Howard, Sherman v. Gramley, Richard

In the

United States Court of Appeals

For the Seventh Circuit

No. 97-1881

Sherman Howard,

Petitioner-Appellant,

v.

Richard Gramley,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 94 C 1246--Ruben Castillo, Judge.

Argued November 10, 1999--Decided August 23, 2000

Before Posner, Rovner, and Diane P. Wood, Circuit

Judges.

Diane P. Wood, Circuit Judge. Sherman Howard was

convicted in 1989 of sexually abusing his

daughter when she was a toddler. After appealing

through the Illinois state court system and

seeking post-conviction relief in Illinois’s

courts, he filed this habeas corpus petition. He

contends that his appellate counsel was

constitutionally defective in her selection of

issues to appeal, and he argues that the district

court abused its discretion by refusing to

appoint counsel to represent him in these

proceedings. The district court rejected Howard’s

arguments, concluding that his counsel’s

performance was inadequate, but that he suffered

no prejudice as a result. We agree that Howard

has not shown prejudice, so we affirm.

I

Tamika Howard was born in 1981 into an

extraordinarily turbulent and traumatic home. Her

mother was addicted to drugs and frequently left

the home. During her mother’s absences, Tamika

was occasionally alone with her father, Sherman,

and sometimes stayed with her aunt, Linda

Fletcher. Between April 1982 and May 1983, Tamika

lived with her aunt, and Howard visited her on

weekends. During that period, Fletcher noticed

swelling and a discharge near Tamika’s genital

area. Concerned, Fletcher starting asking

questions. Tamika’s response left no doubt in her

aunt’s mind that her father had been sexually

abusing her. Tamika (using childish language)

described to Fletcher how Howard would come into

her room, expose himself, undress her, and

attempt to have intercourse with her. Moreover,

he had her perform oral sex on him and fondled

her genitals. Finally, Fletcher says that Tamika

told her that Howard would give her strange pink

and yellow pills and allow her to drink beer,

though Fletcher admitted that she never smelled

alcohol on Tamika’s breath during Howard’s

visits.

Fletcher tried to take Tamika to a doctor, but

she was initially unsuccessful. Medical personnel

told her that because she was not the child’s

legal guardian, she could not use public

emergency services; private help was not

feasible, because she had no means of paying for

it. Finally, she took Tamika to Dr. Simon Rosen

and represented herself as Tamika’s mother. Dr.

Rosen examined Tamika and found that her hymen

was not intact. There was an inquiry by the

Illinois Department of Children and Family

Services (DCFS), but no criminal proceedings were

instituted at that point. Later, Howard and

Tamika’s mother reconciled, at which time Tamika

left Fletcher’s care and again spent the bulk of

her time with her parents.

According to Fletcher and Tamika, there was

substantial drug use and ongoing sexual abuse in

Tamika’s home until December 1986, when Tamika’s

mother gave birth to Tamika’s little sister. At

this point, the details of Tamika’s life become

sketchy, but it appears that Fletcher lost track

of both Tamika and Howard until February 1987,

when she found Tamika living with a friend of her

mother. Fletcher took Tamika back to her home in

Hammond, Indiana. At this point, Fletcher began

seeking legal guardianship of Tamika. After

attempting to enlist the aid of the Indiana child

protection authorities, Fletcher moved Tamika

back to Illinois in June 1987, contacted a child

abuse hotline, and took her to Cook County

Hospital, where another examining physician, Dr.

Shetty, examined her on June 10, 1987, and again

found that the hymen was not intact. Five months

later, Fletcher once more took Tamika to Cook

County Hospital (her efforts to obtain the

guardianship having stalled as a result of

procedural missteps). This time, the examining

physician, Dr. Constance Blade-Schlessinger,

found no hymen damage, nor any neovascularization

(which, if present, would have signaled

irritation or inflammation that could have

occurred from sexual contact or other disruptive

causes such as an infection).

