Bausch v. Sullivan et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JOSHUA ALLEN BAUSCH,
Petitioner,
vs.
DANIEL SULLIVAN, THE ATTORNEY
GENERAL OF THE STATE OF SOUTH
DAKOTA, BRENT FLUKE, WARDEN;
Respondents.
4:22-CV-04026-KES
REPORT AND RECOMMENDATION
INTRODUCTION
This matter is pending before the court pursuant to the pro se petition
and amended petition pursuant to 28 U.S.C. § 2254 of Joshua Allen Bausch, a
person incarcerated pursuant to a judgment of a South Dakota state court.
See Docket Nos. 1 & 10. Now pending is respondent’s motion for judgment on
the pleadings without holding an evidentiary hearing. See Docket No. 4.
Mr. Bausch opposes the motion. See Docket No. 11. This matter was referred
to this magistrate judge for a recommended disposition pursuant to 28 U.S.C.
§ 636(b)(1)(B) and the October 16, 2014, standing order of the Honorable Karen
E. Schreier, United States District Court Judge.
FACTS
A. Trial Court
Following a jury trial, Mr. Bausch was convicted in state court of four
counts of first-degree rape and two counts of sexual contact with a child under
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the age of 16 based on two separate incidents with the same victim. One
occurred in December in a trailer home and the second in the following March
in a hotel room. See Docket No. 5-1. He was sentenced with a combination of
concurrent and consecutive sentences on the six counts so that his effective
sentence was for 40 years. Id.
B. First Direct Appeal and Remand
Mr. Bausch filed a direct appeal, contesting (1) the sufficiency of the
evidence, (2) the allegedly cruel and unusual nature of his sentence,
(3) limitations imposed by the court on introducing evidence that the victim
made statements about harming herself, (4) the court’s jury instructions, and
(5) his convictions for both rape and sexual contact on double jeopardy
grounds. State v. Bausch, 889 N.W.2d 404, 408 (2017) (“Bausch I”). The court
agreed with Mr. Bausch as to the double jeopardy argument and ordered that
the sexual contact convictions be vacated, the case reversed and remanded for
resentencing. Id. at 411-13, 415. The court affirmed in all other respects,
including affirming the convictions and sentencings for the four first-degree
rape counts. Id. at 415.
On remand, the trial court vacated the sexual contact convictions and
found Mr. Bausch not guilty of these counts. Docket No. 5-3 at p. 2. The court
then imposed the same effective 40-year sentence on Mr. Bausch on the
remaining rape convictions. Id. Mr. Bausch then filed a motion for a new trial
before the state circuit court, which that court denied. State v. Bausch, 905
N.W.2d 314, 315 (S.D. 2017) (“Bausch II”).
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C. Second Direct Appeal
Following resentencing, Mr. Bausch appealed again to the South Dakota
Supreme Court, arguing the trial court erred in refusing his request for a new
trial. Id. The court rejected Mr. Bausch’s appeal, holding that when the scope
of remand is limited—as it was in Bausch I—the circuit court has authority
only insofar as is necessary to carry out the appellate court’s mandate. Id. at
319. Thus, the circuit court did not have the power, after remand in Bausch I,
to hold a new trial, but was authorized only to vacate the two improper
convictions and resentence Mr. Bausch. Id.
D. State Habeas Proceedings
Mr. Bausch timely filed a habeas petition in state circuit court. Docket
No. 5-5. Habeas counsel was appointed for Mr. Bausch, who then filed an
amended petition on his behalf. Docket No. 5-6. In his petition he raised three
claims:
1. trial counsel was ineffective for failing to seek dismissal or
acquittal on the sexual contact charges, resulting in prejudice due
to Mr. Bausch facing a greater number of charges before the jury;
2. trial counsel was ineffective for failing to investigate in three ways:
a. counsel failed to interview witnesses present during the two
events;
b. counsel failed to consult with and call at trial an expert
witness to testify regarding child testimony and suggestibility
c. counsel failed to investigate the height and weight of the
victim’s bed as it pertained to Mr. Bausch.
3. trial counsel’s work load exceeded the ABA recommended limits,
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which prevented counsel from spending the necessary time on
Mr. Bausch’s case and providing effective representation of
counsel.
Docket No. 5-6 at p. 2.
The state habeas court held an evidentiary hearing, allowed the parties
to submit post-hearing briefs, and then issued a 15-page opinion denying
habeas relief. Docket No. 5-7. The habeas court’s analysis and findings of fact
are discussed in greater detail in the DISCUSSION section, infra, of this opinion.
Following the denial of habeas relief by the circuit court, Mr. Bausch
timely sought a certificate of probable cause from the circuit court, which
denied the request. He then timely sought a certificate of probable cause from
the supreme court, which also denied the request.
E. Mr. Bausch’s Federal Habeas Petition
Mr. Bausch timely1 filed his § 2254 petition with this court alleging the
following grounds for relief:
1. Ineffective assistance of counsel for failing to investigate and
interview witnesses present at the scene of the crime in December,
especially Celena Ackerman.
