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March 18, 1997

GEORGE DeTELLA,1, Respondent.

The opinion of the court was delivered by: CASTILLO

 Sherman Howard, an inmate in the Hill Correctional Center, petitions pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus setting aside his conviction under Illinois state law for aggravated sexual assault. In earlier proceedings in this case, this Court held that Howard's petition was procedurally defaulted because he had failed to raise his present constitutional claims to the Illinois courts. Specifically, Howard neglected to file any brief with the Illinois appellate court in support of his appeal from the denial of his petition for post-conviction relief, and did not appear to have filed a petition for leave to appeal with the Illinois Supreme Court. See United States ex rel. Howard v. DeTella, No. 94 C 1246 (N.D. Ill. July 12, 1995).

 Howard appealed the dismissal of his habeas petition, and the Seventh Circuit reversed. The Seventh Circuit held that the Illinois appellant court's statement--that it found "no issues of arguable merit" after reviewing the record and the brief filed by Howard's appointed attorney seeking to withdraw--must be read as finding that the appeal raised no meritorious constitutional claims. See Howard v. DeTella, 1996 U.S. App. LEXIS 17727, No. 95-3123 (7th Cir. July 16, 1996). The Seventh Circuit interpreted this statement as a decision on the merits of Howard's claims that avoided a procedural default. Therefore, this Court now addresses the merits Howard's claim in accordance with the instructions of the Seventh Circuit.


 When considering a petition for habeas corpus, this Court ordinarily would look to the factual determinations made by the state court. See Sumner v. Mata, 449 U.S. 539, 546-47, 66 L. Ed. 2d 722, 101 S. Ct. 764 (1981). In this case, however, we are not aware of any Illinois court decision containing a statement of facts. Nor has Howard submitted any other statement of facts in connection with this petition. *fn2" Howard did, however, set forth facts in his brief in support of his petition for Illinois post-conviction relief, and also set forth his claims in more detail in his reply brief submitted in connection with his original habeas petition. The following facts are drawn from these briefs and from portions of the trial transcript, which were submitted as exhibits to the State's Answer. Resp.'s Answer to Pet'n, Exs. C - G. We also have examined the complete transcript of the testimony of Dr. Constance Blade-Schlessinger, submitted by Howard in response to a request by this Court.

 On October 5, 1989, Sherman Howard was convicted of aggravated sexual assault for two instances of penetration of his young daughter, Tamika. He was sentenced to twenty years in prison. At trial, the evidence against Howard was given primarily by Tamika herself; Linda Fletcher, Tamika's aunt; and by Dr. Constance Blade-Schlessinger, a doctor who examined Tamika. Tamika, who was five and a half years old at the time of the final instance of sexual abuse and eight years old at the time of trial, testified with clarity that her father had sexually abused her over a period of years. Tamika testified that her father placed his finger in her vagina, asked her to lick his penis, and placed his penis in her vagina. She could only recall the date of the most recent instance of abuse, which occurred about the time that her younger sister was born (December 13, 1986). Tamika testified that she had told her mother, an addict and prostitute, about the abuse but that her mother scolded her and would not listen to her. Tamika also testified to disclosures she had made to her aunt.

 Linda Fletcher, Tamika's aunt who cared for Tamika from time to time and eventually gained custody of Tamika, testified regarding Tamika's disclosures of the abuse to her, her own observations of Tamika's genital area during baths, and her attempts to have Tamika medically evaluated for signs of sexual abuse. Fletcher testified that between April 1982 and May 1983, Tamika was living in the same house with Fletcher, but Tamika's parents were living elsewhere. Howard would come and get Tamika occasionally for visitation. Tamika often returned home from these visits dirty and groggy or sleepy. After one such visit in May 1983, Tamika expressed pain while urinating. Upon questioning, Tamika told her aunt that her father had been "playing games" with her. Tamika explained that her father had turned some music on loud and asked her to run around and dance with her pants off. He then asked her to lie down and placed his finger in her vagina (which she called by another name) and had her lick his penis. Tamika also told Linda Fletcher that her father made her swallow pink and yellow pills from his dresser.

