ORDER DENYING AMENDED PETITION FOR WRIT OF HABEAS CORPUS
Petitioner, an inmate at the South Dakota State Penitentiary, filed a motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2254, and this Court previously assigned this matter to U.S. Magistrate Judge Mark A. Moreno, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B). Magistrate Judge Moreno filed a Report and Recommendation, Doc. 48, (“the Report”) recommending that petitioner’s amended petition for writ of habeas corpus, Doc. 19, be denied in all respects and dismissed with prejudice. A copy of the Report was served upon the parties as required by 28 U.S.C. § 636. Petitioner filed written objections thereto. Doc. 49.
The Court has made a de novo review of the record and transcripts herein and determines that petitioner’s objections should be overruled and the findings and recommendations of Magistrate Judge Moreno as contained in the Report, Doc. 48, should be accepted and petitioner’s amended petition for writ of habeas corpus, Doc. 19, be denied in all respects and dismissed with prejudice.
Petitioner’s first objection to the Report is that petitioner’s fundamental foundational arguments concerning L.Z.’s statements to Dr. Sutliff were not adequately addressed and Dr. Sutliff s interview with L.Z. was mischar- *1561 acterized. This Court finds that the Report correctly discusses the test for determining whether admitted hearsay testimony is admissible pursuant to S.D.C.L. § 19-16-8 (similar to Fed.R.Evid. 803(4)), and therefore overrules petitioner’s objection on lack of foundation. See Doc. 48 at 8-19. The Court, having reviewed Dr. Sutliffs testimony, finds that the characterization of Dr. Sutliffs interview with L.Z. as contained in the Report, Doe. 48 at 8-19, is accurate and therefore overrules petitioner’s objection on this ground.
Petitioner’s second objection to the Report involves the magistrate judge’s conclusion that admission of the testimony of L.Z. did not violate the confrontation clause of the United States Constitution because the subject statements were not trustworthy. The Court agrees with the magistrate judge’s findings as to the trustworthiness of these statements. See Doc. 48 at 10-19, and 26-28. Petitioner’s second objection is therefore overruled.
Petitioner’s third objection is that the magistrate judge erred in concluding that errors by petitioner’s trial counsel concerning pretrial investigation and witness preparation were harmless because the truthfulness of L.S. was a central issue in the case. The magistrate judge concluded that although trial counsel’s pretrial investigation and witness preparation were deficient, petitioner did not show that he was prejudiced by such deficiency to the extent that it had an adverse effect on petitioner’s defense or the ultimate outcome of the case, or that the deficient performance undermined the result of the trial. See Doc. 48 at 31-35. The Court agrees with the magistrate’s conclusion that trial counsel was not constitutionally ineffective because trial counsel called several witnesses for petitioner to attack L.S.’s credibility and her reputation for truthfulness or lack thereof, including L.S.’s brother, foster mother, aunt, mother and petitioner himself. The case cited by petitioner,
United States v. Azure,
Petitioner’s fourth objection relates to the magistrate judge’s conclusion that trial counsel was not constitutionally ineffective in cross-examining L.S. about her prior inconsistent statements. As referenced in the Report, Doe. 48 at 35-38, trial counsel did cross-examine L.S. about her prior inconsistent statements. This Court agrees with the magistrate judge’s conclusion that trial counsel’s decision regarding the breadth of his cross examination of L.S. was a tactical decision and was a professionally reasonable judgment under the circumstances. Id. Petitioner’s objection on this ground is overruled.
The fifth objection raised by petitioner is that the magistrate judge erroneously concluded that petitioner’s trial counsel was not constitutionally ineffective in failing to object to the opinion testimony of Angini Tapscott. The magistrate judge concluded that trial counsel’s performance was deficient for failing to object to Tapscott’s testimony in light of the evidentiary rules and the ease law in 1986. However, after considering several factors, the magistrate judge concluded that this deficiency did not prejudice petitioner to the extent that it rendered the result of the trial unreliable or the proceeding fundamentally unfair. See Doc. 48 at 38-46. The Court agrees with these conclusions.
Petitioner cites
Azure,
Petitioner objects to the magistrate judge’s conclusion that petitioner’s trial counsel was not ineffective, considering the cumulative effect of trial counsel’s claimed errors. Based on
Wainwrigkt v. Lockhart,
Based on all of petitioner’s specific objections, petitioner objects generally to the conclusions and recommendations as contained in the Report. This objection is overruled based on the discussion above concerning petitioner’s specific objections.
Now, therefore,
IT IS ORDERED:
(1) The Report and Recommendations For Disposition of U.S. Magistrate Judge Mark A. Moreno, Doc. 48, filed October 17,1996, is hereby adopted as the Findings of Fact and Conclusions of Law herein.
(2) The objections of petitioner to the Report and Recommendation, Doc. 49, are overruled.
(3) Petitioner’s amended petition for writ of habeas corpus, Doc. 19, is denied in all respects and dismissed with prejudice.
(4) Respondents’s motion for more definite statement with respect to petitioner’s amended petition for writ of habeas corpus, Doc. 29, is denied as moot.
(5) Respondent’s motion to dismiss petitioner’s amended petition for writ of habeas corpus for failure to exhaust state remedies or, in the alternative, to dismiss two of petitioner’s procedurally defaulted claims, Doc. 31, is denied as moot.
