Thill v. Richardson

485 F.Supp.3d 1018

Ross R. THILL, Petitioner,

v.Reed RICHARDSON, Respondent.

18-cv-1005-jdp

United States District Court, W.D. Wisconsin.

Signed September 10, 2020

Catherine Rita Malchow, Department of Justice, Thomas Brady Aquino, Wisconsin State Public Defender, Madison, WI, for Petitioner.

Abigail C. Potts, Wisconsin Department of Justice, Madison, WI, Wisconsin Department of Justice, for Respondent.

OPINION and ORDER

JAMES D. PETERSON, District Judge

Petitioner Ross R. Thill was convicted, after a jury trial, on one count of sexual assault of a child. Thill, by postconviction counsel, now seeks a writ of habeas corpus under 28 U.S.C. § 2254. The case is fully briefed and ready for decision.

Thill's defense at trial was that the child's mother, his ex-girlfriend, framed him by planting his semen on the child's underwear and coaching her to make false abuse accusations. In his petition, Thill contends that his trial counsel was constitutionally ineffective by failing to object on two occasions when the prosecutor noted that Thill did not present this theory when he was first questioned by law enforcement.

Thill is correct that the prosecutor violated Doyle v. Ohio , 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), which holds that silence following Miranda warnings may not be used to impeach a defendant's testimony at trial. But in the context of a petition for a writ of habeas corpus for ineffective assistance, Thill must do more than show that there was a trial error. He must also show that the state court acted contrary to or unreasonably applied the federal standard for ineffective assistance.

In this case, the Wisconsin Court of Appeals concluded that Thill hadn't met that standard because he couldn't show prejudice. Specifically, the court said that the prosecutor's comments were only a smart part of the trial that included a substantial amount of other evidence, so there wasn't a reasonable probability that the outcome of the trial would have been different even if counsel had objected.

The prosecutor's comments were a clear violation of the Constitution. And if this were a de novo review, I might well agree with Thill that his trial counsel failed to provide effective assistance. But "federal habeas relief from state convictions is reserved for those relatively uncommon cases in which state courts veer well outside the channels of reasonable decision–making about federal constitutional claims." Subdiaz-Osorio v. Humphreys , 947 F.3d 434, 443 (7th Cir. 2020) (internal quotation marks omitted). The court of appeals’ decision was terse, but the court applied the correct standard and provided plausible reasons for concluding that Thill hadn't been prejudiced. Even if I disagree with that reasoning, I cannot say that the court's decision is an unreasonable application of federal constitutional law. So I will deny Thill's petition.

BACKGROUND

The following facts are taken from the petition and the state court records provided by Thill and the state.

A. Trial and sentencing

In 2013, Thill was charged in state court with one count of repeated sexual assault of the same child, in violation of Wis. Stat. § 948.025(1)(b). The child in question was AMM, the 8-year-old daughter of Thill's ex-girlfriend, April Gray. Gray and Thill had broken up in 2011, but AMM had occasional overnights at Thill's house even after the breakup because AMM was friends with Thill's two daughters. The sexual assaults were alleged to have taken place during these visits. The last of these overnights occurred the night of Friday, March 8, 2013. AMM later said that Thill sexually assaulted her in his car on the way to his house that evening.

AMM told both Gray and Barbara Martin, Gray's mother and AMM's custodial parent, about the assault. Martin took AMM to the hospital for a sexual assault nurse examiner (SANE) examination on March 10. The exam revealed no evidence of physical trauma, but a sample taken from the crotch area of AMM's underwear tested positive for Thill's semen. AMM had a forensic interview with a social worker on March 18, during which she said that Thill had assaulted her multiple times.

Thill was arrested and charged soon thereafter. He pleaded not guilty to the charge and the case proceeded to a four-day jury trial in June 2014. Thill was represented by Attorney Chris Doerfler. At trial, both sides called ten witnesses. For purposes of this habeas petition, the most relevant testimony came from AMM, Gray, and Thill, who testified in his own defense.

1. AMM's forensic interview and trial testimony

In lieu of conducting a direct examination of AMM, the state played a video of her March 18 forensic interview for the jury. At the start of the interview, AMM presented a journal to the social worker in which she had written "[s]tuff that Ross did" and "[s]tuff that Ross said." Dkt. 6-11, at 159. She read it aloud to the social worker:

A. Ross put his finger in my crotch in his van and his peter. He kissed me in the crotch. He wiggled his finger. It was at Ross's house at night. I was very disappointed. I like his children. I felt sad. I would get in trouble if I told. But I was by a white house at night. He pushed on my tummy and made it hurt. I was by a very dark road and a yellow sign, and he said my skin was so soft.