 In October 1985, Tamika once again came to live with Fletcher, and reported that her father was engaging in oral sex with her and placing his penis into her vagina. (Tamika described these acts using childish nicknames, which she explained to her aunt.) Fletcher examined Tamika's genital area and observed redness, puffiness, and a discharge. Finally, Fletcher testified that in December 1986, Tamika again stayed with her around the time the Tamika's younger sister was born. Tamika again told Fletcher that Howard was engaging in oral sex and intercourse with her. Tamika returned to her mother's house after that, but was moved elsewhere by her mother. In February, 1987, Fletcher retrieved Tamika and began proceedings to obtain custody of Tamika.

 Dr. Blade-Schlessinger was the third doctor to examine Tamika. Dr. Rosen examined Tamika in 1983, and Dr. Shettee examined her in June 1987. Both of these doctors noted that Tamika's hymen was not intact. *fn3" When Dr. Blade-Schlessinger examined Tamika in November, 1987, however, she found that there was no neovascularization, a sign of sexual contact, and that Tamika's hymen was intact. Dr. Blade-Schlessinger explained this discrepancy by testifying that a child's hymen can heal and "regenerate" over time. The record indicates that this testimony was based on medical literature with which Dr. Blade-Schlessinger was familiar, including a recent article in the monthly magazine Pediatrics, written by Martin Finkel and entitled "Anogenital Trauma in Sexually Abused Children." Howard's attorney cross-examined Dr. Blade-Schlessinger on this "regeneration" opinion and on the article, showing that of the seven children discussed in the article, only one had hymenal disruption such as that noted in Tamika, and that child had later scarring. After hearing closing arguments, the jury returned a verdict of guilty.

 Through counsel, Howard appealed his conviction. Howard says that he asked his appellate counsel to raise the following claims, laying the factual and legal basis for them out in detail: (1) the improper admission of confusing, prejudicial, and scientifically unsupported medical testimony regarding hymen regeneration by Dr. Blade-Schlessinger; (2) prosecutorial misconduct; and (3) improper evidentiary rulings by the trial court. Howard's counsel did not raise these arguments on appeal, however, instead arguing only that the indictment was insufficient. The appellate court found no merit to this argument and affirmed the conviction in an unpublished two-page order. People v. Howard, No. 1-89-3108 (Ill. App. Ct. Mar. 19, 1992) (attached as Ex. A to Resp.'s Answer to Pet'n). Howard then unsuccessfully petitioned the Illinois Supreme Court for leave to appeal.

 Howard's post-conviction petition was also unsuccessful. In reviewing the circuit court's denial of the post-conviction petition, the Illinois appellate court stated, in another unpublished two-page order, that "We have carefully reviewed the record in this case and the aforementioned brief [of Howard's appointed appellate counsel, seeking to withdraw] in compliance with the mandate of Pennsylvania v. Finley [, 481 U.S. 551, 95 L. Ed. 2d 539, 107 S. Ct. 1990 (1987)] and find no issues of arguable merit." People v. Howard, No. 1-93-0582 (Ill. App. Ct. Aug. 5, 1993) (attached as Ex. B to Resp.'s Answer to Pet'n). The Illinois supreme court denied Howard's petition for leave to appeal the dismissal of his post-conviction petition.

 Howard now brings this petition for habeas corpus relief. In it, he argues only that he was deprived of the effective assistance of counsel on his direct appeal, due to his appellate counsel's failure to raise the following arguments: (1) medical expert testimony not generally accepted in the field was improperly admitted; (2) there was an accumulation of prosecutorial misconduct and error involving references to prior criminal conduct and "kidnapping" by Howard; (3) the trial court's jury instructions failed to remedy the prosecution's incorrect definition of the reasonable doubt standard; and (4) hearsay evidence (Fletcher's reporting of Tamika's conversations with her was improperly admitted.


