Court: Court of Appeals for the Seventh Circuit; August 20, 1999; Federal Appellate Court
Paul W. Schaff was convicted of criminal and aggravated criminal sexual assault against a 7-year-old boy, K.A., in Illinois, with the offenses occurring in July and August 1989. Schaff was sentenced to ten years in prison on September 14, 1990, and after five years, he was placed on mandatory supervised release, remaining subject to the Sex Offender Registration Act and the Child Sex Offender and Murderer Community Notification Law until March 2005.
Schaff filed a petition for a writ of habeas corpus on April 1, 1997, which was denied by the district court, although a certificate of appealability was granted for one claim. The appellate court affirmed the district court's judgment.
The evidence presented at trial included K.A.'s testimony, which detailed how Schaff lured him into an apartment, threatened him, and committed sexual acts. Afterward, K.A. experienced psychological distress, exhibiting symptoms like loss of appetite and nightmares, which he eventually disclosed to therapists at the Children's Advocacy Center. K.A.'s mother testified about recognizing symptoms of sexual abuse after viewing a television broadcast, leading her to seek help for her son. Subsequent visits to the center confirmed K.A.'s allegations of abuse.
K.A.'s father testified about his son's behavioral issues, while Larry Disch recounted K.A.'s claim of sexual assault by the defendant on September 12, 1989. Dr. Sharon Ahart, a pediatric expert, found evidence of abnormal rectal tone indicative of penile penetration during her examination of K.A. Officer Daniel Driscoll reported that K.A. also disclosed the assault to him on September 13, 1989. Dr. Jon Conte, a child sexual assault expert, diagnosed K.A. with post-traumatic stress disorder stemming from the abuse, based on K.A.'s records and discussions with Disch.
The defense called Dr. Jack Arbit, a clinical psychology expert, who criticized the evaluation procedures used by the Children's Advocacy Center. He deemed K.A.'s September 7 statements unreliable and stated there was insufficient data to diagnose PTSD.
During jury deliberations on June 25-26, 1990, the jury struggled to reach a verdict, with counts of 7-5 and later 11-1 in favor of guilt. The trial court provided supplemental instructions and urged continued deliberations. Despite five defense motions for mistrial being denied, the jury ultimately returned a guilty verdict after requesting new verdict forms.
Post-trial, in September 1994, a 13-year-old friend of K.A. filed an affidavit claiming K.A. recanted his allegations, stating that Mr. Schaff had never touched him and that K.A. had lied to please his mother. Mrs. Schaff submitted an affidavit asserting she informed her husband's trial counsel of this recantation shortly after learning of it, but the counsel reportedly did not investigate or include it in post-trial motions.
Mr. Schaff, represented by new counsel, appealed his state court conviction, which was affirmed by the Illinois Appellate Court and subsequently denied by the Illinois Supreme Court. Following the denial of his post-conviction relief by the Cook County Circuit Court and its affirmation by the Illinois Appellate Court, Schaff filed a habeas corpus petition in federal district court, raising the same seven claims from his post-conviction petition. The court denied relief but granted a certificate of appealability for one claim, while Schaff sought a certificate for the other six claims.
Central to Schaff's appeal is his assertion that he was wrongfully convicted due to the jury's lack of access to critical exculpatory evidence. He contends that a plan by a former tenant, Kathy Ulber, to retaliate against him for an eviction led to false accusations of child abuse. Schaff details a confrontation where Ulber expressed intentions of revenge and later reported him to the police after a friend, Linda Gutierrez, claimed to have seen Schaff inappropriately with children. Despite initial police inaction, Ulber and Gutierrez later contacted the Hanover Park Children's Advocacy Center to accuse Schaff of sexual abuse, leading to his arrest. Schaff maintains that the accusations were fabricated and motivated by retaliation, asserting that other tenants were aware of the false nature of the claims. Additionally, he alleges that Ulber influenced another mother to report concerns about her child’s behavior, which ultimately contributed to further allegations against him.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs Mr. Schaff's federal habeas petition, filed after its effective date of April 24, 1996. Under AEDPA, specifically 28 U.S.C. § 2254(d), habeas relief is restricted unless the state court's decision was "contrary to" or involved an "unreasonable application" of clearly established federal law as determined by the Supreme Court, or was based on an unreasonable factual determination. Mr. Schaff does not contest the state courts' factual findings, focusing solely on § 2254(d)(1). To obtain a writ under this section, he must demonstrate that the Supreme Court has "clearly established" essential propositions supporting his position, with such rules being applicable only if compelled by existing precedent. A petitioner cannot rely on circuit court precedents; a Supreme Court case must substantiate his claim, which must have been clearly established at the time of his direct appeal.
