In the
United States Court of Appeals For the Seventh Circuit ____________________ No. 19-3120 ANTONIO G. RAMIREZ, JR., Petitioner-Appellee, v.
LIZZIE TEGELS, Warden, Respondent-Appellant. ____________________
Appeal from the United States District Court for the Western District of Wisconsin. No. 14-cv-00802 — James D. Peterson, Chief Judge. ____________________
ARGUED JUNE 10, 2020 — DECIDED JUNE 23, 2020 ____________________
Before FLAUM, BARRETT, and ST. EVE, Circuit Judges. FLAUM, Circuit Judge. During Antonio Ramirez’s 2001 criminal trial in Wisconsin state court, the prevailing interpre- tation of the Sixth Amendment’s Confrontation Clause was set forth in Ohio v. Roberts, 448 U.S. 56 (1980). Under Roberts, a defendant had no confrontation right to cross-examine an un- available declarant if the declarant’s statements were ade- quately reliable, which could be established where the state- ments fell within a firmly rooted hearsay exception. Id. at 66. 2 No. 19-3120
Applying hearsay exceptions, the trial court admitted several out-of-court statements accusing Mr. Ramirez of sexually as- saulting his stepdaughter in November 1998 and September 1999. The jury convicted Mr. Ramirez of multiple counts re- lating to the sexual assaults. In 2004, while Mr. Ramirez’s conviction was pending on direct review, the Supreme Court decided Crawford v. Wash- ington, 541 U.S. 36 (2004), which overruled Roberts by holding that a defendant is entitled to cross-examine a declarant if the declarant’s statements were “testimonial”—e.g., were state- ments that the declarant “would reasonably expect to be used prosecutorially.” Id. at 51. During direct review of his convic- tion, Mr. Ramirez urged his lawyer, Attorney Lynn Hack- barth, to raise a confrontation claim under Crawford. Attorney Hackbarth chose instead to raise a litany of other claims, each of which Wisconsin state courts rejected. After Mr. Ramirez exhausted his state court remedies, he filed a petition for a writ of habeas corpus in federal district court, arguing that Attorney Hackbarth’s representation was ineffective based on her omission of the confrontation claim. The district court agreed and granted Mr. Ramirez’s petition, ordering the State of Wisconsin1 to provide Mr. Ramirez with a new appeal or release him within ninety days. The State now appeals, contending that the confrontation claim was not clearly stronger than the claims Attorney Hackbarth raised. We affirm. An attorney exercising reasonable professional judgment would have recognized that the confrontation claim
1 Lizzie Tegels, Warden of Jackson Correctional Institution (where Mr.
Ramirez is confined), is the named respondent-appellant. For readability purposes, we refer to the respondent-appellant as the “State.” No. 19-3120 3
was clearly stronger than the claims Attorney Hackbarth raised. Raising a confrontation claim while Mr. Ramirez’s conviction was pending on direct review would have given Mr. Ramirez a reasonable chance of prevailing. I. Background A Wisconsin jury convicted Mr. Ramirez of multiple counts relating to the November 1998 and September 1999 sexual assaults of his stepdaughter (“M.G.”), who was seven and eight years old at the times of the respective assaults. M.G. did not testify at Mr. Ramirez’s trial despite a subpoena served on her mother, Cynthia Ramirez (“Mrs. Ramirez”), re- questing M.G.’s testimony. M.G.’s brother (“A.R.”), who was five years old in September 1999, also did not testify. Notwith- standing their absence, the trial court admitted M.G.’s and A.R.’s out-of-court statements through law enforcement offic- ers and medical professionals. After Mr. Ramirez’s 2001 trial, he lodged direct and collateral attacks against his convictions. A. Pretrial and Trial Proceedings Before trial, M.G. and Mrs. Ramirez sent letters to the court recanting their previous statements accusing Mr. Ramirez of the assaults. The jury apparently never heard evi- dence regarding M.G.’s recantation. Before jury selection on the first day of trial, Mr. Ramirez’s trial counsel explained to the court that Mrs. Ramirez had written in her letters that she had “instructed [M.G.] what to say because of rage at her hus- band,” Mr. Ramirez. Counsel argued that this presented “an issue on confrontation and the issue of residual hearsay ex- emptions and indicia of trustworthiness in reference to” M.G.’s out-of-court statements. Mr. Ramirez’s trial counsel 4 No. 19-3120
also explained that she had not filed a motion in limine to ex- clude out-of-court statements because she did not know who was going to testify. She nevertheless objected to the admis- sion of those statements as hearsay, citing, among other cases, State v. Petrovic, 592 N.W.2d 238 (Wis. Ct. App. 1999), which addressed a hearsay claim in part as a Confrontation Clause claim. Before and during trial, Mr. Ramirez’s trial counsel further objected to the admission of out-of-court statements on the grounds that those statements were hearsay and did not have adequate “indicia of reliability” or “guarantees of trustwor- thiness.” On one occasion, Mr. Ramirez’s trial counsel ob- jected to the admission of M.G.’s out-of-court statements, ar- guing that “[t]he issue of course is confrontation as to the hearsay.” The district court generally overruled the objec- tions, admitting the statements under hearsay exceptions. Police officer George Larson testified at trial that he re- sponded to a call from Mrs. Ramirez on September 5, 1999. Mrs. Ramirez told Officer Larson that when she returned to her apartment after an errand, she initially could not enter the apartment because the interior chain lock was latched, which she described as “not normal.” Mrs. Ramirez forced the door open, and then she saw Mr. Ramirez coming out of M.G.’s bedroom while pulling up his shorts. Mrs. Ramirez also saw M.G. sitting on the toilet with “a look on her face.” A.R., who was present at the apartment, told Mrs. Ramirez “[t]hat daddy had [M.G] on the bed face down, and there were boogers on the bed.” Mrs. Ramirez also told Officer Larson that she had argued with Mr. Ramirez, and that Mr. Ramirez had bitten her shoulder and tried to prevent her from leaving No. 19-3120 5
