United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 99-3480

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William Frank Loeblein, *

*

Appellant, *

*

v. * Appeal from the United States

* District Court for the Eastern

Dave Dormire, * District of Missouri.

*

Appellee. *

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 Submitted: September 13, 2000

 Filed: October 24, 2000

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Before HANSEN, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

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MORRIS SHEPPARD ARNOLD, Circuit Judge.

William Frank Loeblein was convicted in Missouri state court of two counts of

first-degree sexual assault, see Mo. Ann. Stat. § 566.040 (1977) (amended 1994), and

four counts of first-degree deviate sexual assault, see Mo. Ann. Stat. § 566.070 (1977)

(amended 1994), on the basis of incidents that involved his daughter, "E.M." After the

Missouri Court of Appeals upheld his convictions, see State v. Loeblein, 934 S.W.2d

557 (Mo. Ct. App. 1997) (per curiam), Mr. Loeblein petitioned for habeas corpus relief
1The Honorable Jean C. Hamilton, Chief Judge, United States District Court for

the Eastern District of Missouri.

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in federal court. See 28 U.S.C. § 2254(a). The district court1 denied the petition but

issued a certificate of appealability on several issues. Mr. Loeblein appeals, and we

affirm the judgment of the district court.

I.

Mr. Loeblein first argues that his prosecution was time-barred by the applicable

Missouri statute of limitations. We may not grant a habeas petition, however, unless,

as relevant to this case, we conclude that the state court adjudication of the relevant

claim "resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law as determined by the Supreme Court,"

see 28 U.S.C. § 2254(d)(1); see also Williams v. Taylor, 120 S. Ct. 1495, 1518-23

(2000). 

Mr. Loeblein has no federal claim here, because a state court's failure properly

to apply a state statute of limitations does not violate due process or, indeed, any other

provision of the Constitution or a federal statute. Cf. Plaut v. Spendthrift Farm, Inc.,

514 U.S. 211, 229 (1995); United States v. Lyon, 567 F.2d 777, 781 (8th Cir. 1977),

cert. denied, 435 U.S. 918 (1978).

II.

Mr. Loeblein also maintains that his convictions violated due process because

there was insufficient evidence to sustain them. See Jackson v. Virginia, 443 U.S. 307,

321 (1979). He claims that E.M.'s testimony, the primary evidence against him, often

contradicted previous out-of-court statements that she made. For example, his sexual

assault convictions were based on E.M.'s testimony that he had penetrated her vagina

with his penis. E.M. admitted in court, however, that she had told her therapist that no

vaginal intercourse had taken place.
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Our review of this claim "is limited to determining 'whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt' " (emphasis

in original), Gibbs v. Kemna, 192 F.3d 1173, 1175 (8th Cir. 1999), cert. denied, 2000

WL 723291 (U.S. Oct. 2, 2000), quoting Jackson, 443 U.S. at 319. 

Applying this standard, we find that there was sufficient evidence to sustain

Mr. Loeblein's convictions. E.M. testified that Mr. Loeblein performed acts that

conform to the elements of each crime charged. It is true that E.M.'s testimony did not

correlate precisely with some of her out-of-court statements; but a witness's

inconsistencies simply raise an issue of credibility, and the trier of fact is entitled to

make the ultimate decision of whether testimony is to be believed. See Barger v.

United States, 204 F.3d 1180, 1182 (8th Cir. 2000). We cannot say that no rational

trier of fact would have believed E.M., and the state trial court in this case apparently

did believe her. A victim's testimony is, by itself, normally sufficient to sustain a

conviction. See United States v. Wright, 119 F.3d 630, 634 (8th Cir. 1997). We

therefore find that the evidence was sufficient to sustain Mr. Loeblein's conviction and,

consequently, that the decision of the state courts was neither contrary to nor involved

an unreasonable application of federal law. See 28 U.S.C. § 2254(d)(1).

Mr. Loeblein further contends that Missouri law requires that E.M.'s testimony

be corroborated before he can be convicted of the crimes with which he was charged.

We could not grant habeas relief on this ground, even if it were meritorious in the

abstract, because, as noted earlier, we may grant relief only for unreasonable

applications of federal law. We have previously held that a "corroboration requirement

is a matter of state law which does not implicate a constitutional right cognizable on

habeas review," Redding v. Minnesota, 881 F.2d 575, 578 (8th Cir. 1989), cert.

denied, 493 U.S. 1089 (1990). As there is no federal issue, the state trial court's failure

to require corroboration is not a ground for habeas review.
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III.

Mr. Loeblein's third claim for relief is that his convictions violated the double

jeopardy clause of the fifth amendment. Although he was convicted of two counts of

sexual assault in the first degree and four counts of deviate sexual assault in the first

degree, he contends that the evidence presented supports at most one count of each

charge and that the prosecution separated what were single courses of conduct into

multiple charges. Mr. Loeblein therefore claims that he received " 'multiple

punishments for the same offense' " in violation of the fifth amendment, Ohio v.

