                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 09a0836n.06

                                           No. 07-4410
                                                                                        FILED
                                                                                     Dec 30, 2009
                                                                               LEONARD GREEN, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


CHRISTOPHER BROWN,                                     )
                                                       )
       Petitioner-Appellant,                           )
                                                       )
v.                                                     )   ON APPEAL FROM THE UNITED
                                                       )   STATES DISTRICT COURT FOR
                                                       )   THE SOUTHERN DISTRICT OF
MICHAEL SHEETS, Warden,                                )   OHIO
                                                       )
       Respondent-Appellee,                            )


Before: SILER, GILMAN, and ROGERS, Circuit Judges.

       SILER, Circuit Judge. Christopher Brown is an Ohio state prisoner who petitioned for a writ

of habeas corpus, under 28 U.S.C. § 2254, challenging his conviction based on various charges of

sexual misconduct with minors. The district court denied his petition and certified one issue for

appeal—whether Brown was denied effective assistance of counsel. We AFFIRM.

                                      I. BACKGROUND

A. Facts Underlying Brown’s Conviction

       1. Indictments

       Brown was indicted in 2004 for six counts of gross sexual imposition and one count of rape,

based on allegations made by his twelve-year-old niece K.H. Later, he was indicted in a separate

case for eighteen counts based on allegations by his seventeen-year-old sister-in-law L.H. That

indictment included the following counts: six counts of gross sexual imposition with a victim under
No. 07-4410
Brown v. Sheets

age thirteen (Count 13-18); three counts of gross sexual imposition by force (Counts 1, 5, and 9);

three counts of unlawful sexual conduct with a minor (Counts 2, 6, and 10); three counts of sexual

battery (Counts 3, 7, and 11); and three counts of rape (Counts 4, 8, and 12). The trial court

consolidated the indictments for trial.

       2. Trial Testimony

       Sixteen witnesses, including K.H. and L.H., testified at trial. L.H. testified that Brown

touched her breasts on several different occasions when he was living in her father’s house. K.H.

testified that Brown molested her on three or four occasions. During each instance, Brown touched

her in the “bra area,” beneath her bra, and touched her “in between the legs” twice. In addition to

this testimony, the State called several family members and investigators to testify.

       Dr. Jeff Smalldon, a board-certified forensic pathologist, testified on Brown’s behalf. He

provided expert testimony that the interview procedures used on L.H. were tainted. Although he

could not conclude that her testimony was fabricated, he explained to the jury that the techniques

were suggestive. Defense counsel also called additional witnesses, including Clyde Haller, L.H.’s

father and K.H.’s grandfather.

B. Procedural Background

       1. Trial Court Proceedings

       The court granted defense counsel’s motion for the prosecution to make both alleged victims

available for pretrial interviews. Defense counsel interviewed K.H., asking approximately ten

questions. He declined to interview L.H.. After voir dire, the court allowed the prosecutor to amend

the indictment over Brown’s objections. Subsequently, defense counsel requested a continuance so

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he could prepare a defense based on the amended indictment, which the trial court denied.

Additionally, the trial court granted Brown’s motion for judgment of acquittal as to five counts. It

dismissed Counts 4, 6, and 7 of the indictment in K.H.’s case and Counts 17 and 18 of the indictment

in L.H.’s case. The jury found Brown guilty of Counts 1, 2, 3, and 5 of K.H.’s case and Counts 1,

2, 4, 5, 9, 10, 12, 13, 14, 15, and 16 of L.H.’s case. After the jury announced its verdict, Brown

made a renewed motion for judgment of acquittal and moved for a new trial. Based on Brown’s

motions, the trial court released L.H.’s and K.H.’s grand jury transcripts, to determine whether there

was any variance between trial testimony and the evidence presented to the grand jury. The trial

court dismissed Count 9 in L.H.’s case, because it was not the same incident described to the grand

jury, and denied Brown’s motion for a new trial. Brown was sentenced to an aggregate term of 12

years.

         2. Direct Appeal Proceedings

         Brown timely appealed his conviction and raised six assignments of error, including

ineffective assistance of counsel. The Ohio Court of Appeals affirmed his conviction in 2005. The

Ohio Supreme Court denied leave to appeal and dismissed the appeal as not involving any

substantial constitutional question.

