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Gonzalez v. Davis

United States District Court, N.D. Texas, Fort Worth Division

December 6, 2019

LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.



         This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner, Christopher Jacob Gonzalez, a state prisoner confined in the Correctional Institutions Division of the Texas Department of Criminal Justice, against Lorie Davis, director of that division, respondent. After having considered the pleadings, state court records, and relief sought by petitioner, the court has concluded that the petition should be denied.


         In 2013 petitioner was charged with continuous sexual abuse of Anna and Belinda, children younger than 14 years of age, in Tarrant County, Texas, No. 1320894D.[1] (Clerk's R. 7.) Petitioner's jury trial commenced on May 20, 2014. The state appellate court summarized the factual and procedural background of the case as follows:

Anna and Belinda are the daughters of Adam and Whitney. Adam's sister Esperanza is married to [petitioner], and they have three children, Luiz, Melanie, and Natalie. From 2009-2013, [petitioner], Esperanza, and their adult daughter Natalie periodically babysat Anna and Belinda while Whitney and Adam were working.
In early January 2013, while Adam was putting three-year-old Belinda down for a nap, she asked him if he wanted her to pat him on the butt like Uncle Chris. Adam, who had recently seen Belinda slap her sister on the bottom, interpreted Belinda's question to refer to innocent contact of that nature. So Adam disregarded her comment, responded "no," and proceeded to put Belinda down for a nap. It did not occur to him to mention her remark to his wife or anyone else.
Approximately a week later, on January 15, 2013, while Whitney was putting Belinda down for a nap just after lunch, Belinda blurted out, "Tio Chris made me touch his butt." Whitney testified that she was surprised at Belinda's comment, so she made Belinda repeat it to make sure she heard it correctly. After Belinda repeated herself, Whitney asked her when it happened. Belinda answered that she did not know. Then Whitney asked, "Where did this happen?" and Belinda responded, "At his house." Whitney testified that she questioned her daughter further:
A: I said, what part is his butt? And she pointed to herself in her front crotch
Q: And did you ask her anything else after she pointed there or what happened next?
A: I gave her a doll, we had a male Barbie doll and I asked her to show me on him. He was fully dressed and she took off his pants and pointed at the doll's penis. At some point during the course of their conversation Belinda also told Whitney that [petitioner] had done something to Anna. So later that afternoon, after Anna came home from school and finished her homework, her mother sat her down on the couch and began asking her questions:
A: ... I first asked her if she knew what private parts were and she answered and said yes and pointed to her private parts. I asked her has anybody shown her their private parts and she told me a story about a little boy who came out of the bathroom with his pants pulled down because he didn't know how to buckle his pants at school. And I asked her if any grownups had ever shown her their private parts and she said Tio Chris made me taste his butt one time.
Q: Okay. And did you ask [Anna] anything else after she said that?
A: I asked her to tell me about it and she did. She explained to me that she was at Chris' house in their kitchen. That he had put a blindfold over her eyes and told her to open her mouth, that he was going to give her a Fruit Roll-Up. And she said he unbuckled his pants and put his front butt inside of her mouth instead of the Fruit Roll-Up.
Q: Okay. And did she tell you anything else?
A: She told me that at a different time he had made her touch his front butt [2] under a blanket while they were sitting on a couch-on the couch.
Q: Okay. So what happened that time? What did she tell you?
A: She said that they were sitting on the couch and he covered both of them up with a blanket, grabbed her hand and put it on his front butt she calls it,
After her conversation with Anna, Whitney called her husband, whom she had spoken to earlier in the day regarding Belinda's revelation. At this point, he came home immediately. Whitney also called her mother and asked her to come over. In the meantime, Adam contacted his sister Esperanza and she came over to the house as well. According to Whitney, once their father, grandmother, and aunt had arrived, the girls came into the living room "one at a time" and repeated their stories to the adults.
To complicate matters, the girls have two uncles named Chris. According to their parents, the girls generally refer to [petitioner], their paternal uncle, as Tio Chris, but he is sometimes referred to as Uncle Chris as well. Their maternal Uncle Chris is called Uncle Chris, but never Tio Chris. In addition, the girls have a male cousin named Chris.
Both Adam and Whitney testified that they were able to clarify that both of the girls were referring to [petitioner] with regard to the incidents of alleged abuse, and given what the girls had revealed to them that evening, Whitney and Adam contacted the police the next morning. An investigation then ensued.
Approximately two weeks later, both girls were separately interviewed by Joy Hallum, forensic investigator, at Alliance for Children. Their interviews were videotaped.
[Petitioner] was charged with continuous sexual abuse of a child, and the case was tried to a jury. After the trial court found both Anna and Belinda competent to testify, both videotaped interviews were shown to the jury. The jury heard their live testimony regarding the allegations of abuse as well.
The jury found [petitioner] guilty of continuous sexual abuse of children younger than 14 years of age and sentenced him to 43 years' confinement.