The petitioner must show that the state court's ruling was either "contrary to" or an "unreasonable application" of Supreme Court law. "Contrary to" is reviewed de novo, while "unreasonable application" involves a mixed review of law and fact, granting deference to state court decisions. A state court's ruling is deemed reasonable if it aligns minimally with the case's facts, even if poorly reasoned. Conversely, if the ruling significantly conflicts with Supreme Court precedents or is inadequately supported, a writ must be issued.
Mr. Schaff's claim, certified by the district court, centers on the alleged violation of his constitutional rights due to prosecutorial nondisclosure regarding Pamela Klein's termination from the children's advocacy center. The district court granted a Certificate of Appealability (COA) based on Schaff's substantial showing of a constitutional rights violation, citing Giglio v. United States and Brady v. Maryland, which prohibit the suppression of favorable evidence that could impact guilt or the credibility of key witnesses. Schaff contends that the prosecution's failure to reveal Klein's firing for misconduct, occurring two months after her engagement with a key witness, constituted a Brady violation. Although he did not raise this issue in his direct appeal, the state appellate court ruled the claim was waived during post-conviction review. The district court subsequently denied Schaff's habeas relief, stating he did not adequately demonstrate that the procedural default doctrine should not apply. The procedural default doctrine, affirmed in Breard v. Greene, mandates that claims of constitutional violations must first be presented in state court to be eligible for federal habeas relief. Therefore, it is essential to determine if Schaff exhausted his state remedies and avoided procedural defaults, as failure to do so would preclude federal review of his claims.
A federal court is barred from reviewing federal law questions in a habeas corpus action if a state court declined to address the prisoner's federal claims due to non-compliance with state procedural requirements. This principle is supported by Coleman v. Thompson, which establishes that a federal habeas court cannot question a state court's application of a procedural rule if the ruling is based on an adequate state ground. In the referenced case, the state appellate court determined the claim was procedurally waived under Illinois law, specifically citing People v. Erickson, which states that failing to raise a claim on direct appeal results in a procedural default barring post-conviction consideration.
Mr. Schaff argues that he did not procedurally default because the evidence regarding Ms. Klein's background was not included in the trial record and thus could not be raised on direct appeal. He contends that the Illinois Supreme Court would not find waiver under these circumstances, referencing People v. Whitehead, which indicates that waiver cannot occur based on evidence not part of the trial record. Schaff characterizes Erickson as an exceptional case limited by Whitehead's ruling.
However, the court disagrees with Schaff's interpretation, asserting that Erickson is not an aberration and sets a precedent for procedural default. The court emphasizes that the procedural bar encompasses all matters that could have been raised earlier, regardless of whether they were included in the trial record. Exceptions to this rule are limited and typically apply only when the documentation explains why the claim could not have been raised on direct appeal. The court notes that Whitehead reaffirmed Erickson and listed exceptions to the waiver rule, including circumstances requiring fundamental fairness, claims of ineffective assistance of counsel, and facts not appearing in the original appellate record.