REPORT AND RECOMMENDATIONS FOR DISPOSITION
PRELIMINARY STATEMENT
References to the record in this case will be made using the docket number assigned by the Clerk to each document or set of documents filed (e.g., Docket No. —). References to the transcript of the state jury trial held on May 13, 1986 and to the grand jury proceedings held on November 24, 1986 and January 9, 1986 will be made using the abbreviations “TTr”, “GrJ Tr(l)”, “GrJ Tr(2)”, respectively, followed by the page in the transcripts. Exhibits received into evidence at the May 13, 1986 jury trial will be referred to as “Tr Ex” followed by the letter designated for each exhibit. Citations to the settled record in the underlying criminal case (Haakon County Crim. No. 86-2) will be made using the letters “CrR” followed by the numbered page found in the record. References to the record of the first state habeas corpus case (Haakon County Civ. No. 87-18) and the first state habeas corpus hearing held on June 15, 1987 will be made using the abbreviations “HR(1)” and “HTr(l)”, respectively, followed by the appropriate pages in the record or transcript. References to the record of the second state habeas corpus action (Haakon County Civ. No. 91-5) and to the second state habeas corpus hearing, held on May 22,1993, will be referred to using the abbreviations “HR(2)” and “HTr(2)”, respectively, followed by the corresponding pages in the record or transcript.
INTRODUCTION
The above-captioned matter 1 was referred to this Court on September 26, 1995 by the District Court 2 pursuant to 28 U.S.C. § 636(b)(1)(B) for the submission to the latter Court of proposed Findings of Fact and *1563 Recommendations for Disposition of the matter. Docket No. 20.
Having carefully reviewed and considered all of the records on file in both the state and federal court proceedings, and being fully advised in the premises, this Court does now make and propose the following Findings of Fact, Report and Recommendations for Disposition.
PROCEDURAL HISTORY
On May 15, 1986, Olesen was found guilty of two counts of Rape in the Second Degree, two counts of Sexual Contact With a Child Under Sixteen Years of Age and one count of Rape in the Third Degree. CrR 58-57. He was sentenced to five consecutive three-year sentences or a total of fifteen years. CrR 63-70. After Olesen appealed his convictions, but did not submit a timely brief, the South Dakota Supreme Court determined that the appeal had been abandoned and dismissed the same. CrR 75. Approximately eight and one-half months later, on May 19, 1987, Olesen filed a petition for writ of habeas corpus in Haakon County Circuit Court. HR(1) 3; HR(2) 19-22. That same month, Olesen filed an amended petition for Writ of Habeas Corpus. HR(1) 5; HR(2) 22-24.
On June 15, 1987, an evidentiary hearing was held in Philip, South Dakota, before the state habeas court, the Honorable James W. Anderson, Circuit Court Judge, presiding. HTr(l). In an order (based on written findings of fact and conclusions of law filed on August 5, 1987), the habeas court denied Olesen’s petition and amended petition, except to the extent that the trial court was directed to correct clerical errors in the judgments of conviction. HR(1) 16. Thereafter, the habeas court and the State Supreme Court denied Olesen’s motions for the issuance of a certificate of probable cause to appeal. HR(1) 18,19.
On December 11, 1987, Olesen filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the District of South Dakota, Central Division. HR(1) 25; HR(2) 234. The District Court, the Honorable Donald J. Porter, then Chief United States District Judge presiding, subsequently entered an order dated August 31, 1988, remanding the habeas action to state court for resentencing to allow a new appeal period to accrue pursuant to
Loop v. Solem,
Following this, the trial court, the Honorable Donald L. Heck, Circuit Court Judge presiding, resentenced Olesen to the same sentence as he had originally received. CrR 87-89.
On September 29, 1988, Olesen filed a notice of appeal to the South Dakota Supreme Court. CrR 90. After considering the appeal on the briefs submitted and without oral argument, the Supreme Court affirmed Olesen’s convictions.
State v. Olesen,
Subsequently, on October 1, 1990, Olesen filed a pro se petition for writ of habeas corpus in federal court, alleging one ground for relief, namely, that the trial court abused its discretion by allowing a doctor to testify about the statements made to the doctor by a five-year-old child abuse victim during a medical examination seven and one-half months after the alleged incident. HR(2) 234. On November 5,1990, Olesen amended his habeas corpus petition, and raised, inter alia, a second ground for relief, to-wit: ineffective assistance of counsel. Id. Olesen then amended his petition a second time on May 8, 1991, raising an entirely new ineffective assistance of counsel claim. Id. On February 4, 1993, the District Court, the Honorable Donald J. Porter, then Senior United States District Judge presiding, dismissed Olesen’s federal petition without prejudice because Ol-esen had failed to exhaust all available, non-futile state remedies. HR(2) 235.
On April 6, 1993, Olesen filed a second state petition for habeas relief in Haakon County Circuit Court. HR(2) 6-24. On May 27, 1993, an evidentiary hearing was held in state court, the Honorable Patrick J. MeKeever, Circuit Court Judge presiding. HTr(2). After issuing a memorandum opinion and entering findings of fact and conclusions of law, HR(2) 185-189, 232-45, the ha-beas court entered an order quashing the writ of habeas corpus,
id.
at 245. Olesen
*1564
thereafter moved for the issuance of a certificate of probable cause,
id.
at 246-47, and the habeas court granted the motion but only insofar as the same sought to appeal the question of ineffective assistance of counsel,
id.
at 257-58. Olesen then filed a notice of appeal as to the ineffective assistance of counsel issue on October 18, 1993.
Id.
at 264-65. In an opinion issued on November 30, 1994, the State Supreme Court affirmed the habeas court and denied Olesen’s ineffective assistance of counsel claims.
