Steffes v. Pollard, 2011 U.S. App. LEXIS 22247

Steffes, at age 14, lived with Howard who prostituted him to men for money; A.W. (12) and M.F. (13) stayed with them and were pressured into prostitution by Howard and Steffes; A.W. performed oral sex on Steffes (age 15) which formed the basis of the charged offense; Steffes was convicted of one count of first degree sexual assault of a child, two counts of second degree sexual assault, twelve counts of child enticement and solicitation; the district court later reduced some sentences and Steffes challenged the conviction on ineffective assistance grounds; Wisconsin statute defines sexual intercourse as including oral stimulation and allows a jury instruction that acts must be "by the defendant or upon the defendant's instruction" to convict; the Wisconsin appellate court rejected Steffes’s ineffective assistance claim, and the district court denied habeas relief under 28 U.S.C. § 2254; Steffes appeals pro se and is now represented by counsel.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the concurrent sentence doctrine bars review	Steffes argues review is not barred because the one challenged count carries a distinct assessment.	The warden contends the doctrine applies since sentences are concurrent, making merits review unnecessary.	Not barred; concurrent sentence doctrine declined.
Whether trial counsel was ineffective for failing to request specific jury language	Steffes contends the instruction should have stated the act was "by the defendant or upon the defendant's instruction".	Wisconsin appellate court implied the decision was strategic and not prejudicial; failure to request was not deficient.	No prejudice shown; no ineffective assistance, under AEDPA.
Whether the prejudice standard under AEDPA was correctly applied	State court did not adjudicate prejudice under Strickland, so de novo review should apply.	State court decision applied Strickland and concluded no prejudice.	AEDPA review applied; Wisconsin decision not unreasonable.
Scope of Wisconsin’s "by the defendant or upon the defendant's instruction" language	Language applies to all forms of sexual intercourse; omission prejudiced Steffes.	Language may modify the entire definition or only the prohibited forms; impact on this case uncertain.	No prejudice; language ambiguity did not change outcome.

Strickland v. Washington, 466 U.S. 668 (1984) (establishes standard for ineffective assistance of counsel)
Ray v. United States, 481 U.S. 736 (1987) (concurrent sentence relevance when assessment constitutes liability)
Malinowski v. Smith, 509 F.3d 328 (2007) (AEDPA review framework for state-court adjudications)
Porter v. McCollum, U.S. , 130 S. Ct. 447 (2009) (prejudice assessment under Strickland)
Wong v. Belmontes, U.S. , 130 S. Ct. 383 (2009) (prejudice standard and AEDPA context)
State v. Olson, 616 N.W.2d 144 (Wis. Ct. App. 2000) (jury instruction modifying entire sexual-intercourse definition; 'by the defendant' language)
State v. Lackershire, 734 N.W.2d 23 (Wis. 2007) (whether the phrase modifies acts beyond 'other intrusion')