         3. Federal Habeas Proceedings

         Brown petitioned for a writ of habeas corpus in 2006 in the United States District Court for

the Southern District of Ohio. The magistrate judge issued a Report and Recommendation,

concluding that Brown’s petition should be dismissed. In 2007, the district court issued an Opinion



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and Order adopting the magistrate judge’s recommendations. Brown filed a notice of appeal, and

the district court granted a certificate of appealability on one issue:

         Was petitioner denied the effective assistance of trial counsel due to his attorney’s
         failure to conduct reasonable investigation by inadequately interviewing alleged
         victim K.H. Haller and failing to interview alleged victim L.H. Haller, failing to file
         a pre-trial motion to dismiss L.H. Haller’s statement as flawed or tainted, failing to
         object to inadmissible evidence, failing to conduct adequate cross[-]examination, and
         erroneously calling Clyde Haller as a defense witness?

                                   II. STANDARD OF REVIEW

         Our review of Brown’s petition for a writ of habeas corpus is governed by the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996).

Under AEDPA, we may not grant a petition for writ of habeas corpus unless the state court

adjudication of the claim “resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court of the United

States.” 28 U.S.C. § 2254(d).

         The district court applied the standards set forth under AEDPA and concluded that Brown

was not entitled to relief. We review de novo a district court’s conclusions regarding a habeas

petitioner’s ineffective-assistance-of-counsel claim. Higgins v. Renico, 470 F.3d 624, 630 (6th Cir.

2006).

                                         III. DISCUSSION

         The Supreme Court has established the following two-prong test to determine whether

counsel provided ineffective assistance:

         First, the defendant must show that counsel’s performance was deficient. This
         requires showing that counsel made errors so serious that counsel was not

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       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.

Strickland v. Washington, 466 U.S. 668, 687 (1984).

A. “Contrary to” Clearly Established Federal Law

       In rejecting Brown’s ineffective-assistance-of-counsel claim, the Ohio Court of Appeals

applied the correct standard under Strickland. Although the state appellate court included one

citation to Lockhart v. Fretwell, 506 U.S. 364 (1993)—which did not modify Strickland, see

Williams v. Taylor, 529 U.S. 362, 391 (2000)—it applied Strickland’s prejudice standard. In

particular, in evaluating prejudice, it considered whether “there exist[ed] a reasonable probability

that, had counsel [not been deficient], the result of his case would have been different.” State v.

Brown, No. 2005CAA01002, 2005 WL 2727129, at *17 (Ohio Ct. App. Oct. 20, 2005). This is

precisely the same prejudice standard that Strickland requires. See Strickland, 466 U.S. at 694.

Accordingly, we conclude that the state appellate court did not apply law that was “contrary to”

clearly established federal law.

B. “Unreasonable Application of” Federal Law

       Under Strickland’s deficiency prong, Brown must show that his counsel’s representation fell

below “an objective standard of reasonableness” under “prevailing professional norms.” Strickland,

466 U.S. at 688. We “must indulge a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged conduct might be considered sound trial


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strategy.” Id. at 689. Under the prejudice prong, Brown must show that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of [his trial] would have been

different.” Id. at 694.

        Brown argues that his trial counsel’s performance was deficient in four ways: (1) he failed

to interview the victims adequately; (2) he failed to file a motion to exclude L.H.’s testimony as the

result of tainted procedures; (3) he failed to object to hearsay statements; and (4) he failed to properly

impeach K.H..1 Brown’s claim fails with respect to each of those grounds because the state appellate

court was not unreasonable in its conclusion that, even if counsel’s conduct was deficient, Brown

failed to show prejudice.

        First, even if trial counsel’s failure to interview L.H. and more adequately question K.H.

demonstrates deficient performance, see, e.g., Landers v. Rees, 782 F.2d 1042, at *4 (6th Cir. 1985)

(table) (explaining that a failure to interview the victim may be deficient), Brown did not present any

facts that would have been discovered during those interviews that could have been used to impeach

the victims during cross-examination, Elswick v. Parke, 861 F.2d 720, at *3-4 (6th Cir. 1988) (table)

(rejecting defendant’s ineffective-assistance-of-counsel claim because he could not show any facts

that could have been used for impeachment, which facts would have been uncovered had trial

counsel interviewed the victim before trial). Brown speculates that, “[g]iven the complainants’

failures to repeat the same story twice, defense counsel, by interviewing them could have most likely



        1
        Although he originally argued five grounds for ineffective assistance, Brown conceded at
oral argument that he could not succeed on one of those grounds—trial counsel’s decision to call
Clyde Haller.