Olesen v. Lee,
On May 15, 1995, Olesen filed a pro se petition with this Court for habeas relief under 28 U.S.C. § 2254. Docket No. 3. Subsequently, Olesen moved for leave to file an amended petition, Docket No. 13, and the District Court granted the same in an order filed on August 22, 1995, Docket No. 18. Four days later, the District Court referred the matter to this Court. Docket No. 20.
FACTS
In October and December, 1979, Olesen had sexual intercourse with his fourteen-year-old daughter, L.S., in Philip, South Dakota. TTr 61-71. Then, in May, 1985, Oles-en again had sexual intercourse with L.S., this time in his truck, after turning on to an approach en route back home from a nearby bar. TTr 73, 76-80, 310-14.' Later that same month, L.S., now nineteen' years old, Tr. Exs A, B, observed Olesen in the family garage, kneeling beside her younger sisters, five-year-old L.Z. and three-year-old A.T., rubbing their vaginas with his fingers. TTr 30, 73-75, 244.
Olesen was indicted by a Haakon County grand jury on two counts of Second Degree Rape, two counts of Sexual Contact With a Child Under The Age of Sixteen, one count of Third Degree Rape, and one count of Tampering With a Witness. CrR 14-18. At trial, Dr. Willis C. Sutliff, a pediatrician, testified as to what L.Z. and A.T. said or otherwise indicated to him during the course of his examination of them some seven and one-half months after their molestation by Olesen. TTr 39-57. Defense counsel objected to Sut-liff s testimony on hearsay grounds, but the trial court overruled the objections. TTr 15-26, 37-39, 43-45, 49. Sutliff also testified that during the examination, he found an injury to L.Z.’s hymenal ring and a larger than normal vaginal opening. TTr 47 — 48. He concluded that L.Z. had been sexually abused. TTr 48. He saw no signs of sexual abuse, however, in his examination of A.T., and reached the opposite conclusion with respect to her. TTr 49-50.
The jury acquitted Olesen on the Tampering With a Witness charge, but found him guilty of the remaining five sex offenses. CrR 53-57, 65, 88.
Olesen subsequently filed a direct appeal and brought two separate habeas actions in state court (the latter one being appealed to the South Dakota Supreme Court) claiming:
1. That the trial court committed prejudicial error when it allowed Sutliff to testify as to inadmissible hearsay statements made to him by L.Z.;
2. That the admission of L.Z.’s statements violated the rights guaranteed to him by the Confrontation Clause of the Sixth Amendment to the United States Constitution;
3. That he was denied effective assistance of counsel guaranteed to him by the Constitution because trial counsel:
a. failed to investigate and prepare for his defense by not contacting potential witnesses and by not properly preparing for witnesses called at trial;
b. faded to exploit L.S.’s inconsistent grand jury testimony;
c. failed to object to the rebuttal testimony of psychologist Angini Tapscott;
d. failed to call other witnesses, including, but not limited to, psychiatrist Charles Lord and Pierre Police Chief Bill Abernathy to attack L.S.’s credibility; and
e. failed to object to Sutliff and others’ opinion that L.Z. and A.T. had been the victims of sexual abuse.
Olesen I,
Olesen’s amended petition before this Court raises the same claims that were earli *1565 er raised and decided in state court. pare HR(2) 6-24 with Docket No. 19. Com-
EVIDENTIARY HEARING
In his pre-hearing memorandum, Ol-esen, for the first time, requests that this Court grant him an evidentiary hearing. Docket No. 43 at 27. Olesen was given two evidentiary hearings in state court on his post-conviction claims. HTr(l); HTr(2).
To merit an evidentiary hearing in federal court, Olesen must show cause and prejudice for his failure to adequately develop evidence, relevant to his claims, in the state court proceedings.
Keeney v. Tamayo-Reyes,
ADMISSION OF L.Z’S STATEMENTS PURSUANT TO THE MEDICAL DIAGNOSIS/TREATMENT EXCEPTION TO THE HEARSAY RULE
Olesen challenges the trial court’s decision permitting Sutliff to testify about statements L.Z. made to him, claiming that the admission of these statements constituted prejudicial error. The prosecution offered this testimony admittedly as hearsay but within the exception expressed in SDCL 19-16-8 (1978) (the functional equivalent to Fed. R.Evid. 803(4)) which reads as follows:
Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensation, or the inception or general character of the cause or external source thereof are not excluded by § 19-16-4 insofar as reasonably pertinent to diagnosis or treatment, even though the declarant is available as a witness.
The crucial question under this rule and its federal counterpart is whether the out-of-court statements were “reasonably pertinent” to diagnosis or treatment.
State v. Moriarty,
After careful review of the record, this Court is satisfied that L.Z.’s motive in making her statements to Sutliff was that of a patient responding to inquiries from her physician designed to aid in diagnosis and promote treatment.
Renville,
Significantly, L.Z. had been to the doctor for medical problems on several prior occasions (perhaps as many as ten), TTr 244, and knew or at least understood that she was talking to a doctor, TTr 36-37, 42-49, 56-57;
compare Ring,
The fact that L.Z. was brought in to Sut-liff, at the request of a social worker and/or one of the prosecutors and seen by him approximately seven and one-half months after the May 26, 1985 incident, does not unduly taint the reliability of her statements and render them inadmissible given the unusual intra-family dynamics of this case. L.S., an eyewitness to the incident, was fearful of Olesen, having been raped by him on at least three separate occasions and admonished on each .occasion not to say anything. TTr 66-73, 78-81. L.Z.’s mother, who was a passive
*1567
participant in at least one of Olesen’s sexual interludes with L.S.,
5
denied knowing about any sexual abuse involving L.S., L.Z. or A.T., and steadfastly maintained that Olesen was innocent of the charges. TTr 57, 228-43, 254-65. In light of these circumstances, it is easy to understand why L.Z.’s mother, even if she was apprised of the abuse incident, did not report the same or seek help for L.Z. from a doctor. It is also not surprising to see, in a family such as this one, a several-month hiatus between the molestation event and the revelation and confirmation (via a physician’s examination) of the same. Therefore, in the context of this case, L.Z.’s statements were admissible even though she was referred to and examined by Sutliff more than seven months after being abused.