Despite her observation of the intact hymen,

Dr. Blade-Schlessinger concluded that Tamika had

been sexually abused. (She explained that in

incestuous situations, the abuser often refrains

from actions that would be forceful or painful,

and so the injuries normally associated with

forcible rape are often not present.) In 1989,

Howard was charged with two counts of aggravated

criminal sexual assault in conjunction with his

abuse of Tamika. At trial, Tamika and Fletcher

testified to the course of events described

earlier, while Dr. Blade-Schlessinger offered her

expert opinion regarding Howard’s abuse of

Tamika. She based her conclusion that Tamika had

suffered abuse on the observations of three other

doctors--the two who had previously found hymen

damage, as well as a psychiatrist who had been

working with Tamika during 1987. When asked to

reconcile that conclusion with her own

examination that indicated no hymen damage, Dr.

Blade-Schlessinger said that she believed that

Tamika’s hymen may have regenerated itself. She

asserted that "when children are removed from

situations where they have been sexually abused,

they do heal, that there is a constriction

process whereby the hymen begins to close down to

the normal size associated with that aged child."

When questioned, she said that this phenomenon

was "well documented in the literature," but that

studies had not yet adequately shown how long the

healing process took. Her own estimate was that

two or three months was typical. Finally, she

cited to an article that had appeared in

Pediatrics magazine shortly before the trial (but

well after her examination of Tamika). That

article detailed a study of sexually abused

children whose hymenal injuries had repaired

themselves. See M.A. Finkel, "Anogenital Trauma

in Sexually Abused Children," 84 Pediatrics 317

(1989). Howard objected to the "accuracy and

reliability" of this testimony. The Illinois

trial judge initially sustained an objection to

the foundation for her reference to the article

(which had apparently been furnished to Howard’s

lawyer three days before Dr. Blade-Schlessinger’s

testimony), but after the prosecutor discussed it

further with the doctor, Howard’s lawyer never

reiterated an objection to either the article or

the way that Dr. Blade-Schlessinger referred to

it. Both the prosecutor and Howard’s lawyer

examined her on the substance of the article.

During the course of proceedings, the prosecutor

made a variety of inappropriate remarks. Several

times, the prosecutor suggested that Howard had

been charged with sexual abuse in 1983 when in

fact all that had occurred was the DCFS inquiry.

Additionally, the prosecutor made a series of

references to the involvement of the DCFS itself

in Tamika’s case. Principally, the questions

suggested that Howard’s access to Tamika had been

restricted; in fact, there was no such

limitation. Howard objected to each of these and,

in all cases, the trial judge sustained the

objection and ordered the testimony disregarded.

But most troubling is a question put to Fletcher:

"Drawing your attention to 1985, who kidnapped

Tamika?" Howard again objected and again the

objection was sustained.

Finally, during closing statements, the

prosecutor told the jury that "Tamika’s testimony

alone would convict this man of this crime." Her

co-counsel later added that "[t]he testimony of

one witness who is clear and convincing and

credible is enough right there to convict."

Howard objected, claiming that this misstated the

burden of proof. The trial judge overruled the

objection, ruling that the remark was not

designed to state the burden of proof but rather

merely that one witness’s testimony (if believed

by the jury) can suffice in appropriate

circumstances to establish guilt beyond a

reasonable doubt. See People v. D’Angelo, 333

N.E.2d 525, 530-31 (Ill. App. Ct. 1975).

Howard claimed that all of the testimony

against him was false and just a result of

Fletcher’s jealousy and desire to obtain custody

over Tamika, but the jury obviously did not buy

that story. After his conviction, Howard appealed

in the Illinois courts. While awaiting appeal, he

received a letter from his court-appointed

appellate counsel, Julie Campbell, indicating

that she planned only to challenge the lack of a

mental state requirement in the statute under

which Howard was convicted and (possibly) a

defect in the indictment. Campbell also noted

that if Howard so chose, he could file a

supplemental brief with the Illinois Appellate

Division. He does not appear to have done so. In

any event, the appeals court dismissed his appeal

and the Illinois Supreme Court declined review.

Howard then sought collateral relief in the

Illinois courts. This, too, was unsuccessful. In

February 1994, he petitioned the federal district

court under 28 U.S.C. sec. 2254. He also asked

for the appointment of counsel, but the district

court ruled on the merits of the petition without

mentioning this motion. Initially, the district

court denied relief because it believed that

adequate state grounds existed for the

conviction, but we reversed and remanded, Howard

v. DeTella, No. 95-3123, 1996 WL 405212 (7th Cir.

