Stevens v. Delaware Correctional Center

• Decision Date: 02 July 2002
• Docket Number: No. 01-3315.,01-3315.
• Parties: Darrell W. STEVENS v. DELAWARE CORRECTIONAL CENTER; Attorney General of the State of Delaware, Appellants.
• Court: U.S. Court of Appeals — Third Circuit

295 F.3d 361

Darrell W. STEVENS v. DELAWARE CORRECTIONAL CENTER; Attorney General of the State of Delaware, Appellants.

No. 01-3315.

United States Court of Appeals, Third Circuit.

Argued: April 5, 2002.

Filed: July 2, 2002.

COPYRIGHT MATERIAL OMITTED

Thomas E. Brown (argued), Department of Justice Wilmington, DE, for appellants.

Charles M. Oberly, III, Karen V. Sullivan (argued), Oberly, Jennings & Rhodunda, P.A., Wilmington, DE, for appellee.

BEFORE: SLOVITER, BARRY and ALARCON,^* Circuit Judges.

SLOVITER, Circuit Judge.

The State of Delaware appeals from the order of the District Court for the District of Delaware conditionally granting the petition of Darrell Stevens for a writ of habeas corpus. See Stevens v. Del. Corr. Ctr., 152 F.Supp.2d 561 (D.Del.2001). The State raises two arguments on appeal: (1) that the ineffective assistance claim upon which the District Court granted federal habeas relief was unexhausted and is thus procedurally barred, and (2) in the alternative, that the state courts' application of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), was not objectively unreasonable under 28 U.S.C. § 2254(d) (2001).

I. FACTS AND PROCEDURAL BACKGROUND

A. Facts¹

On March 16, 1990 at about 4 p.m., Tracey Auterson went with some friends to a bar called Mr. D's Pizza & Restaurant. Sometime that evening, Marvin Lindsay, Auterson's boyfriend, with whom she had been living until earlier that week, arrived at Mr. D's. The two quarreled, after which Lindsay left the bar. At approximately 11:30 p.m., Auterson called Lindsay at his home and asked if she could stay with him that night, rather than return to her parents' home where she had been staying. He said she could stay with him but he declined her request to come pick her up at the bar.

According to Auterson's testimony, after the phone call she started to walk to Lindsay's home, about a fifteen-minute walk from Mr. D's. On the way, she was grabbed from behind, dragged into an apple orchard, and forcibly raped. During the struggle, she scraped her attacker's genitals with her fingernails. Later she fainted. When she regained consciousness, the assailant was still with her, but he subsequently fled. Auterson was unable to identify her attacker because she was lying on her stomach part of the time and was told to keep her eyes closed when she was later rolled over onto her back.

After the assailant fled, Auterson ran out of the orchard and shortly thereafter, at approximately 2:20 a.m., she went to Lindsay's home and told him that she had been raped. Lindsay noted that Auterson's clothes were in disarray and that she was upset. Lindsay testified, however, that at the time he was not sure whether he believed her story. Lindsay spent about a half hour to calm Auterson down, after which they both went to sleep.

Lindsay left for work at about 3:30 a.m. After discussing the incident with his co-workers, Lindsay called Auterson at approximately 8:00 a.m. to tell her she should report the rape to the police and that if she did not call the police she should go to her mother's home. According to Auterson, at about 9:00 a.m., she returned to the scene of the rape because she needed a cigarette and believed she lost her cigarettes in the orchard. While there, she found the tank top that she had been wearing the previous evening. She then became frightened and returned to Lindsay's home.

After Lindsay returned from work at about 2:00 p.m., Auterson called the police. Detective Young interviewed Auterson that afternoon at Lindsay's home and in Lindsay's presence. Young and Auterson then returned to the orchard where, in an area of the orchard where the ground appeared compressed, they found her underpants and a wallet belonging to Stevens.

Thereafter, Detective Young and Auterson went to the hospital for a physical examination. Semen was removed from Auterson's vagina and blood and semen were found on her skirt. DNA testing revealed that both semen samples matched Stevens' DNA and the blood was consistent with Stevens' blood type (and not Auterson's). Young and Auterson then went to the police station where Detective Young reinterviewed Auterson, this time on audiotape. Auterson was unable to give Detective Young a physical description of her assailant.

Auterson testified that she had never seen Stevens before, had never been on a date or otherwise socialized with him, and had not danced with him on the night in question:

Q: Have you ever seen [the defendant] before?

A: No.

Q: Okay. Did you ever socialize with that man before that you recall today?

A: I don't recognize him, no.

Q: Did you ever go out with him, date him? Did you ever have any sexual relations with him ever in your life?

