Bryan Scott May v. State of Iowa ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 00-2397
___________
Bryan Scott May, *
*
Appellant, * Appeal from the United States
* District Court for the
v. * Southern District of Iowa
*
State of Iowa, * [TO BE PUBLISHED]
*
Appellee. *
___________
Submitted: April 13, 2001
Filed: May 16, 2001
___________
Before BYE and BEAM, Circuit Judges, and NANGLE,1 District Judge.
___________
BYE, Circuit Judge.
An Iowa jury convicted Bryan May of sexually abusing his 6-year-old son. After
appealing his conviction through all levels of review in the Iowa courts, May sought a
writ of habeas corpus in federal court. The district court2 denied a writ, and we affirm.
1
The Honorable John F. Nangle, Senior United States District Judge for the
Eastern District of Missouri, sitting by designation.
2
The Honorable Ronald E. Longstaff, Chief Judge, United States District Court
for the Southern District of Iowa.
I
A
The State charged May with second-degree sexual abuse of his son stemming
from an incident in December 1991. May’s son testified at trial and was the key
witness for the prosecution. The son stated that May had made a “bad touch” to his
“privates.” Specifically, May had put something “hard” in his “bottom,” and the hard
thing had hurt him. The son also stated that he felt a “drip” on him after the touching.
The son later told his mother that he had been playing the “butt crack game” with May.
On cross-examination, the son distinguished between his “bottom” and “the hole
that your poop comes out of.” The son also acknowledged that he had never had
anything “stuck” in that orifice. May’s lawyer argued that the son’s testimony was
inherently contradictory under Iowa’s definition of “sex act.”
May’s wife, Dorene, testified that she returned home late one evening to find her
son crying. Her son complained that his butt hurt and itched. Dorene discovered that
her son’s anus was red, swollen and torn. Her son stated that May hurt him while
doing “nasties” with him.
May’s son was examined by Dr. Linda Ozaki, a pediatrician with experience in
detecting cases of sex abuse. Dr. Ozaki opined at trial that the son’s anal injuries were
consistent with either attempted or completed anal penetration. Dr. Ozaki also
explained that the son’s injuries could not have been self-inflicted.
May testified in his defense. He acknowledged that he frequently tickled the top
of his son’s “butt crack” in a teasing manner when his son went shirtless and wore his
pants loosely. But May denied abusing his son.
-2-
May was convicted of second-degree sexual abuse after a short trial. The Iowa
Court of Appeals affirmed the jury verdict, and the Iowa Supreme Court declined to
review May’s case.
B
In April 1994, May sought post-conviction relief in Iowa state court. May
attacked the sufficiency of the evidence to support his guilt on the ground that trial
witnesses gave conflicting testimony about the date of his alleged abuse. The range of
witness testimony at trial implicated various dates and times between December 13 and
December 15, 1991. May also alleged that his trial lawyer had rendered ineffective
assistance of counsel in several respects.
May introduced the testimony of a purported alibi witnesses, Kevin Erbst, at an
evidentiary hearing. Erbst was a friend of May who might have provided an alibi for
certain periods of time on or around December 14. But there is some evidence in the
record that Erbst was highly intoxicated at that time. Erbst apparently could have
provided a “sober” alibi for May on December 11 and 12, though the prosecution
introduced no evidence that May’s son was sexually abused on those two days.
May also procured the expert medical testimony of Dr. Shaku Teas. Dr. Teas
roundly criticized Dr. Ozaki’s examination of the son for failure to perform certain
procedures. Dr. Teas opined that the son’s anal injuries could have been self-inflicted,
though he could not rule out sexual abuse as the cause. Dr. Teas never met nor
examined the son, and he grounded his conclusions exclusively on photographs and
written reports.
The state post-conviction court ruled against May. The court held that the
evidence presented at trial was constitutionally sufficient to convict him. The court also
rejected May’s multiple claims of ineffective assistance of counsel. The court found
-3-
that May’s lawyer had made reasonable strategic choices in electing not to call an
intoxicated alibi witness, and in conferring with May before agreeing not to call an
expert (such as Dr. Teas) to rebut Dr. Ozaki’s medical testimony.
The Iowa Court of Appeals affirmed the denial of post-conviction relief on
different grounds. The Court of Appeals ruled that May had procedurally defaulted his
ineffective assistance of trial counsel claims by failing to raise them on direct appeal
from his conviction. The Court of Appeals made no reference to May’s sufficiency-of-
the-evidence claim (apparently affirming that ruling sub silentio). The Iowa Supreme
Court again declined to review May’s case.
C
May petitioned for a writ of habeas corpus in late December 1997. May’s
petition raised four claims of federal constitutional error in the underlying conviction:
• Insufficiency of the evidence;
• Ineffective assistance of trial counsel for failure to investigate
whether expert medical testimony would assist May’s defense;
• Ineffective assistance of trial counsel for failure to call certain alibi
witnesses at trial; and
• Ineffective assistance of trial counsel for failing to cross-examine
Dorene May.
The district court expressed reservations about the strength of the evidence of
May’s guilt. The court nevertheless denied a writ because it found that the Iowa
courts’ review of May’s conviction was reasonable. The court entered judgment
adverse to May, but granted him a certificate of appealability on each of the four issues
he had raised.
-4-
II
We may not reverse the district court’s decision to deny May a writ unless the
state court adjudication “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)(1). We must deny a
writ—even if we disagree with the state court’s decision—so long as that decision is
reasonable in view of all the circumstances. Williams v. Taylor, 529 U.S. 362, 409-13
(2000) (O’Connor, J., writing for the majority).