July 16, 1996) (unpublished order), for further

consideration because the Illinois Appellate

Division had said that his case presented "no

issues of arguable merit," not that Howard had

procedurally defaulted. The district court then

considered the merits of Howard’s claim, but

concluded that even if his appellate counsel’s

performance was unreasonably deficient, Howard

was not prejudiced and therefore not entitled to

habeas relief.

II

A.

As with all claims of ineffective assistance of

counsel, we evaluate Howard’s argument that his

appellate lawyer was incompetent according to the

two-part test of Strickland v. Washington, 466

U.S. 668 (1984). That means that he must show

both that his lawyer’s performance was

unreasonably deficient and that this inadequacy

prejudiced him in the sense that there is a

reasonable probability that his case would have

been remanded for a new trial or that the

decision of the state trial court would have been

otherwise modified on appeal. Id. at 687, 694;

Blacharski v. United States, 215 F.3d 792, 794

(7th Cir. 2000). Also, since Howard filed his

habeas petition before the effective date of the

Antiterrorism and Effective Death Penalty Act

(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214

(1996), we conduct a de novo inquiry into these

questions. Jenkins v. Nelson, 157 F.3d 485, 491

(7th Cir. 1998); Lieberman v. Washington, 128

F.3d 1085, 1091 (7th Cir. 1997)./1

Howard’s theory of ineffective assistance is

simple--he believes that his appellate lawyer

chose the wrong issues for appeal. The district

court identified four issues that Howard believes

his lawyer should have raised on direct appeal:

(1) Dr. Blade-Schlessinger’s expert testimony

(and especially the "hymen regeneration" theory)

was not generally accepted in the medical

community, (2) the accumulation of prosecutorial

misconduct we outlined above led to an unfair

trial, (3) the jury instructions failed to remedy

the prosecutor’s erroneous statements about the

"reasonable doubt" standard, and (4) Fletcher’s

report of Tamika’s conversations with her should

have been excluded as inadmissible hearsay.

Instead, the only issue counsel actually raised

was that the indictment was defective for failing

to allege a mental state. This court’s opinion in

Mason v. Hanks, 97 F.3d 887 (7th Cir. 1996),

demonstrates the method by which we apply the

Strickland test to a claim that counsel failed to

raise the correct issues on appeal. We deem

performance insufficient when counsel omits a

"significant and obvious issue" without a

legitimate strategic reason for doing so. Mason,

id. at 893, quoting Gray v. Greer, 800 F.2d 644,

646 (7th Cir. 1986), and Hollenback v. United

States, 987 F.2d 1272, 1275 (7th Cir. 1993). We

find prejudice "when that omitted issue ’may have

resulted in a reversal of the conviction, or an

order for a new trial.’" Mason, 97 F.3d at 893,

quoting Gray, 800 F.2d at 646.

Since the choice of issues on appeal naturally

turns on the relative likelihood of success of

each one, there is obviously some overlap between

the performance and prejudice inquiries. For

example, because reversal is much more likely

when the appellate court’s review is de novo

rather than deferential, the standard of review

for a particular issue is a factor in determining

the adequacy of appellate counsel’s performance.

See, e.g., Maples v. Coyle, 171 F.3d 408, 427

(6th Cir. 1999), cert. denied, 120 S. Ct. 369

(1999); Bethea v. Artuz, 126 F.3d 124, 127 (2d

Cir. 1997). The performance half of the

Strickland test, in this context, requires us to

decide whether it was within the realm of

competent appellate representation to decline to

raise a particular point on appeal, considering

both the arguments that might be made and the

governing standard of review. Assuming that a

competent lawyer would have taken an appeal at

all (a question we need not consider here, since

there was no threat of a sentence-enhancing

remand that might make the risks of an appeal

outweigh its potential benefits), we evaluate

counsel’s performance by looking at the issues

that the defendant had available and determining

whether counsel’s choice of the best of them

represented the same kind of strategic choice we

permit for trial decisions. See Mason, 97 F.3d at

893; Gray, 800 F.2d at 646. The prejudice inquiry

is, in a sense, a more absolute one. There we ask

only whether there is a reasonable probability

that raising the issue would have made a

difference in the outcome of the appeal. In other

words, performance is about picking the battles;

prejudice looks at whether winning the battle

would have made a difference in the outcome of

the war.

