Earnest Schoenberger, Sr. v. Harry Russell, Warden

290 F.3d 831, 2002 U.S. App. LEXIS 8871, 2002 WL 924743
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 9, 2002
Docket00-3490
StatusPublished
Cited by40 cases

This text of 290 F.3d 831 (Earnest Schoenberger, Sr. v. Harry Russell, Warden) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Earnest Schoenberger, Sr. v. Harry Russell, Warden, 290 F.3d 831, 2002 U.S. App. LEXIS 8871, 2002 WL 924743 (6th Cir. 2002).

Opinions

OPINION

ALAN E. NORRIS, Circuit Judge.

Petitioner Earnest Schoenberger, Sr. appeals the district court’s denial of a writ of habeas corpus, 28 U.S.C. § 2254. An Ohio jury convicted petitioner of two counts of gross sexual imposition and two counts of rape. Petitioner presents three issues in this appeal: whether the admission of testimony by three witnesses concerning the veracity of the victims violated [833]*833due process; whether the introduction of evidence concerning petitioner’s prior involvement in incidents of alcohol abuse and domestic violence violated due process; and whether he was denied effective assistance of counsel.

For the reasons discussed below, we affirm the denial of .the writ.

I.

The district court opinion provides a succinct summary of the facts of this case:

Earnest Schoenberger, Sr. stands convicted for having sexual contact with his stepdaughters Tracy and Teresa Fraker when they were less than thirteen years old and with compelling them by force or threat of force to have sexual contact with him. Those convictions are based on the testimony of Tracy and Teresa Fraker. There is no physical evidence and no testimony of eyewitnesses.
Schoenberger denied having sexual contact with Tracy and Teresa Fraker. He attributed their accusations to their drug use, juvenile offenses, and desire to get back at him for imposing and enforcing parental rules for their conduct. Mrs. Patricia Schoenberger, Petitioner’s wife and the mother of Tracy and Teresa, supported her husband’s testimony.

Schoenberger v. Russell, No. C-2-99-319, slip op. at 1 (S.D.Ohio March 29, 2000).

Two of petitioner’s three issues concern the testimony of three witnesses: Donna Bukovec, Nancy Nicolosi, and Sheryl Smith.

Donna Bukovec, a social worker with the Delaware County, Ohio Department of Human Services, testified concerning two complaints alleging sexual abuse of Tracy and Teresa by defendant. According to Bukovec, the first complaint was-made in 1984, and in her interviews with Tracy and Teresa both girls denied that the charges were true. She determined the charges were “unsubstantiated” at that time because she “did not have enough evidence or history from the girls to substantiate physical abuse or sexual abuse.” The second complaint was received in 1985, and Bukovec testified that this complaint was substantiated with respect to Tracy because “there was evidence and history given that would substantiate the fact of sexual abuse.... ”

On cross examination, defense counsel questioned Bukovec concerning the grounds on which the 1985 complaint was substantiated and elicited the fact that, in her interviews with Tracy and-Teresa in 1985, Tracy stated that the allegations were trué, whereas Teresa continued to deny them. Defense counsel then questioned Bukovec concerning whether she had investigated Tracy’s background, in particular her use of drugs and alcohol. Finally, counsel elicited testimony that Bu-kovec’s substantiation of Tracy’s claims was “primarily” based on Tracy’s statements to her. Defense counsel then asked Bukovec if people who have taken drugs can “hallucinate” or “lie about things that are happening that aren’t really happening,” and Bukovec responded “I suppose.”

On redirect, the government established that Bukovec was an experienced investigator, and that part of her investigations involved assessing the truthfulness of statements by sexual abuse victims. Bu-kovec then stated that she believed Tracy was telling her the truth about the abuse.

Nancy Nicolosi is a probation/diversion counselor at the Delaware County Juvenile Court who specializes in physical and sexual abuse cases. On direct examination, Nicolosi described the “classic profile” of female sexual abuse victims. During cross-examination by defense counsel, Ni-colosi stated that she believed Tracy when Tracy told her she had been abused. Ni-colosi also told defense counsel that she did not credit Teresa’s denial of abuse [834]*834because she believed Tracy when Tracy told her Teresa had also been abused.

Sheryl Smith is a former investigator for the Delaware County Department of Children’s Services. She first interviewed Tracy and Teresa Fraker in July 1988 concerning a complaint alleging sexual abuse by petitioner. In direct examination, Smith described the interview process in sexual abuse cases and specific things that she looks for to determine if abuse occurred. The prosecutor asked Smith if she believed Tracy was telling her the truth concerning the abuse, and Smith testified that she thought Tracy was telling the truth because Tracy had nothing to gain from lying.

Defense counsel did not object to any of the testimony of these three prosecution witnesses.

II.

This court reviews a district court’s legal conclusions in a habeas proceeding de novo and its factual findings for clear error. See Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir.1999). Petitioner initiated this habeas action on March 31, 1999 and, therefore, this court’s review of the state court’s proceedings is governed by the standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir.1997). Pursuant to AED-PA, a writ of habeas corpus cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication: “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Court explained that the “contrary to” language of AEDPA is implicated “if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts.” Id. at 413, 120 S.Ct. 1495. Furthermore, a decision will be deemed an “unreasonable application” of clearly established federal law “if the state court identifies the correct governing legal principle from this Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id.

The Court cautioned that the term “unreasonable” is not synonymous with “incorrect.” Therefore, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id.

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Cite This Page — Counsel Stack

Bluebook (online)
290 F.3d 831, 2002 U.S. App. LEXIS 8871, 2002 WL 924743, Counsel Stack Legal Research, https://law.counselstack.com/opinion/earnest-schoenberger-sr-v-harry-russell-warden-ca6-2002.