Dorsey v. Chapman, No. 99-14790
| Citation | 262 F.3d 1181 |
| Decision Date | 20 August 2001 |
| Docket Number | No. 99-14790 |
| Parties | (11th Cir. 2001) JAMES E. DORSEY, Plaintiff-Appellant, v. JOHN CHAPMAN, Warden, THURBERT E. BAKER, Attorney General of the State of Georgia, Defendants-Appellees |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
Appeal from the United States District Court for the Northern District of Georgia.
James E. Dorsey, a Georgia prisoner, appeals the district court's denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After review and oral argument, we affirm the denial of Dorsey's § 2254 petition.
James Dorsey was convicted for the rape, aggravated sodomy, and sexual battery of Wendy Hardee. At Dorsey's trial, Dr. John Connell and Dr. Amelia Alderman testified for the State; their testimony included the following. Wendy Hardee suffers from multiple personality disorder.1 Wendy Hardee developed her disorder as a result of childhood sexual abuse by her grandfather. When confronted by upsetting situations or memories, her disorder causes her primary or host personality to retreat, allowing one of her several alternate personalities to emerge. One of the alternate personalities, "Little Wendy," has the voice and personality of a five-to-nine-year-old child. Others range in age and temperament, and provide "Big Wendy," the host personality, with a buffer against emotionally disturbing situations: when Hardee dissociates into an alternate personality, Big Wendy loses consciousness. Hardee, in her normal state as Big Wendy, cannot recall events that transpire during these episodes.
The State's evidence also showed the following. In Hardee's junior year of high school she began seeing her high school counselors about the emotional problems she had been experiencing. Although at first her sessions involved several counselors, she soon began to meet with one of them alone. This counselor was Marilyn Dorsey, James Dorsey's wife. Soon she was babysitting the Dorsey children, often spending the night at the Dorsey home after James and Marilyn returned home from an evening out. Following her graduation from high school, Hardee moved in with the Dorseys, and when they relocated to a new town, she moved with them. Hardee remained with the Dorseys for approximately five years.
Eventually Hardee began seeing psychiatrists about what she felt was a worsening condition, and her therapeutic meetings brought revelations concerning the sexual nature of her relationship with the Dorseys. As the Georgia Court of Appeals noted,
[i]n her sessions with psychologists and psychiatrists, [Hardee] as Little Wendy described how Mrs. Dorsey (whom Little Wendy called "Mommy") would talk about [Hardee's sexually abusive grandfather, "Pawpaw"] and tell her that Pawpaw was coming to get her but that he would stay away as long as she was engaging in various forms of sexual activity with Mrs. Dorsey. . . . At some point [James] Dorsey ("Papa" to Little Wendy) joined the activities occurring at home, engaging in oral, vaginal and anal sex with the victim.
Dorsey v. State, 426 S.E.2d 224, 226 (Ga. App. 1992).
Marilyn and James Dorsey were indicted and tried separately. Prior to his trial, James Dorsey (hereinafter "Dorsey") moved to exclude testimony from Wendy Hardee given while in a dissociative state as a violation of his "rights to a fair trial, to equal protection of laws and due process of law."2 (R.8-19 Resp. Ex. 21 at 2218). The motion was denied. Dorsey testified at his own trial and admitted to having sexual relations with Hardee, but claimed the relations were consensual. The prosecution argued that Hardee's dissociative disorder rendered her incapable of intelligently consenting to the sexual activity. At trial the State elicited testimony describing the sexual activity from two of the victim's several alternate personalities, "Little Wendy" and "Trouble." In order to bring out the alternate personalities, the prosecution asked Hardee, testifying in her normal state as the host personality "Big Wendy," to recount upsetting episodes from her youth; these recollections caused Hardee to dissociate. Dorsey's counsel objected to the testimony of the alternate personalities, and chose not to cross-examine Hardee in her dissociative state. Dorsey was found guilty of all counts and was sentenced to twenty years imprisonment.
