Dolinger v. Hall

• Decision Date: 04 September 2002
• Docket Number: No. 01-2515.,01-2515.
• Citation: 302 F.3d 5
• Parties: Donald DOLINGER, Petitioner, Appellant, v. Timothy HALL, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

302 F.3d 5

Donald DOLINGER, Petitioner, Appellant, v. Timothy HALL, Respondent, Appellee.

No. 01-2515.

United States Court of Appeals, First Circuit.

Heard May 8, 2002.

Decided September 4, 2002.

Nona E. Walker, with whom Committee for Public Counsel Services, Public Defender Division, was on brief for petitioner.

William J. Meade, Assistant Attorney General, with whom Thomas F. Reilly, Attorney General, was on brief for respondent.

Before TORRUELLA, Circuit Judge, CAMPBELL and CYR, Senior Circuit Judges.

CYR, Senior Circuit Judge.

Appellant Donald Dolinger seeks to set aside a district court judgment which dismissed the habeas corpus petition in which he claimed that his criminal convictions for child rape under Massachusetts law were obtained in violation of the Confrontation Clause. See U.S. Const. amends. VI, XIV. We affirm the district court judgment.

I BACKGROUND

The record on appeal reflects that in early 1993 Dolinger's putative fourteen-year-old victim ("Jonathan Doe")¹ allegedly had begun having oral and anal intercourse three to four times a week with an even younger boy. During the summer of 1993, Dolinger's wife, Robin, complained to Jonathan Doe's mother that Jonathan had kissed the Dolinger's minor daughter, yet there is no evidence that Dolinger himself ever learned of the alleged "kissing incident."

Dolinger and Jonathan Doe met for the first time in the fall of 1993, when Dolinger hired Doe to assist him with various maintenance and renovation jobs. Shortly thereafter, as a "Christmas gift," Dolinger hired a female prostitute to perform fellatio on Jonathan, who subsequently told Dolinger that he had not enjoyed the experience because he was "bisexual." During the ensuing months, Dolinger and Doe mutually engaged in acts of fellatio. On one such occasion, Dolinger inquired whether Doe would allow Dolinger to "poke" him. Upon being asked by Doe what "poke" meant, Dolinger explained: "That's where I put my penis in your bum." Although Doe verbally agreed, he soon began to cry, telling Dolinger to stop because it hurt. Dolinger initially refused, then relented.

Early in 1994, Dolinger made a remark which caused Jonathan to cry, though by the time of the March 1996 trial Jonathan could not recall what Dolinger had said which upset him. At about the same time, Jonathan's mother reported to her therapist that Jonathan's behavior had become belligerent and erratic.

Following the ensuing police investigation, eleven counts of child rape were lodged against Dolinger. See Mass. Gen. Laws Ann. ch. 265, § 23.² At trial, the defense contended that Dolinger had never engaged in any sexual relations with Jonathan.³ Additionally, in an effort to impeach the trial testimony of the then seventeen-year-old Jonathan — to the effect that he was sexually naive at the time of the rapes, viz., unfamiliar with such concepts as "bisexuality," "oral sex," and "anal sex" — Dolinger unsuccessfully sought to adduce evidence regarding Jonathan's earlier homosexual relationship with the younger boy. Citing the Massachusetts rape-shield statute, Mass. Gen. Laws Ann. ch. 233, § 21B,⁴ the trial court ruled that, whatever its relevance, the proffered evidence was "well overshadowed ... [by its] prejudicial effect." Ultimately, the jury convicted Dolinger on eight of the eleven child-rape charges.

On direct appeal, Dolinger contended that the trial court's evidentiary ruling infringed his Sixth Amendment right to cross-examine Doe in order to test the credibility of Doe's testimony to the effect that he had been sexually naive in 1993-94 when the alleged rapes occurred. Dolinger reasons that had the jury determined that Doe lied regarding his naiveté, it may also have found that Doe was fabricating the central trial testimony that he had been raped by Dolinger.

