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Ramsey v. B[E]Rtsch

United States District Court, D. North Dakota

March 6, 2015

Terry D. Ramsey, Petitioner,
v.
Leeann B[e]rtsch, Director, NDDOCR, Wayne Stenehjem, NDAG, and State of North Dakota, Respondents.

REPORT AND RECOMMENDATION

ALICE R. SENECHAL, Magistrate Judge.

Terry D. Ramsey ("Ramsey") filed a petition for habeas relief under 28 U.S.C. § 2254 alleging that he received ineffective assistance of counsel, and that he can prove he is actually innocent of the crime for which he was convicted - gross sexual imposition - because the victim has recanted her testimony. (Doc. #1). The court determined Ramsey had alleged cognizable claims and ordered service upon the respondents. (Doc. #6). The respondents filed a response and a motion to dismiss the habeas petition. (Doc. #7, Doc. #8). Ramsey has responded to the motion to dismiss. (Doc. #11).

Summary of Recommendation

Ramsey's claims in his petition for habeas relief are barred by the statute of limitations, he is not entitled to equitable tolling, and he has not established that he is actually innocent of the crime for which he was convicted. It is RECOMMENDED that respondents' motion to dismiss (Doc. #8) be GRANTED, and that Ramsey's petition for habeas relief (Doc. #1) be DISMISSED with prejudice.

Background

1. Trial Proceedings and Appeal

A jury found Ramsey guilty of gross sexual imposition. (Doc. # 2-3, pp. 21-25; Resp. Ex. #4). Judgment was entered on December 22, 2003. Id . The North Dakota Supreme Court affirmed the criminal judgment on February 22, 2005. State v. Ramsey, 2005 ND 42, 692 N.W.2d 498. Ramsey did not file a petition for a writ of certiorari to the United States Supreme Court.

On appeal, the North Dakota Supreme Court recited the following facts:

Terry Ramsey ("Ramsey") and his brother Neil Ramsey ("Neil") were separated in childhood from their half-sister. The brothers were reunited with their sister and her two daughters in the late 1990's and began to spend time together as a family. In mid-June of 2001, one of the daughters, ("Jane, " a pseudonym), then age 10, and her sister spent a week with Ramsey and his brother at the Ramsey family farm in North Dakota. On June 16, the girls returned to their home in Wyoming for a few weeks before joining Ramsey and his family at their home in Florida on July 4, 2001.
While in Florida, Ramsey's wife, Valerie Ramsey ("Valerie"), discovered Ramsey in a locked bathroom with Jane. Ramsey was touching Jane's vaginal area while applying a yeast infection medication that she frequently applied to herself without assistance. Valerie confronted Ramsey, and after a brief argument, Ramsey left the family home. The next day, Jane told Valerie that Ramsey had touched her breasts and vagina on more than one occasion during the week she spent in North Dakota. Jane said that Ramsey explained the touching by claiming he thought Jane was his wife and that he told her if she told anyone she would not be allowed to travel to Florida.
Valerie then notified Jane's mother, who asked that Valerie report the situation to the local police. Both the North Dakota and Florida incidents were reported to local authorities in Florida, including a deputy sheriff and a sex crimes investigator. After being advised to do so by officials in Florida, Jane's mother reported the situation to the appropriate authorities in North Dakota. A warrant was issued in North Dakota, and Ramsey was arrested.

Id. at ¶¶ 2-5, 501.

The North Dakota Supreme Court's recitation of the facts is consistent with the trial testimony. Jane testified at trial that Ramsey touched her inappropriately on two occasions in North Dakota. Jane said that on the first occasion, Ramsey had asked to lay with her, and that during the night he touched her breasts and digitally penetrated her vagina. (Resp. Ex. #19B, pp. 117-118). Jane stated that she woke Ramsey up, that he told her that he had thought she was her Aunt Val (Ramsey's wife), and that the next day he apologized to her. Id. at pp. 118-19. Jane testified that on the second occasion, when she was sleeping with Ramsey because she had seen a mouse, Ramsey was naked, and that he again touched her breasts and digitally penetrated her vagina. Id. at p. 121. Jane stated that Ramsey told Jane that if she told anyone she would not be allowed to go to Florida. Id. at p. 123.

Jane also testified that in Florida, after she took a shower, Ramsey came into the bathroom with a medicinal cream and applied it to her vagina. Id. at p. 134. Jane said that Ramsey was "overdoing it, " and that her Aunt Val knocked on the door and an argument ensued between her Aunt Val and Ramsey. Id . Jane testified that she was able to apply the cream herself, that she had thought Aunt Val would help her, but that Ramsey told her that Aunt Val was too busy. Id. at pp. 134-35, 141. Jane also testified that other adult women were in the home at the time. Id. at p. 135. Jane further testified that Aunt Val never told her what to say, and that she was telling the truth in her trial testimony. Id. at pp. 136, 145.

Andrea Eagon ("Eagon"), the officer who responded after the Florida incident was reported, testified that she spoke with Jane alone two days after that incident. Id. at pp 150-153. At trial, Eagon testified about what Jane had told her during their meeting. Id . Eagon's testimony was consistent Jane's trial testimony. Additionally, Eagon stated that she did not see Valerie tell Jane what to say, and that Jane "advised [Eagon] over and over again that she told [Ramsey] that she did not want him to do that" in reference to Ramsey applying the cream. Id.