(Mem. Op. 2-6.)

         The appellate court affirmed the trial court's judgment, the Texas Court of Criminal Appeals refused petitioner's petition for discretionary review, and the United States Supreme Court denied certiorari. (Docket Sheet 2.) Petitioner also filed a postconviction state habeas-corpus application challenging his conviction, which was denied by the Texas Court of Criminal without written order. (SHR, [3] vol. 1, 13-40.) This federal habeas petition followed.

         II. ISSUES

         Petitioner's claims fall within the following general categories:

(1) ineffective assistance of counsel (grounds one, two, four, five, six, eight, and nine);
(2) Brady violation (ground three); and
(3) actual innocence (ground seven).

(Pet. 5-7G.)


         Respondent believes that petitioner has exhausted his state court remedies with respect to the claims raised and does not allege that the petition is barred by limitations or subject to the successive-petition bar. (Resp't's Answer 6.) 28 U.S.C. §§ 2244(b), (d) & 2254(b)(1).


         A § 2254 habeas petition is governed by the heightened standard of review provided for in the Anti-Terrorism and Effective Death Penalty Act (AEDPA). 28 U.S.C. § 2254. Under the Act, a writ of habeas corpus should be granted only if a state court arrives at a decision that is contrary to or an unreasonable application of clearly established federal law as established by the United States Supreme Court or that is based on an unreasonable determination of the facts in light of the record before the state court. 28 U.S.C, § 2254(d)(1)-(2); Harrington v. Richter, 562 U.S. 86, 100 (2011). This standard is difficult to meet and "stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings." Richter, 562 U.S. at 102.

         The statute also requires that federal courts give great deference to a state court's factual findings. Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. It is the petitioner's burden to rebut this presumption by clear and convincing evidence. Id.

         Further, when the most recent state court to consider a constitutional issue provides a "reasoned opinion," a federal habeas corpus court must "review[ ] the specific reasons given by the state court and defer[ ] to those reasons if they are reasonable." Wilson v. Sellers, ___ U.S. ___, 138 S.Ct. 1188, 1191-92 (2018). If the opinion "does not come accompanied with those reasons," a federal court should "'look through' the unexplained decision to the last related state-court decision providing" particular reasons, both legal and factual, "presume that the unexplained decision adopted the same reasoning," and give appropriate deference to that decision. Id. In other words, federal habeas-corpus courts confronted with an unexplained state court decision "are to 'look through' the decision to an earlier state court opinion and presume that the earlier one provides the relevant rationale." Thomas v. Vannoy, 898 F.3d 561, 568 (5th Cir. 2018) (citing Wilson, 138 S.Ct. at 1192).

         Finally, when the Texas Court of Criminal Appeals denies a federal claim in a state habeas-corpus application without written opinion, a federal court may presume "that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary" and applied the correct "clearly established federal law" in making its decision. Johnson v Williams, 568 U.S. 289, 298 (2013); Richter, 562 U.S. at 99; Schaetzle v. Cockrell, 343 F, 3d 440, 444 (5th Cir. 2004) .