See United States v. Whitted,
In addition, several other factors militate in favor of the finding that L.Z.’s motive, at the time she made her statements to Sutliff, was consistent with the rationale and purpose of SDCL 19-16-8 (Fed.R.Evid.803(4)). First, L.Z. had a better knowledge of human anatomy than the average five-year-old, TTr 47, and the description she gave of her encounter with Olesen had “the ring of veracity to it.”
See United States v. Dorian,
Second, L.Z.’s statements were corroborated by other evidence. The statements were consistent with the testimony of L.S., who identified Olesen as her rapist and the one who sexually abused both L.Z. and A.T. Id.
Finally, and more importantly, the accuracy of L.Z.’s statements is buttressed by the medical evidence. Sutliff testified, rather unequivocally, that the cause of L.Z.’s enlarged vaginal area and scarring to her hymenal ring was sexual abuse. TTr 47-48, 54-56. The results of Sutliffs examination make it difficult to believe that L.Z. had a motive to fabricate tales of sexual abuse in order to frame her father. Instead, Sutliffs testimony gives credence to and substantiates the overall reliability and trustworthiness of L.Z.’s statements.
With respect to the second prong of the
Iron Shell
test — whether the statements in issue are reasonably relied upon by health care providers in treatment or diagnosis— there can be little question that the information L.Z. provided to Sutliff would aid him in examining her by “pinpointing areas of the body to be examined more closely and by narrowing [the] examination by eliminating other areas.”
Lovejoy,
Although in
Iron Shell
the Eighth Circuit recognized that the declarant’s statements relating to the identity of the alleged abuser “would seldom, if ever” be reasonably pertinent to treatment or diagnosis,
Statements of identity to a physician by a child sexually abused by a family member are of a type physicians reasonably rely on in composing a diagnosis and course of treatment. Admissions of these statements, therefore, is fully consistent with the rationale underlying the second component of the Iron Shell test.
Id.
at 438. After
Renville,
statements made by a child to a physician during the course of an examination, identifying a family or household member as the abuser, are presumptively considered to be reasonably pertinent to diagnosis and treatment and, as such, satisfy the second component of the
Iron Shell
test.
Id.; United States v. Yellow,
Here, L.Z. identified Olesen, her father and a household member at the time, as the person who sexually abused her in May, 1985. For the same reasons enunciated in
Renville
and its progeny, the trial court did not abuse its discretion in admitting L.Z.’s statements to Sutliff
in toto
under the medical diagnosis/treatment exception.
Id; compare Olesen I,
Olesen argues that Sutliffs examination of L.Z. was intended, not for the purpose of treating her, but rather, to construct a criminal case against Olesen. Docket No. 43 at 4-7, 11-14. In support of his position, Olesen points to Sutliffs own testimony wherein he states that, “[t]he people that contacted me did not ask for treatment,” and the fact that L.Z. was referred to Sutliff by a social worker and/or one of the prosecutors. Id; see also, TTr 38. The record, however, reflects (1) that Sutliff examined L.Z. “to determine whether there was evidence of malnutrition, failure to thrive, child abuse and sexual abuse”; (2) that he diagnosed her as having a disease; and (3) that he made treatment recommendations. TTr 38, 44-46, 50-51; HTr(2) 144-46. The record also indicates that Sutliff considered L.Z.’s statements concerning “what happened” and “who did it” to be pertinent to his diagnosis and recommended course of treatment. TTr 44-45.
*1569
Yet, even assuming,
arguendo,
that no treatment was contemplated or given, L.Z.’s statements were nonetheless related to the cause of her present condition and were pertinent to Sutliff s diagnosis of that condition, and thus were admissible under the medical diagnosis/treatment exception.
United States v. Iron Thunder,
In any event, this exception to the hearsay rule applies to statements made for the sole purpose of diagnosis
and includes
statements,
made in anticipation of litigar tion,
to a doctor who is consulted only to testify as an expert witness.
Whitted,
This Court concludes that under the circumstances present, there were sufficient in-dicia of L.Z.’s proper motive to ensure trustworthiness of her statements to Sutliff. Inasmuch as the statements were trustworthy and the type on which physicians reasonably rely in diagnosis or treatment, they satisfy the Iron Shell test and, accordingly, their admission was not an abuse of discretion.
ADMISSIBILITY OF L.Z.’S STATEMENTS UNDER THE CONFRONTATION CLAUSE
The State maintains that Olesen is proee-durally barred from obtaining relief on his Confrontation Clause because his trial counsel failed to object on this ground to the admission of L.Z.’s statements to Sutliff. Docket No. 47 at 1-8. A review of the record reveals that Olesen’s trial counsel objected to L.Z.’s statements on hearsay grounds, but not under the Confrontation Clause. TTr 14-26, 37-39, 43-51. Olesen did not raise his Confrontation Clause on direct appeal,
see Olesen I,
Before Olesen’s Confrontation Clause claim may be considered, this Court must examine whether he has overcome the two procedural hurdles of exhaustion and procedural default.
