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George v. Smith

October 27, 2009

LARRY GEORGE, PETITIONER-APPELLANT,
v.
JUDY P. SMITH, WARDEN, RESPONDENT-APPELLEE.



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 04-C-941-Charles N. Clevert, Jr., Chief Judge.

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

ARGUED JANUARY 8, 2009

Before EASTERBROOK, Chief Judge, and EVANS and TINDER, Circuit Judges.

In 2001, Larry George was convicted in Wisconsin of two counts of second degree sexual assault by use of force, Wis. Stat. § 940.225(2)(a), and one count of false imprisonment, Wis. Stat. § 940.30. George wended his way through Wisconsin's appeal and post-conviction procedures but was rebuffed at every point. After running out of options in Wisconsin, he filed a federal petition for habeas corpus in the Eastern District of Wisconsin. The district court denied the petition as well as George's request for a certificate of appealability.

On appeal, we granted George a certificate of appealability allowing him to present a Confrontation Clause challenge based on his counsel's inability to cross-examine the complaining witness who accused him of sexual assault. (The nature of the charges here causes us to refer to this man anonymously as the victim throughout the opinion). On appeal, George's counsel finds no merit in that claim and challenges instead the effectiveness of George's trial counsel.

George argues that his trial counsel failed to understand Wisconsin's rape shield law and therefore mistakenly did not object when the prosecutor improperly questioned the victim about the victim's sexual orientation. Furthermore, George argues, once the victim testified that he was heterosexual, George's trial counsel should have impeached the witness's claim with the testimony of another man who George claims had a homosexual encounter (or relationship) with the victim. George argues that his trial counsel's failure to pursue this line of inquiry was an error that rendered his trial counsel's assistance constitutionally deficient. We disagree.

I. Background

George's convictions arose from an incident on New Year's Eve in 1995. George and an accomplice abducted the victim (after a fight with the man and his friends) as he walked home from a bar in Appleton, Wisconsin. They took the man to the accomplice's house, had a few beers, and then George and the man took a cab to a motel in Green Bay and George checked in under an alias. At the motel, according to the jury's verdict, George assaulted the man twice, forcing him to perform oral sex both times. The next morning, George drove the man back to his job at a restaurant, where the man spoke to the police (who were alerted to the abduction by the man's friends). After initially denying that he was assaulted, the man eventually admitted to police, over a series of interviews, that George had assaulted him in the motel room.

Problems in the case against George are readily apparent after a glance at that sequence of events. For instance, why did the evening begin with a fight and end with the two combatants checking into a motel together? Why did the victim ride back to work with George the morning after being assaulted? Why did the victim's story change? At George's trial, defense counsel attacked these areas of inconsistency, focusing on the number of differing stories the victim told the police and noting, for the jury, the multiple chances the victim had to escape George's clutches. Notably, however, George's defense was not based on consent; instead, George's counsel argued that even though George and the victim had stayed in the hotel together (a fact that was impossible to dispute), no sexual assault occurred and the victim had made the entire story up to avoid paying a $900 debt. It was this debt, incidentally, that initially led George and his accomplice to track the victim down.

For his part, the prosecutor offered an explanation for the victim's continued travels with George over the course of the evening by pointing out that the two had an incentive to collaborate to some extent after the fight because they both had outstanding warrants and therefore sought to avoid the police, who had been alerted by the victim's roommates. The prosecutor then attempted to rehabilitate the victim's credibility, which had been damaged by his shifting versions of events that night, by asking the victim whether he was heterosexual. The victim said he was and that he was embarrassed about reporting a homosexual assault, which accounted for his initial less-than-forthcoming interviews with the police and the resulting inconsistencies in his account of what happened that evening. The prosecutor emphasized this rationale during his closing argument.

George was convicted. He unsuccessfully sought post-conviction review in the Wisconsin trial court, arguing, among other things, that his trial counsel was ineffective. On appeal from the denial of his post-conviction motion and his conviction, he maintained his ineffectiveness claims and asserted that the prosecutor violated Wisconsin's rape shield statute when he elicited testimony from the victim about his sexual orientation. The Wisconsin appeals court rejected the rape shield claim holding that "[s]exual orientation is not conduct or reputation" as defined in the rape shield statute, Wis. Stat. § 972.11 (2)(b). State v. George, No. 03-0299-CR, 2004 WL 1276965, at *2,¶7 (WiS.Ct. App. 2004). His other claim, that the failure to cross-examine the victim rendered his counsel ineffective, was not so neatly addressed. The Wisconsin Court of Appeals threw out a number of his ineffectiveness claims as abandoned or waived, but did not specify which claims fell into this category. The court rejected several others because George did not call appropriate witnesses at the post-conviction hearing. (As we will discuss, we believe that this group of claims includes the failure to cross-examine issue George raises before us). The court rejected another set of ineffectiveness claims because George could not establish prejudice resulting from his counsel's decisions. The Wisconsin Supreme Court denied George's petition for review.

George then sought review in the Eastern District of Wisconsin. There, he raised a number of issues, including the two before us, but in a different form. He argued that he was entitled to a writ because the state violated its own rape shield law in prosecuting him. He also argued that his inability to cross-examine the victim about his sexual orientation violated the Confrontation Clause. The district court rejected the rape shield claim, noted that the Confrontation Clause argument did not make sense because George had an opportunity to fully cross-examine the victim, and then construed the cross-examination issue as an ineffectiveness issue, which the district court also rejected. The court denied the writ and refused to issue a certificate of appealability.

On appeal, we issued a certificate of appealability, finding that "George has made a substantial showing of the denial of a constitutional right as to whether the state trial court violated his rights under the confrontation clause when it did not permit him ...


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