2. Ineffective assistance of counsel for failing to call Celena
Ackerman as a witness at trial.
3. Ineffective assistance of counsel for failing to impeach the victim
with her prior inconsistent statements.
4. Ineffective assistance of counsel for failing to investigate the scene
of the alleged rape in December, including the layout of the trailer
house, the size of the victim’s bunkbed relative to Mr. Bausch’s
size, and the location of nearby witnesses.
1 AEDPA contains a one-year statute of limitations. See 28 U.S.C. § 2254(d).
Mr. Bausch filed his § 2254 petition on February 16, 2022, less than a year
after the South Dakota Supreme Court denied habeas relief.
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Docket No. 1 at pp. 6-19. Respondents now move for judgment on the
pleadings, arguing that the state habeas court’s decision was neither an
unreasonable application of federal law nor were its findings of facts lacking
support in the record. See Docket Nos. 4 & 5. Mr. Bausch resists. Docket
No. 11.
DISCUSSION
A. Scope of a § 2254 Petition
A state prisoner who believes he is incarcerated in violation of the
Constitution or laws of the United States may file a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. The Anti-Terrorism and Effective Death Penalty
Act (AEDPA) constrains federal courts to exercise only a “limited and deferential
review of underlying state court decisions.” Osborne v. Purkett, 411 F.3d 911,
914 (8th Cir. 2005). A federal court may not grant a writ of habeas corpus
unless the state court’s adjudication of a claim “resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established
Federal law.” 28 U.S.C. § 2254(d)(1). A state court decision is “contrary to”
clearly established federal law if it “applies a rule that contradicts the governing
law set forth in [Supreme Court] cases” or if it “confronts a set of facts that are
materially indistinguishable from a decision of th[e] Court and nevertheless
arrives at a result different from [the Court’s] precedent.” Williams v. Taylor,
529 U.S. 362, 405-06, (2000). “A federal habeas court may not issue the writ
simply because [it] concludes . . . the relevant state-court decision applied
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clearly established federal law erroneously or incorrectly.” Id. at 411. “Rather,
that application must also be unreasonable.” Id. (emphasis added).
The state court’s factual findings “are presumed to be correct,” and a
“federal habeas court ‘may not disregard this presumption unless’ ” specific
statutory exceptions are met. Thatsaphone v. Weber, 137 F.3d 1041, 1045
(8th Cir. 1998) (quoting Thompson v. Keohane, 516 U.S. 99, 110 (1995)); 28
U.S.C. § 2254(e). A federal habeas court must “more than simply disagree with
the state court before rejecting its factual determinations. Instead, it must
conclude that the state court’s findings lacked even ‘fair support’ in the
record.” Marshall v. Lonberger, 459 U.S. 422, 432 (1983).
B. Judgment on the Pleadings Standard
This court recently addressed the proper standard applicable to motions
for judgment on the pleadings under Federal Rule of Civil Procedure 12(c):
Courts deciding a Rule 12(c) motion are required to accept as true
the well-pled allegations and must resolve all inferences in the
non-moving parties’ favor. Wishnatsky v. Rovner, 433 F.3d 608,
610 (8th Cir. 2006). However, this tenet does not apply to legal
conclusions, “formulaic recitation of the elements of a cause of
action,” or factual assertions which are so indeterminate as to
require further factual enhancement. Braden v. Wal-Mart Stores,
Inc., 588 F.3d 585, 594 (8th Cir. 2009). . . . When considering a
motion for judgment on the pleadings, a court generally must
ignore all materials outside the pleadings. Porous Media Corp. v.
Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999). However, courts
may consider “some materials that are part of the public record or
do not contradict the complaint . . . as well as materials that are
necessarily embraced by the pleadings.” Id.
Union Ins. Co. v. Scholz, 473 F. Supp. 3d 978, 982 (D.S.D. 2020) (Piersol, J.).
The main difference between a motion to dismiss under Rule 12(b)(6) asserting
plaintiff has failed to state a claim and a motion under Rule 12(c) is timing: a
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Rule 12(b)(6) motion must be made before an answer is filed while a Rule 12(c)
motion can be made after the pleadings have closed. Id. at 981.
Here, in addition to the pleadings filed in federal court, the court has also
taken judicial notice of the underlying criminal and habeas files in South
Dakota state court concerning Mr. Bausch. Cullen v. Pinholster, 563 U.S. 170,
181-82 (2011) (finding review under § 2254(d)(1) requires review of the state-
court record).
C. Ineffective Assistance of Counsel Standard
The Sixth Amendment of the Constitution of the United States affords a
criminal defendant with the right to assistance of counsel. U.S. Const.
amend. VI. The Supreme Court “has recognized that ‘the right to counsel is the
right to the effective assistance of counsel.’ ” Strickland v. Washington, 466
U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771, n.14
(1970)). Strickland is the benchmark case for determining if counsel’s
assistance was so defective as to violate a criminal defendant’s Sixth
Amendment rights and require reversal of a conviction. Id. at 687.