the apartment. Mrs. Ramirez ultimately escaped and took M.G. and A.R. to her mother’s house. After hearing these allegations, Officer Larson told Mrs. Ramirez that she and M.G. “had to go to the hospital” where M.G. “would be examined because [Mrs. Ramirez] was accus- ing [Mr. Ramirez] of a serious crime.” Officer Larson then drove Mrs. Ramirez and M.G. in his squad car to the emer- gency room, where M.G. was evaluated for sexual assault. Of- ficer Larson also arranged Mr. Ramirez’s arrest. Nurse Donna Karpowicz-Halpin testified that after spend- ing about thirty to forty-five minutes building a rapport with M.G. in the hospital examination room, she began to ask M.G. about the assault. M.G. said that “her dad had taken off her pants and [then] he took off his pants, and she was laying on her belly on the bed.”2 M.G. then said that Mr. Ramirez “put his pee-pee by her butt … like on top of her.” Afterward, M.G. “felt something by her butt, so she went into the bathroom and … wiped herself with some tissue and threw it in the wastepaper basket.” Officer Larson remained in the examination room and par- ticipated in the questioning of M.G., including by asking M.G. to point to the parts of a teddy bear where Mr. Ramirez had touched her. When M.G. said she had wiped herself off and threw the tissue in the bathroom wastebasket, Officer Larson stepped out to let an evidence technician know about the po- tential evidence in the wastebasket.
2Although Mr. Ramirez is M.G.’s stepfather, the parties have not dis- puted that M.G. and A.R. referred to Mr. Ramirez as “dad,” “daddy,” or “father.” 6 No. 19-3120
Nurse Karpowicz-Halpin asked M.G. if this was the first time something like this had happened. M.G. said that it was not. Mrs. Ramirez then asked M.G. if “when she went to [the hospital] for her vaginal bleeding [in November 1998,] did she really hurt herself on the bathtub.” According to Nurse Kar- powicz-Halpin, M.G. said, “No, she hadn’t.” M.G. said “that dad had—was trying to put his pee-pee inside of her and that’s how she got cut. That it wasn’t the bathtub.” M.G. also said that Mr. Ramirez threatened to hurt her little brother, mom, or grandma if she told anyone about what he had done. Officer Larson returned to the examination room at some point during the examination. Although it is unclear from the record when exactly Officer Larson returned, he was likely absent when M.G. explained that Mr. Ramirez had caused her November 1998 injuries, because Officer Larson learned from Mrs. Ramirez (not from M.G.) that M.G. accused Mr. Ramirez of that assault. Emergency physician Suzanne Siegel also spoke with M.G. and Mrs. Ramirez in the examination room. Dr. Siegel testified that when she asked M.G. what had happened, M.G. responded that her father “had put his pee-pee by her. And she pointed to her buttock area.” Upon conducting a physical exam, Dr. Siegel testified that she observed “a milky dis- charge coming from [M.G.’s] vaginal area” not normally seen in a small child, and that M.G.’s vaginal area was red and ir- ritated. Dr. Siegel then put M.G. under a “Woods lamp” that indicated the potential presence of semen on parts of her legs. Dr. Siegel opined that her observations were consistent with sexual misuse and that the redness could have resulted from the rubbing of that area. Swabs from around M.G.’s outer vag- inal area, M.G.’s underwear, and tissues recovered from the No. 19-3120 7
bathroom wastebasket tested positive for the presence of se- men, sperm cells, or both. The semen and sperm cell DNA matched Mr. Ramirez’s.3 Obstetrician and gynecologist Michael Schellpfeffer treated M.G. on November 8, 1998. Dr. Schellpfeffer testified that he had received a report that M.G.’s injury was a “strad- dle injury on a bathtub,” but that M.G. had lacerations to her perineum and the lower portion of her vagina that were “not at all typical of … straddle injuries that [he] had … taken care of,” which usually involved external bruising. Dr. Schellpfef- fer testified that he surgically repaired the injuries, which were “very much like an episiotomy” and “certainly con- sistent possibly with a penetrating injury.” Dr. Schellpfeffer also granted that it was possible that slipping and falling on an object caused the injury. The hospital did not find any sem- inal material on M.G. Dr. Schellpfeffer testified that when he had asked Mrs. Ramirez if M.G. could have been sexually abused, Mrs. Ramirez stated that she knew of no such abuse. Detective John Gregory interviewed Mrs. Ramirez after the September 1999 assault. Mrs. Ramirez told him that M.G. had said that Mr. Ramirez had caused M.G.’s vaginal lacera- tions in November 1998. Mrs. Ramirez also explained that she had to force open the door to the apartment, found Mr. Ramirez coming out of M.G.’s bedroom while pulling up his shorts, and saw M.G. in the bathroom.
