Pierce v. Vanihel

1

Donald A. Pierce, Petitioner-Appellant, v. Frank Vanihel, Respondent-Appellee.

No. 22-2073

United States Court of Appeals, Seventh Circuit

February 22, 2024

ARGUED NOVEMBER 7, 2023

Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. No 2:20-cv-00177-JPH-MG - James Patrick Hanlon, Judge.

Before EASTERBROOK, WOOD, and ST. EVE, Circuit Judges.

ST EVE, CIRCUIT JUDGE.

An Indiana jury convicted Donald Pierce of four counts of felony child molesting and of being a repeat sexual offender for molesting the ten-year-old daughter of his then-fiancee. At trial, his lawyer failed to object to witness testimony that violated an Indiana evidentiary rule. Pierce later petitioned for post-conviction relief in state court, contending that his trial counsel's failure to object deprived him of constitutionally adequate representation. The Indiana Court of Appeals denied the petition after finding that Pierce's counsel's failure to object was knowing and strategic, and did not rise to the level of constitutionally deficient performance. Pierce now seeks habeas relief arguing that the state appellate court unreasonably applied Supreme Court precedent and otherwise based its decision on an unreasonable fact determination. We affirm.

I. Background

A. Factual Background

In June 2008, Indiana charged Petitioner Donald "Andy" Pierce with three counts of Class "A" felony child molesting, one count of Class "C" felony child molesting, and being a repeat sexual offender. Pierce went to trial, and a jury convicted him on all counts.

The convictions stem from Pierce's molestation of J.W., the ten-year-old daughter of his then-fiancee. Pierce started dating J.W.'s mother in 2004. He soon moved in with J.W. and her mother, and in 2006 began to molest J.W. According to J.W., the molestations occurred approximately every other weekend for a year and included sexual intercourse, oral sex, and fondling.

B. Procedural Background

1. Trial and Direct Appeal

There was no physical evidence of the molestation, and J.W. was the only eyewitness. The state thus sought to prove its case through the testimony of J.W. and the several adults in whom she confided. The state's case consisted of seven witnesses, testifying in the following order: J.W.'s paternal grandfather, J.W.'s father, an investigating sheriff's deputy, J.W.'s mother, J.W., and two medical witnesses. Most of these witnesses testified to what and when J.W. told them about Pierce's conduct. Pierce's trial counsel did not object to this sequence of witnesses.

J.W.'s paternal grandfather testified first, informing the jury that J.W. initially told him about the "problems she was having" with Pierce in 2007, when she divulged to him that she once woke up to find Pierce "fooling around" with her. He did not contact law enforcement, but instead agreed to let J.W. tell her mother.

J.W.'s grandfather suffered a heart attack not long after J.W. told him about the molestation, and by the time he recovered, J.W. had yet to tell her mother. He testified that J.W. told him that she had not talked to her mother because "what had happened was consensual" and "fun." J.W.'s grandfather called J.W.'s maternal grandfather several days later to tell him about the molestation.

J.W.'s father testified second, reporting that he notified the police after hearing about the allegations against Pierce from J.W.'s mother. He testified that J.W. never told him about the molestation. On cross-examination, he reiterated that when he spoke to the police, "[a]ll he knew was ... that [Pierce] had touched her," and that he did not know any "other specifics about the amount of times or anything like that."

Sheriff's Deputy Debra Young was the state's third witness. Young testified that she first heard about the allegations from J.W.'s father. Young subsequently contacted the Indiana Department of Child Services, which set up a forensic interview with J.W. In the meantime, Young also spoke with J.W.'s mother, who informed her J.W. had revealed that there had been "incidents with [Pierce] that he had been in her bedroom and she had awakened with him on top of her."

J.W. underwent two forensic interviews in the weeks that followed, the first of which took place the day after J.W.'s father contacted the police. In that first interview, J.W. stated that Pierce had raped her "approximately four times," beginning around Valentines Day of 2007. J.W. also described waking up with Pierce on top of her and raping her.

