Appeal from the United States District Court for the Eastern District of Wisconsin. No. 05-C-172-Aaron E. Goodstein, Magistrate Judge.
Before CUDAHY, KANNE, and EVANS, Circuit Judges.
Elijah Jones was convicted in Wisconsin state court of first degree sexual assault of a child. After exhausting state post-conviction remedies, Jones sought federal habeas corpus relief under 28 U.S.C. § 2254. He argues that his counsel was ineffective at trial for failing to discover and introduce evidence that would have impeached the testimony of the victim-the only evidence offered by the prosecution. The district court denied Jones's petition without holding an evidentiary hearing. Jones now asks us to remand for a hearing so that he might further develop his claims. But Jones does not allege facts that, if proven, would warrant relief. Therefore we affirm.
Jones's conviction was based exclusively on the testimony of his victim, "K.J." According to K.J.'s trial testimony, she was 12 years old when Jones assaulted her. At the time, Jones was dating her mother. K.J.'s family did not have a clothes washer and dryer, so K.J. went to Jones's apartment to do the family's laundry. Jones picked her up at home and drove her to his apartment. During the drive, Jones asked whether she had boyfriends or was sexually active.
While at the apartment, K.J. watched television on the couch. Jones sat down next to her and covered them both with a blanket. Under the blanket, he began to rub her thigh and then her vagina, over her clothes. She asked him to stop, and he did. He then took a shower and emerged naked. He asked her to look at his body and asked if she had pubic hair like he did. After K.J. had been at Jones's apartment for about two hours, he took her home. He told her not to tell anyone what had happened or they would both get in trouble. Within two days, however, she told her cousin, and her mother eventually found out and questioned her, resulting in a report to the police.
There were four discrepancies between K.J.'s testimony at trial and her previous statements to officers and at a preliminary hearing: (1) whether the security guard at Jones's apartment building momentarily came to the door to talk to Jones around the time of the assault; (2) whether K.J.'s mother had warned her to be careful around Jones because he "might try something;" (3) whether Jones was naked when he touched her; and, most important for this appeal, (4) whether K.J.'s mother called Jones's apartment while K.J. was there and, if she did, whether K.J. spoke to her. Counsel's failure to fully exploit the fourth discrepancy is the basis for Jones's collateral attack.
At trial, defense counsel emphasized three of these discrepancies: whether the security guard came to the door, whether Jones was naked during the assault, and whether K.J. spoke with her mother when she called. Counsel argued that the inconsistencies collectively undermined K.J.'s credibility. What counsel failed to do, however, was to investigate Jones's cell phone and land line records to determine if the call from K.J.'s mother actually occurred. Jones now produces call records for his cell phone that do not show an incoming call from K.J's mother, as well as a letter from one phone company stating that its records show that Jones did not have a land line at the time of the offense. Jones argues that counsel could have used these records to impeach K.J. more effectively, changing the question whether she talked to her mother to whether her mother even called. Jones claims this change would have more persuasively undermined K.J.'s account and may even have suggested she fabricated her testimony. Depending on its nature, additional impeachment in this case could be of great importance because Jones was convicted based only on K.J.'s testimony.
Though the trial judge was without the benefit of the phone records, she considered the other three discrepancies argued by counsel when determining Jones's guilt. She determined, however, that they did not impair K.J.'s credibility as to the actual assault. Instead, the judge focused on K.J.'s demeanor and the fact that her testimony regarding the assault itself was vivid and consistent at all times. The judge noted that any discrepancies between K.J.'s trial testimony and earlier statements during her initial report to police were of little consequence because the officer who interviewed K.J. did not have a clear recollection of his conversation with her and because he merely conducted a brief screening interview before directing her to the appropriate officers for a complete investigation. The judge also pointed to numerous other specific details that K.J. testified to, such as the layout of the room, that Jones had offered her a Klondike bar, the timing of the event, where he was in the room, what he wore, and other like details that were undisputed and bespoke her powers of observation. The judge determined that K.J.'s testimony contained far more consistencies than inconsistencies and that the consistencies outweighed any discrepancies in minor details that were extraneous to the assault. The judge also found that K.J. was credible because she did not embellish her story. After finding Jones guilty, the judge sentenced him to 28 years in prison.
Jones pursued a direct appeal as well as collateral relief in the Wisconsin courts, arguing the ineffectiveness of his trial counsel. See State of Wisconsin v. Jones, No. 02-0554-CR (WiS.Ct. App. Sept. 30, 2003). At his post-conviction proceeding, Jones first produced his cell phone records showing that no call was placed to his phone during the time that K.J. was at his apartment on the day of the incident (though he did not yet produce the land line records he now contends counsel should have investigated). Jones argued that his attorney should have investigated his cell phone records and used them to impeach K.J. regarding her testimony that her mother had called the apartment.
The Wisconsin Court of Appeals rejected Jones's claims without an evidentiary hearing. It found that the evidence would not have sufficiently undermined K.J.'s credibility to change the outcome of Jones's trial and thus counsel's failure to discover it was not prejudicial. The court noted that counsel had already mounted an unsuccessful attack on K.J's credibility based on similar discrepancies, and that even if counsel had discovered and admitted Jones's cell phone records, the records did not preclude the possibility that the call from K.J's mother was placed on a land line.
Jones next sought relief in the district court under § 2254. He again produced the cell phone records, but added a letter from a telephone company stating that he did not have a land line at the time of the incident. He reiterated his argument that, had counsel investigated and examined K.J. on this discrepancy, especially when combined with other inconsistencies in her testimony, there is a reasonable probability that the outcome of trial would have been different. The district court determined that the evidence did not show that counsel's failure to procure the phone records was prejudicial. It also denied an evidentiary hearing because Jones did not allege facts that would entitle him to relief, and thus he was not entitled to a hearing.
On appeal, Jones argues that he was entitled to an evidentiary hearing in the district court to prove counsel's ineffectiveness, and he asks us to remand for a hearing. The state courts refused Jones's request for a hearing. Accordingly, he is not at fault for failing to develop the factual record, and we look only to whether, if proven, his proposed facts would entitle him to relief. See Richardson v. Briley, 401 F.3d 794, 800 (7th Cir. 2006); Davis v. Lambert, 388 F.3d 1052, 1059-62 (7th Cir. 2004); Matheney v. Anderson, 253 F.3d 1025, 1038-39 (7th Cir. 2001).
To obtain relief, Jones must demonstrate that the Wisconsin Court of Appeals' decision was either contrary to, or an unreasonable application of, Supreme Court precedent. See Davis, 388 F.3d at 1058-59; Harris v. Cotton, 365 F.3d 552, 555 (7th Cir. 2004). Jones proceeds under the theory that the state court's conclusion was an unreasonable application of the correct precedent. To be unreasonable, the decision must not only be incorrect, but so incorrect that it lies outside of the range of reasonable conclusions. Dixon ...