“When a convicted defendant complains of the ineffectiveness of
counsel’s assistance, the defendant must show that counsel’s representation
fell below an objective standard of reasonableness.” Id. at 687-88. The
defendant must also show that counsel’s unreasonable errors or deficiencies
prejudiced the defense and affected the judgment. Id. at 691. The defendant
must show “there is a reasonable probability that, absent the errors, the
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factfinder would have had a reasonable doubt respecting guilt.” Id. at 695. In
sum, a defendant must satisfy the following two-prong test. Id. at 687.
First, the defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that counsel
was not functioning as the “counsel” guaranteed the defendant by the
Sixth Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that
counsel’s errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable. Unless a defendant makes both
showings, it cannot be said that the conviction or death sentence
resulted from a breakdown in the adversary process that renders the
result unreliable.
Id.
“There is a presumption that any challenged action was sound trial
strategy and that counsel rendered adequate assistance and made all
significant decisions in the exercise of professional judgment.” Hall v.
Luebbers, 296 F.3d 685, 692 (8th Cir. 2002) (quotations omitted). It is the
petitioner’s burden to overcome this presumption, and a “petitioner cannot
build a showing of prejudice on a series of errors, none of which would by itself
meet the prejudice test.” Id.
Counsel’s conduct must be judged by the standards for legal
representation which existed at the time of the representation, not by
standards promulgated after the representation. Bobby v. Van Hook, 558 U.S.
4, 7-9 (2009). “ ‘American Bar Association standards and the like’ are ‘only
guides’ to what reasonableness means, not its definition.” Id. at 8 (quoting
Strickland, 466 U.S. at 688)).
The Supreme Court distinguishes between those cases in which the new
evidence “would barely have altered the sentencing profile presented to the
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sentencing judge,” and those that would have had a reasonable probability of
changing the result. Porter v. McCollum, 558 U.S. 30, 41 (2009) (quotation
omitted). In assessing the prejudice prong, it is important for courts to
consider “the totality of the available mitigation evidence—both that adduced at
trial, and the evidence adduced in the habeas proceeding—and reweigh it
against the evidence in aggravation.” Id. at 40-41 (internal quotation omitted,
cleaned up). It is not necessary for the petitioner to show “that counsel’s
deficient conduct more likely than altered the outcome” of his case, only that
there is “a probability sufficient to undermine confidence in [that] outcome.”
Id. at 44 (quotation omitted).
Finally, “[i]neffective assistance of counsel is a mixed question of law and
fact and thus on habeas review a federal court is not bound by a state court’s
conclusion that counsel was effective.” Whitehead v. Dormire, 340 F.3d 532,
537 (8th Cir. 2003). However, “ ‘state court findings of fact made in the course
of deciding an ineffectiveness claim are subject to the deference requirement of
§2254(d).’ ” Id. (citing Strickland, 466 U.S. at 698). That is, “[a] state court’s
findings of fact are entitled to a presumption of correctness.” Miller v. Dormire,
310 F.3d 600 (8th Cir. 2002). Additionally, “[j]udicial scrutiny of counsel’s
performance must be highly deferential,” with “a strong presumption that
counsel’s conduct falls within the range of reasonable professional assistance.”
Strickland, 466 U.S. at 698.
Where a claim of ineffective assistance of counsel is made in a § 2254
petition, the already deferential standard of review of counsel’s conduct is
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paired with the extremely deferential standard of review applicable to federal
court review of a state court’s rejection of a habeas claim to make the federal
court’s “highly deferential” review “doubly” so. Harrington v. Richter, 562 U.S.
86, 105 (2011). “Federal habeas courts must guard against the danger of
equating unreasonableness under Strickland with unreasonableness under
§ 2254(d).” Id. The inquiry when a Strickland claim is raised in a § 2254
petition is “whether there is any reasonable argument that counsel satisfied
Stickland’s deferential standard.” Id. The court now turns to each of
Mr. Bausch’s assertions that counsel was ineffective.
D. Application of the Law to Mr. Bausch’s Claims
1. Failure to Investigate and Interview Witnesses; Failure to Call
Celena Ackerman as a Defense Witness at Trial2
Although Mr. Bausch alleges counsel had the names of all the witnesses
present at the scene of the crimes and failed to contact any of them,
Mr. Bausch only discusses one witness: Celena Ackerman. Ms. Ackerman was
present at the scene of the December event. Had trial counsel contacted
Ms. Ackerman, Mr. Bausch alleges counsel would have discovered that
Ms. Ackerman would have testified she was present in December, had a direct
line of sight to Mr. Bausch’s bedroom door, and that he never left his bedroom
all night after he retired, contrary to the victim’s testimony. Docket No. 1 at
p. 7.
2 The court combines grounds 1 and 2 from Mr. Bausch’s § 2254 petition as
both focus on the fact that counsel did not discover Celena Ackerman as a
witness and present her testimony at trial.
