Clifton A. Gabaree, Jr., Petitioner - Appellee
Troy Steele, Warden, Respondent - Appellant; Clifton A. Gabaree, Jr., Petitioner - Appellant
Troy Steele, Warden, Respondent - Appellee
Submitted November 13, 2014.
Appeals from United States District Court for the Western District of Missouri - Kansas City.
For Clifton A. Gabaree, Jr., Petitioner - Appellee (13-3486): Elizabeth Unger Carlyle, Kansas City, MO.
Clifton A. Gabaree Jr., Petitioner - Appellee (13-3486), Pro se, Mineral Point, MO.
For Troy Steele, Warden, Respondent - Appellant (13-3486): Gregory Michael Goodwin, Assistant Attorney General, Stephen David Hawke, Assistant Attorney General, Attorney General's Office, Jefferson City, MO.
For Clifton A. Gabaree, Jr., Petitioner - Appellant (13-3568): Elizabeth Unger Carlyle, Kansas City, MO.
Clifton A. Gabaree Jr., Petitioner - Appellant (13-3568), Pro se, Mineral Point, MO.
For Troy Steele, Warden, Respondent - Appellee (13-3568): Gregory Michael Goodwin, Assistant Attorney General, Stephen David Hawke, Assistant Attorney General, Attorney General's Office, Jefferson City, MO.
Before BYE, SHEPHERD, and KELLY, Circuit Judges. SHEPHERD, Circuit Judge, dissenting from Part II.A.
KELLY, Circuit Judge.
Clifton Gabaree, a Missouri inmate, petitioned the district court for a writ of habeas corpus, 28 U.S.C. § 2254. The court concluded that Gabaree's trial counsel had rendered ineffective assistance and granted Gabaree's petition in part and denied it in part. The State appeals the partial grant of relief, and Gabaree appeals the partial denial. We agree with the district court's conclusions and affirm the judgment.
In 1992, Gabaree began living with a woman who had two daughters, B.S. and A.S. Gabaree and the woman later had two children together, M.G. and B.G. In December 1996, B.S., A.S., and M.G. told an employee of the Missouri Department of Social Services that Gabaree was physically abusing them and B.G. The children " had marks, burns, and bruises consistent with the physical abuse they described; they were dirty and covered with untreated scratches and scrapes." Gabaree v. State, 290 S.W.3d 175, 177 (Mo.Ct.App. 2009). Dr. James Kelly, a pediatric physician, examined the children and determined that the marks had been inflicted intentionally.
Six-year-old B.S. also told a social worker that Gabaree had " put his 'thingy' and finger inside of her bottom 'a long time ago,' when she was three years old."
Gabaree, 290 S.W.3d at 177. B.S. said she saw Gabaree doing the same thing to A.S.; but A.S., who then was five years old, told the social worker that Gabaree had not " given her or her sister a bad touch." Id. Yet A.S. had told her mother that Gabaree had " played with her privates with Q-tips when she and the other children were playing hide-and-go-seek with him." Id. The daughters later gave videotaped interviews at the Child Protection Center in Missouri. B.S. again told the interviewer that Gabaree had " put his 'private' in A.S.'s 'back private'" and had " put his finger in her front private and made her 'suck his private.'" Id. A.S. this time said Gabaree had " touched her 'butt' and 'pee pee' with a belt and his hand." Id. Both girls were examined for physical evidence of sexual abuse, but no evidence was found.
Gabaree was arrested and charged with three counts of statutory sodomy, three counts of first-degree child molestation, and six counts of child abuse. A jury found him guilty of all 12 counts, and the Missouri Court of Appeals upheld his convictions. On post-conviction review, however, the trial court granted Gabaree relief on his claim of ineffective assistance of trial counsel. The post-conviction court concluded that Gabaree's trial attorney had failed to impeach the girls by introducing statements they had made recanting their allegations of sexual abuse. The court concluded that counsel's performance prejudiced Gabaree and ordered the State to retry him.
Gabaree's second trial took place in 2003. At the trial, B.S. testified that Gabaree had sex with her when she was between three- and seven years old and that it " 'felt like being in hell.'" Gabaree, 290 S.W.3d at 179. B.S. also said she saw Gabaree having sex with her sister, A.S., who testified that Gabaree had " touched her 'private part' with his hands." Id. Gabaree testified in his defense that he did physically discipline the children but explained that he did not do so in an abusive manner. He denied any sexual abuse but testified that he, his ex-wife (the mother of all the children), and the girls had bathed naked together and that during those baths, he may have had an erection that touched the girls. He suggested that the contact made during the baths may have led the girls to believe that they had been molested. The attorney for the State asked Gabaree on cross-examination if he had " leaned back and smiled . . . kind of reliving this experience" when describing the possible sexual ...