Rodriguez v. Gossett

• Decision Date: 23 November 2016
• Docket Number: No. 13-1877,13-1877
• Citation: 842 F.3d 531
• Parties: Anthony Rodriguez, Petitioner–Appellant, v. Greg Gossett, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

842 F.3d 531

Anthony Rodriguez, Petitioner–Appellant,

v.Greg Gossett, Warden, Respondent–Appellee.

No. 13-1877

United States Court of Appeals, Seventh Circuit.

Argued February 9, 2015

Decided November 23, 2016

Barry Levenstam, Attorney, Jenner & Block LLP, Chicago, IL, for Petitioner–Appellant.

Eric M. Levin, Attorney, Office of the Attorney General, Criminal Appeals Division, Chicago, IL, for Respondent–Appellee.

Before Rovner and Sykes, Circuit Judges, and Wood, District Judge.^*

Wood, District Judge.

Anthony Rodriguez was convicted of two counts of predatory criminal sexual assault of a child following a jury trial in the State of Illinois in 1997.Rodriguez has petitioned for a writ of habeas corpus, contending that he was deprived of effective assistance of counsel under the standard set forth in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984), and now appeals the district court's denial of his petition.Because we conclude that the Illinois Appellate Court did not unreasonably apply the Strickland standard, we affirm the district court's denial of Rodriguez's habeas petition.

I.

In late 1997, following a jury trial in the Circuit Court of Randolph County, Illinois, Rodriguez was convicted of two counts of predatory criminal sexual assault of a child and sentenced to 60 years in prison.The charges stemmed from an allegation by K.O., an 11–year-old girl, that Rodriguez had sexually assaulted her on two occasions.At the time of the incidents, K.O. and her mother, D.O., lived with Rodriguez in a home in Chester, Illinois.

At the trial, K.O. testified that D.O. left her in Rodriguez's care from early on Friday, May 9, 1997 until Monday, May 12, 1997 while D.O. attended a wedding in Chicago.K.O. further testified that, on the evening of May 9, she went to sleep in D.O.'s bed.She later woke up to find that Rodriguez had gotten into bed with her.Rodriguez then anally penetrated K.O. with his penis.Afterwards, Rodriguez got out of bed and K.O. felt a liquid substance by her underwear.The next evening, May 10, K.O. slept in her own bed.According to K.O., Rodriguez once again got into bed with her, pulled down the bed covers and K.O.'s underwear, and anally penetrated her with his penis.As before, K.O. felt a liquid substance.When D.O. returned home on May 12, K.O. did not immediately tell her what had happened.Instead, K.O. waited about five days because Rodriguez "was always by [her]" and she never had a chance to be alone with D.O. K.O. testified that she was afraid of Rodriguez.Eventually, however, when K.O. was at the store where D.O. worked, K.O. told D.O. what had happened while D.O. was away.

D.O. also testified at trial.She testified that she left K.O. in Rodriguez's care early on the morning of Friday, May 9, and that she returned on Monday, May 12.On the night of May 11, while she was away, D.O. spoke to Rodriguez and asked him what he was doing.Rodriguez responded that he had been "up all night doing laundry."According to D.O., however, they had both done laundry before she left and they usually did laundry only once or twice per week.D.O. further testified that on May 20, 1997, K.O. told her what Rodriguez had done over the May 9 weekend.Like K.O., D.O. testified that K.O. had not had any opportunity to tell D.O. about the assaults before May 20 because Rodriguez "was always around."After K.O. told D.O. about the assaults on May 20, D.O. contacted the police and took K.O. to the hospital.She also testified that K.O. had attempted suicide in 1993 or 1994 because she was "broke apart" when D.O.'s fiancé was sent to prison.

The State also presented testimony from Jim Nesler, an investigator with the Illinois Department of Children and Family Services.Nesler testified that he interviewed K.O. on May 21, 1997 and that K.O. recounted to him the same two alleged incidents of abuse about which she testified at trial.Nesler further testified that he conducted an interview with Rodriguez on May 21, 1997, at which time Rodriguez acknowledged that he looked after K.O. during the weekend in question but denied that he had any inappropriate contact with her.