         V. DISCUSSION

         (1) Ineffective Assistance of Counsel

         A criminal defendant has a constitutional right to the effective assistance of counsel at trial and on a first appeal as of right. U.S. Const, amend. VI, XIV; Evitts v. Lucey, 4 69 U.S. 387, 393-95 (1985); Strickland v. Washington, 466 U.S. 668, 688 (1984}; Anders v. California, 386 U.S. 738, 744 (1967). To establish ineffective assistance of counsel, a petitioner must show (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that but for counsel's deficient performance the result of the proceeding would have been different. Strickland, 4 66 U.S. at 688. In applying this test, a court must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id. at 668, 688-89. Judicial scrutiny of counsel's performance must be highly deferential and every effort must be made to eliminate the distorting effects of hindsight. Id., at 689.

         Ineffective-assistance-of-counsel claims are considered mixed questions of law and fact and, therefore, are analyzed under the "unreasonable application" standard of § 2254(d)(1). See Gregory v. Thaler, 601 F.3d 347, 351 (5th Cir. 2010). Where, as here, the state courts have adjudicated the ineffective-assistance claims on the merits, this court must review a petitioner's claims under the "doubly deferential" standards of both Strickland and § 2254(d). See Richter, 562 U.S. at 105; Cullen v. Pinholster, 563 U.S. 170, 190 (2011). In such cases, the "pivotal question" for this court is not "whether defense counsel's performance fell below Strickland's standard"; it is "whether the state court's application of the Strickland standard was unreasonable." Richter, 562 U.S. at 101.

         In grounds one, four, five, six, and nine, petitioner claims that the state court unreasonably concluded that trial counsel rendered effective assistance in various respects. Specifically, petitioner asserts, verbatim:

(1) The State Court unreasonably concluded contrary to Supreme Court precedent that trial counsel rendered effective assistance in not challenging for cause bias juror who could not consider the minimum range of punishment of 25 years.
(4) The State [Court] unreasonably held trial counsel rendered effective assistance in not requesting continuance to investigate belated expert opinion on child incompetence to testify.
(5) The State Court unreasonably concluded trial counsel rendered effective assistance in not asserting rights of confrontation to the State's hearsay objection.
(6) The State Court unreasonably concluded trial counsel rendered effective assistance in not adequately investigating underlying facts of the charge in the indictment.
(9) The State Court unreasonably concluded trial counsel rendered effective assistance against factual basis included in the Court of Appeals opinion page 8, that trial counsel elicited no testimony with regard to child witness preparation by her parents through cross-examination.

(Pet. 6-7, 7C-7D, 7G.)

         Petitioner was represented at trial by Lynda Tarwater and Stacey Mooring. He raised his ineffective-assistance-of-counsel claims in his state habeas application and, in support, presented, among other things, the affidavit of Robbie McClung, a local criminal defense attorney who reviewed the case at petitioner's behest. The state habeas judge, who also presided at petitioner's trial, referred the case to a magistrate judge for hearing, factual findings, and recommendation, which were later adopted by the state habeas judge. (SHR, 2nd Supp. R., 10.) The magistrate judge ordered affidavits from counsel and held two live evidentiary hearings, the first in February 2018 and the second in May 2018. Tarwater responded to petitioner's ineffective-assistance claims via affidavit and testified at both live hearings. Moore submitted a near-identical affidavit but did not testify at the live hearings.

         In her affidavit, Tarwater detailed her representation of petitioner and responded to his allegations, in relevant part, as follows (any spelling, grammatical, and/or punctuation errors are in the original):

