Simonson v. Hepp

• Citation: 549 F.3d 1101
• Decision Date: 09 December 2008
• Docket Number: No. 07-4079.,07-4079.
• Parties: Chas SIMONSON, Petitioner-Appellant, v. Randall HEPP, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

549 F.3d 1101

Chas SIMONSON, Petitioner-Appellant, v. Randall HEPP, Respondent-Appellee.

No. 07-4079.

United States Court of Appeals, Seventh Circuit.

Argued September 19, 2008.

Decided December 9, 2008.

Robert R. Henak (argued), Henak Law Office, Milwaukee, WI, for Petitioner-Appellant.

Gregory M. Weber (argued), J.B. Van Hollen, Office of the Attorney General, Madison, WI, for Respondents-Appellees.

Before POSNER, RIPPLE, and EVANS, Circuit Judges.

EVANS, Circuit Judge.

Today, we resolve Chas Simonson's appeal from a district court judgment denying his petition for a writ of habeas corpus. As per usual, we start with the facts, which, despite a few editorial comments along the way, we set out in the light most favorable to the State of Wisconsin.

Simonson went to trial in Wisconsin state court in 2002 on charges that he sexually assaulted his seven-year-old daughter. The primary evidence against him came from the alleged victim, who we will call Donna. Donna, who was nine years old when the trial rolled around, testified that Simonson placed his penis in her vagina on two separate occasions, first in the spring of 1999 and again in the spring of 2000. Simonson's counsel tried to impeach Donna's testimony by pointing out that she recanted (twice) and had given inconsistent statements regarding the timing and location of the assaults. Simonson also presented proof of a motive to lie. He was living on and off with his wife—Donna's mother, Kristina Simonson—at the time of the incidents, and the couple ultimately divorced in July 2000. In the fall of that year, Simonson decided to seek full custody of Donna and her younger sister. Simonson testified that he informed Kristina of his intentions on December 1, 2000. Although Kristina could not recall that conversation, one of her friends testified that Kristina had told her Simonson was threatening to take the kids away. The timing is key. It was on December 3, 2000, just two days after Simonson disclosed his plan, that Donna first supposedly told Kristina about the assaults. And three days later Kristina took Donna to the police station, where Donna shared her story with the authorities. Simonson's take on all this: Kristina coaxed her daughter into making false statements to block Simonson from gaining custody.

The State offered corroborating evidence from Julie Kennedy-Oehlert, a nurse specializing in sexual assault who had examined Donna in January 2001. KennedyOehlert testified that Donna's hymenal tissue along the lower portion of her vagina was "virtually missing." In her opinion, the only explanation was insertion of an object, such as a man's penis. Although a girl's hymen is extremely sensitive prior to puberty, Kennedy-Oehlert testified that it generally stays intact "unless there is some pressure put directly on that tissue or near that tissue. ..." When Kennedy-Oehlert asked Donna "if someone had put anything in her vagina," Donna said her dad had put "his wiener in."

To counter this testimony, Simonson sought to develop an alternative explanation for the hymenal damage. He made an offer of proof that Donna was severely constipated when she was one year old, and that Kristina and Donna's grandmother attempted to extract the stool by pressing their thumbs against Donna's rectal and vaginal areas as if they were trying to "pop a pimple." The state trial judge was not impressed. Without expert testimony to buttress Simonson's theory—to prove that these actions could in fact cause a tear in Donna's hymen—the judge believed the jury would be left to speculation. In the judge's opinion, "[o]rdinary experience and common sense" did not reveal the link between the alleged cause and effect. He therefore prohibited Simonson from presenting this theory.

The jury convicted Simonson as charged and the judge sentenced him to ten years' imprisonment followed by an equal period of extended supervision. At the sentencing hearing, the State asked the judge to consider the fact that the presentence report showed Simonson's involvement in the sexual assault of a 13-year-old girl. Because Simonson was never charged, however, the court "place[d] little significance" on that conduct, focusing instead on the gravity of the crime, the damage to the victim, and the need to protect both the victim and the public from future assaults. With respect to the last consideration, the judge pointed to, among other things, the high recidivism rates for offenders like Simonson:

[B]ased on my experience, individuals who undertake this type of behavior typically do it more than once with more than one victim, unlike charges like homicide where statistically the likelihood is they're never going to do it again. But in these kinds of cases, if it happened once, it's very likely going to happen again. Or at least the temptation to do it again is going to be there. So I see a very, very high need to protect the public.