Gloria Porter ("Porter"), an investigator in the Sex Offender and Child Abuse Division of the State's Attorney's Office in Florida, testified that she spoke with Jane alone five days after the Florida incident. Id. at pp. 171, 175. Porter determined that Jane knew the difference between the truth and a lie. Id. at p. 175. She stated that Jane promised to tell the truth, that Jane appeared to be honest and truthful, and that there was no indication that Jane was being deceptive. Id. at pp. 175, 177, 181. Porter testified that Jane told Porter about the incident in Florida and about the two incidents in North Dakota. Id. at pp. 178-80. Porter's testimony about what Jane had told her was consistent with Jane's trial testimony. Additionally, Porter testified that she did not witness Valerie tell Jane what to say, and that Valerie appeared to be in shock and disbelief about what had happened. Id. at pp. 174, 176-77.

Valerie testified that Ramsey had been drinking all day before the incident in Florida, that after the incident he left their home and took a gun. Id. at pp. 206-07. Valerie testified that she, the children and other relatives then went to a hotel, and that when they returned the next day the gun was at the home and Ramsey had left a letter. Id. at pp. 207-08, 211, 219. Valerie's testimony confirmed that in the letter, Ramsey "indicat[ed]" that he had "caused irreparable damage" and that "he really blew it this time." Id. at p. 221. Valerie testified that the day after the incident, Jane told her about what had transpired in the bathroom and about one of the incidents in North Dakota. Id. at pp. 209-211, 216. Valerie's testimony about what Jane had told her was consistent with Jane's trial testimony. Valerie testified that she had not told Jane what to say at any time, or what to say to Eagon and Porter. Id. at pp. 208, 223-24. Valerie testified that a disk with child pornography was later found in Ramsey's desk at his job. Id. at p. 238. She also testified that, as a result of the incidents, Valerie filed for bankruptcy, lost her home, and lost her husband and the father to their son. Id. at p. 242.

Kim Jones ("Jones"), Jane's mother, testified that Jane was distant and clingy when she came home from North Dakota, that Jane had been homesick, and that Jane acted bizarre at the airport when she was leaving for Florida. Id. at pp. 77-80, 93-95. Jones also stated that Jane knew how to apply the vaginal cream herself and would not have required assistance. Id.

Rick Hilzendager ("Hilzendager"), a Special Agent who interviewed Ramsey after his arrest, testified that Ramsey stated that Jane called him into the bathroom in Florida and she locked the door, that he told Jane how to apply the cream herself, that when his wife knocked on the door she was angry, and that he then grabbed a gun and left the home. Id. at pp. 244, 249. Hilzendager testified that Ramsey admitted that Jane asked if she could sleep with him on one occasion, that they laid down together in a bed, and that after Jane fell asleep he left and went to a different bed. Id. at p. 248. Hilzendager also stated that Ramsey denied any sexual contact with Jane, that Ramsey stated that he and Valerie were going through a divorce, that Valerie was trying to get even with him, and that Valerie said she would make his life hell. Id. at pp. 248-49, 254.

Jennifer Harrington ("Harrington"), Valerie's adult daughter, testified that after Ramsey came back from North Dakota he made a comment about Jane's breasts having grown. Id. at p. 259. Harrington testified that when Jane was in Florida, Ramsey "doted on Jane, " that Ramsey was drunk the night of the Florida incident, and that they (presumably Jennifer, Valerie, the children, and Valerie's sister and her family), decided to go to a hotel after they discovered a gun was missing from the home. Id. at pp. 260-63. Harrington also stated that she did not witness Valerie, or anyone else, tell Jane what to say, and she stated that Valerie acted "very shocked and sad" through the entire weekend after Valerie had discovered Ramsey in the bathroom with Jane. Id. at p. 263, 265.

Dr. Steven Thurber ("Thurber"), a defense expert psychologist who testified about children's suggestibility, and about other issues involving interviewing children who have alleged sexual abuse, reviewed a video-taped interview of Jane.[1] (Resp. Ex. #19C, pp. 279-374). The video-taped interview was played to the jury. Thurber testified that the video-taped interview of Jane was highly structured, leading questions were utilized, and competing explanations were not explored. Id. at pp. 303, 305, 310-14, 345. It was Thurber's opinion that the standards for interviews of child sexual abuse victims was not followed, and that many questions remained as to whether Jane's interview statements were accurate. Id. at p. 330. However, Thurber admitted that once a child reaches the age of ten, the child is no more suggestible than an adult. Id. at pp. 336-37. He acknowledged that if there is minimal contact between the child and the person to whom the child discloses sexual abuse, as was the case with Jane and Valerie - who were only together for a couple of days - then the child is less subject to suggestibility. Id. at p. 345. Thurber also admitted that while he "saw leading questions" on the videotape, he also "saw [Jane] resist some leading questions" by answering "no" to a number of questions. Id. at pp. 336-337, 345. When Thurber was asked whether Jane corrected the interviewer "in a number of different portions of the videotape" when the interviewer made incorrect statements, Thurber stated, "That happened. Yes." Id. at p. 349. Thurber admitted that resisting leading questions and correcting the interviewer "can be an indication" that the child is credible and giving truthful answers. Id.

The jury also heard testimony from Ramsey's brother, Neil, who testified that he did not see Terry in bed with Jane while they were in North Dakota, and that Ramsey and Valerie had marital problems. (Resp. Ex. #19D, pp. 408, 411, 413-14, 427-430). In addition, the jury heard testimony from Ramsey's mother, who stated that she did not notice anything different about Jane when she was in North Dakota. Id. at p. 452. The state called a few rebuttal witnesses, and after considering all the testimony, the jury ...


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