In Howard’s case, the district court found that

his appellate counsel performed inadequately

because it believed that there was "no reason why

Howard’s attorney could not simply have added the

issues Howard wanted raised to the single issue

she already planned to present." The court

indicated that this was a function not only of

the mechanical ease of adding on more issues, but

also, more importantly, "the dictates of legal

strategy" and the fact that "at least some of

Howard’s issues had a better factual and legal

basis than the issue that his counsel presented."

Appellate lawyers are clearly not incompetent

when they refuse to follow a "kitchen sink"

approach to the issues on appeals. To the

contrary, one of the most important parts of

appellate advocacy is the selection of the proper

claims to urge on appeal. Schaff v. Snyder, 190

F.3d 513, 526-27 (7th Cir. 1999). Throwing in

every conceivable point is distracting to

appellate judges, consumes space that should be

devoted to developing the arguments with some

promise, inevitably clutters the brief with

issues that have no chance because of doctrines

like harmless error or the standard of review of

jury verdicts, and is overall bad appellate

advocacy. On the other hand, counsel can’t throw

the baby out with the bath water. That is what

concerned the district court, and it concerns us

as well. Howard’s attorney chose to appeal only

one issue, in spite of the fact that Howard

himself had called counsel’s attention to the

other points, the record supported an appeal on

those points, and Howard was not asking for an

inordinate number of issues. We therefore have no

cause to disagree with the district court’s

conclusion that Howard has shown defective

performance on the part of appellate counsel, for

Strickland purposes, and we turn to the prejudice

question.

B.

Turning to the specifics of Howard’s case, his

first and most substantial argument is that his

appellate lawyer was constitutionally ineffective

for failing to contest on appeal the district

court’s decision to allow Dr. Blade-Schlessinger

to testify that she believed that Tamika’s hymen

had repaired itself. His basic argument is that

the "hymen regeneration" testimony lacked

foundation, was not believable, and was therefore

highly prejudicial because it explained away an

otherwise highly exculpatory fact--Dr. Blade-

Schlessinger’s observation that Tamika’s hymen

was normal.

The principal reason the district court gave

for rejecting this point concerned the

performance of Howard’s trial counsel. Because

trial counsel did not object to the admission of

this particular expert opinion (and the trial

court had qualified Dr. Blade-Schlessinger as an

expert both in child abuse and as a doctor),

Illinois courts would find the issue waived on

appeal. See People v. Mahaffey, 651 N.E.2d 1055,

1067 (Ill. 1995). Nor did defense counsel ever

perfect an objection to Dr. Blade-Schlessinger’s

reference to the then-recent August 1989 article

in Pediatrics--an article that buttressed her

1987 conclusions, but which obviously did not

play a role in her contemporaneous diagnosis. To

the contrary, counsel cross-examined her about

the substance of the article in some detail,

bringing out for the jury both the paucity of

evidence it revealed for regeneration of damaged

hymens (only one case involved this situation)

and the fact that scar tissue was evident after

healing (at least in early examinations).

Under the circumstances, appellate counsel would

have had a serious uphill battle to convince an

Illinois appellate court to overturn the

admission of this testimony. As is generally

true, evidentiary decisions are left to the

discretion of the trial courts in Illinois, so

appellate review is deferential. People v. Jones,

715 N.E.2d 256, 261 (Ill. App. Ct. 1999). Second,

using the distinction between waiver and

forfeiture articulated by the United States

Supreme Court in United States v. Olano, 507 U.S.

725, 733 (1993), an Illinois court may well have

found that Howard waived his right to challenge

Dr. Blade-Schlessinger’s theory and that it was

not simply forfeited and fair ground for

something like our plain error review. Even if it

could have reached the merits of the point--which

is at best unclear--the court would not have

found reversible error unless it considered the

admission of Dr. Blade-Schlessinger’s opinion and

her references to the Pediatrics article so

beyond the pale of acceptable conduct as to

constitute an abuse of discretion. In determining

the admissibility of expert testimony, Illinois

continues to apply the "general acceptance" test,

meaning that the article on which Dr. Blade-

Schlessinger relied could serve as a proper

foundation for Dr. Blade-Schlessinger’s testimony

if it is "generally accepted by the relevant

scientific community." People v. Oliver, 713

N.E.2d 727, 734 (Ill. App. Ct. 1999), citing Frye

v. United States, 293 F. 1013 (D.C. Cir. 1923).