Simonson wanted to appeal both his conviction and sentence, but his attorney dropped the ball, failing to file either a timely post-conviction motion or a notice of appeal. Fortunately for Simonson, the Wisconsin Court of Appeals reinstated his appellate rights in 2005, State ex rel. Chas Simonson v. Randall Hepp, Case No.2005AP1354-W (Wis.Ct.App. Sept. 29, 2005), and Simonson filed a motion for post-conviction relief with the trial court raising two claims: (1) that the court infringed upon his right to present a defense when it barred him from offering an alternative explanation for Donna's hymen injury; and (2) that the court relied upon inaccurate information in sentencing. The trial court rejected both claims. With respect to the first claim, the judge reiterated his opinion that "expert testimony would be necessary ... to explain how `rectal' or other stimulation applied to dislodge fecal matter ... would, or even could, be the cause of tearing and disruption of the hymen, without causing the jury to improperly speculate." The gist of Simonson's second claim—then and now—is that the judge relied on recidivism rates for child molestation, as opposed to incest. Recidivism by incest offenders is lower, he says, and the judge should have figured that into his calculus. The trial judge wasn't entirely dismissive of this argument, but he denied relief because the recidivism information (pertinent or otherwise) occupied only a peripheral role in his analysis.

Things went similarly in the state appellate court. In affirming the trial judge's decision requiring expert testimony, the appellate court echoed his sentiments: "[E]xpert testimony was required because making a causal link between the alleged treatment and the torn hymen is not within the realm of ordinary experience and common sense." State v. Chas S., 2006 WI App 244, 297 Wis.2d 585, 724 N.W.2d 704 (2006). And Simonson couldn't just use Kennedy-Oehlert's testimony —" unless there is some pressure put directly on [the hymen] or near that tissue it generally stays intact" — because it was at once too general and unique to its context. As the Wisconsin Court of Appeals put it:

That single sentence does not provide an adequate foundation for Chas's alternate theory. The nurse was not asked whether placing thumbs on the exterior of the vagina could result in the damage she found in her examination. The nurse's single reference to damage "near that tissue" would not sufficiently enlighten the jury to allow it to accept Chas's alternate theory.

Absent expert testimony, in other words, the appellate court determined that the proffered evidence was irrelevant. And because a defendant has no right to use that sort of evidence, its exclusion did not abridge Simonson's right to present a defense.

Moving on to sentencing, the appellate court found no error in the trial judge's post-conviction analysis. The appellate court assumed for the sake of argument that the trial judge considered the wrong recidivism data. However, it determined that the information played no role in the judge's analysis, which focused on the particular circumstances of Simonson's history and behavior. Simonson's contention that the lower rates for incest should control did not sway the appellate court: "The fact that perpetrators of incest may have a lower rate of recidivism than other sexual abusers does not establish that he presents a low risk to his children or others." Id. at *3, 724 N.W.2d 704.

Simonson's petition for review in the Supreme Court of Wisconsin was denied. State v. Chas S., 299 Wis.2d 328, 731 N.W.2d 638 (Jan. 9, 2007).

With his state remedies exhausted, Simonson filed a petition for a writ of habeas corpus in federal district court. Chief Judge Barbara Crabb referred the petition to Magistrate Judge Stephen Crocker for preparation of a report and recommendation and then adopted the latter's suggestion to dismiss. The judge approved the state courts' rationale on the evidentiary issue—without expert testimony to bridge the gap between cause (attempted removal of a stool) and effect (torn hymen), Simonson's theory "would have been highly speculative." Simonson v. Hepp, 07-00397, 2007 WL 5490149, *2 (W.D.Wis. Nov. 21, 2007). With respect to the sentencing issue, on the other hand, the district court's review contained a healthy dose of criticism. Considering the record, the district court could not accept the view that the trial judge had not factored in recidivism rates at all. However, the court found the error harmless (the sentence would have been the same without that information) and the ultimate conclusion supported by the facts (Simonson was likely to re-offend), so the petition for relief was denied. Now on to this appeal.

We review a federal habeas court's factual findings for clear error and its legal conclusions de novo. Rizzo v. Smith, 528 F.3d 501, 505 (7th Cir.2008). Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a petitioner is only entitled to habeas relief when the decision...