Coleman v. Thompson,
A state prisoner normally must exhaust all available state judicial remedies before a federal court will hear a petition for habeas corpus.
Coleman,
Olesen is no longer able to seek review from the South Dakota Supreme Court of his Confrontation Clause claim,
see
SDCL 21-27-18.1 (party has fifteen days from the date of entry of the circuit court judge’s refusal to issue a certifícate of probable cause to file a separate motion for the issuance of such a certificate with the Supreme Court) and has no remedies still available to him to pursue in state court.
See also,
SDCL 21-27-16.1 (1983);
Gregory v. Solem,
While a habeas petitioner may have exhausted all of his state court remedies prior to filing for habeas review in federal court, the petitioner’s constitutional claims may yet be barred from federal review if such exhaustion resulted from the petitioner’s procedural default of the claims. Habe-as petitioners can default their constitutional claims when they fail to raise claims during the course of their state judicial proceedings or when they fail to make their claims to the highest state court.
Murray v. Carrier, 477
U.S. 478, 488-89,
The doctrine of procedural default is based on comity, not jurisdiction, and federal courts retain the power to consider the merits of procedurally defaulted claims.
See Reed v. Ross,
At issue here are two potentially viable procedural defaults: the failure to object at trial to L.Z.’s statements on Confrontation Clause grounds and the failure to file a separate motion with the South Dakota Supreme Court for the issuance of a certificate of probable cause to review the Confrontation Clause claim. Because the state habeas court chose to “bypass” his Confrontation Clause claim and decide it on the merits, Olesen is not precluded from obtaining review of the claim in federal court.
Bennett v. Angelone,
Likewise, inasmuch as Olesen, as with any other prisoner in South Dakota, is only entitled to discretionary review of his habeas claims by the State Supreme Court and has no appeal of right,
see
SDCL 21-27-18.1, he may now seek review of his Confrontation Clause Claim in federal court.
Dolny,
Since the state habeas court’s decision fairly appears to rest on federal law and/or is interwoven with such law, and that court was the last state court to enter judgment on Olesen’s federal Confrontation Clause claim, the claim is properly before this Court and is neither procedurally barred nor subject to the cause and prejudice test of
Wainwright v. Sykes,
“Although the Supreme Court has emphasized the importance of face-to-face confrontation in criminal trials, it has also recognized that the Confrontation Clause neither bars the admission of all out-of-court statements, nor requires that all de-clarants be subject to cross examination.”
Dana,
In the instant case, the trial court admitted L.Z.’s statements to Sutliff under the medical diagnosis/treatment exception to the hearsay rule. TTr 25-26. This exception is a firmly rooted hearsay exception, and when hearsay testimony is properly admitted pursuant to it, reliability is inferred.
White,
Notwithstanding this, L.Z.’s statements possess sufficient “particularized guarantees of trustworthiness” to be admissible under the Confrontation Clause. Aside from the factors already identified and discussed herein,
see ante
at 1565-1569, other factors exist which individually, or in combination, bolster L.Z.’s credibility and the overall truthfulness of her statements. L.Z. spoke of her father doing something that “hurt” her and caused her pain, a startling event she had personal knowledge of and still recalled seven and one-half months after it occurred. TTr 45-46; see
United States v. N.B.,
After applying the Supreme Court’s analytical framework found in
Roberts, Wright, White
and their progeny to the case at hand,
*1573
this Court concludes that the admission of L.Z.’s statements did not violate the Confrontation Clause.
N.B.,
INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
A. Introduction and Standard of Review.
Olesen claims that he received ineffective assistance of counsel. He points to three instances of alleged incompetent representation on the part of his trial counsel. 10 Docket No. 43. Each of these instances will be addressed in seriatim.
“The well-established framework for analyzing effective assistance of counsel claims reflects the Sixth Amendment’s focus on assuring the ‘fairness’ and ‘legitimacy’ of our adversary system.”
Payne v. United States,
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as “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,
With respect to the performance aspect of the
Strickland
test, the defendant must demonstrate that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms.
Strickland,
Strategic choices made after a thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after a less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.
Id.
at 690-91,
Professionally unreasonable trial errors, however, do not satisfy the burden of proving ineffectiveness absent a showing of prejudice to the defendant.
Strickland,
B. Investigation and Preparation of Witnesses.
Olesen contends that L.S. was a crucial witness in the State’s case against him.
See Olesen II,
The record does support Olesen’s assertion that trial counsel’s pretrial investigation and witness preparation were deficient. Counsel failed to talk to or meet with Curtis Mills to discuss Mills’s testimony before calling him to testify as a defense witness at trial. 11 HTr(2) 41-43. Counsel also failed to contact Tom Tassler, who, like Mills, had an opinion regarding L.S.’s lack of truthfulness, and never called Tassler as a witness at trial. HTr(2) 55-56. Similarly, counsel met with Sandra Tassler and Irene Odenkoven at the Haakon County Courthouse only minutes before they testified and while the trial was actually in progress. HTr(l) 20, 22-23; HTr(2) 47-58, 53, 59-61. Counsel did not tell Tassler what questions he intended to ask her, HTr(2) 48, and did little, if anything, to prepare Roy Olesen, another defense witness, and Odenkoven, in answering questions concerning L.S.’s honesty and truthfulness. HTr(l) 20, 22-23; HTr(2) 59-61, 64, 66.
In addition, it is readily apparent from a review of the trial transcript that defense witnesses were not well prepared. See e.g., TTr 179-81,194, 241-42. Roy Olesen’s testimony is especially telling on this point:
Q: Mr. Olesen, did you have an opportunity to observe [L.S.] off and on through the years?