3Specifically, there was a one in 20 trillion chance that the DNA evi- dence from the tissues and underwear belonged to a Hispanic male other than Mr. Ramirez, and a one in 400,000 chance that the DNA found on the vaginal swab belonged to a Hispanic male other than Mr. Ramirez. 8 No. 19-3120
Detective Gregory interviewed M.G. and A.R., as well. De- tective Gregory testified that M.G. told him that Mr. Ramirez told A.R. to watch television in Mrs. Ramirez’s room and then took M.G. into her own bedroom. Mr. Ramirez then took off his clothes and had M.G. do the same. Mr. Ramirez subse- quently had M.G. lie face down on the bed and rubbed his penis against her buttocks. Detective Gregory further testified that A.R. told him that he saw Mr. Ramirez with his shorts off in the bedroom with M.G., and that he later saw “white boogers on the bed.” Investigators who collected evidence at the home searched for but did not find seminal material on the bed. When Mrs. Ramirez took the stand, she testified that she had falsely accused Mr. Ramirez of the assaults and coached M.G. to do the same “to get back at” Mr. Ramirez. Mrs. Ramirez testified that she wanted Mr. Ramirez to go to jail because she was angry that Mr. Ramirez’s ex-girlfriend had called the house shortly before the alleged September 1999 as- sault, she suspected him of infidelity, and she was angry that he had gotten too drunk in front of her family. Mrs. Ramirez also denied breaking the chain on the door of the apartment, seeing Mr. Ramirez pulling up the shorts at the door to M.G.’s room, and that M.G. had ever said anything about Mr. Ramirez causing her November 1998 injuries. She further tes- tified that Mr. Ramirez had not attacked her and that A.R. had never told her that he saw Mr. Ramirez on top of M.G. or “boogers” on the bed. Mrs. Ramirez had sex with Mr. Ramirez the morning of the September 1999 assault and had access to a used condom containing Mr. Ramirez’s semen. She nevertheless denied No. 19-3120 9
planting Mr. Ramirez’s semen on M.G.’s body and under- wear. But defense counsel argued in closing that as part of Mrs. Ramirez’s framing of Mr. Ramirez, she planted Mr. Ramirez’s semen on M.G.’s underwear. The jury apparently did not credit this argument and convicted Mr. Ramirez on all counts relating to the November 1998 and September 1999 sexual assaults. Specifically, as to the November 1998 assault, the jury found Mr. Ramirez guilty of first-degree sexual assault of a child under the age of 13 (Count I) and first-degree sexual as- sault causing great bodily harm (Count II). As to the Septem- ber 1999 assault, the jury found Mr. Ramirez guilty of child enticement (Count III) and first-degree sexual assault of a child under the age of 13 (Count IV). The jury acquitted Mr. Ramirez on charges of battery and false imprisonment, which were based on Mrs. Ramirez’s allegations that he had bitten her shoulder and tried to prevent her from leaving the apartment after the September 1999 assault. The court imposed two concurrent 40-year prison terms on the counts associated with the November 1998 assault (Counts I & II); a consecutive 10-year prison term on the child enticement count associated with the September 1999 assault (Count III); and 30 years of probation on the sexual assault of a child count associated with the September 1999 assault (Count IV). B. Direct Review After sentencing, Mr. Ramirez’s appointed attorney re- ported that there was no merit in an appeal of Mr. Ramirez’s convictions, which triggered a no-merit proceeding. See Wis. 10 No. 19-3120
Stat. § 809.32 (setting forth procedure when appointed attor- ney finds no merit in appeal within meaning of Anders v. Cal- ifornia, 386 U.S. 738 (1967)). While the no-merit proceeding was ongoing, the Supreme Court decided Crawford v. Wash- ington, 541 U.S. 36 (2004), which overruled Ohio v. Roberts, 448 U.S. 56 (1980), and transformed the standard for determining whether out-of-court statements are admissible under the Confrontation Clause. Whereas under Roberts, the focus of a confrontation claim had been on whether the out-of-court statements bore “adequate ‘indicia of reliability,’” 448 U.S. at 66, the key inquiry under Crawford became whether the state- ments were “testimonial,” 541 U.S. at 51. The Wisconsin Court of Appeals ultimately rejected the no-merit report, which resulted in the appointment of a new lawyer for Mr. Ramirez, Attorney Lynn Hackbarth, who is the subject of Mr. Ramirez’s ineffective assistance claim. Attorney Hackbarth initiated Mr. Ramirez’s direct review process in 2005 by filing a postconviction motion in the circuit court pur- suant to Wis. Stat. § 809.30(2)(h), raising ineffective-assis- tance-of-trial-counsel claims, a speedy-trial claim, and an abuse-of-discretion sentencing claim, but not a confrontation claim. After an evidentiary hearing, the circuit court denied the postconviction motion. Attorney Hackbarth subsequently appealed to the Wis- consin Court of Appeals, raising the same claims from the postconviction motion plus several other claims. In total, she raised the following claims: (1) Mr. Ramirez was denied his constitutional right to a speedy trial; (2) the November 1998 and September 1999 charges were improperly joined for trial; (3) the trial court erroneously exercised its discretion in ad- No. 19-3120 11