Young testified that second interviews are "not uncommon," and that a second interview was necessary after investigators "obtained more information from family members." After her first interview, J.W. told family members that she "hadn't told the truth" and "had actually lied the first" time. Specifically, J.W. revealed that it "didn't happen exactly like she had said" because she "hadn't been asleep during the incidents."

So, J.W. sat for a second interview several weeks later, at which she offered a somewhat different version of her story consistent with the new account divulged to family members. J.W. informed the interviewers that Pierce's conduct began around Easter of 2006, not Valentines Day of 2007, and that she was awake, not asleep, at the time of the molestation. Pierce had asked if she "wanted to play a game," "trusted him," "loved him," and "loved her mom." At that point, he removed their clothing and the two started "wrestling." Pierce then began "fondling her, touching her private parts with his hands," eventually "putting his private part in her private part," and "mov[ing] up and down on top of her." J.W. claimed that similar conduct happened "multiple times .. pretty much .. every time that they were alone" on weekends spent at her mother's house. J.W. explained that she had not revealed this information during the first interview because she was "scared" and "didn't want to hurt her mom."

J.W.'s mother testified next, recounting that Pierce and J.W. seemingly "got along well," and that Pierce "watched [J.W.] a lot" while she was working. She testified that she discovered the "inappropriate relations" between the two in May 2007, after her parents informed her that J.W. had confided in her paternal grandfather that Pierce had "touched her." When she confronted her daughter with this information, J.W. told her that Pierce "had come into her room at night a few times."

J.W.'s mother further testified that J.W.'s story later changed, which prompted her to set up the second interview. Specifically, J.W. revealed that Pierce "didn't come into her room at night," but instead "asked her to come into the bedroom one day" while her mother was at work, and that this "happened for a long time for about a year or more." According to J.W.'s mother, J.W. stated that she had not disclosed these details during the first interview because she was afraid that her mother was going to "hate her or be mad at her."

On cross-examination, Pierce's trial counsel questioned J.W.'s mother about her daughter's "changing story." J.W.'s mother stressed that J.W. was "not a liar," but simply "didn't want to tell me all the rest of the details."

J.W. took the stand after her mother. She described the alleged conduct, beginning with the "wrestling," and Pierce later telling her to take off her clothes, getting on top of her, and molesting her. J.W. told the jury that this first happened about a year and a half before she told her grandfather, and that she had not given him "all the details." She testified that she did not speak with her mother because she "couldn't look [her mother] in the face and tell her."

The rest of J.W.'s testimony adhered to the version of events she described in the second interview. J.W. explained that she did not tell the interviewers "exactly" what happened during the first interview because she did not want to hurt her mother. She insisted that the first interview was "a lie," telling the jury that she ultimately gave a truthful account in the second interview because she "couldn't lie."

On cross-examination, Pierce's trial counsel highlighted the inconsistencies in J.W.'s story. Counsel asked whether J.W. ever spoke with her father or mother about the conduct, to which J.W. responded that she did not "go into details" with them. Counsel also repeatedly asked whether the varying versions of J.W.'s testimony were lies, and J.W. confirmed that anything inconsistent with her second interview was inaccurate. When counsel asked J.W. which parts of her story she lied about, J.W. responded, "the part of me being asleep."

The state closed its case with the testimony of two medical witnesses. The first, a therapist, testified about the behaviors and characteristics of child sexual abuse victims. The second, a nurse who examined J.W., testified that she did not find any physical injuries on J.W. during her examination, but that it was common not to observe injuries in child rape victims.

Pierce called Deputy Young as his only witness. Young's testimony largely overlapped with her earlier statements, with Pierce's trial counsel drilling down on the inconsistencies between J.W.'s two interviews. When Pierce's counsel asked Young whether J.W. "change[d] her story," Young responded "yes," explaining that J.W. stated she needed a second interview because she "hadn't been truthful the first time" and had "lied about how and when it happened."

During Pierce's closing statement, trial counsel argued that it was plausible for a child to fabricate a molestation story. Counsel repeatedly attacked J.W. as a "liar," highlighting the inconsistencies between her first and second interviews and her numerous versions of the...