Part I.
Factual and Chronological Summary of the Case and My Efforts on [Petitioner]'s Behalf
On or about April 15, 2012, I was contacted by Alex Gonzalez, father of the [petitioner], about representing his son, [petitioner], in a charge of continuous sexual assault against a child and a charge of indecency with a child that were brought against him. Prior to contacting me, [petitioner] had retained attorney Patty Tillman who had represented him briefly, including accompanying [petitioner] to a polygraph examination, which she says "was an epic failure." I met with [petitioner] and his father on or about April 20, 2012, and told them what I would charge to handle this type of case. A few days later, Alex Gonzalez called me on the phone and tried to get me to accept the case for less money. I declined and we signed a service agreement on April 22, 2012. I contacted Patty Tillman and informed her I would be filing a Motion to Substitute Counsel.
I immediately began reviewing the police reports, CPS reports and medical reports. I conducted many interviews with [petitioner] and requested the forensic interviews of the children. I reviewed the forensic interviews with [petitioner] and we began an in-depth review of the allegations, family members who might be involved and family history. A Grand Jury Packet was prepared and submitted pre-indictment. Numerous in-person interviews were conducted with [petitioner] and his immediate and extended family in my office. I engaged a private investigator firm, Paula Green & Associates as well as an testifying expert, Dr. Aaron P. Pierce. As evidence of a bandana used in one of the offenses began to surface and a family member stated she possessed it, I immediately engaged the services of Cellmark Forensics Laboratory to test for DNA. I subpoenaed phone records from numerous parties. Photographs of the alleged premises were taken. Hours of research were spent. All appropriate motions were filed, including a Motion for a Competency Hearing. Briefs were prepared. All alternate theories were explored and a defense strategy was formed with the agreement of [petitioner]. A mock jury selection was held with approximately twenty (20) attendees to test voir dire questions and responses.
After the jury returned a guilty verdict and sentenced [petitioner] ¶ 43 years in prison, I filed [petitioner]'s Notice of Appeal. I suggested interviewing several appellate attorneys to [petitioner]'s father. Alex Gonzalez hired Danny Burns for the appeal, one of the appellate attorneys on the list of recommendations. When oral argument was made by Danny Burns before the Appellate Court, I attended along with [petitioner]'s family and a woman with whom [petitioner] had a relationship. [Petitioner]'s wife and children did not attend.
The Second Court of Appeals affirmed the lower court's decision. Mr. Gonzalez, [petitioner]'s father, understandably persisted in trying to find a way to free his son. However, his methods became desperate and less than ethical. Mr. Gonzalez went to Danny Burns' office and tried to get Mr. Burns to say that trial counsel was ineffective on a concealed tape recorder. Mr. Gonzalez then attempted to get me to meet with him in person. I declined.
Mr. Gonzalez eventually hired Mr. Hoak who also attempted to meet with me. I declined again, given the untrustworthy behavior of Mr. Gonzalez and his demonstrated willingness to resort to hidden tape recorders. Mr. Hoak requested my client file but gave no date by which he needed it, then reported me to the State Bar for not providing it sooner. The State Bar graciously called me and agreed it was more likely a misunderstanding. I provided the file Mr. Hoak requested, paid $83 to have it copied, and had it hand delivered to his office.
I now respond to this Application for Habeas Corpus, which I understand [petitioner] has filed with an incomplete record by not attaching to his application any affidavits. Per the Court's Memorandum and Order, I provide the following responses to [petitioner]'s allegations of ineffective assistance of trial counsel.
Part II.
Response to Each of [Petitioner]'s Specific Allegations
