Ramirez v. Tegels

• Decision Date: 23 June 2020
• Docket Number: No. 19-3120,19-3120
• Citation: 963 F.3d 604
• Parties: Antonio G. RAMIREZ, Jr., Petitioner-Appellee, v. Lizzie TEGELS, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

963 F.3d 604

Antonio G. RAMIREZ, Jr., Petitioner-Appellee,

v.Lizzie TEGELS, Warden, Respondent-Appellant.

No. 19-3120

United States Court of Appeals, Seventh Circuit.

Argued June 10, 2020

Decided June 23, 2020

Shelley M. Fite, Attorney, Federal Defender Services of Wisconsin, Inc., Madison, WI, for Petitioner-Appellee

Jacob J. Wittwer, Attorney, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Respondent-Appellant

Before Flaum, Barrett, and St. Eve, Circuit Judges.

Flaum, Circuit Judge.

During Antonio Ramirez's 2001 criminal trial in Wisconsin state court, the prevailing interpretation of the Sixth Amendment's Confrontation Clause was set forth in Ohio v. Roberts , 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Under Roberts , a defendant had no confrontation right to cross-examine an unavailable declarant if the declarant's statements were adequately reliable, which could be established where the statements fell within a firmly rooted hearsay exception. Id. at 66, 100 S.Ct. 2531. Applying hearsay exceptions, the trial court admitted several out-of-court statements accusing Mr. Ramirez of sexually assaulting his stepdaughter in November 1998 and September 1999. The jury convicted Mr. Ramirez of multiple counts relating to the sexual assaults.

In 2004, while Mr. Ramirez's conviction was pending on direct review, the Supreme Court decided Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which overruled Roberts by holding that a defendant is entitled to cross-examine a declarant if the declarant's statements were "testimonial"—e.g. , were statements that the declarant "would reasonably expect to be used prosecutorially." Id. at 51, 124 S.Ct. 1354. During direct review of his conviction, Mr. Ramirez urged his lawyer, Attorney Lynn Hackbarth, to raise a confrontation claim under Crawford . Attorney Hackbarth chose instead to raise a litany of other claims, each of which Wisconsin state courts rejected.

After Mr. Ramirez exhausted his state court remedies, he filed a petition for a writ of habeas corpus in federal district court, arguing that Attorney Hackbarth's representation was ineffective based on her omission of the confrontation claim. The district court agreed and granted Mr. Ramirez's petition, ordering the State of Wisconsin¹ to provide Mr. Ramirez with a new appeal or release him within ninety days. The State now appeals, contending that the confrontation claim was not clearly stronger than the claims Attorney Hackbarth raised.

We affirm. An attorney exercising reasonable professional judgment would have recognized that the confrontation claim was clearly stronger than the claims Attorney Hackbarth raised. Raising a confrontation claim while Mr. Ramirez's conviction was pending on direct review would have given Mr. Ramirez a reasonable chance of prevailing.

I. Background

A Wisconsin jury convicted Mr. Ramirez of multiple counts relating to the November 1998 and September 1999 sexual assaults of his stepdaughter ("M.G."), who was seven and eight years old at the times of the respective assaults. M.G. did not testify at Mr. Ramirez's trial despite a subpoena served on her mother, Cynthia Ramirez ("Mrs. Ramirez"), requesting M.G.’s testimony. M.G.’s brother ("A.R."), who was five years old in September 1999, also did not testify. Notwithstanding their absence, the trial court admitted M.G.’s and A.R.’s out-of-court statements through law enforcement officers and medical professionals. After Mr. Ramirez's 2001 trial, he lodged direct and collateral attacks against his convictions.

A. Pretrial and Trial Proceedings

Before trial, M.G. and Mrs. Ramirez sent letters to the court recanting their previous statements accusing Mr. Ramirez of the assaults. The jury apparently never heard evidence regarding M.G.’s recantation. Before jury selection on the first day of trial, Mr. Ramirez's trial counsel explained to the court that Mrs. Ramirez had written in her letters that she had "instructed [M.G.] what to say because of rage at her husband," Mr. Ramirez. Counsel argued that this presented "an issue on confrontation and the issue of residual hearsay exemptions and indicia of trustworthiness in reference to" M.G.’s out-of-court statements. Mr. Ramirez's trial counsel also explained that she had not filed a motion in limine to exclude out-of-court statements because she did not know who was going to testify. She nevertheless objected to the admission of those statements as hearsay, citing, among other cases, State v. Petrovic , 224 Wis.2d 477, 592 N.W.2d 238 (Ct. App. 1999), which addressed a hearsay claim in part as a Confrontation Clause claim.