A
We find that the evidence adduced at May’s trial was constitutionally sufficient
to convict him of second-degree sexual abuse of his son. See Jackson v. Virginia, 443
U.S. 307, 319 (1979) (“[T]he relevant question is whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.”) (citation omitted)
(italics in original).
Under Iowa law, the crime of second-degree sexual abuse includes sexual
contact between the finger or hand of an adult and the genitalia or anus of a child. See
Iowa Code §§ 702.17, 709.1(3), 709.3(2). May’s son testified in fairly graphic detail
that May had touched his “butt crack.” Dorene May stated that the son complained of
May’s hurtful touching—“nasties” in his “privates.” And Dr. Ozaki opined that the
son’s torn, swollen anus was consistent with evidence of unwanted sexual touching.
May himself testified about tickling his son’s “butt crack,” and the jury could
reasonably have interpreted these statements against May’s interests.
May contends that his son’s testimony was internally inconsistent. The son
testified on direct examination that May had inserted something “hard” into his
-5-
“bottom.” But on cross-examination, the son stated that nothing had ever been placed
into “the hole that your poop comes out of.” Having reviewed the trial transcript, we
are not convinced that the son’s testimony was necessarily inconsistent. In any event,
we are dubious of May’s claim that his son’s testimony would have been discredited
by a reasonable jury because
the child may lack the technical knowledge to accurately describe parts
of his or her body. Where the child has sufficiently communicated to the
trier of fact that the touching occurred to a part of the body within the
definition of [the statute], the evidence will be sufficient to support a
conviction regardless of the unsophisticated language that the child uses.
State v. Martens, 569 N.W.2d 482, 487 (Iowa 1997) (quoting Clark v. State, 558
S.W.2d 887, 889 (Tex. Crim. App. 1977)).
Even if the son’s testimony about penetration was thoroughly impeached,
however, the jury could still have found May guilty of second-degree sexual abuse.
Digital or genital contact with a child’s anus establishes guilt under Iowa law. The
State did not have to prove penetration. Thus, May’s impeachment of his son’s
testimony regarding penetration is insufficient to create reasonable doubt.
May also argues that the prosecution failed to establish the precise time at which
the sexual abuse occurred. In a recent sex abuse case, the Iowa Supreme Court
rejected “the defendant’s argument that the confusion among the witnesses as to when
this incident occurred fatally undermines the jury’s finding of guilt.” State v. Laffey,
600 N.W.2d 57, 60 (Iowa 1999) (collecting Iowa cases). Because the timing of the
offense is not an element of the crime of sexual abuse under Iowa law, May derives no
benefit from possible confusion among the witnesses as to the time when he abused his
son.
-6-
We believe that the evidence of May’s guilt is constitutionally sufficient. Even
if we entertained doubts about the conviction, as the district court apparently did, the
Iowa courts’ decisions were certainly reasonable. See Williams, 529 U.S. at 409-13.
B
May procedurally defaulted his ineffective assistance of trial counsel claims by
failing to raise them on direct appeal from his conviction. As a threshold matter, May
contests his default. He claims that the Iowa Court of Appeals should not have found
his ineffectiveness claims defaulted because his appellate lawyer should not be charged
with the duty to uncover hidden trial errors that were not apparent on the face of the
record. This argument attacks the Iowa rule that a defendant must demonstrate a
“sufficient reason” for failing to raise a claim on direct appeal. Polly v. State, 355
N.W.2d 849, 856-57 (Iowa 1984). The Iowa Court of Appeals rejected May’s
argument, finding—as a matter of Iowa law—that May had “failed to advance a
sufficient reason why his claims were not raised on direct appeal.” JA 14. We may not
disturb a state court decision interpreting state law on habeas review, Wainwright v.
Sykes, 433 U.S. 72, 81-88 (1977), and thus we reject May’s contention that he did not
default his three ineffective assistance of counsel claims.
In the present appeal, May has selected only one of the varied paths to excuse
his default in state court. He contends that the Iowa procedural rule requiring
ineffective assistance of counsel claims to be raised on direct appeal is neither firmly
established, nor regularly followed. See Ford v. Georgia, 498 U.S. 411, 423-24 (1991).
We disagree.
Under Iowa law, a defendant must raise claims of ineffective assistance of trial
counsel as part of his direct appeal. A defendant may not wait to raise such claims until
a subsequent post-conviction proceeding. Berryhill v. State, 603 N.W.2d 243, 245
(Iowa 1999); Collins v. State, 477 N.W.2d 374, 376-77 (Iowa 1991); Washington v.
-7-
Scurr, 304 N.W.2d 231, 235 (Iowa 1981). The Iowa Supreme Court has recognized
just two exceptions to this general rule. The first exception involves ineffective
assistance of appellate counsel, which prevents the defendant from properly raising his
claim on direct appeal. See Jones v. State, 479 N.W.2d 265, 271 (Iowa 1991). The
second exception pertains when a defendant must develop a new evidentiary record
during post-conviction proceedings because the facts giving rise to his claim were
unknown at the time of his direct appeal. See Washington, 304 N.W.2d at 235. Our
review of myriad Iowa Supreme Court decisions persuades us that the Iowa courts have
firmly established these principles, and regularly apply them. May cannot overcome
his procedural default, and we therefore decline to address the merits of his three
ineffective assistance of counsel claims.
III
We affirm the judgment of the district court in all respects.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-8-