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obtained yet a different version of the events.” This attempt at showing prejudice is too speculative.

He does not point to specific facts that, had they been discovered, would have had a reasonable

probability of affecting the outcome.

       Similarly, Brown has not shown how he was prejudiced by trial counsel’s failure to move to

exclude L.H.’s statements. To succeed on this argument, he would have to show that there was a

reasonable probability that the district court would have granted that motion and that the outcome

would have been different without the evidence. Strickland, 466 U.S. at 694. Brown argues that to

succeed on such a motion, he needed to prove only that investigators used methods that raise doubt

as to the reliability of the testimony, not that the testimony was fabricated. The cases on which he

relies, however, are not relevant to determining whether or not to exclude witness testimony based

on allegedly improper interview techniques. Instead, those cases address whether statements by

children about alleged sexual assault made to medical personnel should be admitted under Ohio’s

hearsay exception for statements made in the course of medical diagnosis. E.g., Ohio v. Dever, 596

N.E.2d 436, 444 (Ohio 1992) (explaining the factors that courts should consider in determining

whether a child’s statement regarding sexual assault should be admitted pursuant to Ohio Evid. R.

803(4)). Because Brown has not presented a basis upon which the trial court would have granted

a motion to exclude the testimony, he has not shown that the state appellate court was unreasonable

in its conclusion that he could not show prejudice.




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       Brown also contends that counsel’s failure to object to certain testimony as hearsay

constitutes ineffective assistance of counsel.2 The state appellate court rejected Brown’s claim for

various reasons, including the fact that he did not set forth the precise statements at issue, and

because the court concluded that any error was simply harmless error. Brown has failed to show that

the state court’s conclusion was unreasonable. First, the statements to which he objects would likely

have been admissible as non-hearsay statements. For example, some of the statements would have

likely been admitted under Ohio Evidence Rule 801(D)(1)(b), which excludes from the definition

of hearsay prior consistent statements offered to rebut charges of recent fabrication or improper

influence or motive. See State v. Nichols, 619 N.E.2d 80, 84 (Ohio Ct. App. 1993) (“The courts in

Ohio have generally interpreted this rule as including only those prior consistent statements which

were made . . . before the existence of any motive to falsify testimony.”). Brown argued that L.H.’s

testimony was influenced by suggestive interview techniques used by the investigating officers.

Most of the testimony about which he complains could be classified as prior consistent statements

offered to rebut his argument that L.H.’s testimony was unduly influenced by the interviews. The

additional statements to which he objects were actually consistent with his theory of the case: that

K.H. and L.H. were influenced by the conversations they had with family members, each other, and

investigators. The questions that led to the objectionable statements were necessary to rebut

Brown’s argument that family members and investigators used suggestive techniques. To the extent


       2
          We cannot accept the Warden’s argument that Brown forfeited this claim by failing to raise
it in his petition before the district court. Although Brown’s petition focused on the Confrontation
Clause—an issue which he has not raised on appeal—it cited Ohio’s hearsay rule and case law
applying that rule. Accordingly he has not forfeited this claim.

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that any of the remaining statements were actually inadmissible hearsay, they were cumulative given

the other admissible statements. Accordingly, Brown was not prejudiced by counsel’s failure to

object to the statements at issue.

       Finally, Brown argues that his trial counsel was ineffective because he did not use Detective

Penrod’s report or the first amended bill of particulars to impeach K.H. and because he did not renew

his request for a copy of the grand jury testimony, which could have also been used for impeachment.

The state appellate court’s conclusion that Brown was not prejudiced by this failure was not an

unreasonable application of federal law. Although there were inconsistencies between K.H.’s

testimony and the report, first amended bill of particulars, and grand jury testimony, trial counsel

explored the inconsistencies between K.H.’s and L.H.’s trial testimony and other prior statements.

Although counsel emphasized numerous inconsistencies in their testimony, the jury still believed

K.H. and L.H.. It is doubtful that further impeachment would have altered the outcome—in fact,

given the age of the witnesses, trial counsel may very well have made a tactical decision not to

further impeach them, so as not to negatively impact the jury’s perception of him. Thus, the state

court did not unreasonably apply federal law in concluding that this ground did not give rise to a

successful ineffective-assistance-of-counsel claim.

       AFFIRMED.




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