Before and during trial, Mr. Ramirez's trial counsel further objected to the admission of out-of-court statements on the grounds that those statements were hearsay and did not have adequate "indicia of reliability" or "guarantees of trustworthiness." On one occasion, Mr. Ramirez's trial counsel objected to the admission of M.G.’s out-of-court statements, arguing that "[t]he issue of course is confrontation as to the hearsay." The district court generally overruled the objections, admitting the statements under hearsay exceptions.

Police officer George Larson testified at trial that he responded to a call from Mrs. Ramirez on September 5, 1999. Mrs. Ramirez told Officer Larson that when she returned to her apartment after an errand, she initially could not enter the apartment because the interior chain lock was latched, which she described as "not normal." Mrs. Ramirez forced the door open, and then she saw Mr. Ramirez coming out of M.G.’s bedroom while pulling up his shorts. Mrs. Ramirez also saw M.G. sitting on the toilet with "a look on her face." A.R., who was present at the apartment, told Mrs. Ramirez "[t]hat daddy had [M.G] on the bed face down, and there were boogers on the bed." Mrs. Ramirez also told Officer Larson that she had argued with Mr. Ramirez, and that Mr. Ramirez had bitten her shoulder and tried to prevent her from leaving the apartment. Mrs. Ramirez ultimately escaped and took M.G. and A.R. to her mother's house.

After hearing these allegations, Officer Larson told Mrs. Ramirez that she and M.G. "had to go to the hospital" where M.G. "would be examined because [Mrs. Ramirez] was accusing [Mr. Ramirez] of a serious crime." Officer Larson then drove Mrs. Ramirez and M.G. in his squad car to the emergency room, where M.G. was evaluated for sexual assault. Officer Larson also arranged Mr. Ramirez's arrest.

Nurse Donna Karpowicz-Halpin testified that after spending about thirty to forty-five minutes building a rapport with M.G. in the hospital examination room, she began to ask M.G. about the assault. M.G. said that "her dad had taken off her pants and [then] he took off his pants, and she was laying on her belly on the bed."² M.G. then said that Mr. Ramirez "put his pee-pee by her butt ... like on top of her." Afterward, M.G. "felt something by her butt, so she went into the bathroom and ... wiped herself with some tissue and threw it in the wastepaper basket."

Officer Larson remained in the examination room and participated in the questioning of M.G., including by asking M.G. to point to the parts of a teddy bear where Mr. Ramirez had touched her. When M.G. said she had wiped herself off and threw the tissue in the bathroom wastebasket, Officer Larson stepped out to let an evidence technician know about the potential evidence in the wastebasket.

Nurse Karpowicz-Halpin asked M.G. if this was the first time something like this had happened. M.G. said that it was not. Mrs. Ramirez then asked M.G. if "when she went to [the hospital] for her vaginal bleeding [in November 1998,] did she really hurt herself on the bathtub." According to Nurse Karpowicz-Halpin, M.G. said, "No, she hadn't." M.G. said "that dad had—was trying to put his pee-pee inside of her and that's how she got cut. That it wasn't the bathtub." M.G. also said that Mr. Ramirez threatened to hurt her little brother, mom, or grandma if she told anyone about what he had done.

Officer Larson returned to the examination room at some point during the examination. Although it is unclear from the record when exactly Officer Larson returned, he was likely absent when M.G. explained that Mr. Ramirez had caused her November 1998 injuries, because Officer Larson learned from Mrs. Ramirez (not from M.G.) that M.G. accused Mr. Ramirez of that assault.

Emergency physician Suzanne Siegel also spoke with M.G. and Mrs. Ramirez in the examination room. Dr. Siegel testified that when she asked M.G. what had happened, M.G. responded that her father "had put his pee-pee by her. And she pointed to her buttock area." Upon conducting a physical exam, Dr. Siegel testified that she observed "a milky discharge coming from [M.G.’s] vaginal area" not normally seen in a small child, and that M.G.’s vaginal area was red and irritated. Dr. Siegel then put M.G. under a "Woods lamp" that indicated the potential presence of semen on parts of her legs. Dr. Siegel opined that her observations were consistent with sexual misuse and that the redness could have resulted from the rubbing of that area. Swabs from around M.G.’s outer vaginal area, M.G.’s underwear, and tissues recovered from the bathroom wastebasket tested positive for the presence of semen, sperm cells, or both. The semen and sperm cell DNA matched Mr. Ramirez's.³

Obstetrician and gynecologist Michael Schellpfeffer treated M.G. on November 8, 1998. Dr. Schellpfeffer testified that he had received a report that M.G.’s injury was a "straddle injury on a bathtub," but that M.G. had lacerations to her perineum

and the lower portion of her vagina that were "not at all typical of ... straddle injuries that [he] had ... taken care of," which usually involved external bruising. Dr. Schellpfeffer testified that he surgically repaired the injuries, which were "very much like an episiotomy" and "certainly consistent possibly with a...