 A court will reach the merits of a petitioner's habeas claims only if he has exhausted his state remedies and avoided procedural default of those claims. Lostutter v. Peters, 50 F.3d 392, 394 (7th Cir. 1995). Based upon the Seventh Circuit's decision in the appeal of this case, we conclude that the exhaustion and procedural default requirements have been met, and address only the merits of Howard's claim here.

 Under the habeas corpus statute as recently amended, federal courts must deny a petition for habeas corpus with respect to any claim adjudicated on the merits in a state court unless the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1); see also Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996) (en banc) (recently amended version of § 2254 applies to cases such as this one), cert. granted, 117 S. Ct. 726, 136 L. Ed. 2d 643 (1997). *fn4" In this case, the relevant Illinois appellate court's decision stated only that their review of the record and appellate counsel's Finley brief revealed "no issues of arguable merit." Our task thus is to consider whether Howard's claims do have any merit, under "clearly established Federal law, as determined by the Supreme Court of the United States."


 Howard claims that the failure of his appellate counsel to raise certain arguments deprived him of the effective assistance of counsel, in violation of the Sixth Amendment. The Seventh Circuit has held that "the performance of appellate counsel is assessed using the same standards applied to trial counsel under Strickland v. Washington," 466 U.S. 668 (1984). Mason v. Hanks, 97 F.3d 887, 892 (7th Cir. 1996); see also Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986). Those standards require a reversal only if the petitioner can meet a two-pronged test: first, he must show that his attorney's performance "fell below an objective standard of reasonableness," Strickland, 466 U.S. at 688; and second, he must demonstrate that the deficiency of his lawyer's performance prejudiced him to the point that the proceeding was "fundamentally unfair and the result unreliable." Mason, 97 F.3d at 893.

 Where, as here, the petitioner's claim of ineffective assistance of appellate counsel concerns the failure to raise certain arguments on appeal,

the district court must examine the trial court record to determine whether appellate counsel failed to present significant and obvious issues on appeal. Significant issues which could have been raised should then be compared to those which were raised. Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.

 Gray v. Greer, 800 F.2d at 646. The omission of "significant and obvious" issues without any strategic reason for the omission meets the first prong on Strickland, i.e., deficient performance. If the omitted arguments could have "resulted in a reversal of the conviction, or an order for a new trial," the second prong of Strickland-- prejudice--has also been met. Id.; see also Mason, 97 F.3d at 893.

 Howard claims that his appellate counsel should have raised four arguments: (1) the medical expert testimony regarding hymen regeneration was not scientifically supported; (2) prosecutorial comments regarding prior criminal conduct and "kidnapping" by Howard deprived Howard of a fair trial; (3) the court's instructions to the jury failed to correct the prosecutor's misstatement of the reasonable doubt standard made in closing; and (4) hearsay testimony by Fletcher describing Tamika's reports of abuse to her should not have been admitted. After reviewing the record carefully, this Court finds that, while the failure to raise these issues arguably demonstrates a deficient performance by Howard's appellate counsel, Howard cannot show any prejudice from the failure to raise these issues.

 The Court is well aware of the "strong presumption" that an attorney's assistance was effective within the meaning of the constitution. See Mason, 97 F.3d at 892 (citing Strickland, 466 U.S. at 688). And, as noted below, there are several problems with the arguments that Howard asked his appellate counsel to make. Nevertheless, we believe that the better practice for appellate counsel is to raise all issues that their clients want raised, so long as those arguments are consistent with Federal Rule of Civil Procedure 11 and he dictates of legal strategy. Moreover, when we compare the issues that Howard wanted raised with the single issue that his appellate counsel did present, we conclude that at least some of Howard's issues had a better factual and legal basis than the issue that his counsel presented. We can discern no reason why Howard's attorney could not simply have added the issues Howard wanted raised to the single issue she ...

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