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Cookson v. Schwartz

February 23, 2009

DONALD COOKSON, PETITIONER-APPELLANT,
v.
GREGORY SCHWARTZ, ACTING WARDEN, RESPONDENT-APPELLEE.



Appeal from the United States District Court for the Central District of Illinois. No. 1:06-cv-03255-RM-Richard Mills, Judge.

The opinion of the court was delivered by: Ripple, Circuit Judge.

ARGUED NOVEMBER 5, 2008

Before EASTERBROOK, Chief Judge, and RIPPLE and ROVNER, Circuit Judges.

Donald Cookson was convicted in Illinois state court of predatory criminal sexual assault of a child. His conviction was affirmed by the Illinois Appellate Court and the Supreme Court of Illinois. He filed a petition for a writ of certiorari in the Supreme Court of the United States. That petition was denied. Mr. Cookson then filed a petition for a writ of habeas corpus with the United States District Court for the Central District of Illinois. The district court denied the petition. We granted Mr. Cookson a certificate of appealability, and we now affirm the district court's denial of his petition.

I. BACKGROUND

A.C., the alleged victim in this case, was born in October 1992. For the first seven years of her life, she lived with her mother, Judith Cookson, and her mother's husband, Donald Cookson. Everyone involved thought that A.C. was Mr. Cookson's biological daughter, until a DNA test in mid-2000 revealed that A.C.'s actual father was a man named Rick Aston.

A.C. lived with her mother and Mr. Cookson until August 1999, when Judith Cookson left Mr. Cookson's home. She took A.C. with her and moved in with Aston. One day, Aston and A.C. disappeared. Judith and Mr. Cookson filed a police report stating that Aston had abducted A.C. Aston soon returned with A.C. and turned her over to authorities, who returned her to Judith and Mr. Cookson.

Soon thereafter, A.C. began alleging that Judith and Mr. Cookson had abused her sexually. In January 2000, she told Dorothy Rice, an investigator with the Illinois Department of Children and Family Services ("DCFS"), that Mr. Cookson gave her marijuana, "r[a]n bath water in the tub, put her in the tub and he hump[ed] on her."

Supp. Vol. V, 9-10. A.C. also told Rice that Mr. Cookson "takes his little thingy when she is in the tub and he put it in her butt." Id. at 10. A.C. further claimed that Mr. Cookson "humped" on her "all the time." Id. She also told Rice that she wanted to live in a "clean place" and no longer wanted to live with Judith and Mr. Cookson, because they fed her "nasty food like dogs or cats would eat." Id. at 19.

The next day, A.C. was placed in a foster home. She told Laverne Landers, her foster mother, that she never was going home to Judith and Mr. Cookson because both Mr. Cookson and Judith had engaged in sexual acts with her. A.C. said that she would stay with Landers forever and that Mr. Cookson and Judith were "going to jail." Supp. Vol. III, 60-61. The next day, she repeated these allegations to police detective Richard Wiese and DCFS investigator Timothy Gonzalez. A.C. told Gonzalez and Detective Wiese that the abuse had taken place when she was six years old. She also told Gonzalez that she did not want to live with Judith and Mr. Cookson because of what they had done to her.

On February 3, 2000, A.C. was examined by Dr. Victoria Nichols-Johnson, an obstetrician-gynecologist at the Southern Illinois University Medical Center. The examination revealed no signs of physical trauma, but A.C. told Dr. Nichols-Johnson that her mother had had oral sex with her. A.C. also claimed that Mr. Cookson had "assaulted [her] vaginally," but she denied any contact between Mr. Cookson's penis and her anus. Supp. Vol. VI, 110-111. This denial conflicted somewhat with her earlier statements. Based on A.C.'s allegations, Mr. Cookson was charged with predatory criminal sexual assault of a child and aggravated criminal sexual abuse.

In July 2000, after she had been in foster care for six months, A.C. alleged that Rick Aston had inserted his finger into her vagina. DCFS investigated and found A.C.'s report to be "indicated," meaning that there was credible evidence that it was true. Aston appealed this finding. DCFS reviewed the allegation and reclassified it as "unfounded."

The case against Mr. Cookson went to trial in 2001. Mr. Cookson filed a motion in limine asking the court to exclude the use of A.C.'s out-of-court statements at trial on the ground that they were unreliable hearsay. The court denied the motion. The prosecution filed a motion in limine asking the court to preclude the use of testimony about A.C.'s allegation against Aston. The court granted this motion.

At trial, the prosecution called Rice, Landers, Wiese, Gonzalez and Dr. Nichols-Johnson as witnesses. These witnesses testified about A.C.'s statements accusing Mr. Cookson of sexual abuse. A.C. also appeared as a prosecution witness and described several incidents during which, she claimed, Mr. Cookson performed sexual acts on her. On cross-examination, Mr. Cookson's counsel asked about her statements to Wiese and Gonzalez. A.C. testified that she did not remember making the statements or speaking to Wiese and Gonzalez.

At the close of the prosecution's case, Mr. Cookson made an offer of proof regarding A.C.'s sexual abuse allegation against Aston. He stated that, if allowed, he would have called Aston as a witness and that ...


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