction, and the Wisconsin Supreme Court denied review. Adams then proceeded to the Eastern District of Wisconsin, where he filed a petition for a writ of habeas corpus, again challenging the sufficiency of the evidence and his attorney's performance. The district court denied the petition, finding the evidence sufficient to support Adams's convictions and that his attorney made reasonable strategic trial choices.

II.

Before this court, Adams again challenges the sufficiency of the evidence and his counsel's effectiveness. Adams first claims that the state failed to establish that his sexual contact with S.E.S. involved either the use or threat of force or lack of consent, each of which is a required element to prove second-degree sexual assault in Wisconsin. Adams also argues that his trial attorney was constitutionally ineffective based on several events at trial. Specifically, Adams challenges his counsel's failure to request a jury instruction for a lesser included offense, his decision not to vigorously cross-examine S.E.S., and his failure to properly investigate Demain.

On appeal from a denial of habeas corpus relief, we review issues of law de novo and issues of fact for clear error. See Perry v. McCaughtry, 308 F.3d 682, 688 (7th Cir.2002). To qualify for habeas relief, Adams must show that the state court proceedings adjudicating his claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). See also Van Patten v. Deppisch, 434 F.3d 1038, 1042 (7th Cir.2006); Bintz v. Bertrand, 403 F.3d 859, 865 (7th Cir.2005). A state court decision constitutes an unreasonable application of clearly established federal law if the state court correctly identifies the governing legal principle from Supreme Court jurisprudence but unreasonably applies that principle to the facts of the present case. See Dunlap v. Hepp, 436 F.3d 739, 741 (7th Cir.2006). We have previously explained that an unreasonable decision, in this context, is one "well outside the boundaries of permissible differences of opinion." McFowler v. Jaimet, 349 F.3d 436, 455 (7th Cir.2003).

A.

Adams first mounts challenges to the sufficiency of the evidence that established two of the elements of second-degree sexual assault. On direct appeal, the Wisconsin Court of Appeals reviewed Adams's sufficiency claims under the standard annunciated in State v. Poellinger, 153 Wis.2d 493, 451 N.W.2d 752, 755 (1990): "an appellate court may not reverse a conviction unless the evidence, viewed most favorably to the state and the conviction, is so insufficient in probative value and force that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt." Wisconsin effectively duplicates the Supreme Court standard for sufficiency challenges, see Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and Adams does not claim that the Wisconsin Court of Appeals applied the wrong standard.⁴ Rather Adams suggests that the Court of Appeals applied the proper standard unreasonably.

Wisconsin defines the crime of second-degree sexual assault as "sexual contact or sexual intercourse with another person without consent of that person by use or threat of force or violence." Wis. Stat. § 940.225(2)(a). Turning to Adams's initial challenge, he contends that the state failed to prove the "use or threat of force or violence" element. A Wisconsin court has previously explained:

The "use or threat of force or violence element of violence" element of second-degree sexual assault under Wis. Stat. § 940.225(2)(a) is satisfied if the use or threat of force or violence is directed to compelling the victim's submission. The element is satisfied whether the force is used or threatened as part of the...