A: Yes.
Q: Did you, in the course of that observation, form an opinion as to her reputation for truth and veracity?
A: Yes.
Q: And do you have an opinion as to what that is whether or not she was truthful in her statements?
A: I don’t know for sure.
TTr 203. When trial counsel attempted to elicit a better answer from the witness, the prosecutor’s objection was sustained. TTr 203-04. There thus can be little doubt that counsel’s pretrial investigation and pretrial preparation were wanting and, more importantly, objectively unreasonable under the circumstances based on prevailing professional norms.
Olesen,
Yet, trial counsel’s performance, even if professionally unreasonable, does not warrant the granting of habeas relief in this instance. Several defense witnesses testified at trial that L.S. possessed a distinct propensity to lie or be untruthful, including the following individuals:
1. L.S.’s brother, Richard Olesen, who testified that [L.S.’s reputation in his family as far as telling the truth] was “not very good” and that “there were many instances where she didn’t tell the truth”, TTr 155-56;
2. L.S.’s former foster mother, Tassler, who testified that “like a lot of children, [I] didn’t trust her, didn’t believe anything she said” and further testified that “[L.S.] did *1575 a lot of lying to me, which I found out the truth was different.” 12 TTr 180;
3. L.S.’s aunt, Odenkoven, who testified that “[L.S.] could lie” and that she would do so on occasion, TTr 220;
4. L.S.’s mother, Marion Olesen, who testified that in her opinion, L.S. was “untruthful” and that this was her general way of conducting herself while she was at home, TTr 242; and
5. Olesen himself, who testified that, “I could not trust her with some of the things she told me”, TTr 272.
In addition, the trial transcript is replete with references to L.S.’s drug usage, prior emotional and psychological problems and suicide attempts. 13 TTr 61-133.
This Court concurs with the assessment of the South Dakota Supreme Court insofar as the same pertains to the prejudice prong of the Strickland test:
Although this was not a textbook example of direct examination, the issue of L.S.’s credibility was still presented for the jury’s determination....
These witnesses stated their opinion at trial and, considering the cumulative nature of this evidence, Olesen has not shown a situation where counsel’s performance was so deficient that the result of the trial is fundamentally unfair or unreliable. [Citations omitted].
Olesen II,
Based on the evidence adduced at trial and the totality of the circumstances present, this Court is unable to conclude that Olesen was prejudiced by trial counsel’s performance, that counsel’s performance actually had an adverse effect on Olesen’s defense or the ultimate outcome of the case, or that the performance undermined the result of the proceeding.
Strickland,
C. L.S. ’s Prior Inconsistent Testimony.
Because of irregularities, Olesen was indicted on three separate occasions before he was ultimately brought to trial. HR(1) 15;
Olesen II,
Olesen now claims that his trial counsel did not adequately cross examine L.S. about these inconsistencies. Docket Nos. 19 at 6 & 43 at 22-23. The trial transcript plainly indicates that counsel did cross examine L.S. about inconsistencies in her prior grand jury testimony. TTr 102-04, 116-17, 121-23;
see Olesen II,
Trial counsel brought out every significant area of impeachment available during his cross examination of L.S. at trial. HTr(2) 96-97,124r-26. L.S. was a believable witness to whom the jury was very sympathetic. Id. at 97,100,124426. As one of the prosecutors observed:
“I think [counsel] drew out the inconsistencies in [L.S.’s] testimony the best he could, but he was handcuffed, you know Campbell [the other prosecutor] got most of those things out the best we knew [on direct examination]; he did go after her on the date, which subsequently we discovered she was mistaken by a day, on the — that May day, there was a school graduation or something, and they beat her up over that. He was persistent, I don’t know how to put it, without going overboard.”
Id. at 125.
Trial counsel testified that he did his best to impeach L.S.,
id.
at 38, and felt that he went as far as he could without offending the jury.
Id.
at 29, 40. Counsel’s decision regarding the breadth of his cross examination of L.S. and her prior inconsistencies was a tactical one and, from counsel’s perspective at the time, would be considered “sound trial strategy.”
Strickland,
Nor would trial counsel’s exploitation of L.S.’s inconsistencies, most, if not all of which were explained during her direct examination at trial, have benefitted Olesen or had a significant effect on the outcome of the trial. HTr(2) 97-98, 124; TTr 61-85,
Strickland,
D. Angini Tapscott’s Opinion Testimony.
At trial, Olesen called numerous witnesses to impeach L.S.’s credibility. TTr 142-308.
*1577
Witnesses, including Olesen, testified about L.S. Is suicidal tendencies, drug usage, family problems, mental and physical maladies, and her lack of veracity.
Id.
Olesen even succeeded in eliciting testimony from L.S. herself about these matters. Id. at 85-126, 316-17. On rebuttal, the State called Angini Tapscott, a licensed psychologist and nurse, to describe symptoms suffered by women who have been sexually abused as children and to rehabilitate L.S.’s credibility. Id. at 319-21. Tapscott was allowed, without objection, to offer an opinion as to whether L.S. would fabricate a story involving sexual abuse.
14
Id.
at 322. Olesen asserts that trial counsel was constitutionally ineffective because counsel failed to object to Tapscott’s testimony. Docket Nos. 43 at 23-24 & 19 at 6-7. citing
United States v. Azure,
“SDCL 19-14-9 [ (1978) ] prohibits witnesses from infringing upon a jury’s function by testifying that another witness has testified truthfully.”