mitting some of the hearsay statements; (4) the prosecutor en- gaged in misconduct; (5) the evidence was insufficient to sup- port Mr. Ramirez’s conviction; (6) trial counsel rendered inef- fective assistance by not retaining a DNA expert and not rais- ing a chain-of-custody objection to the crime lab report; and (7) the court erroneously exercised its sentencing discretion. Mr. Ramirez had written letters to Attorney Hackbarth re- questing that she raise a confrontation claim under Crawford, but Attorney Hackbarth did not heed the request. The Wis- consin Court of Appeals rejected all of the claims Attorney Hackbarth raised, and the Wisconsin Supreme Court denied Mr. Ramirez’s petition for review in 2007. C. Collateral Review In 2008, Mr. Ramirez filed a pro se petition for a writ of habeas corpus in the Wisconsin Court of Appeals alleging, among other things, that Attorney Hackbarth had provided ineffective assistance by failing to raise a confrontation claim on direct review. The court rejected the petition in 2010, in part because the court of appeals was the wrong venue in which to argue that Attorney Hackbarth should have raised a confrontation claim in the postconviction motion she filed in the circuit court. Instead of filing his petition in the court of appeals pursuant to State v. Knight, 484 N.W.2d 540, 545 (Wis. 1992), Mr. Ramirez needed to file his petition in the circuit court pursuant to State ex rel. Rothering v. McCaughtry, 556 N.W.2d 136, 137 (Wis. Ct. App. 1996). So, later in 2010, Mr. Ramirez filed his Rothering petition in the circuit court. The court denied the petition in 2013, re- jecting the ineffective assistance claim because the “bulk” of 12 No. 19-3120
the out-of-court statements were admitted “on the basis of be- ing excited utterances or the purpose of medical diagnosis or treatment and were therefore not testimonial in nature.” The circuit court concluded that the testimonial statements, such as those taken by law enforcement, were cumulative, and that the admission of those statements was harmless in light of other “overwhelming” evidence of Mr. Ramirez’s guilt. Mr. Ramirez appealed, and the Wisconsin Court of Ap- peals affirmed the circuit court’s order in 2014. The court of appeals concluded, based on State v. Lagundoye, 674 N.W.2d 526 (Wis. 2004), that Crawford did not apply retroactively on collateral review, and it therefore did not reach of the merits of Mr. Ramirez’s claim that Attorney Hackbarth had rendered ineffective assistance. Mr. Ramirez unsuccessfully petitioned the Wisconsin Supreme Court for review in 2014. D. Federal Habeas Petition Finally, in November 2014, Mr. Ramirez filed a petition for a writ of habeas corpus in federal district court under 28 U.S.C. § 2254 arguing, among other things, that Attorney Hackbarth had been ineffective for not raising a confrontation claim during direct review. In 2018, the district court con- cluded that the Wisconsin Court of Appeals’ rejection of that claim was based on an unreasonable interpretation of Whorton v. Bockting, 549 U.S. 406 (2007). The district court explained that when Attorney Hackbarth filed the postconviction mo- tion in the circuit court to initiate direct review in 2005, Craw- ford’s new rule applied, citing Griffith v. Kentucky, 479 U.S. 314, 322 (1987) (holding that new constitutional rules apply to cases pending on direct review). The district court further elaborated that “[n]othing in Whorton precludes a petitioner from raising a claim of ineffective assistance of postconviction No. 19-3120 13
counsel based on Crawford in a collateral proceeding, so long as the petitioner’s conviction was not final on direct review at the time of the Crawford decision.” Indeed, the Supreme Court decided Crawford in 2004, and Mr. Ramirez’s conviction did not become final on direct review until 2007. Following its initial 2018 opinion, and after considering further briefing on the merits, the district court ultimately concluded that Attorney Hackbarth’s representation was de- ficient because she did not raise the Crawford claim, which was “clearly stronger” than the claims she had raised, and that Mr. Ramirez had shown a reasonable chance of success on direct review but for the deficient representation. The dis- trict court therefore issued a conditional writ of habeas cor- pus, ordering the State to release Mr. Ramirez from custody or grant him a new appeal within ninety days. The State ap- pealed, and the district court stayed its judgment pending res- olution of this appeal. II. Discussion Generally, if a state court has adjudicated a habeas peti- tioner’s claim on the merits, we grant the state court deference under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d). Toliver v. Pollard, 688 F.3d 853, 859 (7th Cir. 2012). In such cases, “habeas relief may be granted only if the state court decision ‘was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,’ or if it ‘was based on an unreasonable deter- mination of the facts in light of the evidence presented in the State court proceeding.’” Id. (quoting 28 U.S.C. § 2254(d)). 14 No. 19-3120