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Mr. Bausch’s petition focuses his claim on his attorney’s alleged
malfeasance and does not address the state habeas court’s decision. Id.
However, in his memorandum in opposition to respondent’s motion to dismiss
he attacks both the state court’s findings of fact as well as application of law.
Docket No. 11 at pp. 12-22. Accordingly, the court addresses both.
a. The State Court’s Factual Findings Are Supported
Again, the applicable standard under § 2254 that this court must apply
to the evaluation of state habeas court fact findings requires acceptance of the
state court findings unless they “lack[ ] even ‘fair support’ in the record.”
Marshall, 459 U.S. at 432. The court finds Mr. Bausch fails to carry the
burden of demonstrating that the state court’s findings lacked support in the
evidence presented.
At the state habeas hearing, Ms. Ackerman testified she was present at
the scene of the December crime, she stayed up all night and never saw
Mr. Bausch leave his bedroom after he retired for the evening. Docket No. 5-7
at p. 8.3 She also testified she did not see anyone enter or leave the victim’s
bedroom that night and that she had an unobstructed view of every room down
3 Each factual finding discussed in the text of the opinion comes from the state
habeas court’s written opinion. That finding is indexed by a footnote (this one
and the ones following) with reference to the corresponding transcript from the
state habeas hearing. The underlying evidentiary record supports the state
habeas court’s finding unless otherwise noted. Support for the finding of
Ms. Ackerman’s testimony: Bausch v. Young, Civ. 18-158 at pp. 222, 226-27
(S.D. Circuit Court) (page 16 & 19-20 of the habeas evidentiary hearing (HH)
transcript).
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the hall. Id. at pp. 8, 9-10.4 She also testified no one contacted her about
Mr. Bausch’s case until after he had been sentenced. Id. at p. 8.5
Trial counsel testified at the state habeas hearing that she had
interviewed Rosalina (“Rosa”) Bauer, who was present at the scene in December
and that Ms. Bauer told counsel Celena Ackerman (“Cici”) was also present.
Id.6 However, trial counsel never contacted Ms. Ackerman. Id.7
Mr. Bausch also testified at the state hearing and stated he knew
Ms. Ackerman was present at the scene, that he could have obtained her
contact information, but that—at the time—he did not think it was necessary
to talk to Ms. Ackerman. Id.8 Mr. Bausch did not tell trial counsel that
Ms. Ackerman was a key witness or someone who should be interviewed. Id.
Mr. Bausch writes in his memo in opposition to respondent’s motion that
the state court was wrong in determining that counsel did not know
Ms. Ackerman was an important witness. Docket No. 11 at p. 12. He writes
that “petitioner told trial counsel that Ms. Ackerman was one of the people at
the trailer the night in December.” Id. Furthermore, he asserts there were only
nine people in the trailer that night and it would not be unreasonable to expect
counsel to talk to each of them. Id.
4 Id. at p. 225 (HH p. 18).
5 Id. at p. 229 (HH p. 22).
6 Id. at p. 245-49 (HH p. 38-42).
7 Id. at p. 249-50 (HH p. 42-43).
8 Id. at p. 336, 342 (HH at p. 129, 136).
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The question under § 2254 is whether the state habeas court’s findings
of fact were supported by the record before it. This court is limited to reviewing
what the state court reviewed—Mr. Bausch’s then-testimony that he did not
mention Ms. Ackerman because he did not think it important to get her
testimony—to determine if the state court’s findings are supported by the
record.
Mr. Bausch’s girlfriend, Becky, was actually in the same bedroom with
Mr. Bausch on the night of the December event. Id. Mr. Bausch insisted that
Becky be called as a defense witness at trial, even though she had previously
told police that Mr. Bausch had left their bedroom the night of the December
event, which corroborated the victim’s testimony. Id. at pp. 8-9. Becky
testified at the trial that she could not recall Mr. Bausch leaving the room on
the night in question. Id. at p. 9.
The state habeas court found Ms. Ackerman’s credibility to be “low”
because she would have been subject to impeachment by other witnesses’
testimony, including petitioner’s own testimony. Id. For example, Mr. Bausch
himself testified he did leave his bedroom during the night to use the
bathroom, which contradicted Ms. Ackerman’s testimony that he never left the
bedroom. Id. at p. 10.9 Mr. Bausch also testified there was a jog in the
hallway so that someone sitting in the living room as Ms. Ackerman was would
9 Id. at 327 (HH at 120). In addition, Becky had told police that Mr. Bausch got
out of bed that night to go smoke a cigarette and Rosa similarly told police that
someone had exited from Mr. Bausch’s bedroom on the night in question. Id.
at p. 234 (HH p. 27).
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be unable to see all the way down the hallway, while Ms. Ackerman testified
she had a view of the entire hallway. Id.10
Another example of Ms. Ackerman’s inconsistent testimony was that she
stated the victim’s sister slept in the same bedroom with the victim. Id. 11 This
contradicted every other witness’s testimony, including Becky’s, who all stated
the victim slept in her bedroom alone and the sister slept in the living
room. Id.12
The state habeas court found that Ms. Ackerman’s testimony that she
was awake all night and constantly observed the hallway to be “questionable.”