The third exception clarifies that a claim may not have been considered by a reviewing court not because it could not have been presented on appeal, but because its evidentiary basis was outside the trial record. This exception allows claims that can theoretically be presented on appeal but cannot be reviewed due to appellate rules. In the case of Whitehead, the Illinois Supreme Court distinguished between claims of ineffective assistance of counsel based on trial record facts and those reliant on post-conviction affidavits. Claims regarding trial counsel's handling of defenses such as insanity did not rely on external evidence and could be considered on direct appeal. Conversely, claims related to sentencing that depended on post-conviction affidavits were not waived as they were not part of the trial record. The Illinois Appellate Court correctly applied waiver jurisprudence, determining that Mr. Schaff could not claim the procedural default exception since the relevant testimony was available during the trial and could have been challenged on direct appeal. The court noted that defense counsel had access to Klein's qualifications and chose not to pursue further inquiry, thus waiving the claim. Therefore, the appellate court concluded that Mr. Schaff's claim was waived due to its potential for being raised on direct appeal, absent a demonstration of cause and prejudice or a fundamental miscarriage of justice.
Mr. Schaff argues that, despite a potential procedural default, he deserves a merits review due to cause and prejudice stemming from ineffective assistance of both trial and appellate counsel. He claims his trial counsel failed to uncover Klein's termination, which he argues would have undermined Klein's credibility and, consequently, the credibility of Dr. Conte and K.A. Schaff contends that this failure prejudiced his case, asserting that the state’s case would have faltered if Klein's qualifications were questioned, suggesting that no reasonable juror would have convicted him with this new evidence. However, the court finds that Schaff has not demonstrated sufficient cause or prejudice, rejecting his assertion that ineffective counsel was the reason for his failure to raise the claim. The court references the Strickland v. Washington standard, indicating that a claim of ineffective assistance requires proof that counsel's performance was so deficient it compromised the trial's integrity and resulted in a lack of a fair trial. Schaff's inability to establish this standard leads to the conclusion that his claims of ineffective assistance do not warrant relief.
To establish ineffective assistance of trial counsel for failing to pursue a Brady violation, Mr. Schaff needed to prove that his counsel's performance was deficient and prejudicial. A Brady violation requires demonstrating that the prosecutor withheld exculpatory evidence that was material. Although Klein's resume, which revealed her termination in December 1989, was provided late to the defense, the counsel did not investigate the reasons for her termination or her professional background, despite having the opportunity to do so. Mr. Schaff has not shown that the State knowingly withheld information about Klein's termination or that such information was material. The reason for her firing, related to accepting private clients for a fee, did not undermine the credibility of her testimony regarding K.A.'s statements. Consequently, there is no reasonable probability that this evidence would have changed the trial outcome.
The claim of ineffective assistance of trial counsel was weak, leading to the conclusion that appellate counsel was not ineffective for failing to raise it on appeal. The appellate counsel's performance fell within the range of competent assistance, as effective appellate advocacy often involves focusing on the strongest issues. Mr. Schaff's assertion that he did not discuss appeal issues with his counsel does not suffice to prove ineffectiveness.
The state appellate court determined that the Brady claim was waived, and Mr. Schaff raised several issues for which the district court did not grant a certificate of appealability (COA). A COA can only be issued if a substantial showing of a constitutional rights denial is made. Although the district court issued a COA for one of Mr. Schaff's claims regarding Klein’s termination, the court retains the authority to grant additional COAs if the statutory criteria are met. Mr. Schaff's request for a COA on other issues is declined, with the court providing reasons for this decision in subsequent sections.
Mr. Schaff argues that Pamela Klein's trial testimony lacks reliability due to her status as an unlicensed psychologist and a questionable history, including allegations of diagnosing satanic abuse and coaching sexual abuse victims. He contends that her credibility affects the validity of K.A.'s abuse report and Dr. Conte's evaluation of K.A. However, the court found that Schaff failed to demonstrate a violation of federal constitutional rights related to this claim. Citing Schaff II, the Illinois appellate court ruled that the argument regarding Klein's credibility was waived, a decision the district court upheld. Furthermore, Schaff could not prove ineffective assistance of appellate counsel for not raising the issue of trial counsel's effectiveness. The district court also concluded that trial counsel's performance was reasonable and effective. The court noted that trial counsel may have strategically chosen to challenge the methodologies of the Children's Advocacy Center rather than Klein's personal credibility to avoid opening the door for the prosecution to introduce potentially damaging evidence of other allegations against Schaff. Ultimately, the defense's approach was deemed a calculated decision, prioritizing a focus on the Center's procedures over Klein's personal credibility.