Here, however, we agree with the parties that AEDPA def- erence does not apply. “When no state court has squarely ad- dressed the merits of a habeas claim, we review the claim un- der the pre-AEDPA standard of 28 U.S.C. § 2243, under which we dispose of the matter as law and justice require.” Harris v. Thompson, 698 F.3d 609, 623 (7th Cir. 2012) (citations and in- ternal quotation marks omitted). The Wisconsin Court of Ap- peals, contrary to Strickland v. Washington, 466 U.S. 668 (1984) and Griffith v. Kentucky, 479 U.S. 314 (1987), did not review the merits of Mr. Ramirez’s claim that Attorney Hackbarth pro- vided ineffective assistance for failing to raise the confronta- tion claim. The Wisconsin Circuit Court also appears to have “inad- vertently overlooked” the ineffective assistance claim. Johnson v. Williams, 568 U.S. 289, 303 (2013); see also id. at 302–03 (“If a federal claim is rejected as a result of sheer inadvertence, it has not been evaluated based on the [merits].”). The circuit court, purporting to rule on the ineffective assistance claim, essentially ruled on the merits of the confrontation claim in- stead. There is no indication, for example, that the circuit court considered a critical question for the ineffective assis- tance claim—that is, whether the Crawford claim was “clearly stronger” than the claims Attorney Hackbarth raised on direct review. See Smith v. Robbins, 528 U.S. 259, 288 (2000) (approv- ing this court's “clearly stronger” standard for ineffective as- sistance of appellate counsel claims). We therefore review the ineffective assistance claim de novo, see Adorno v. Melvin, 876 F.3d 917, 921 (7th Cir. 2017), but our review of Attorney Hackbarth’s performance is “most deferential” to her reasonable professional judgment, Har- rington v. Richter, 562 U.S. 86, 105 (2011). For Mr. Ramirez to No. 19-3120 15
establish that Attorney Hackbarth’s assistance was ineffec- tive, Mr. Ramirez must show that Attorney Hackbarth’s per- formance was deficient and that this deficiency prejudiced him. Strickland, 466 U.S. at 687. If Attorney Hackbarth “aban- doned a nonfrivolous claim that was both ‘obvious’ and ‘clearly stronger’ than the claim[s] that [s]he actually pre- sented, [her] performance was deficient, unless [her] choice had a strategic justification.” Shaw v. Wilson, 721 F.3d 908, 915 (7th Cir. 2013). Attorney Hackbarth’s deficient performance prejudiced Mr. Ramirez if “there is a reasonable probability that raising the issue would have made a difference in the out- come of the appeal.” Howard v. Gramley, 225 F.3d 784, 791 (7th Cir. 2000). “A defendant whose lawyer does not provide him with effective assistance on direct appeal and who is preju- diced by the deprivation is thus entitled to a new appeal.” Ma- son v. Hanks, 97 F.3d 887, 892 (7th Cir. 1996). The State acknowledges that Mr. Ramirez’s confrontation claim was obvious, and that all of the claims Attorney Hack- barth raised during direct review were weak. The State nev- ertheless contends that the confrontation claim was also “quite weak” because Mr. Ramirez’s trial counsel did not ad- equately preserve the claim, the claim rested on unsettled law regarding what constitutes a testimonial statement, and the contested statements were either nontestimonial or duplica- tive of the nontestimonial statements. The State further argues that the omission of the confrontation claim did not prejudice Mr. Ramirez because Wisconsin courts would have rejected the claim given that the evidence against Mr. Ramirez was otherwise overwhelming. Mr. Ramirez responds that the con- frontation claim was clearly stronger than the claims Attorney 16 No. 19-3120
Hackbarth raised, and that he had a reasonable chance of suc- cess on appeal but for Attorney Hackbarth’s ineffective assis- tance. A. Deficient Performance We conclude, based on Confrontation Clause caselaw as it stood when Mr. Ramirez’s convictions were pending on di- rect review, that an attorney exercising reasonable profes- sional judgment would have recognized that the confronta- tion claim was clearly stronger than the claims Attorney Hackbarth raised. Moreover, Mr. Ramirez’s trial counsel made confrontation objections at trial, and Attorney Hack- barth could have made strong arguments that the Wisconsin courts should grant relief on the merits of the confrontation claim even assuming the claim was forfeited. 1. Clearly Stronger Attorney Hackbarth’s assistance during the direct review of Mr. Ramirez’s conviction was deficient because she did not raise a confrontation claim, which was clearly stronger than the claims she raised. The Confrontation Clause of the Sixth Amendment to the U.S. Constitution grants every criminal defendant the right “to be confronted with the witnesses against him.” At the time of Mr. Ramirez’s 2001 trial, the Su- preme Court had interpreted the Confrontation Clause to al- low the admission of hearsay only if the declarant was una- vailable and the statement bore “adequate ‘indicia of reliabil- ity’” or “particularized guarantees of trustworthiness.” Ohio v. Roberts, 448 U.S. 56, 66 (1980), overruled by Crawford v. Wash- ington, 541 U.S. 36 (2004). Reliability could “be inferred with- out more in a case where the evidence [fell] within a firmly rooted hearsay exception.” Id. No. 19-3120 17
As noted earlier, however, in 2004 the Supreme Court overruled Roberts, holding in Crawford that out-of-court state- ments that are “testimonial”—e.g., that the declarant “would reasonably expect to be used prosecutorially”—are inadmis- sible unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. 541 U.S. at 51, 59. Mr. Ramirez’s case was still pending on direct review in 2006 when the Supreme Court decided Davis v. Washington, holding that statements “are testimonial when the circumstances objectively indicate that there is no … on- going emergency, and that the primary purpose of the inter- rogation is to establish or prove past events potentially rele- vant to later criminal prosecution.” 