A: No.

. . . .

Q: Would you be able today to identify him as the person who was with you in the orchard that night?

A: To tell you the truth, no.

App. at 49-50.

Auterson also testified that, although she had been at Mr. D's for more than seven hours, she only consumed about one and a half glasses of beer. She did acknowledge that, when she left the bar, she was "buzzed" but not "seriously impaired." Stevens, 152 F.Supp.2d at 567.

Stevens was arrested on March 19, 1990. He admits that he was also at Mr. D's on March 16, 1990. According to Stevens, he got very drunk, having consumed approximately four pitchers of beer and one or two shots of alcohol that evening. Stevens was able to recall many details of his actions in the bar that evening such as ordering a tuna sub but only eating half of it, App. at 44, and ordering four pitchers of beer, App. at 45, but he was unable to remember anything after leaving the bar. He did testify that he was "fairly certain" that he left the bar alone, App. at 46, and that his next memory was waking up the following morning in a driveway behind the bar without his wallet. App. at 46-47. He further testified that he did not know Auterson, although he may have seen her at Mr. D's on March 16:

Q: The young lady who testified here... Tracey Auterson, do you know her?

A: No, sir, I don't.

Q: You don't recall —

A: I might have seen her at the bar.

Q: But you don't have any specific memory of that?

A: No, sir; I don't know her personally.

App. at 48a.

After Stevens' arrest, the police examined him and found a scrape, sore, or abrasion of some sort on his scrotum. A photograph of this mark was shown to the jury.

Stevens was charged with first-degree unlawful sexual intercourse and second-degree sexual penetration. Under Delaware law at the time of Stevens' trial, a person could be convicted of first-degree unlawful sexual intercourse if the following elements were present: (1) intentional sexual intercourse with another person (2) without the other person's consent, (3) when the other person was not a voluntary social companion on the occasion of the particular sexual intercourse in question and (4) when the other person had not consented to sexual intercourse with the person in question for the previous twelve months. Del.Code Ann. tit. 11, § 775(a)(2) (repealed 1998).² Under then — existing Delaware law, if the prosecution failed to establish 5 that the defendant and the victim were not voluntary social companions, the crime of first-degree unlawful sexual intercourse was reduced to third-degree unlawful sexual intercourse. Del. Code Ann. tit. 11, § 773 (repealed 1998).

B. Stevens' Trial

To defend Stevens, his mother, Peggy Lane, hired Dennis Reardon. Because Stevens has no memory of what he did after leaving Mr. D's, he could not affirmatively deny engaging in sexual intercourse with Auterson. Instead, Reardon's trial strategy was to argue that Stevens did not have sexual intercourse with Auterson, but, in the alternative, to argue that if he had sex with her, it was consensual. In support of the latter, Stevens testified that he does not get violent when he is drunk. That testimony was corroborated by the testimony of Maureen Stokes, a former girlfriend of Stevens. Reardon suggested to the jury that Auterson must have lied to Lindsay about being raped in order to cover up having consensual sex with Stevens.

Reardon also tried to elicit from Stokes a confirmation of Stevens' explanation of the mark on his genitalia. At trial, the prosecution argued that this mark corroborated Auterson's claim that she scraped her attacker's genitalia. According to the prosecution, her claim was further corroborated by the blood found on her skirt. In the prosecution's view, the mark on Stevens' genitalia undermined the defense's consensual sex theory. Stevens testified that he had a "history" of herpes and that the mark on his scrotum was a herpes sore, not a scratch. Reardon attempted to corroborate Stevens' history of herpes by testimony from Stokes. Reardon had apparently failed to discuss with Stokes his intention to question her on this subject, because Stokes testified that she was unaware that Stevens ever had herpes. Despite the prosecution's emphasis of this point on cross-examination of Stokes, Reardon continued to press the issue on redirect. Stokes again denied ever knowing that Stevens had herpes, despite having been in a close and intimate relationship with him for about a year.

Reardon also called two witnesses who were present at Mr. D's on the evening of the rape. Kathy Theodorakos, the owner of Mr. D's, testified that before she left the bar that evening, between 9:00 and 9:30 p.m., she saw Stevens and he was not drunk. Karen Cates, a friend of Stevens, testified that she saw him dancing that evening with a group of people that included Auterson but she did not see him dancing with Auterson one-on-one. She also testified that when she saw Stevens dancing at approximately 10:00 p.m., he appeared to be drunk or "high" but was not falling down or stumbling. Cates also testified that when she was driving home at about 11:00 p.m., she saw Stevens walking by himself in a direction toward...