Mr. Schaff's claim for a certificate of appealability (COA) is denied due to his failure to demonstrate a substantial denial of a constitutional right. He argues that K.A. recanted his trial testimony, confessing to a friend that he was not abused by Mr. Schaff and that his mother fabricated his testimony. A sworn affidavit from K.A.'s friend supports this recantation, which Mr. Schaff claims indicates K.A. perjured himself at trial. Although Mr. Schaff acknowledges the prosecutor did not knowingly use perjured testimony, he contends that the State's continued reliance on K.A.'s testimony after the recantation constitutes a due process violation, referencing Sanders v. Sullivan.
The Illinois Appellate Court found that Mr. Schaff did not allege the State knowingly introduced false testimony, as required by Illinois law, and that the record did not support his claims regarding the victim's mother's false testimony. The district court ruled that Mr. Schaff had procedurally defaulted on the claim about the mother's perjured testimony and that he was not entitled to habeas relief, as the state court's decision was not an unreasonable application of federal law.
The Supreme Court has established that a prosecutor's knowing use of perjured testimony violates the Due Process Clause, requiring a conviction based on such testimony to be overturned if it could have influenced the jury's decision. Mr. Schaff concedes that the prosecution did not knowingly use perjured testimony, undermining his claim. Consequently, he fails to meet the necessary standard to show a deprivation of due process rights, leading to the denial of a COA on this claim.
Mr. Schaff argues that his trial defense counsel was constitutionally ineffective for several reasons: the attorney called only one witness, did not adequately investigate the background of Klein, failed to uncover retaliatory motives of dissatisfied tenants, and did not present evidence suggesting the charges against him were fabricated. The Illinois appellate court determined that Mr. Schaff waived this claim since he did not raise it on direct appeal and did not provide justification for the omission. The district court supported this ruling, emphasizing that federal habeas courts must respect state procedural rules regarding waiver. The appellate court referenced the case People v. Erickson, stating that since the relevant facts were part of the record but not raised on direct appeal, the claim was procedurally barred.
Additionally, Mr. Schaff asserts that his counsel was ineffective for not addressing K.A.'s recantation in a post-trial motion. The state court found no merit in this claim due to insufficient evidence that trial counsel was aware of K.A.'s recantation in time to act on it, noting that the only supporting evidence was an ambiguous affidavit from Mrs. Schaff.
Mr. Schaff also claims that his appellate counsel failed to demonstrate cause and prejudice regarding the trial counsel's inaction on the recantation. However, it was determined that Mr. Schaff did not meet the high threshold for demonstrating prejudice as required by Strickland v. Washington. The jury had access to multiple testimonies, including that of the victim and medical evidence supporting the abuse claim. Consequently, the court concluded that a Certificate of Appealability (COA) should not be granted for the ineffective assistance of counsel claim, as Mr. Schaff did not adequately prove a violation of his constitutional rights.
Mr. Schaff argues that exposure of some jurors to extrajudicial information regarding additional sexual abuse charges against him infringed on his due process rights. Following the jury's verdict, juror Virginia Beatty informed the trial court that some jurors might have overheard comments about other charges against Schaff. A post-trial hearing was held on September 14, 1990, to investigate potential unauthorized information communicated to the jury. Schaff moved for a new trial and subpoenaed two jurors to testify.
Juror Beatty confirmed that she learned about the other charges only after the trial and believed that the information did not affect her perception. Juror Janet Johnson testified that she overheard a child in the courtroom make a comment before the trial concluded but stated she did not know if it pertained to Schaff’s case or discuss it during deliberations.
The court expressed concern about Beatty's claims but deemed the child's statement overheard by Johnson as "innocuous" and not likely to influence her judgment. The court assessed the situation based on the totality of circumstances and found no evidence that external information affected the jury's decision-making process. Ultimately, the court denied Schaff's motion for a new trial, asserting that due process was upheld and no jury tampering occurred.
