Ineffective Assistance of Counsel – Confrontation Claim

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7^th Circuit Court of Appeals

Case Name: Antonio G. Ramirez, Jr., v. Lizzie Tegels, Warden,

Case No.: 19-3120

Officials: FLAUM, BARRETT, and ST. EVE, Circuit Judges.

Focus: Ineffective Assistance of Counsel – Confrontation Claim

During Antonio Ramirez’s 2001 criminal trial in Wisconsin state court, the prevailing interpretation of the Sixth Amendment’s Confrontation Clause was set forth in Ohio v. Roberts, 448 U.S. 56 (1980). Under Roberts, a defendant had no confrontation right to cross-examine an unavailable declarant if the declarant’s statements were adequately reliable, which could be established where the statements fell within a firmly rooted hearsay exception. Id. at 66. Applying hearsay exceptions, the trial court admitted several out-of-court statements accusing Mr. Ramirez of sexually assaulting his stepdaughter in November 1998 and September 1999. The jury convicted Mr. Ramirez of multiple counts relating to the sexual assaults.

In 2004, while Mr. Ramirez’s conviction was pending on direct review, the Supreme Court decided Crawford v. Washington, 541 U.S. 36 (2004), which overruled Roberts by holding that a defendant is entitled to cross-examine a declarant if the declarant’s statements were “testimonial”—e.g., were statements that the declarant “would reasonably expect to be used prosecutorially.” Id. at 51. During direct review of his conviction, Mr. Ramirez urged his lawyer, Attorney Lynn Hackbarth, to raise a confrontation claim under Crawford. Attorney Hackbarth chose instead to raise a litany of other claims, each of which Wisconsin state courts rejected.

After Mr. Ramirez exhausted his state court remedies, he filed a petition for a writ of habeas corpus in federal district court, arguing that Attorney Hackbarth’s representation was ineffective based on her omission of the confrontation claim. The district court agreed and granted Mr. Ramirez’s petition, ordering the State of Wisconsin to provide Mr. Ramirez with a new appeal or release him within ninety days. The State now appeals, contending that the confrontation claim was not clearly stronger than the claims Attorney Hackbarth raised.

We affirm. An attorney exercising reasonable professional judgment would have recognized that the confrontation claim was clearly stronger than the claims Attorney Hackbarth raised. Raising a confrontation claim while Mr. Ramirez’s conviction was pending on direct review would have given Mr. Ramirez a reasonable chance of prevailing.

Affirmed

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.