Howard does not present any reason to believe

that an article in Pediatrics, which is the

official journal of the American Academy of

Pediatrics, would not meet Illinois’s evidentiary

standards for foundation for expert testimony.

The bulk of Howard’s attack on Dr. Blade-

Schlessinger’s testimony questions the

sensibleness of her regeneration theory. He makes

a variety of arguments that all revolve around

the same theme--it is simply not believable that

a girl as young as Tamika could be subjected to

intercourse with an adult male and show no signs

of hymenal damage or scarring. He further

maintains that the Finkel article and even Dr.

Blade-Schlessinger’s testimony itself actually

support his position. But that does not reflect

the entirety of Dr. Blade-Schlessinger’s

testimony. She also told the jury, as we have

already noted, that incestuous situations are

different from ordinary sexual violence and tend

to show less in the way of physical injury. Taken

as a whole, the jury could have inferred that

Howard’s physical contact with Tamika was enough

to make her hymen "not intact"--that is,

lacerated or torn somehow--and more than enough

to irritate the genital area, but not enough to

destroy it beyond repair. That would have

explained both the earlier medical findings of

injury, and Dr. Blade-Schlessinger’s later

finding of a normal body. Howard offers a strong

critique of Dr. Blade-Schlessinger’s testimony,

but all of his arguments were for the jury, not

the appellate judges, to consider. Howard’s trial

counsel vigorously contested the logic of Dr.

Blade-Schlessinger’s conclusions, but the jury

put the totality of the evidence together in a

different way. Since Illinois’s higher courts do

not second-guess jury conclusions regarding

questionable testimony, People v. Kirwan, 421

N.E.2d 317, 320 (Ill. App. Ct. 1981); People v.

Dunn, 365 N.E.2d 164, 170 (Ill. App. Ct. 1977),

there is no reason to think that presenting these

arguments to the Illinois appellate courts would

have increased the likelihood of reversal.

Consequently, Howard cannot show prejudice from

his appellate counsel’s failure to contest Dr.

Blade-Schlessinger’s testimony on appeal.

C.

The statements from the prosecutor set forth

above were indeed troublesome, and once again, we

do not disagree either with the district court’s

assessment that they were "clearly deliberate and

improper prosecutorial comments," nor its

implicit conclusion that appellate counsel should

have presented this ground to the Illinois

appellate courts. Once again, the critical part

of the Strickland inquiry for Howard is the

prejudice question. The district court concluded

that these remarks, inappropriate though they

were, did not deprive Howard of his right to a

fair trial.

The leading Supreme Court decision on the

question whether prosecutorial misconduct is so

egregious that a new trial is required, as a

matter of constitutional law, is Darden v.

Wainwright, 477 U.S. 168 (1986). In Darden, the

Court set forth six factors that should be

considered in deciding this question: (1) whether

the prosecutor misstated the evidence, (2)

whether the remarks implicate specific rights of

the accused, (3) whether the defense invited the

response, (4) the trial court’s instructions, (5)

the weight of the evidence against the defendant,

and (6) the defendant’s opportunity to rebut. 477

U.S. at 181-82; see also United States v.

Pirovolos, 844 F.2d 415, 426 (7th Cir. 1988)

(reciting the factors outlined in Darden). Here,

we must filter that inquiry through the question

whether appellate counsel’s failure to raise this

argument prejudiced Howard. Once again, we

conclude that the answer is no.

First, Illinois courts do not reverse a jury’s

verdict because of this kind of prosecutorial

misconduct "absent a showing that the

prosecution’s improper remarks resulted in

substantial prejudice to the defendant and that,

without those remarks, the verdict would have

been different." People v. Modrowski, 696 N.E.2d

28, 39 (Ill. App. Ct. 1998) (citation omitted).

Second, as the district court here observed, the

most important of the Darden factors is the

weight of the evidence against the defendant.

United States ex rel. Howard v. DeTella, 959 F.

Supp. 859, 867 (N.D. Ill. 1997). That evidence

included Tamika’s own testimony, which the

district court found to be a "clear and

straightforward description of repeated sexual

abuse." Added to that was the testimony of Linda

Fletcher, who reported both her own observations

of Tamika’s body and Tamika’s reports of abuse.