1. [Petitioner] was denied effective assistance of counsel when trial counsels failed to challenge for cause a biased juror who could not consider the minimum punishment of 25 years.
Trial counsel's voir dire strategy was to find jurors who would carefully consider issues related to guilt/innocence more than to punishment. This strategy was formulated with the consent and input of [petitioner] in that he maintained his innocence from the date of my representation throughout trial. During trial counsel's lengthy and thorough hour-and-a-half voir dire of the panel, Brittany Long, Prospective Juror No. 15, was considered an acceptable jury prospect because of her willingness to judge the credibility of a child witness. This was important because we had two child witnesses, ages three and five at the time of the offense, whom counsel believed had credibility issues and even issues as to their competency to testify. Counsel also had an expert witness appointed by the Court, Dr. Aaron P. Pearce, Ph.D., LPC, LSOTP, who testified that children the ages of the State's child witnesses were neither credible nor reliable. Prospective Juror Long stated she was willing to evaluate the witnesses' credibility, stating in one response that she could only convict if she believed the testimony of a child witness. Paramount to trial counsel's defense strategy were jurors who would not automatically believe a child simply because they were a child. It was clear to counsel that Ms. Long would be such a juror and would consider the credibility, reliability and competency of the two children. When questioning the panel about how to judge the credibility of a witness, Ms. Long volunteered by raising her hand and stated, "I would say based on the details of their testimony. If they are really vague, then you probably can't necessarily trust what they are saying. As well as if they can give you specific information - then I trust them more, if they can give you details on what they are describing." Counsel expected the children would provide conflicting details because of the forensic interviews they had given. For instance, the younger of the two girls did not consistently distinguish between the truth and a lie or real and unreal, and the competency of both witnesses was questioned by the forensic interviewer. Joy Hallum with Alliance for Children indicated that [Belinda] could not distinguish between real and unreal and between truth and a lie. For instance, [Belinda] believed calling a cow a pig was right and if someone called her a boy, that statement would also be right. Trial counsel considered these statements to be vague and unreliable as to the child witnesses' recall and memory of exactly what happened.
Ms. Long also inquired about a unanimous verdict, and stated that if she was confused or did not know the answer, she would have to return a not guilty verdict. Ms. Long also indicated that if there was disagreement by the jury on a punishment of specific years/ namely two jurors wanted different terms of punishment, then there would have to be a unanimous compromise. This led counsel to believe that she would be willing to compromise as it related to length of punishment if it became necessary. Counsel believed her willingness to compromise would be an important factor if punishment was reached.
It must also be noted that both the Court and the State questioned the jury panel regarding consideration of the entire range of punishment for Continuous Sexual Abuse of a Child, Aggravated Sexual Assault of a Child, and Indecency with a Child. At no point during that examination did Ms. Long indicate she could not consider the full range of the individual punishments. Counsel believed Ms. Long was vacillating as a prospective juror on the issue of the minimum range of punishment for Continuous Sexual Abuse of a Child, and would conform and compromise on the issue if necessary. After reviewing the entire record of the voir dire process (not just writ counsel's attached excerpt), it was consistent with trial counsel's strategy not to exercise a challenge for cause to eliminate Ms. Long.