Id. at p. 9. Finally, the court pointed out that the inconsistencies in
Ms. Ackerman’s testimony as compared to the testimony of other witnesses
called her testimony “into question,” especially since the testimony came
“approximately seven years after the incidents.” Id. at p. 10.
As indicated in the footnotes to the above discussion, the state habeas
court’s findings of fact were amply supported by the evidentiary record. In
particular, the court’s finding that Ms. Ackerman’s credibility was “low” is
generously supported by the evidence presented. Ms. Ackerman’s testimony
was contradicted by every non-party witness who testified in some way or
another. Most importantly, her testimony on the key issue of her ability to see
down the entire hallway and to verify that no one entered or exited from any
10 Id. at p. 325-28 (HH at p. 118-21).
11 Id. at p. 223, 231 (HH p. 16, 24).
12 Id. at p. 231 (HH at p. 24).
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bedroom down the hall was contradicted by Mr. Bausch himself, who testified a
jog in the hallway obstructed a complete view and that he did leave his
bedroom at some point after retiring so that he could use the bathroom.
Mr. Bausch has failed to demonstrate that the state habeas court’s factual
findings lacked even fair support in the record.
b. The State Court Reasonably Applied Federal Law
In its written opinion, the state habeas court identified the appropriate
law (Strickland) and applied it to Mr. Bausch’s claim. Docket No. 5-7 at pp. 5-
6, 9-10. The court observed that even if counsel’s performance was deficient
and that Ms. Ackerman should have been interviewed prior to trial and her
testimony presented at trial, Mr. Bausch had failed to demonstrate Strickland
prejudice. The court concluded Ms. Ackerman's testimony, had it been
presented, would not have changed the outcome of the trial—in other words,
Mr. Bausch had not established prejudice. Id.
The court based this conclusion on the many inconsistencies in
Ms. Ackerman’s testimony when compared to the testimony of other witnesses
concerning the layout of the hallway, whether Mr. Bausch left his room on the
December night in question, and whether the victim slept in her bedroom
alone. Id. at p. 9. Also, the court found Ms. Ackerman’s testimony would have
been weak and its probative value minimal because of the incredulous
statement that she stayed awake all night and had the hallway under constant
observation all night. Id.
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Because the state court found no prejudice, Mr. Bausch’s current
assertion in his memo that he did tell counsel about Ms. Ackerman as a
witness (Docket No. 11 at p. 12) plays no part in this court’s decision.
Mr. Bausch’s current “testimony” goes only to the issue whether counsel
should have interviewed Ms. Ackerman and presented her testimony at trial—
in other words, Mr. Bausch’s testimony goes to whether counsel’s performance
was deficient. Even assuming counsel’s performance was deficient and she
should have discovered and presented Ms. Ackerman’s testimony, the state
court found no prejudice as a result of that possible malfeasance.
Mr. Bausch takes issue with the state court’s conclusion that
Ms. Ackerman’s testimony did not undermine confidence in the outcome of the
trial. The court notes that this court is the third judge to review the evidence
presented at Mr. Bausch’s trial. The first court to have done so was the South
Dakota Supreme Court in Bausch I. As noted above, one of the claims
Mr. Bausch raised on appeal was the sufficiency of the evidence. Bausch I,
889 N.W.2d at 413. This issue required the Supreme Court to review all of the
evidence adduced at trial. Id. Mr. Bausch argued on appeal that the lack of
physical evidence of rape, the presence of numerous witnesses who saw and
heard nothing, the meagre opportunity presented to commit the offenses, and
the inconsistencies in the victim’s testimony all pointed to a conclusion that
there was insufficient evidence to convict him. Id. at 414. The appellate court
disagreed and affirmed the conviction. Id.
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This court is the third court to look at the entire trial record and
conclude that there was sufficient evidence to support the conviction. This
court is the second court asked to consider whether the introduction of
Ms. Ackerman’s testimony would have had the potential to upset the outcome
of the trial. In this review, this magistrate judge is circumscribed by the
standard of review imposed by § 2254.
A[T]he federal court may not grant habeas relief to a state prisoner merely
>because that court concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law erroneously or
incorrectly.= @ Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003) (quoting
Williams, 529 U.S. at 411). ARather, that application must also be
unreasonable.@ Williams, 529 U.S. at 411 (emphasis added). A petitioner
under ' 2254 Amust show that the state court=s ruling on the claim being
presented in federal court was so lacking in justification that there was an
error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.@ Harrington v. Richter, 562 U.S. 86, 103 (2011).
This court may grant habeas relief under the ”unreasonable application” prong
of § 2254 only where “there is no possibility fairminded jurists could disagree
that the state court=s decision conflicts with [the Supreme] Court=s precedents.”
Id. at 101.
