Fisher v. Iowa
| Decision Date | 18 June 2008 |
| Docket Number | No. 4:07-cv-0212-JAJ.,4:07-cv-0212-JAJ. |
| Citation | 560 F.Supp.2d 725 |
| Parties | Teddie Lee FISHER, Petitioner, v. State of IOWA, Respondent. |
| Court | U.S. District Court — Southern District of Iowa |
Teddie Lee Fisher, Newton, IA, pro se.
Thomas William Andrews, William A. Hill, Iowa Department of Justice, Robert P. Ewald, Iowa Attorney General, Des Moines, IA, for Respondent.
This matter comes before the Court based on Teddie Fisher's ("Fisher") May 15, 2007, Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Dkt. No. 1) and his January 28, 2008, Motion to Appoint Counsel (Dkt. No. 15). Fisher challenges a conviction in state court for second-degree sexual abuse. In his petition, Fisher claims that trial counsel was ineffective because he failed to investigate and present reports of the victim's prior claims of sexual abuse; failed to investigate and present testimony from the victim's step-father; and failed to object to the prosecutor's allegedly improper comments during closing arguments. Fisher also claims that appellate counsel was ineffective by filing an inadequate, Anders brief. Last, Fisher argues that the prosecution withheld exculpatory evidence of the victim's prior allegations of sexual abuse. Fisher argues that this deprived him of his due process rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). For the following reasons, this Court denies Fisher's application as well as his Motion to Appoint Counsel.
Fisher was charged in a one-count information with second-degree sexual abuse in violation Iowa Code Section 709.3. A jury convicted Fisher on January 20, 2000 of second-degree sexual abuse in Washington County district court. State v. Fisher, No. 00-231, FECR 005132. The Iowa District Court in and for Washington County sentenced Fisher to a term of twenty-five years on February 21, 2000.
Fisher filed a notice of appeal on February 24, 2000. The State Appellate Defender's Office was appointed to represent Fisher. Fisher's attorney filed a motion to withdraw as counsel on September 22, 2000 and the Supreme Court of Iowa granted the motion on December 21, 2000. On the same date, the Supreme Court dismissed the appeal as frivolous. The Court issued procedendo on December 26, 2000.
Fisher filed an application for post-conviction relief on January 18, 2002. Fisher amended his application on February 24, 2004. An evidentiary hearing was held before Judge Dan F. Morrison on September 20, 2004. Judge Morrison then recused himself and a second hearing was held before Judge Michael Mullins on May 4, 2005. Fisher argued that his counsel was ineffective because he failed to investigate the victim's previous allegations of sexual abuse, and to investigate and present testimony from the victim's stepfather. He also alleged ineffectiveness of appellate counsel. Fisher claimed Brady violations, alleging that the prosecutor failure to disclose exculpatory information.
The Iowa district court in and for Washington County denied and dismissed the claims on July 28, 2005. Fisher filed a notice of appeal with the Iowa Court of Appeals on August 19, 2005. Fisher presented the same arguments before the Court of Appeals — (1) ineffective assistance of trial counsel and (2) Brady violations. In addition, Fisher asserted a due process claim, alleging prosecutorial misconduct based on statements the prosecutor made during closing argument.
The Court of Appeals affirmed the district court on January 31, 2007. Fisher v. State, No. 05-1408, 2007 WL 254905 (Iowa App. Jan. 31, 2007). The Court of Appeals found that Fisher did not preserve his claim regarding the prosecutor's allegedly improper statements during closing arguments because he did not show sufficient reason as to why they were not raised on direct appeal. Id. at *3. The court reached the merits of his ineffective assistance of counsel claims because they need not be raised on direct appeal. Id. The court also reached the merits of his Brady claim, finding that Fisher was arguably unaware of the alleged violation at the time of the direct appeal. Id. at *4.
The court found no Brady violation, stating that "trial counsel was or should have been aware of at least one of the prior allegations of sexual abuse." Id. The court also found that Fisher had not shown that prosecutors suppressed evidence, or that evidence was material to the issue of guilt. Id. The court also concluded that Fisher's ineffective assistance of counsel claims failed because he could not show that the alleged ineffectiveness was prejudicial. Id. at *5-6.