(SHR 101-02.)

4. [Petitioner] was denied effective assistance of trial counsel, because trial counsels did not file a sworn motion for continuance to obtain additional time to further investigate this written State's expert opinion that opined that the child witnesses were not competent to testify.
It must first be noted that the trial counsel was focused on the issue of the competency of the two child witnesses from the onset of its representation. Trial counsel filed a Motion for Exculpatory and Mitigating Evidence on October 29, 2013. Second, a Motion to Determine the Competency of Witnesses was filed on March 7, 2014, specifically requesting a pre-trial hearing for the determination of the competency of the child witnesses. However, the Court determined in that hearing that both girls were competent to testify. Counsel had repeatedly reviewed the forensic interviews of both children, in which clear issue was raised regarding their competency. This issue was fully examined, investigated and discussed with [petitioner] and his family during several meetings prior to trial. Trial counsel conducted hours of research and a brief on the competency of the two child witnesses was prepared. Trial counsel's strategy regarding competency focused on a number of issues, specifically three issues raised by research of case law. First, there was a lack of capacity to recollect the events displayed by both girls. Second, there was a lack of ability shown by the girls to intelligently observe the events. And finally, there was a lack of capacity shown by both girls to narrate the events. Inconsistent details included dates, times, places where the assaults were alleged to have occurred and even how those assaults occurred. Argument at the end of the Judge's examination of the witnesses' competency was requested and denied. Had counsel been allowed to argue the issue of competency, it would have raised the three-prongs that are used to determine competency and would have offered specific examples of the inconsistent details that arose during the forensic interviews. A document confirming the issue with the child witnesses' competency was presented approximately ten minutes before the examination of the forensic interviewer. The document merely confirmed counsel's position on competency and an issue that had already been researched and briefed and for which extensive cross-examination outlines were prepared.
A Motion for New Trial was filed in which the issue of competency of the witnesses was again raised and specifically, the issue of the determination by Joy Hallum that the girls were incompetent. This information had been withheld for some seven months. However, the issue needed no further investigation as alleged by writ counsel. Rather, the Alliance for Children interview notes in which Joy Hallum indicated the State's two child witnesses were incompetent were used to cross examine Ms. Hallum. The testimony of Dr. Pearce was also presented to question the credibility, reliability and competency of the child witnesses. Defense counsel saw no need for a continuance to further investigate an issue that had been fully investigated, raised and argued.
5. [Petitioner] was denied effective assistance of counsel when trial counsels failed to assert his right of confrontation to the State's hearsay evidence objection or make an offer of proof or argument to support the questioning of the complainants.
The Confrontation Clause is applicable when out of court statements by witnesses that are testimonial are barred unless witnesses are unavailable and Defense counsel did not have a prior opportunity to cross-examine them. No. such issues were present here. Both the State and Defense witnesses were present to testify, available for direct and cross-examination, and the jury was able to observe their demeanor as they testified. Counsel, as a continuing part of its trial strategy, contested the objections that were largely sustained by the Court. However, this trial strategy also included a decision to avoid contesting each and every hearsay objection and instead, allow the jury to observe and realize that the State was attempting to preclude valuable testimony and evidence from being admitted. Even when thwarted by the State's numerous objections, trial counsel was able to present the testimony and gravamen of its case through questions and examination of other witnesses.
The purpose of the entire cluster of rights associated with the Confrontation Clause is to ensure the reliability of the evidence. Trial counsel and [petitioner] reviewed the forensic interviews of both the alleged victims on numerous occasions in preparation for their cross-examinations. Objections by the State, specifically to limit the testimony by "Belinda," were overcome with continued examination and cross-examination of other witnesses. Additionally, inconsistencies by both child witnesses were addressed when, as part of trial strategy, counsel chose to introduce the forensic interviews of each child. Trial counsel ensured that all pertinent witnesses were present and subject to cross-examination and confrontation through a complete and focused subpoena process, which included calling twelve (12) witnesses to the stand. All witnesses who could provide relevant testimony were present, called and subjected to cross-examination. This is the essence of confrontation.
In response to the examples cited on page thirty-one (31) of the Writ Application claiming the State's objection denied [petitioner] the right to confrontation, that objection was overcome by re-wording and continuing to examine both child witnesses. The purpose of counsel's cross-examination was to exhibit to the jury that the witnesses had been subjected to suggestibility through repeated questioning by parents, professionals, officers and other family members. Counsel also intended to show that the overly charged emotional environment on the day of the outcry could affect the veracity and recall of the children's memory. In addition, the testimony that counsel attempted to get from the children was later elicited from the children's mother, aunt and the defense expert witness, Dr. Aaron Pierce. Therefore, the intended testimony was admitted into trial through alternative witnesses despite the State's attempt to keep it out. No. right of confrontation was denied and no offer of proof was required.
7. [Petitioner] was denied effective assistance of trial counsel because counsel did not properly investigate the underlying facts of the charge and the indictment.
In more than a dozen pre-trial meetings with [petitioner] and all members of his immediate and extended family, the issue of misidentification was examined and thoroughly investigated. This was one of the two core issues of trial counsel's strategy, along with the competency and credibility of the two child witnesses. Six of the twelve witnesses subpoenaed by the defense provided testimony as to the multiple Uncle Chrises as it created the clear possibility of misidentification.
