Habeas Corpus — sexual assault — ineffective assistance — prejudice

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United States Court of Appeals

Criminal

Habeas Corpus — sexual assault — ineffective assistance — prejudice

Where a defendant charged with sexual assault does not claim that he is the victim, it was not prejudicial for his attorney to fail to request a jury instruction that the sexual conduct be “by the defendant or upon the defendant’s instruction.”

“Even if the jury should have been told that the act must have been either by the defendant or upon the defendant’s instruction, we conclude that the Wisconsin appellate court’s determination that Steffes failed to show prejudice from the jury’s failure to receive the instruction was not unreasonable. The warden maintains that the jury would have considered the charge in light of all the circumstances under which A.W. found herself and concluded that the act occurred at Steffes’s instruction. A.W. had run away from home and was staying with Howard and Steffes, who were both older than her, at various motels. They provided her with alcohol, had her engage in acts of prostitution with other men, and then collected the money from the men. The jury might have found that in these circumstances the act was upon Steffes’s instruction.”

“We conclude that under any interpretation of ‘by the defendant or upon the defendant’s instruction,’ Steffes was not prejudiced from the fact that the jury did not receive the language he now seeks. Therefore, he has not made out a successful ineffective assistance of counsel claim. Although we reach that conclusion, we are not unmindful of the circumstances by which Steffes became involved in the conduct that led to his charges in this case. We trust that the parole board will take them into account when it makes its parole decision.”

Affirmed.

09-3317 & 09-3318 Steffes v. Pollard

Appeals from the United States District Court for the Eastern District of Wisconsin, Callahan, Mag. J., Williams, J.