...

A. He put my cloth[e]s in a bag, he called mom, and I wanted to go home and have lasagna for dinner. His children were very mean. They didn't let me play hide and seek. [Thill's daughter] said there are only three players and I took a shower at Ross's house and I had -- I forgot that word.

Q. [The social worker, reading from the diary] Had to wear one of Ross's shirts.

A. Shirts. And he took my pants off.

Q. Okay.

A. We had sausages and eggs for breakfast. I was too tired to eat because he woke me up last night, a long time ago.

Dkt. 6-11, at 175–76.

The forensic interview continued, and AMM provided more details. She stated that Thill had put his penis (which she called a peter) inside her vagina (which she called a crotch) and her "cheeks" (presumably a reference to her buttocks). Id. at 178–79. But she was unclear about when and where these things happened. She said that assaults occurred in Thill's van and at his house (on a couch, on the living room floor, on the bed in Thill's bedroom, and in Thill's daughters’ bedroom). Id. at 177, 181, 186, 190–97. She was vague about when and how often the assaults occurred. When the social worker asked AMM when Thill would tell her that her skin was soft, she said, "He told me that last night. He repeated it like 30 times." Id. at 184.

After the forensic interview was played to the jury, Thill's trial counsel cross-examined AMM from a different room via closed-circuit television. She said that at some point "pretty recently," Thill had dropped her off in a "weird forest," where she met a band of deer hunters. Id. at 215–16. One of the hunters, Santonio, was good friends with Thill and knew where he lived; AMM wanted to go back to Thill's house, so Santonio took her there. Id. at 216. AMM hadn't seen Thill in over a year by the time of trial, and Martin, Thill, and other witnesses testified that they didn't know anyone named Santonio.

Other aspects of AMM's trial testimony were inconsistent with the information she'd provided in her forensic interview. For instance, during the forensic interview, AMM said that Thill took her pants and shirt off in the van, id. at 179, and that he climbed over to the front passenger seat where she was sitting and reclined it "way, way back" when he assaulted her. Id. at 186–87. During cross-examination, she stated that the assault had happened in the back seat, not the front. Id. at 241, 243. Her clothes stayed on except that her pants were "pulled down a little bit"; her underwear stayed up and Thill's penis didn't go inside, he just "set it right on top" of her underwear. Id. at 241, 243, 246–49. AMM further testified that she had never seen anything come out of Thill's penis. Id. at 230–31, 261.

Both the state and the defense offered witness testimony about the challenges associated with interviewing young children and making sense of their testimony. See id. at 94–151 (testimony of Julie Anderson for the state) and Dkt. 6-12, at 221–305 (testimony of Dr. David Thompson for the defense). The defense's expert identified several aspects of AMM's forensic interview that, in his view, raised concerns that AMM may have been influenced by others. For instance, he said that he found it odd that AMM immediately presented her journal to the interviewer, and then had trouble reading and pronouncing some of the things she had written.

2. Gray's testimony

Gray testified that she and Thill had dated for a few months, during which it became clear that Gray cared a lot more for Thill than Thill cared for her. Dkt. 6-10, at 174. This dynamic eventually led Thill to break off things with Gray. Despite the breakup, Gray testified that she and Thill remained on good terms, even after Thill began a relationship with someone else. Gray testified that she didn't drive by Thill's house, call his work during his shifts, show up at places he frequented, or attempt to get back together after their relationship ended. She also denied saving Thill's semen and testified that they hadn't used condoms during their relationship. Id. at 175.

Because AMM had become friends with Thill's two daughters, Gray allowed AMM to go to Thill's house for overnight visits almost "every other weekend" to spend time with them, up to and including March 8, 2013. Id. at 122, 123.

On the morning of March 8, Gray and AMM were alone at Martin's house in Rockland, Wisconsin. AMM was brushing her teeth when she told Gray that Thill "touched her in her private parts." Id. at 124. Gray asked her what she meant, and AMM "pointed to her vagina area." Id. Gray "told her that that's not something you want to make up. That's not something you want to lie about. Ross could get in a lot of trouble about that. ...