Olesen II,
Thomas,
[Tjhat one witness may not testify as to another witness’s truth or credibility or truth-telling capacity because such testimony would invade the exclusive province of the jury to determine the credibility of a witness.
Based on the evidentiary rules in existence at the time and applicable precedent, trial counsel should have objected to Tapscott’s testimony and the question asked which generated the same. “ ‘[I]t is horn-book law that the credibility of a witness and the weight to be given his testimony rests exclusively with the jury.’ ”
Azure,
Having found that the first prong of the
Strickland
test has been satisfied, this
*1578
Court must next determine whether trial counsel’s deficient performance prejudiced Olesen to the extent that it rendered the result of the trial unreliable or the proceeding fundamentally unfair.
Fretwell,
1. Whether the witness was an “impressively qualified expert,” see United States v. Roy,843 F.2d 305 , 308-09 (8th Cir.), cert. denied,487 U.S. 1222 ,108 S.Ct. 2881 ,101 L.Ed.2d 916 (1988); Azure, 801 F.2d at 340; Bachman,446 N.W.2d at 275 ; see also, Bachman v. Leapley,953 F.2d 440 , 441-42 (8th Cir.1992); McCafferty,944 F.2d at 453 ;
2. Whether the defense was able to counter the witness’s testimony through cross examination or otherwise; see Maurer,32 F.3d at 1289 ; Roy,843 F.2d at 309 ;
3. Whether the testimony was rather obscure and isolated, or repeatedly solicited and reemphasized during the trial, see Maurer,32 F.3d at 1289-90 ; Bachman,953 F.2d at 442 ; McCafferty,944 F.2d at 453 ; Provost,875 F.2d at 176 ; Roy,843 F.2d at 309 ;
4. Whether the testimony was offered in the prosecution’s case in chief or on rebuttal, see Olesen II,524 N.W.2d at 620 ;
5. Whether the evidence against the accused was overwhelming or close, see Maurer,32 F.3d at 1289-90 ; Adesiji v. State of Minnesota,854 F.2d 299 , 301 (8th Cir.1988), cert. denied,489 U.S. 1031 ,109 S.Ct. 1168 ,103 L.Ed.2d 226 (1989); Roy,843 F.2d at 309 ; Lybarger,497 N.W.2d at 105 ; Thomas,381 N.W.2d at 239 ;
6. Whether the trial court instructed the jury that it was the sole arbiter of credibility, see Bachman v. Leapley, 953 at 442; Adesiji,854 F.2d at 301 ; Roy,843 F.2d at 309 ; Lybarger,497 N.W.2d at 105 ; Bachman,446 N.W.2d at 275 ; Swallow,350 N.W.2d at 609 ;
7. Whether the testimony was persuasive, see Maurer,32 F.3d at 1289 ; Roy,843 F.2d at 309 ,
8. Whether the testimony was offered before or after the credibility of the victim was attacked, see McCafferty,944 F.2d at 453 ;
9. Whether the defense was able to elicit testimony from witnesses (including the accused him/herself) concerning the victim’s ' truthfulness, or lack thereof, and overall credibility, see McCafferty,944 F.2d at 454 ;
10. Whether the witness was asked directly to give an opinion as to either the truthfulness of the victim or the veracity of the victim’s story, see McCafferty,944 F.2d at 454 ; Provost,875 F.2d at 176 ; Raymond,540 N.W.2d at 408-11 & n. 4; Bachman,446 N.W.2d at 275 ; Thomas,381 N.W.2d at 239 ; Logue,372 N.W.2d at 154-58 ; Jenkins,260 N.W.2d at 513-14 ; and
11. Whether the prosecution violated any court rulings, misrepresented its intentions or otherwise acted in bad faith with respect to the testimony, see Raymond,540 N.W.2d at 408-11 & n. 3.
It must be remembered that “[m]ore than a finding of trial error or even of plain error is required to justify habeas relief on the basis of an evidentiary ruling.”
McCafferty,
Although by no means clear cut, this Court agrees with the holding of the South Dakota Supreme Court that trial counsel’s failure to object to Tapscott’s testimony did not result in a fundamentally unfair trial or a verdict that was suspect.
See Olesen II,
While Tapscott qualifies as being an expert under SDCL 19-15-2 (1978) (Fed.R.Evid. 702), she did not possess the “impressive” qualifications of the pediatrician in
Azure
and the foundation laid for her testimony was not lengthy or elaborate. TTr 319-20;
see Roy,
*1580
On balance, taking into account the factors set forth above in light of the entirety of the record, this Court is not convinced that trial counsel’s professional errors or the challenged testimony itself prevented the jury from properly weighing the evidence and resulted in a trial and verdict that were fundamentally unfair or unreliable.
Fretwell,
E. Cumulative Effect of Trial Counsel’s Errors.
Lastly, Olesen argues that the errors alleged in his amended petition, taken both individually and collectively, were prejudicial and “cast doubt on the fundamental fairness of the [trial] proceedings.” Docket No. 43 at 25-26. In
Harris v. Housewright,
Olesen’s argument, therefore, plainly has no merit.
REPORT AND RECOMMENDATIONS FOR DISPOSITION
After a careful review of the record in light of applicable precedent, this Court believes that Olesen is not entitled to relief under 28 U.S.C. § 2254 and that his amended petition must be dismissed. Accordingly, based on the foregoing findings of fact and legal discussion and pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), it is hereby
RECOMMENDED that the State’s Motion for More Definite Statement with Respect to Olesen’s Amended Petition for Writ of Habeas Corpus, Docket No. 29, be denied. It is further
RECOMMENDED that the State’s Motion to Dismiss Olesen’s Amended Petition for Writ of Habeas Corpus for Failure to Exhaust State Remedies or, in the Alternative, to Dismiss Two of Olesen’s Proeedurally Defaulted Claims, Docket No. 31, be denied as moot. 17 It is further
RECOMMENDED that Olesen’s Amended Petition for Writ of Habeas Corpus, Docket No. 19, be denied in all respects and dismissed with prejudice.