The Georgia Court of Appeals affirmed Dorsey's conviction, Dorsey, 426 S.E.2d at 230, and the Georgia Supreme Court denied his petition for a writ of certiorari. Id. at 224. Dorsey filed a petition for a writ of habeas corpus in the Superior Court of Dodge County, Georgia. Following an evidentiary hearing, the state habeas court denied Dorsey's petition, and the Georgia Supreme Court denied his subsequent application for a certificate of probable cause to appeal the denial of his petition.
Dorsey next sought post-conviction relief in federal court, filing a pro se petition for habeas relief pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of Georgia. A magistrate judge recommended that the petition be denied, and the district court adopting the magistrate judge's report and recommendation, denied the petition. Dorsey filed a motion to proceed in forma pauperis on appeal and for a certificate of appealability, raising all of the issues he had raised in the district court. The district court granted a certificate of appealability on the following issues: (1) whether Dorsey received ineffective assistance of counsel in violation of the Sixth Amendment due to his trial counsel's failure to impeach Hardee with prior inconsistent statements, failure to cross-examine Hardee while in a dissociative state, failure to object to various statements by the prosecution's experts relating to Hardee's and her alter personalities' credibility, and failure to call an expert witness for the defense; (2) whether admission of the victim's testimony while in a dissociative state violated the Confrontation Clause and rendered the trial fundamentally unfair in violation of the Due Process Clause; and (3) whether Dorsey was entitled to supplement the state habeas record.3 Dorsey was appointed counsel for purposes of this appeal.
We review de novo a district court's denial of habeas corpus relief. Byrd v. Hasty, 142 F.3d 1395, 1396 (11th Cir. 1998). A district court's factual findings in a habeas corpus proceeding are reviewed for clear error. Id.
Dorsey raises three related ineffective-assistance-of-counsel claims. As noted above, Dorsey argues that he received ineffective assistance of trial counsel due to counsel's failure to impeach Hardee with prior inconsistent statements, failure to cross-examine Hardee while in a dissociative state, and failure to object to various statements made by the prosecution's experts relating to the victim's and her alternate personalities' credibility. Dorsey also argues that his counsel's failure to call an expert witness, a Dr. Kuglar, constituted ineffective assistance of counsel.
To prevail on an ineffective-assistance-of-counsel claim, Dorsey must show that his counsel rendered deficient performance and that he was prejudiced such that there is a reasonable probability that but for his counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Dorsey's first two claims of ineffective assistance of counsel concern his counsel's treatment of Hardee while in a dissociative state. Dorsey argues that three prior inconsistent statements should have been introduced to impeach the testimony of the alternate personalities; however, as the district court noted, two of these statements were in fact used in the impeachment of the host personality. Furthermore, as a part of his decision to not cross-examine Hardee while she was in a dissociative state, Dorsey's trial counsel's decision to not impeach the alternate personalities with prior statements was based on a strategic refusal to participate in the trial court's decision to allow the dissociative testimony. This trial tactic4 was intended to impress upon the jury the untrustworthiness of the dissociative testimony while preserving Dorsey's objection to the testimony of the alternate personalities for purposes of direct appeal.5 We agree with the district court that, given the unusual nature of the case, counsel's decision to challenge the credibility of the alternate personalities' testimony by objecting to the validity of the proceeding and refusing to cross-examine was not patently unreasonable. See Kelly v. United States, 820 F.2d 1173, 1176 (11th Cir. 1987). Thus, the state court's determination that these decisions did not result in Dorsey receiving ineffective assistance of counsel was neither contrary to, nor an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d)(1), (2).
Dorsey also contends that his trial counsel was ineffective for failing to object to various statements made by the State's expert witnesses which he claims improperly bolstered Hardee's credibility. We agree with the district court that two of these statements do not rise to the level of bolstering Hardee's credibility.6 The third statement by the prosecution's expert was elicited by Dorsey's counsel on cross-examination, and was a negative response to a question asking whether one of Hardee's alternate personalities could tell a lie. While expert testimony bolstering the credibility of a witness is improper, see Snowden v. Singletary, 135 F.3d 732, 737 (11th Cir. 1998), Dorsey has failed to show a reasonable probability exists that but for his trial counsel's error, the result of the proceeding would have been different. Defense counsel's...
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