The State's final witness was Dr. Deanna St. Germain, a physician trained in the medical examination of children alleged to have been sexually abused.Dr. St. Germain examined K.O. on July 23, 1997.She observed several injuries to K.O.'s rectal area that, as she explained at trial, are not typically found on children who have not been abused.Based on the types of injuries she observed, Dr. St. Germain opined that K.O. "suffered some type of an abnormal penetrating injury to her anus."On cross-examination, Dr. St. Germain testified that K.O. had a history of having been sexually abused around the age of two, but she"was not aware of what the sexual abuse was."Dr. St. Germain admitted that, assuming there was anal penetration at some point prior to the alleged sexual abuse on May 9 or 10, 1997, she would not be able to separate injuries sustained on those dates from the previous sexual abuse.Dr. St. Germain further explained, "[w]hen I do my examination, I am going to make an opinion of the physical findings and not of who did it when."After Dr. St. Germain finished her testimony, the State rested its case.

Rodriguez testified in his own defense and denied having sexually assaulted K.O.In addition, Rodriguez testified that he had personally observed K.O. tell lies in the past.Rodriguez also called as a defense witness Timothy James Lochhead, an administrative assistant in charge of discipline at K.O.'s grade school.Lochhead testified that, "like other children, [K.O.] has fabricated things from time to time, such as she didn't want to take a test or she didn't want to do this or that.Maybe her arm hurt or she had a stomach ache or was tired, those types of things."On cross-examination, Lochhead conceded that "[i]t is not unusual" for children to engage in such fabrications, but he believed that K.O. "was quite frequent with her fabrications."

Finally, after the defense rested, the State introduced into evidence a certified copy of Rodriguez's prior conviction for theft.The jury was instructed that the prior conviction could be considered only for purposes of impeaching Rodriguez's veracity when testifying and not as proof of guilt.

Central to the present appeal, but not presented by either side during the trial, are two reports from the Illinois State Police's Division of Forensic Services analyzing four semen stains on a blanket from K.O.'s bed and comparing them to blood standards taken from Rodriguez and K.O.The first report concluded that no comparisons were possible due to the limited amounts of DNA found in the samples.The second report was issued on October 28, 1997, one day before Rodriguez's trial began.That report analyzed 12 samples taken from the four semen stains and concluded that eleven of the samples could not have come from Rodriguez, several reflected that they came from K.O. and several others were from a third, unknown donor.Neither Rodriguez nor K.O. could be excluded as having contributed to the mixture of DNA profiles detected in the twelfth sample; however, the report notes that this sample could have come from "approximately 1 in 2 Caucasians, 1 in 4 Blacks, and 1 in 2 Hispanics...."Additionally, an unidentified profile was present in this mixture.

The sperm samples came up at trial for the first time during closing arguments.Approximately halfway through the State's closing argument, the prosecutor referenced D.O.'s testimony that, during a phone call with Rodriguez on May 11, he told her that he had been up all night doing laundry.The prosecutor then asked rhetorically: "Why would you wash clothes on a Sunday like that if you had washed them all night [sic ]?It is a good reason [sic ] to get rid of the evidence that way."

After the prosecutor concluded his closing argument and before defense counsel began his closing argument, the following exchange occurred in the presence of the jury:

DEFENSE COUNSEL: Your Honor, one thing, and I am sure the [sic ]counsel did not do this intentionally, but I would strongly object to his argument about washing the clothes, getting rid of the evidence.There was no evidence whatsoever as to the reason for washing those clothes and getting rid of evidence.In fact, counsel knows that there was sperm on various items that was not presented.

PROSECUTOR: Objection, Your Honor.[Defense counsel] is testifying.

DEFENSE COUNSEL: Your Honor, he opened the door.

THE COURT: If you want to make an argument, make it to the jury.

DEFENSE COUNSEL: That—you know, I—

THE COURT: I already informed the jury that anything said by either attorney in final argument [that] is not based on the evidence or the testimony, you are to disregard.With that said, go ahead, [defense counsel].

Defense counsel then delivered his closing argument, in which he made no further mention of the sperm samples, DNA reports, or prosecutor's argument about Rodriguez staying up all night to do laundry.

The trial judge repeatedly instructed the jury that they were to consider only the evidence presented at trial and disregard any attorney comments during opening statements or closing arguments that were not based on that evidence.Before opening statements, the trial judge further explained to the jury that "opening statement is not evidence," and that "[t]he evidence will be the testimony you hear from the witness stand and any exhibits that are admitted into evidence."The trial judge returned to the subject before closing arguments, this time specifically instructing the jury that:

Final argument is not evidence.You have heard the evidence, the testimony from the witnesses and the exhibits that are admitted into evidence.You are not to consider any statement made by either attorney that is not backed up by the evidence you heard here in the courtroom.

As noted above, the trial judge reminded...