It is not enough for this court to state that, given the same evidence, it
might have reached a different legal conclusion. This court must reach the
conclusion that no fairminded jurist could have reached the same decision
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reached by the state habeas court. Id. This court cannot say that. Reasonable
jurists could differ on whether the introduction of Ms. Ackerman’s testimony
might have altered the balance at trial. Because that is so, this court must
leave undisturbed the legal conclusion of the state habeas court in
Mr. Bausch’s case, mindful that that court had the opportunity to judge
firsthand Ms. Ackerman’s credibility on the witness stand.
This court concludes that Mr. Bausch has failed to demonstrate that
the state habeas court unreasonably applied federal law to his ineffective
assistance of counsel claims regarding the testimony of Celena Ackerman.
2. Failing to Impeach the Victim with Prior Statements
Mr. Bausch alleges in his third ground for relief that trial counsel was
ineffective because she failed to impeach the victim through cross-examination.
Docket No. 1 at p. 14. The court notes that this allegation is not contained
within Mr. Bausch’s underlying state habeas petition. See Bausch v. Young,
Civ. 18-158 at p. 31. However, evidence was introduced on this claim during
the state habeas evidentiary hearing and the issue was argued in habeas
counsel’s post-hearing brief. See id. at p. 358-59. Furthermore, the state
habeas court addressed the issue on the merits. See Docket No. 507 at p. 12.
Therefore, the issue is exhausted and the court addresses it on the merits.
As with the issue discussed above, Mr. Bausch’s articulation of this
claim in his petition simply focuses on his attorney’s allegedly deficient
performance. In his memorandum in opposition, he attacks the state habeas
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court’s factual findings and legal conclusions. Accordingly, the court
addresses both prongs.
a. The State Habeas Court’s Factual Findings are Supported
The state court’s summary of the facts on this issue was brief. The court
began by noting that even Mr. Bausch acknowledged that trial counsel had
addressed inconsistencies in the victim’s statements. Docket No. 5-7 at p. 12.
Mr. Bausch’s argument amounted to an assertion that those “inconsistencies
should have received greater focus and should have been used to a greater
extent to impeach her credibility.” Id. Trial counsel’s testimony was that she
felt she had to tread gingerly in cross-examining the victim as the jury might be
offended by an open attack on this child witness. Id.
The hearing transcript supports the state habeas court’s findings. Trial
counsel testified that she had to walk a fine line in cross-examining the victim.
Bausch v. Young, Civ. 18-158 at p. 296-97 (HH at pp. 89-90). On the one
hand, counsel was suspicious of the victim’s account because it did not match
the typical child-molestation scenario. Id. Therefore, counsel did want to
undermine the victim’s credibility with the jury and pointed out prior
inconsistent statements the victim had made.13 Id. However, counsel was also
conscious of the fact that the public generally wants to believe children when
they make allegations of sexual contact and counsel did not want the jury to
perceive counsel as unfairly attacking the child. Id.
13 The victim had given a prior videotaped statement to a forensic interviewer
and had also testified at a pre-trial hearing to determine whether she was
competent to testify at trial.
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In addition to the above facts discussed by the state habeas court, this
court notes that the victim was nine years old as of the time of the jury trial,
seven years old at the time of the crimes charged. State v. Bausch, CRI 13-
3072 at pp. 844, 860 (Jury Trial Transcript (JTT) at Vol. II, pp. 65, 83).
Counsel attempted to cross-examine the victim regarding her statement to the
forensic interviewer, but the victim could not recall talking to the interviewer,
let alone recall the content of what was said. Id. at pp. 870, 873, 875 (JTT Vol.
II, pp. 91, 94, 96). This court concludes that the state court’s findings of fact
are supported by the record.
b. The State Court Reasonably Applied Federal Law
In its written opinion, the state court characterized counsel’s decision
about the degree to which she would cross-examine the victim and the ferocity
of that cross-examination to be a strategic trial decision. Docket No. 5-7 at
p. 12. The court concluded that the error, if any, was not so serious as to raise
questions about the reliability of the trial outcome. Id. Accordingly, the court
denied habeas relief on this topic.
Although the state court cited only state court decisions in evaluating
this claim, the state law is in accord with the federal law that has developed
under Strickland. “There is a presumption that any challenged action was
sound trial strategy and that counsel rendered adequate assistance and made
all significant decisions in the exercise of professional judgment.” Hall, 296
F.3d at 692. Here, the court does not have to guess whether counsel’s actions
were a matter of trial strategy—counsel explicitly stated it was.
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In Hall, the Eighth Circuit held that the none of the following actions by
defense counsel constituted a Strickland violation: counsel=s failure to
introduce evidence showing that a critical witness was motivated to lie;
counsel=s failure to impeach a witness with a prior inconsistent statement; and
counsel=s failure to cross-examine witness with information gained from her
medical records. Id. at 693-98. The court determined that counsel=s actions
conformed with sound trial strategy and that the impact of such evidence
would have been minimal and non-prejudicial to the petitioner. Id.