On direct appeal, the state appellate court agreed with the trial court's findings, emphasizing that the jury maintained impartiality. It noted that one juror was unaware of any information until after the trial, while the other merely overheard a statement not related to the case. Schaff did not present additional evidence of prejudice, leading the appellate court to conclude that the trial court acted within its discretion in safeguarding his right to a fair trial.
The court affirmed that the trial court's handling of the issue was appropriate and supported by the evidence presented. The appellate court upheld this ruling as res judicata, and the district court determined that the appellate court's decision did not conflict with Supreme Court law, denying Mr. Schaff's habeas relief petition. Mr. Schaff is seeking a Certificate of Appealability (COA), asserting a violation of his Sixth Amendment right to a fair trial due to improper outside contact with jurors, which he claims is "presumptively prejudicial." Citing Remmer v. United States, he argues that the trial court should have conducted a more thorough hearing to assess the impact of this contact on the jurors. He contends that the limited inquiry conducted, questioning only two jurors, failed to adequately address this presumption. However, the court concluded that Mr. Schaff did not demonstrate a substantial showing of the denial of his right to an impartial jury, thus denying the COA. The court referenced the Supreme Court's standards regarding extraneous jury influence, noting that while such influence is presumed prejudicial, the burden lies with the government to prove that it was harmless after a proper hearing. The state appellate court's findings that Mr. Schaff was afforded a fair trial were deemed consistent with federal law, and the court's assessment of the jury's deliberations was reasonable under the relevant legal precedents.
Jurors cannot be completely shielded from external influences, but due process requires that they decide cases based solely on the presented evidence. A trial judge must actively monitor for prejudicial incidents and evaluate their impact when they occur, as established in the precedent set by Remmer. In this case, a juror unintentionally overheard a whisper between a child and parent, which was deemed an unauthorized communication but not a deliberate breach of the juror's privacy. The state court found that this incident did not affect the juror's impartiality, and both parties were allowed to present evidence at the hearing, including testimonies from two jurors. The court's conclusion that the overheard statement was innocuous aligns with due process requirements, and such factual determinations by state courts are entitled to a presumption of correctness in federal habeas proceedings.
Mr. Schaff also claimed that the trial court coerced the jury into a conviction by instructing them not to expect to leave without a verdict, failing to answer questions about "reasonable doubt," and not providing requested transcripts. He alleged that the court improperly inquired about the jury's vote count and issued a flawed deadlock instruction. However, the state appellate court reviewed and rejected his claim of judicial coercion, ruling that the prior decision on direct appeal stood as res judicata. As a result, Mr. Schaff did not demonstrate a substantial violation of his constitutional rights, and a Certificate of Appealability (COA) will not be issued on this claim.
The district court, during habeas corpus review, determined that the Illinois appellate court's evaluation of Mr. Schaff's case was a reasonable application of Supreme Court precedent from Lowenfield v. Phelps, thereby denying habeas relief. Mr. Schaff's claims regarding jury coercion, based on the trial court allegedly insisting the jury remain until a decision was reached and failing to address jury inquiries for transcripts, constitute new arguments not previously presented in state court. He argues that the cumulative interactions between the judge and jury indicate coercion, asserting that under Lowenfield, the combination of jury polling and an incomplete deadlock instruction could demonstrate coercion. However, since Mr. Schaff had only raised issues related to faulty jury instructions and polling figures in state courts, those elements are the focus of this claim.
To obtain a certificate of appealability (COA), Mr. Schaff needed to show a substantial denial of his right to an impartial jury but failed to do so. He could not cite any Supreme Court decisions indicating that the jury instruction used or the judge's inquiries into the jury's vote breakdown were unconstitutional. Therefore, the Illinois court’s decision was neither contrary to nor an unreasonable application of Lowenfield. Consequently, the judgment of the district court was affirmed. Notably, Donald Snyder, the current Director of the Illinois Department of Corrections, has been substituted as the Respondent, maintaining custody of Mr. Schaff during his mandatory supervised release. The jury’s requests for transcripts, a legal definition of "reasonable doubt," and alternative verdict options were all met with instructions to continue deliberating. Mr. Schaff's direct appeal raised issues about coercive jury instructions and the impact of extraneous prejudicial information on his trial. In his post-conviction petition, he raised several issues including the use of perjured testimony and unreliable expert witness testimony.