Dr. Blade-Schlessinger testified that she

concluded Tamika had been abused, both in

reliance on the earlier medical reports and the

report of the treating psychiatrist Tamika was

seeing, and on her own examination.

Howard is certainly right that the jury was not

compelled to believe this evidence, and that some

of the Darden factors cut in his favor. The

prosecutor misstated the evidence and nothing

Howard did invited the comments. On the other

hand, Howard’s attorney objected to four of the

remarks in question, his objections were

sustained, and the jury was instructed to

disregard the remarks. Howard’s attorney also had

the opportunity to rebut, even though for

understandable strategic reasons (we assume) he

chose not to do so. In the end, we think that the

Illinois appellate court, following Darden, would

have concluded that the remarks were improper,

but that they did not go to the heart of the

prosecution’s case--whether Howard abused Tamika.

We do not believe that this point would have

struck it as reversible error, and thus we cannot

say appellate counsel’s decision not to give it

a try was prejudicial.

D.

Last, we come to Howard’s point concerning the

district court’s failure to rule on his motion

for appointment of counsel, and the related point

that he should have received counsel for the

presentation of his habeas corpus petition. We

are concerned about the "fall-between-the-cracks"

sense we get about the way this motion was

handled. Ordinarily, we would review a decision

not to appoint counsel for abuse of discretion,

Zarnes v. Rhodes, 64 F.3d 285, 288 (7th Cir.

1995), but in this instance we think it

preferable to give the question de novo review,

since it is quite possible that there is no

underlying decision to review.

In general, a refusal to appoint counsel calls

for reversal "only ’if, given the difficulty of

the case and the litigant’s ability, [he] could

not obtain justice without an attorney, [he]

could not obtain a lawyer on his own, and [he]

would have had a reasonable chance of winning

with a lawyer at [his] side.’" Winsett v.

Washington, 130 F.3d 269, 281 (7th Cir. 1997),

quoting Forbes v. Edgar, 112 F.3d 262, 264 (7th

Cir. 1997) (alterations in Winsett). We apply

liberal standards to this inquiry, because there

is a certain circularity to the argument. An

unskilled lay defendant may have trouble showing

the court which of his arguments has serious

legal merit, whereas a lawyer may be able to see

right away which parts of the case have

possibilities.

In this case, Howard was able to present his

Strickland arguments to the district court, and

from that point, the district court’s task was to

review the state proceedings in light of both

Illinois law and the Sixth Amendment standard for

effective counsel. Counsel could not have changed

the strong evidence against Howard; he made no

claim that other newly discovered evidence would

have exonerated him; and we are not convinced

that further exploration into the medical

testimony would have made a difference given the

applicable standards of review. Howard’s able

counsel on appeal, to whom we give thanks, has

done the best she could to show prejudice from

the performance of his state appellate counsel

and to indicate how the federal proceedings might

have gone better for Howard if he had received

counsel right away in the district court, but we

do not find that Howard’s rights were

substantially affected by his lack of counsel at

the district court, and thus we decline the

request to send this case back for further

proceedings.

III

We have considered the other arguments Howard

has raised and find no ground for reversal in

them. We therefore Affirm the judgment of the

district court.

/1 We note that Howard filed his petition for habeas

before the passage of the AEDPA. At the time this

case was briefed and argued, this court had a

rule that certificates of probable cause (CPC)

were to continue to be used for pre-AEDPA cases.

See Pisciotti v. Washington, 143 F.3d 296, 299-

300 (7th Cir. 1998). We therefore treated

Howard’s appeal under the pre-AEDPA version of

sec. 2253; as a CPC case, every issue raised by

Howard was properly before us. Since oral

argument, however, the Supreme Court has decided

that a certificate of appealability (CA) is

required for all habeas corpus petitions,

regardless of the time when the initial petition

was filed. See Slack v. McDaniel, 120 S. Ct.

1595, 1602 (2000). After Slack, only those issues

certified by the district judges would normally

be properly before us. In this case, however, the

parties have briefed all of the issues raised by

Howard. This court has the power to expand the

scope of a CA, which is what we have done here to

avoid prejudice to either side from the change in

rules.