547 U.S. 813, 822 (2006). Mr. Ramirez’s convictions did not become final on direct re- view until 2007; hence, Crawford and Davis applied to his case. See Griffith, 479 U.S. at 322 (“[F]ailure to apply a newly de- clared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication.”). An attorney exercising reasonable professional judgment would have concluded that Crawford gave Mr. Ramirez a promising confrontation claim during the direct review of his conviction. Davis would have cemented this conclusion. We make this determination by evaluating Attorney Hackbarth’s “performance from the perspective of a reasonable attorney at the time of [Mr. Ramirez]’s appeal, taking care to avoid ‘the distorting effects of hindsight.’” Shaw, 721 F.3d at 915 (quot- ing Strickland, 466 U.S. at 689). An attorney is not required to anticipate changes in the law that were not sufficiently fore- shadowed in existing caselaw. Shaw, 721 F.3d at 916–17. And the State does not argue that then-existing precedent— namely, Crawford and Davis—somehow foreshadowed an im- minent change in the law that would have given Attorney 18 No. 19-3120
Hackbarth a strategic reason for declining to raise a confron- tation claim. Rather, the state simply argues that Confronta- tion Clause caselaw was “unsettled” at the time of direct re- view, such that Attorney Hackbarth could not have known whether the Wisconsin courts would conclude that the rele- vant statements were testimonial. It is true that Confrontation Clause cases decided after Mr. Ramirez’s appeal became final in 2007 have applied addi- tional interpretive gloss to the kinds of factual circumstances that might contribute to a determination that a statement is testimonial. But that subsequent gloss was not necessary for Attorney Hackbarth to fashion an argument that M.G.’s and A.R.’s out-of-court statements were testimonial. Indeed, the State concedes that the confrontation claim was “obvious” while Mr. Ramirez’s convictions were pending on direct re- view. Attorney Hackbarth could have argued, for example, that there was no ongoing emergency at the time M.G. and A.R. made their out-of-court statements given that Officer Larson had already arranged for Mr. Ramirez’s arrest, so there was no risk of releasing M.G. or A.R. into Mr. Ramirez’s custody. Attorney Hackbarth also could have argued that M.G. and A.R. had made nearly all of their out-of-court statements for the primary purpose of prosecution. Mrs. Ramirez testified that she wanted Mr. Ramirez ar- rested because she was mad at him, and that she had coached M.G. to falsely accuse Mr. Ramirez of sexual assault. A re- viewing court could therefore conclude that Mrs. Ramirez caused her children to make their statements for the primary purpose of prosecution. Indeed, the State concedes that the No. 19-3120 19
out-of-court statements eight-year-old M.G. made to Detec- tive Gregory after the September 1999 assault were testimo- nial. This concession suggests that M.G., despite her young age, was capable of understanding that her other statements could have been made for the primary purpose of prosecution as well. In the “Summary of Argument” section of the State’s opening brief, it concedes that the statements of both M.G. and A.R. to Detective Gregory were testimonial. Although the State appears to have later walked back that concession as to A.R.’s statements, it has failed to develop any argument as to why A.R. was differently situated. There was also a relatively strong argument that many of the out-of-court statements M.G. made during her examina- tion at the hospital were testimonial. Officer Larson drove M.G. and Mrs. Ramirez to the hospital. Mrs. Ramirez and M.G. did not independently decide to go to the hospital to seek medical treatment; Officer Larson told them that they “had to go to the hospital” where M.G. “would be examined because [Mrs. Ramirez] was accusing [Mr. Ramirez] of a seri- ous crime.” Once at the hospital, although medical professionals ap- pear to have conducted most of the questioning, Officer Lar- son was present and involved for at least some of the ques- tioning. Officer Larson offered M.G. a teddy bear, which she used to show him where Mr. Ramirez had touched her. Im- mediately after the sexual assault examination, hospital staff reported to law enforcement what had happened in the exam- ination room and provided evidence to law enforcement, re- gardless of whether Officer Larson was in the room. 20 No. 19-3120
Hence, at least some of the questioning in the hospital ex- amination room arguably functioned as a substitute for a po- lice interrogation. The conclusion that the State urges us to reach—that statements made “during the course of receiving medical treatment” are per se non-testimonial—would invite law enforcement officers simply to escort victims of any vio- lent crime to a hospital (regardless of whether the victim sought or desired medical treatment), where law enforcement could then work with medical professionals to elicit testimo- nial statements from the victim in circumvention of the Con- frontation Clause’s protections. We acknowledge that M.G.’s statements during her exam- ination regarding what happened to her and whether she was hurting may have been for the primary purpose of receiving medical treatment rather than for prosecutorial purposes. But it is more likely M.G.’s other statements, such as those about where the assault happened and the identity of her abuser, were made for the primary purpose of “prov[ing] past events potentially relevant to later criminal prosecution.” Davis, 547 U.S. at 822. There was a strong argument to be made that M.G.’s statements regarding the November 1998 assault that had occurred almost a year earlier, in particular, were made to “prove past events potentially relevant to later criminal prosecution.” Id. For present purposes, however, we need not determine precisely which statements would not have been admitted under the Confrontation Clause as it was interpreted in 2007. What we conclude here is simply that an attorney exercising reasonable professional judgment would have raised a con- frontation claim under Crawford while Mr. Ramirez’s convic- tion was still pending on direct review. No. 19-3120 21
