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Rodriguez v. Gossett

United States Court of Appeals, Seventh Circuit

November 23, 2016

Anthony Rodriguez, Petitioner-Appellant,
v.
Greg Gossett, Warden, Respondent-Appellee.

          Argued February 9, 2015

         Appeal from the United States District Court for the Southern District of Illinois No 3:10-cv-00077-DRH-SCW - David R. Herndon, Judge.

          Before ROVNER and Sykes, Circuit Judges, and WOOD, District Judge [*]

          WOOD, District Judge.

         Anthony Rodriguez was convicted of two counts of predatory criminal sexual assault of a child following a jury trial in the State of Illinois in 1997. Rodriguez has petitioned for a writ of habeas corpus, contending that he was deprived of effective assistance of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and now appeals the district court's denial of his petition. Because we conclude that the Illinois Appellate Court did not unreasonably apply the Strickland standard, we affirm the district court's denial of Rodriguez's habeas petition.

         I.

         In late 1997, following a jury trial in the Circuit Court of Randolph County, Illinois, Rodriguez was convicted of two counts of predatory criminal sexual assault of a child and sentenced to 60 years in prison. The charges stemmed from an allegation by K.O., an 11-year-old girl, that Rodriguez had sexually assaulted her on two occasions. At the time of the incidents, K.O. and her mother, D.O., lived with Rodriguez in a home in Chester, Illinois.

         At the trial, K.O. testified that D.O. left her in Rodriguez's care from early on Friday, May 9, 1997 until Monday, May 12, 1997 while D.O. attended a wedding in Chicago. K.O. further testified that, on the evening of May 9, she went to sleep in D.O.'s bed. She later woke up to find that Rodriguez had gotten into bed with her. Rodriguez then anally penetrated K.O. with his penis. Afterwards, Rodriguez got out of bed and K.O. felt a liquid substance by her underwear. The next evening, May 10, K.O. slept in her own bed. According to K.O., Rodriguez once again got into bed with her, pulled down the bed covers and K.O.'s underwear, and anally penetrated her with his penis. As before, K.O. felt a liquid substance. When D.O. returned home on May 12, K.O. did not immediately tell her what had happened. Instead, K.O. waited about five days because Rodriguez "was always by [her]" and she never had a chance to be alone with D.O. K.O. testified that she was afraid of Rodriguez. Eventually, however, when K.O. was at the store where D.O. worked, K.O. told D.O. what had happened while D.O. was away.

         D.O. also testified at trial. She testified that she left K.O. in Rodriguez's care early on the morning of Friday, May 9, and that she returned on Monday, May 12. On the night of May 11, while she was away, D.O. spoke to Rodriguez and asked him what he was doing. Rodriguez responded that he had been "up all night doing laundry." According to D.O., however, they had both done laundry before she left and they usually did laundry only once or twice per week. D.O. further testified that on May 20, 1997, K.O. told her what Rodriguez had done over the May 9 weekend. Like K.O., D.O. testified that K.O. had not had any opportunity to tell D.O. about the assaults before May 20 because Rodriguez "was always around." After K.O. told D.O. about the assaults on May 20, D.O. contacted the police and took K.O. to the hospital. She also testified that K.O. had attempted suicide in 1993 or 1994 because she was "broke apart" when D.O.'s fiance was sent to prison.

         The State also presented testimony from Jim Nesler, an investigator with the Illinois Department of Children and Family Services. Nesler testified that he interviewed K.O. on May 21, 1997 and that K.O. recounted to him the same two alleged incidents of abuse about which she testified at trial. Nessler further testified that he conducted an interview with Rodriguez on May 21, 1997, at which time Rodriguez acknowl- edged that he looked after K.O. during the weekend in question but denied that he had any inappropriate contact with her.

         The State's final witness was Dr. Deanna St. Germain, a physician trained in the medical examination of children alleged to have been sexually abused. Dr. St. Germain examined K.O. on July 23, 1997. She observed several injuries to K.O.'s rectal area that, as she explained at trial, are not typically found on children who have not been abused. Based on the types of injuries she observed, Dr. St. Germain opined that K.O. "suffered some type of an abnormal penetrating injury to her anus." On cross-examination, Dr. St. Germain testified that K.O. had a history of having been sexually abused around the age of two, but she "was not aware of what the sexual abuse was." Dr. St. Germain admitted that, assuming there was anal penetration at some point prior to the alleged sexual abuse on May 9 or 10, 1997, she would not be able to separate injuries sustained on those dates from the previous sexual abuse. Dr. St. Germain further explained, "[w]hen I do my examination, I am going to make an opinion of the physical findings and not of who did it when." After Dr. St. Germain finished her testimony, the State rested its case.

         Rodriguez testified in his own defense and denied having sexually assaulted K.O. In addition, Rodriguez testified that he had personally observed K.O. tell lies in the past. Rodriguez also called as a defense witness Timothy James Loch-head, an administrative assistant in charge of discipline at K.O.'s grade school. Lochhead testified that, "like other children, [K.O.] has fabricated things from time to time, such as she didn't want to take a test or she didn't want to do this or that. Maybe her arm hurt or she had a stomach ache or was tired, those types of things." On cross-examination, Lochhead conceded that "[i]t is not unusual" for children to engage in such fabrications, but he believed that K.O. "was quite frequent with her fabrications."

         Finally, after the defense rested, the State introduced into evidence a certified copy of Rodriguez's prior conviction for theft. The jury was instructed that the prior conviction could be considered only for purposes of impeaching Rodriguez's veracity when testifying and not as proof of guilt.

         Central to the present appeal, but not presented by either side during the trial, are two reports from the Illinois State Police's Division of Forensic Services analyzing four semen stains on a blanket from K.O.'s bed and comparing them to blood standards taken from Rodriguez and K.O. The first report concluded that no comparisons were possible due to the limited amounts of DNA found in the samples. The second report was issued on October 28, 1997, one day before Rodriguez's trial began. That report analyzed 12 samples taken from the four semen stains and concluded that eleven of the samples could not have come from Rodriguez, several reflected that they came from K.O. and several others were from a third, unknown donor. Neither Rodriguez nor K.O. could be excluded as having contributed to the mixture of DNA profiles detected in the twelfth sample; however, the report notes that this sample could have come from "approximately 1 in 2 Caucasians, 1 in 4 Blacks, and 1 in 2 Hispanics ... ." Additionally, an unidentified profile was present in this mixture.

         The sperm samples came up at trial for the first time during closing arguments. Approximately halfway through the State's closing argument, the prosecutor referenced D.O.'s testimony that, during a phone call with Rodriguez on May 11, he told her that he had been up all night doing laundry. The prosecutor then asked rhetorically: "Why would you wash clothes on a Sunday like that if ...


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