Dated Oct. 17,1996.
Notes
. PlaintifEflPetitioner, Jerry Lee Olesen, will be referred to as "Olesen” and Defendants/Respondents, Joe Class and Mark Barnett, will be referred to as "State”.
. The Honorable Charles B. Kornmann, United States District Judge, presiding.
. For cases involving statements of sexual abuse made by a child victim to a pediatrician during the course of an examination,
see Johnson v. Lockhart,
. With respect to the questions he asked and the answers L.Z. gave, Sutliff testified at trial as follows:
I asked her if she had ever been hurt around her bottom, and she replied that her daddy had hurt her. I then asked her where and she pointed to the vaginal area. I then asked if someone had, if her father had put his fingers in her and she nodded affirmatively. I then asked if it hurt and she again indicated affirmatively that it had hurt. I then asked her if she knew what a male organ was, what a penis was, and she indicated she knew the difference between the female and male and nodded that she knew what the male organ was. I think I referred to it as a male thing. She indicated she knew where that was located. I asked her if she had, if he had placed that in her and she indicated affirmatively again. I went through the questions a number of times to see that she didn't change her indications. She did not elaborate in detail, it was just, she did say that she had been hurt and when asked about the area, indicated that her vaginal area and nodded as I asked the questions.
TTr 45-46.
. The record reflects that Olesen had sexual intercourse with L.S. in her bedroom some time after she was released from the hospital in December, 1979. TTr 69-73. During the intercourse, L.S.'s mother was in the room, watching, laughing and urging Olesen on. Then, once Ol-esen had climaxed and got off L.S., her mother began rubbing Olesen until he obtained an erection and then proceeded to have sex with him in L.S.’s presence. Id. at 71-73.
. These statutes were subsequently transferred to another chapter of the South Dakota Code and now appear in § 26-8A-3, -8, -9,-10 (1991), respectively.
. In
Orelup,
the South Dakota Supreme Court cited to and relied on
Idaho v. Wright,
. The State concedes, as it must, that Olesen’s remaining claims were presented to and decided by the South Dakota Supreme Court,
see Olesen I,
.
Satter v. Leapley, 977
F.2d 1259 (8th Cir.1992), cited by the State, is inapposite. In
Satter,
unlike the case at hand, the state habeas court did not rule on the merits of petitioner's claim, but instead found that the same had been "defaulted for failure to assert it at the proper time and in the proper manner."
. In his amended petition for writ of habeas corpus, Olesen raised five ineffective assistance of counsel claims. Docket No. 19 at 5-7. He later abandoned two of these claims. Docket No. 43 at 25.
. In fact, the record reflects that trial counsel and Mills were staying at the same motel in Philip during the trial and that counsel waited until one minute before Mills testified to talk to him and then only asked him if he had lived with Olesen and when he did so. HTr(l) 24-26.
. Although an objection to the latter statement, after it was made, was interposed and subsequently sustained by the trial court, no motion or request was ever made to have the statement stricken from the record or to have the jury admonished not to consider the same. TTrl80.
. Prior to trial, trial counsel sought to offer evidence of L.S.'s prior sexual behavior to attack her credibility. TTr 6-14. The trial court ruled that evidence of L.S.’s past sexual activity was not admissible, presumably under the State's rape shield statute. See SDCL 23A-22-15. TTr 14.Despite this ruling, counsel attempted to and succeeded in getting in evidence that L.S. had been sexually molested or raped by someone other than Olesen, TTr 186, but following an in chambers conference, this evidence was stricken and the jury was admonished not to consider it.
. Specifically, the trial transcript reflects that the following exchange took place between one of the prosecutors and Tapscott:
Q: Now, based on your education, your experience in the area of working with sexually abused people and all the time that you have spent with [L.S.], do you have an opinion as to whether or not [L.S.] would fabricate a story involving sexual abuse?
A: No, she would not.
TTr 322.
. In 1993, the South Dakota Supreme Court did away with the Ultimate Fact Doctrine and adopted SDCL 19-15-4 (Fed.R.Evid.704) which states as follows:
Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
The South Dakota Supreme Court, however, has emphasized that the new rule does not mean all expert opinion on the ultimate issue is admissible.
State v. Raymond,
. This instruction, taken from the South Dakota Criminal Pattern Jury Instructions, reads as follows:
A person is qualified to testify as an expert if he has special knowledge, skill, experience, training or education sufficient to quality him as an expert on the subject to which his testimony relates.
Qualified experts may give their opinions on questions in controversy at the trial. To assist you in deciding such questions, you may consider the opinion with the reasons given for it, if any, by the expert who gives the opinion. You may also consider the qualifications and credibility of the expert. You are not bound to accept an expert's opinion as conclusive, but should give to it the weight to which you find it to be entitled. You may disregard any such opinion if you find it to be unreasonable.
SDPJI (Crim) 1-15-5.
. This recommendation is based primarily on Olesen's abandonment of the same two ineffective assistance of counsel claims (grounds iv and v in his amended petition, see Docket No. 19 at 71 as the State, in its dismissal motion, alleges are unexhausted and/or proeedurally defaulted, see Docket Nos. 31, 32. See also, ante at 1573, n. 10.