Here, counsel had properly investigated and pinpointed a number of
discrepancies between the victim’s statements given over time, including the
fact that she had never used the words “sexual assault” to describe what
happened until she testified in a courtroom. Counsel had highlighted
discrepancies between actions the victim stated Mr. Bausch did at various
times as well as other details such as whether he climbed into her bunk bed
with her or not, whether he performed oral sex or not, whether the victim was
wearing jeans or shorts, etc. Counsel did cross-examine the victim and other
witnesses on these discrepancies, but felt she needed to do so carefully.
This is not a case where counsel’s cross-examination was soft because
counsel had failed to investigate and familiarize herself with the evidence.
Counsel knew the evidence thoroughly. Rather, it was a case where counsel
deliberately chose to soften her approach to cross-examining the victim
because to do otherwise might backfire with the jury. The court will not
second-guess counsel’s strategic decisions at this point with the benefit of
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hindsight. Neither does the court second-guess the state habeas court’s legal
conclusions. The state court did not unreasonably apply federal law on the
issue of the cross-examination of the victim.
Mr. Bausch cites to Driscoll v. Delo, 71 F.3d 701 (8th Cir. 1995), for the
proposition that counsel’s failure to thoroughly cross-examine the
prosecution’s eye witness should result in the granting of habeas relief. Docket
No. 11 at p. 28. The court notes that Driscoll was decided before the Anti-
terrorism and Effective Death Penalty Act (AEDPA) was enacted in 1996. It is
the restrictive provisions of AEDPA that apply to this court’s review of the state
habeas court decision in Mr. Bausch’s case, not the more lenient pre-AEDPA
standard.
Furthermore, Driscoll is inapposite factually. In Driscoll, the witness in
question who was not cross-examined on prior inconisistent statements was an
adult male prisoner; thus, trial counsel did not have to consider the
ramafications of harshly cross-examining a child witness. Id. at 710-11. Also,
trial counsel in Driscoll, unlike trial counsel in Mr. Bausch’s case, testified that
his decision not to cross-examine the prosecution’s witness was not a matter of
trial strategy. Id. at 710. Driscoll does not change this court’s conclusion.
The state habeas court’s application of federal law to this issue was not
unreasonable.
3. Failing to Investigate the Scene of the December Event
In his final claim, Mr. Bausch asserts his trial counsel was ineffective for
failing to investigate and present to the jury the physical layout of the scene at
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the trailer house in December. Specifically, Mr. Bausch argues that the ceiling
on the trailer house would have been seven or eight feet in height, the top rail
of the victim’s bunk bed was 67 inches high, and he was at the time five feet
five inches tall and weighed 215 pounds. He argues it would have been
extremely difficult for him to climb into the top bunk with the victim and, had
he done so, it would have make a lot of noise. Furthermore, the fact that there
were several people less than eight feet away means that if Mr. Bausch did
climb into the victim’s bunk bed, others would have heard the commotion. See
Docket No. 1 at pp. 18-19. He also argues it would have been difficult for him,
standing on the floor, to reach over the top rail of the bed and assault the
victim in that way. Id.
Mr. Bausch does not address the state habeas court’s decision in his
petition, but in his memorandum in opposition to respondent’s motion to
dismiss he attackss the state court’s findings of fact and application of the law.
Docket No. 11 at pp. 23-27. This court addresses both arguments.
a. The State Court’s Factual Findings Were Supported
The state habeas court found that counsel had elicited testimony along
the lines of what Mr. Bausch claimed she had not. Specifically, the court
found there was evidence introduced at trial as to the height of the bed and the
height of the ceiling. Docket No. 5-7 at p. 11.14 Photos of the room, the bed,
14 This corresponds with evidence adduced at the habeas hearing. Bausch v.
Young, Civ. 18-158 at p. 252 (HH at p. 45).
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and the measurements of the bed were introduced into evidence. Id.15
Counsel established that there was, at most, only about 2 ½ feet between the
top of the bed and the ceiling. Id. Counsel specifically argued at trial that it
would have been difficult for an adult male to have crawled up onto the bunk
bed. Bausch v. Young, Civ. 18-158 at p. 255 (HH at p. 48).
Mr. Bausch testified at the state habeas hearing that at the time of the
December event, he was 5 feet 5 inches tall and weighed about 215 pounds.
Bausch v. Young, at p. 318 (HH at p. 112). He also stated that the ceilings in
the trailer house where the December event occurred were seven feet high,
though he admitted he had not measured the ceilings. Id. at p. 329, 342 (HH
at 122). He testified that the top of the victim’s bunk bed was 67 inches high.
Id. at p. 332 (HH at p. 125, 135). However, he also admitted that there was a
ladder at the end of the victim’s bed that he could have stepped up on. Id. at
p. 340 (HH at p. 133). Finally, Mr. Bausch admitted that he would have been
capable of climbing into the victim’s bunk bed, although it would not have been
quiet or easy. Id.
The victim testified on cross-examination at trial that her bedroom was
immediately adjacent to the living room and that four people spent the night in
the living room during the December event. State v. Bausch, at pp. 864-65
(JTT Vol. II at pp. 85-86).