In due course, the Massachusetts Appeals Court affirmed the Dolinger convictions. See Commonwealth v. Dolinger, No. 97-P-558 (Mass.App.Ct. March 6, 1998) (unpublished opinion). First, it rejected Dolinger's contention that the excluded evidence would have explained how Doe had acquired his sexual knowledge, thereby affirming the trial court observations that (i) "it strain[ed] credulity that a fifteen-year old wouldn't know about anal and oral sex," and (ii) Doe's "consensual" homosexual relationship with the younger boy bore little similarity to Doe's relationship with Dolinger. Id. at 2 (citing Commonwealth v. Ruffen, 399 Mass. 811, 507 N.E.2d 684, 687-88 (Mass.1987) ("If the [ten-year-old] victim had been sexually abused in the past in a manner similar to the abuse in the instant case, such evidence would be admissible at trial because it is relevant on the issue of the victim's knowledge about sexual matters.") (emphasis added)).

Second, the Appeals Court rejected Dolinger's contention that, even assuming fifteen-year-olds normally would be knowledgeable regarding the sexual matters at issue, the prosecution had gone out of its way to portray Doe as a sexual neophyte before the jury. In addition, the Appeals Court noted that the jury had not been invited to infer that Doe either possessed "unusual knowledge or [an] unusual lack of knowledge about sex." Id. at 3.

Moreover, the Appeals Court rejected Dolinger's claim that the trial court abused its discretion in ruling that the relevance of the excluded evidence was not outweighed by its potential prejudice to Doe, particularly since the evidence of Doe's prior homosexual relationship with the younger boy tended directly to undermine Doe's overall credibility regarding his sexual naiveté (e.g., Doe's testimony that he did not understand what Dolinger had meant by the word "poke"), thereby inviting the jury to infer that Doe may have fabricated the rape charges against Dolinger as well. Finally, the Appeals Court ruled that the prosecution had not attempted to establish that Doe was sexually naive, but merely that he was "an emotionally and financially needy child," and, in addition, that Dolinger had been able to present other impeachment evidence to the jury, viz., Doe's prior inconsistent statements that (i) Dolinger had raped him every day, and (ii) Dolinger had raped him only on the eleven occasions alleged in the indictment. Id. at 4 & n. 3.

After the Massachusetts Supreme Judicial Court summarily rejected the Dolinger application for further appellate review, see Commonwealth v. Dolinger, 427 Mass. 1104, 695 N.E.2d 667 (1998), the United States District Court for the District of Massachusetts denied the ensuing petition for habeas corpus relief, see 28 U.S.C. § 2254, then issued its certificate of appealability.

II DISCUSSION

The district court order denying the petition for habeas corpus is subject to de novo review. See Almanzar v. Maloney, 281 F.3d 300, 303 (1st Cir.2002). Additionally, Dolinger is entitled to relief only if we determine that the adverse decisions reached by the Commonwealth courts were "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).⁵

"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts. Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

The parties are in agreement that Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988), provides the controlling Supreme Court confrontation-clause precedent. Olden, an African-American male, was charged with sodomizing a white female. During trial, the court rejected an evidentiary proffer by the defense — viz., that the alleged victim was living with another African-American male at the time of trial — notwithstanding the victim's inconsistent trial testimony that she had been living with her mother. Id. at 229-30, 109 S.Ct. 480. Despite the impeachment value inherent in the defense proffer, the trial court reasoned that the jury might harbor a racial bias which could prompt it unfairly to hold the victim's current interracial relationship against her. Id. at 232, 109 S.Ct. 480.

The Supreme Court reversed the Olden conviction, id. at 233, 109 S.Ct. 480, explaining that "[w]hile a trial court may, of course, impose reasonable limits on defense counsel's inquiry into the potential bias of a prosecution witness, to take account of such factors as `harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that [would be] repetitive or only marginally relevant,' the limitation here was beyond reason, [and amounted to] [s]peculation as to the effect of jurors' racial biases." Id. at 232, 109 S.Ct. 480; see also Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) ("`[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.'") (citation omitted). Further, the Supreme Court concluded that the erroneous evidentiary ruling was not harmless. Olden, 488 U.S. at 233, 109 S.Ct. 480.

Turning now to the "contrary to" clause in 28 U.S.C. § 2254(d)(1), we cannot conclude that the Appeals Court came to "a conclusion opposite to that reached by [the United States Supreme] Court on a question of law or ... decide[d][the] case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13, 120 S.Ct. 1495. For one thing,...