On May 15, 2007, Fisher filed a pro se application for a writ of habeas corpus. In his application, Fisher asserted five grounds for relief: (1) ineffective assistance of trial counsel for failure to investigate prior allegations of sexual abuse; (2) Brady violations by failing to turn over reports of prior allegations of sexual abuse; (3) ineffective assistance of trial counsel for failure to present specific witnesses; (4) ineffective assistance of trial counsel for failure to object to the prosecutor's remarks during closing argument; and (5) ineffective assistance of appellate counsel for not preserving an issue on direct appeal and filing a brief that violates Anders v. California. On July 11, 2007, the respondent filed an answer to Fisher's application for writ of habeas corpus. (Dkt. No. 6). On September 12, 2007, Fisher filed a brief on the merits. (Dkt. No. 9). On October 3, 2007, the State of Iowa filed a responsive brief. (Dkt. No. 10). On January 28, 2008, Fisher filed a motion to appoint counsel. (Dkt. No. 15).
The victim, A.E., testified that on April 9, 1999, she spent the night at her friend M.F.'s home. M.F.'s parents are Teddie and Brandy Fisher. The Fisher's run a day-care business and A.E. was one of the children in their charge. While the two girls were sleeping, A.E. awoke to find Teddie Fisher in bed with the two of them. She testified that her shirt was raised and her panties were around her ankles. A.E. said that when she went to bed, she was lying in the middle of the bed but woke up at the edge of the bed with her legs hanging off of it and Fisher kneeling beside the bed. A.E. then testified that he was "licking [her] crotch area." (Tr. 8; Appx. 25). He also licked her "bra area." (Tr. 8; Appx. 25). She told him to stop. Fisher then asked her if he was hurting her and began apologizing. He told A.E. "he was just looking for blankets to make sure [they] were warm." (Tr. at 8; Appx. 25). At the time of the incident, Fisher was wearing jeans and no shirt. A.E. testified that when he stood up, he zipped up his jeans. Fisher testified that he was in the room for a total of five minutes. (Tr. 41; Appx. 58).
After the incident, A.E. went back to sleep. In the morning, she told M.F. about what happened, but asked her not to tell her mother, Brandy Fisher. A.E.'s step-father picked her up from the Fisher's home that morning and A.E. did not mention the incident to him. When she returned home, she told her mother what happened. After her parents argued about who was going to call the police, her father called the police.
On April 19, 1999, A.E. was interviewed at the St. Luke's Child Protection Center by advocates trained to interview younger children. The interview was videotaped. Washington County Sergeant Lyle Hansen, the officer assigned to the case, later reviewed the videotape. After viewing it, Hansen went to Fisher's home and asked him to come to the sheriffs station. He originally told Fisher that he wanted to interview him in connection with a burglary. Hansen interviewed Fisher at the Washington Public Safety Center, in the basement of the Law Center.
Hansen did not tape record the interview because, according to him, it makes suspects nervous and unwilling to talk. (Tr. at 37; Appx. 54). Hansen Mirandized Fisher and discussed his rights with him. He then shut the door and began questioning Fisher about the alleged sexual abuse. Hansen testified that Fisher said the following:
He stated that it did occur on Friday the 9th of April, 1999. [A.E.] apparently came over to the house to spend the night with his stepdaughter, and they were up in his stepdaughter's bedroom. And he decided to go up there to make sure that there was plenty of heat getting into the room due to the fact he stated that there was no register vent in the bedroom.
He said once he entered the inside the bedroom, he noticed the two girls. Took [A.E.] down to the edge of the bed so her legs would be hanging over it and then pulled her panties or pants either to the side or down. He couldn't remember exactly how. And then he stated he started to lick her and then work his way down her vaginal area.
...
He stated that next she woke up and made the statement for him to stop or to stop doing that. He stated at that point he did immediately stop and stated that he was sorry.
(Tr. 40-41; Appx. 57-58). Fisher also told Hansen that he knew he had a problem and "thought the problem was taken care of and it wouldn't happen anymore." (Tr. 41; Appx. 58). Hansen then asked Fisher to draw a diagram of the room, which he did. (Ex. 2). The diagram showed where A.E. and M.F. were at the time he walked into the room and where A.E. was at the time of the sex act. (Tr. 45; Appx. 62). Fisher also indicated where he was in relation to the girls.
At the end of the interview, Fisher was arrested. Fisher was later charged with second-degree sexual abuse in violation Iowa Code Section 709.3.
In his application for a writ of habeas corpus, Fisher claims that his Sixth Amendment rights were violated because trial and appellate counsel were ineffective. Fisher also claims...
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