One Uncle Chris is Christopher Cook, the maternal uncle of the two child witnesses. Trial counsel carefully considered the possibility that he might be the offender. Trial counsel hired Paula Green & Associates, Private Investigators to interview and investigate Chris Cook, his father, mother and girlfriend. The investigation of the entire family was predicated upon the fact that Chris Cook and his girlfriend resided with the elder Cook family who frequently babysat the children. Chris Cook and his mother, Maureen Cook, were subpoenaed and cross-examined. Both child witnesses were cross-examined and specifically, "Belinda" was questioned regarding some statements she made about her Uncle Chris Cook and the games they played, including pillow fighting, use of an I-Pad and importantly, tricking her with candy.
Trial counsel also subpoenaed Chris Chavera, a cousin of the two child witnesses on their father's side whom "Belinda" referred to as ''Uncle Chris." The younger child witness referred to Chris Chavera as cousin Chris, whom she confusingly stated became her Uncle because he was born before she was and so he became her uncle. Chris Chavera lived with the maternal grandparents of the child witnesses instead of his own parents because his father had forced him to leave home alleging his son was homosexual. Trial counsel had both Chris Chavera and his father investigated. Investigators for the defense also examined allegations of continuous sexual assault of Chris Chavera by his father, as well as possible sexual assault of other young males in the Chavera family. Investigators examined the fact that Chris Chavera lived in [petitioner]'s home with [petitioner]' s wife and children for a period of several months, again raising the issue of misidentification because the Gonzalez' frequently babysat the child witnesses, and did so while Chris Chavera lived with them.
Extensive testimony was also solicited by trial counsel from Dr. Pierce regarding the two child witnesses' ages and the possibility of confusion as to their identification of the culpable Uncle Chris. This issue was completely examined and explored throughout trial. However, on more than one occasion, the child witnesses identified [petitioner], including by naming his children, his wife and his residence.
Writ counsel mentions that there was "some evidence that a complainant alleged that the alleged abuse continued after [petitioner] did not have access to the Complainants after the initial outcry." At no time prior to trial, during the trial process or following the trial was trial counsel every [sic] notified, advised or aware of such an allegation.
10. [Petitioner] was denied effective assistance of trial counsel, because as noted on page 8 of the Court of Appeals opinion trial counsel elicited no testimony with regard to what witness preparation of "Belinda" a child complainant by her parents through cross examination.
It should be noted that writ counsel's statement of this issue initially appears nonsensical because he conflates two issues: 1) whether or not trial counsel sufficiently developed testimony during cross-examination of the parents regarding trial preparation of the children; and 2) the relevancy of such testimony to the judge. The relevancy of such testimony would only matter to the jury since the trial was before the jury and not the bench. That said, the issue of coaching of the child witnesses by their parents to prepare for trial was, in fact, examined through cross-examination of both child witnesses. As concerns "Belinda," she was asked who talked to her about her testimony before trial and she stated her parents did. Trial counsel asked her what her parents told her and the State objected as to hearsay. The Court sustained the objection. The younger child was similarly cross-examined and she too admitted she had discussed testimony with her parents before trial. However, there was no trial strategy to question the parents further regarding coaching or trial preparation. Trial counsel believed the parents would merely deny such allegation even if true. Alternatively, trial counsel's strategy was to develop this testimony through other witnesses and through the consistency of the girls' testimony with their forensic interviews. When the mother of the children was asked about the frequency of questioning and discussion of the events during the two weeks prior to the forensic interviews, she stated that is was not discussed much at all. Therefore, trial counsel deemed the forensic interviews would have been more spontaneous and candid with little preparation/ coaching. Rather, trial counsel was more concerned with the shaping of the child witnesses' stories at the point of outcry given the number of family members involved in questioning, replaying of events and the emotion in the situation. Since the children's testimony at trial did not deviate from the forensic interviews, which occurred at least two weeks after the outcry and were conducted in a calmer environment without coaching by the interviewer, trial counsel relied more on whether the testimony on the stand deviated from these interviews. Had the testimony in court deviated from the forensic interviews, counsel would have suspected coaching of the witnesses to prepare for trial and would have found the matter more highly probative when the parents were on the stand. Without such deviation, trial counsel considered the continued examination of the parents regarding coaching stood only to re-affirm the girls'" consistency before the jury and repeat the girl's testimony before the jury unnecessarily.
Even if any preparation had occurred, trial counsel would agree with the Court of Appeals when it stated in its opinion in this case, "for 'Belinda's parents to prepare her to testify in court in front of a jury is not surprising since preschool children normally do not understand our judicial system."

(SHR, vol. 1, 100-07 (citations omitted).)

         Based on the record, counsel's affidavits, and Tarwater's testimony at the live hearings, the magistrate judge entered the following factual findings, which although numerous are included to assist the reader:

Challenges for Cause
7. Counsel challenged juror No. 36 for cause because he "[c]ould not consider the minimum under any circumstances on any of the three cases."
8. Counsel challenged juror No. 30 for cause because "(s]he repeated several times she couldn't consider the minimum on any of the three cases."
9. Counsel challenged juror No. 56 for cause because he stated he could not consider ...

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