Trial counsel's effectiveness is challenged on several grounds, including the failure to investigate potential retaliatory motives of tenants Kathy Ulber and Linda Gutierrez, Pamela Klein's questionable background, and the omission of newly discovered evidence regarding K.A.'s confession to a friend. Additionally, the State is accused of not disclosing exculpatory evidence related to Pamela Klein's exit from the Center. Mr. Schaff claims he was denied a fair trial due to jurors being informed of other pending charges against him and alleges that the trial court improperly coerced the jury into a verdict. In the Illinois Supreme Court, Mr. Schaff raised three primary issues: the state appellate court’s incorrect application of the standard of review in dismissing his post-conviction motion; a conflict with the Illinois Supreme Court's ruling in People v. Whitehead; and the appellate court's erroneous application of res judicata, which barred him from claiming that the jury's verdict was coerced. Mr. Schaff's arguments primarily focus on evidence not presented at trial, including K.A.'s recantation, Pamela Klein's background and termination, and a scheme by tenants against him. The state court's factual findings are presumed correct, and Mr. Schaff bears the burden of providing clear and convincing evidence to rebut this presumption. The discussion references standards for habeas review, emphasizing that mixed questions of law and fact receive plenary review, and that a state court's decision may stand unless it unreasonably applies federal law. The statutory "unreasonableness" standard allows for federal intervention when state court decisions are significantly misaligned with U.S. Supreme Court precedents or are inadequately supported by the record. The determination of "unreasonable application" must be made on a case-by-case basis.
Mr. Schaff alleges that Klein misrepresented her qualifications, claiming to be a psychologist and asserting her involvement in specific projects. He further asserts that Klein diagnosed a case of "ritual satanic abuse" via telephone and that a state court deemed her unqualified as a therapist, leading some agencies to question her practices. Schaff indicates that Dr. Conte, who relied on Klein's records for diagnosing K.A., expressed significant doubts about Schaff's guilt upon learning of Klein's unreliability. Klein's resume was submitted on the day of her testimony, but defense counsel did not object or request a continuance, thereby waiving any challenge to the timing of the resume's disclosure. Importantly, Klein did not testify as an expert or therapist. Legal precedents are referenced regarding the prosecution's obligation to disclose favorable evidence and the standards for a certificate of appealability (COA) in habeas corpus proceedings, emphasizing that a COA can only be granted if there is a substantial showing of a constitutional right violation. The excerpt also notes that an affidavit from K.A., made four years after Schaff's trial, mentions a recantation without providing a clear timeline.
Mr. Schaff's claim of ineffective trial counsel, based on the counsel's decision to call only one witness, is considered waived as it is presented for the first time in this court. He has failed to demonstrate entitlement to an evidentiary hearing under 28 U.S.C. § 2254(e)(2)(B) regarding potential recantation or other ineffective assistance issues, lacking sufficient evidence to prove that a constitutional error would have led a reasonable factfinder to acquit him. Testimony from juror Johnson revealed that she did not consider a child's statement significant to Schaff's case, and she was aware of other pending cases against him during deliberations. The court concluded that the child's statement did not influence Johnson's decision-making. Habeas relief can only be granted if a state court's decision is contrary to or an unreasonable application of clearly established federal law, or based on an unreasonable factual determination per 28 U.S.C. § 2254(d)(1)(2). The excerpt also references the Remmer case, where a juror was approached during trial, leading to a judicial investigation. The Supreme Court emphasized the need to preserve the integrity of jury proceedings and mandated a hearing to assess the incident's impact on the juror, ultimately finding that the juror's ability to act freely had been compromised.