The state habeas court’s findings are supported in the record.
Furthermore, although counsel did not introduce evidence of Mr. Bausch’s
15 Id. at p. 253-54, 305 (HH at p. 46-47, 98).
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height and weight, he was physically present in the courtroom during the trial
and the jury could certainly have observed first-hand how tall he was and his
girth (Mr. Bausch admits as much in his pleadings herein—see Docket No. 11
at p. 25). Introducing the actual specifics of Mr. Bausch’s height and weight
would have added little to the jury’s understanding.
Furthermore, the victim never testified at trial that Mr. Bausch had
gotten into her bunk bed with her during the December event. State v.
Bausch, CRI 13-3072 at pp. 848-53, 864-67 (JTT Vol. II at pp. 69-74, 85-88).
She testified only that Mr. Bausch put his finger inside her privates. Id.
Therefore, the jury need not have found that Mr. Bausch climbed up into the
bunk bed in order to credit the victim’s testimony—he could have reached the
victim’s genitals from a position of standing on the ground or standing on a
lower rung of the ladder to the bed. Id.
b. The State Court Properly Applied Federal Law
The state court in analyzing this issue discussed only state court
decisions, but those state court decisions are in accord with federal law. The
court concluded that counsel’s introduction of evidence at trial and her choice
of which arguments to make were sound trial tactics and strategy by an
experienced criminal defense lawyer. See Docket No. 5-7 at p. 11. As such,
the court declined to second-guess counsel’s approach at trial. Id. The court
finds this is a straightforward application of the law under Strickland and its
progeny. Hall, 296 F.3d at 693-98.
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The jury did ask a question while deliberating as to Mr. Bausch’s height.
But even if the jury had doubts about the feasibility of Mr. Bausch climbing
into the victim’s bunk bed during the December incident, these doubts would
not have impacted the credibility of the victim’s trial testimony that never
placed Mr. Bausch in bed with her. Nor would introduction of further specifics
about the bunk bed and Mr. Bausch’s size have impacted the conviction for the
incident which occurred in March in a hotel room--no bunk bed was involved
in the March allegations. Therefore, not only does this court agree with the
state court’s conclusion that counsel’s performance was not deficient, this
court additionally finds that Mr. Bausch has not established prejudice.
4. Cumulative Error
Mr. Bausch did not raise the claim of cumulative error as a basis for
habeas relief in his petition, but he did raise the issue in his memorandum in
opposition to respondent’s motion. Docket No. 11 at p. 30. Therefore, the
court addresses the argument.
Mr. Bausch argues that although each error of trial counsel by itself
might not warrant habeas relief, the cumulative effect of all counsel’s errors
merit relief. Id. The court notes that, of the four issues raised by Mr. Bausch,
only one issue (two combined—grounds 1 and 2) might be characterized as
counsel error: the failure to discover and present Celena Ackerman’s
testimony. With regard to the other two grounds, there was no finding by
either this court or the state habeas court that counsel’s performance
was deficient.
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But even if there were two or more counsel errors that could be
considered cumulatively, the Eighth Circuit has rejected this argument. Each
alleged error of counsel must be considered standing alone; errors are not
cumulated and considered together. See United States v. Brown, 528 F.3d
1030, 1034 (8th Cir. 2008) (citing Middleton v. Roper, 455 F.3d 838, 846-51
(8th Cir. 2006) (finding no deficient performance on any of petitioner’s four
individual claims of ineffective assistance of counsel, and rejecting argument
that the four claims should be considered cumulatively to determine prejudice);
see also Hall, 296 F.3d at 692 (“a habeas petitioner cannot build a showing of
prejudice on a series of errors, none of which would by itself meet the prejudice
test.”); Scott v. Jones, 915 F.2d 1188, 1191 (8th Cir. 1990) (“cumulative error
does not call for habeas relief, as each habeas claim must stand or fall on its
own.”); United States v. Robinson, 301 F.3d 923, 925 n.3 (8th Cir. 2002) (“the
numerosity of the alleged deficiencies does not demonstrate by itself the
necessity for habeas relief.”); Wainwright, 80 F.3d at 1233 (“Neither cumulative
effect of trial errors nor cumulative effect of attorney errors are grounds for
habeas relief.”). Therefore, this magistrate judge recommends Mr. Bausch’s
claim of cumulative errors be denied.
CONCLUSION
Based on the foregoing facts, law and analysis, this magistrate judge
respectfully recommends granting respondent’s motion to dismiss [Docket No.
4] and dismissing Mr. Bausch’s § 2254 petition with prejudice and without
holding an evidentiary hearing.
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NOTICE TO PARTIES
The parties have fourteen (14) days after service of this report and
recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1),
unless an extension of time for good cause is obtained. Failure to file timely
objections will result in the waiver of the right to appeal questions of fact.
Objections must be timely and specific in order to require de novo review by the
district court. Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black,
781 F.2d 665 (8th Cir. 1986).
DATED this 21st day of June, 2022.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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