By all means, showing “that an unraised claim is clearly stronger than a claim that was raised is generally difficult ‘be- cause the comparative strength of two claims is usually de- batable.’” Makiel v. Butler, 782 F.3d 882, 898 (7th Cir. 2015) (quoting Shaw, 721 F.3d at 915). The State concedes here, how- ever, that the claims Attorney Hackbarth raised were weak. In fact, the State has not identified any specific claim Attorney Hackbarth raised that rivaled the strength of the unraised Crawford claim. The hurdle Mr. Ramirez therefore needed to clear to establish that the confrontation claim was clearly stronger than those weak claims was not particularly high, and the confrontation claim clears that hurdle. The confronta- tion claim would have given Mr. Ramirez his best chance at having some of the most inculpatory evidence against him deemed inadmissible. 2. Possible Forfeiture Mr. Ramirez’s possible forfeiture of his confrontation claim does not alter our conclusion. Attorney Hackbarth could have made strong arguments that Mr. Ramirez’s trial counsel had preserved the confrontation claim, and that even if it were unpreserved, Wisconsin courts should nevertheless grant relief on the merits. As an initial matter, Attorney Hackbarth could have ar- gued that Mr. Ramirez’s trial counsel adequately preserved the confrontation claim. Wisconsin courts treat an objection as “sufficient to preserve an issue for appeal if it apprises the court of the specific grounds upon which it is based.” In Inter- est of Corey J.G., 572 N.W.2d 845, 849 (Wis. 1998). Making a hearsay objection is generally insufficient to preserve a con- frontation claim. State v. Nelson, 406 N.W.2d 385, 393–94 (Wis. 1987). Here, however, Mr. Ramirez’s trial counsel objected to 22 No. 19-3120
the admission of M.G.’s out-of-court statements because it presented an “issue on confrontation” on one occasion, and she raised “confrontation as to the hearsay” on another occa- sion. She also cited caselaw discussing the confrontation right, and she generally referenced the “indicia of reliability” and “guarantees of trustworthiness” standards that were then-ap- plicable to confrontation claims. See Roberts, 448 U.S. at 66 (ex- plaining that statement is admissible under Confrontation Clause if declarant is unavailable and statement bears ade- quate “indicia of reliability” or “guarantees of trustworthi- ness”), overruled by Crawford, 541 U.S. at 51, 59. Further, a statement met the “indicia of reliability” requirement if it fell “within a firmly rooted hearsay exception,” Roberts, 448 U.S. at 66, so the other hearsay objections may have fed into the confrontation objections. Even if the confrontation claim was unpreserved, how- ever, the claim was still plainly stronger than the claims At- torney Hackbarth raised given the strong arguments she could have made that Wisconsin state courts should never- theless grant relief on the merits of the claim. The Supreme Court has explained that “[i]n most cases, an unpreserved trial error will not be a plainly stronger ground for appeal than preserved errors,” Davila v. Davis, 137 S. Ct. 2058, 2067 (2017); but, of course, “most” does not mean “all.” The State concedes that “Wisconsin courts, like others, have the discretion to ignore forfeiture (or waiver) and reach the merits of an unpreserved claim.” In fact, Wisconsin courts of appeals have proceeded to review the merits of confronta- tion claims after Crawford even though the defendants did not make confrontation objections at trial. See, e.g., State v. Searcy, No. 19-3120 23
709 N.W.2d 497, 509 n.8 (Wis. Ct. App. 2005); State v. Savanh, 707 N.W.2d 549, 882 n.2 (Wis. Ct. App. 2005). In those cases, as here, the defendant could not have made a confrontation objection at trial based on Crawford because Crawford had not yet been decided.4 A reasonably prudent lawyer would have recognized that Mr. Ramirez had a strong argument that the Wisconsin courts should review (and ultimately grant relief on) the merits of his claim in light of the intervening change in law. With Attorney Hackbarth’s deficient performance es- tablished, we turn to whether the deficient performance prej- udiced Mr. Ramirez’s appeal. B. Prejudice We conclude that Mr. Ramirez “had a reasonable chance of success on appeal but for [Attorney Hackbarth’s] deficient performance.” Shaw v. Wilson, 721 F.3d 908, 919 (7th Cir. 2013). We need not decide whether Mr. Ramirez would have prevailed; rather, what we decide here is that the confronta- tion claim “had a better than fighting chance at the time.” Jones v. Zatecky, 917 F.3d 578, 583 (7th Cir. 2019) (quoting Shaw, 721 F.3d at 916). This is not a case where the unraised claim was clearly stronger than the raised claims, yet still doomed to fail. If Attorney Hackbarth had raised a confron- tation claim during direct review, there is a reasonable chance that the Wisconsin courts would have concluded that at least some of the probative out-of-court statements were inadmis- sible, and that the admission of those statements was not harmless error.
4 The case cited by the State, State v. Ellington, is inapposite because the defendant in that case conceded that the relevant statements were not testimonial under Crawford. 707 N.W.2d 907, 914 (Wis. Ct. App. 2005). 24 No. 19-3120
The State argues that the testimonial out-of-court state- ments were duplicative of statements that were properly ad- mitted. As explained above, however, it is arguable that nearly all of M.G.’s and A.R.’s statements were testimonial, particularly in light of Mrs. Ramirez’s testimony that she coached M.G. to falsely accuse Mr. Ramirez and law enforce- ment’s involvement in M.G.’s hospital examination. The State concedes that M.G.’s statements to Detective Gregory were testimonial and has developed no argument as to why A.R.’s statements to Detective Gregory should be viewed differ- ently. There is also a reasonable probability that the Wiscon- sin courts would conclude, in particular, that M.G.’s state- ments about the November 1998 assault, M.G.’s statements about certain details of the September 1999 assault, and M.G.’s response to Officer Larson’s request for M.G. to point to where on the teddy bear Mr. Ramirez touched her were made for the primary purpose of establishing past events for a future prosecution. To the extent that any inadmissible statements were du- plicative of admissible statements, the Wisconsin courts may well conclude that the jury would have assigned less weight to the properly admitted statements if it had not heard that those statements had been repeated to different persons in different contexts. Indeed, the State argued in closing at trial that the defense’s theory that Mrs. Ramirez framed Mr. Ramirez should be discounted, in part, because it would not have been possible for Mrs. Ramirez to get M.G. to make a “consistent series of statements to [Officer] Larson, Nurse [Karpowicz-]Halpin, Dr. Siegel, and then Detective Gregory.” No. 19-3120 25
The evidence against Mr. Ramirez is not overwhelming if the contested statements are excluded, particularly with re- spect to the November 1998 assault. M.G.’s out-of-court state- ments accusing Mr. Ramirez of the November 1998 assault were the only evidence presented connecting Mr. Ramirez to that assault. If those statements had been excluded, the State would not have been able to prove the counts relating to the November 1998 assault. Even if the Wisconsin courts con- cluded that M.G.’s statements relating to the November 1998 assault were the only statements that were inadmissible, the counts relating to that assault came with the longest sentences (the concurrent 40-year prison terms). The Wisconsin courts may well have also concluded that the contested out-of-court statements relating to the Septem- ber 1999 assault were inadmissible, and that the admission of those statements was not harmless. Granted, DNA evidence connects Mr. Ramirez to the September 1999 assault. That said, Mrs. Ramirez testified at trial that she fabricated the en- tire sexual assault accusation and coached M.G. to lie because she was angry at Mr. Ramirez. Although Mrs. Ramirez denied planting the DNA evidence, defense counsel argued that she did. Mrs. Ramirez had sex with Mr. Ramirez on the morning of the September 1999 assault, and she therefore had access to Mr. Ramirez’s semen in a recently used condom. Investiga- tors found DNA evidence in M.G.’s underwear, on toilet pa- per in the wastebasket, and on the outside of M.G.’s body, but they did not locate any inside of her body. Moreover, Dr. Siegel testified that M.G.’s vaginal redness was consistent with rubbing of that area. If the jury had not heard testimony concerning the contested out-of-court statements, it might have credited defense counsel’s argument that Mrs. Ramirez 26 No. 19-3120
planted the semen as part of her framing of Mr. Ramirez. In- deed, the jury demonstrated that it doubted Mrs. Ramirez’s truthfulness by acquitting Mr. Ramirez on the charges of bat- tery and false imprisonment, which were based on Mrs. Ramirez’s allegations that Mr. Ramirez had bit her shoulder and tried to prevent her from leaving the apartment. The Wisconsin courts, of course, did not have an oppor- tunity to address these issues during the direct review of Mr. Ramirez’s conviction because Attorney Hackbarth did not raise a confrontation claim. There is at least a reasonable prob- ability that raising such a claim would have made a difference in the outcome of Mr. Ramirez’s appeal. III. Conclusion For the foregoing reasons, we AFFIRM the district court’s order granting habeas relief. The State must, within ninety days, either release Mr. Ramirez from custody or grant him a new appeal in which he may advance his confrontation claim.