Johnson, 467 U.S. 493, 497-98 (1984), quoting Brown v. Ohio, 432 U.S. 161, 165

(1977).

Mr. Loeblein's convictions were based upon two incidents with his daughter.

E.M. testified that her father asked her to remove her clothing and to sit on the edge of

a desk, at which time he inserted the head of his penis into her vagina. When she

screamed, he removed his penis. He then said, "Oh baby, let me try it one more time.

If you just relax, it won't hurt as bad," and reinserted his penis into E.M.'s vagina. She

screamed and he again removed his penis from her. E.M. also testified to an incident

in the shower where her father forced her to perform oral sex on him, placed her hand

on his penis, inserted his fingers into her vagina, and then performed oral sex on her.

We must determine whether the decision of the state courts that these

convictions did not violate the double jeopardy clause was unreasonable under existing

Supreme Court precedent. See 28 U.S.C. § 2254(d)(1). The Supreme Court's

decisions in Blockburger v. United States, 284 U.S. 299 (1932), and In re Snow, 120

U.S. 274 (1887), are particularly relevant to the question of when contemporaneous

multiple charges may be brought for closely related occurrences. In Blockburger, 284

U.S. at 301-02, the Court determined that illegal drug sales that occurred on

consecutive days could, consistent with the fifth amendment, be prosecuted separately.

The key question was whether the crimes charged were inherently continuous or

consisted of isolated acts. Id. at 302. The Court contrasted this with In re Snow,
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where a man was convicted of three counts of cohabitating with more than one woman.

Id. The cohabitation occurred over a three-year period, and each conviction was based

on one year of that period. See In re Snow, 120 U.S. at 275-76. The Court determined

that only one conviction could stand, as cohabitation was, "inherently, a continuous

offence, having duration; and not an offence consisting of an isolated act," id. at 281.

At the relevant time, Missouri law defined sexual assault as "sexual intercourse

with another person to whom he is not married and who is incapacitated or who is

fourteen or fifteen years old," see Mo. Ann. Stat. § 566.040.1 (1977) (amended 1994).

Sexual intercourse, in turn, was defined at the relevant time as "any penetration,

however slight, of the female sex organ by the male sex organ" (emphasis supplied),

see Mo. Ann. Stat. § 566.010(3) (1991) (amended 1994). The evidence supports a

finding that Mr. Loeblein penetrated E.M., withdrew from her, announced his intention

to penetrate her again, and then did so. Sexual assault under Missouri law is not

inherently a continuous crime, as any penetration, however brief, suffices to meet the

definition. We therefore find that the state courts were not unreasonable in determining

that two convictions for two sexual assaults did not violate the double jeopardy clause.

The same is true for the four charges of deviate sexual assault. Deviate sexual

assault was defined at the relevant time as having "deviate sexual intercourse with

another person to whom he is not married and who is incapacitated or who is fourteen

or fifteen years old," see Mo. Ann. Stat. § 566.070.1 (1977) (amended 1994). Deviate

sexual intercourse, in turn, was defined at the relevant time as "any sexual act involving

the genitals of one person and the mouth, tongue, hand, or anus of another person," see

Mo. Ann. Stat. § 566.010(1) (1991) (amended 1994). The evidence here supports a

finding that Mr. Loeblein violated Missouri law by placing his penis inside E.M.'s

mouth, again by placing her hand on his penis, a third time by touching her vagina with

his fingers, and finally by touching her vagina with his tongue. Under Missouri law,

"[w]here there is sexual contact with various parts of the body of the victim, each

represents a separate and distinct offense, even though they arose from the same set of
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circumstances or same transaction," State v. Wilkins, 872 S.W.2d 142, 146 (Mo. Ct.

App. 1994). Because the crime of deviate sexual assault is not inherently continuous,

we cannot say that the resolution by the state courts of Mr. Loeblein's double jeopardy

claim with respect to the deviate sexual assault charges was unreasonable. 

IV.

Mr. Loeblein also argues that his appellate counsel was ineffective for failing to

make a confrontation clause argument based on events that occurred at trial. The

victim, E.M., had been diagnosed with a multiple personality disorder, which caused

her to hear voices in her head correlating to various personalities. On

cross-examination, E.M. testified that one of the personalities, "Mandy," had suffered

most of the abuse, while another personality, "Emma," was testifying in court. No

attempt was made by Mr. Loeblein's trial counsel to speak specifically to either of these

personalities, and his trial counsel raised no sixth amendment objection to E.M.'s

testimony. Mr. Loeblein contends that because Mandy was the personality who

endured the alleged abuse, only Mandy could testify about it. Allowing Emma to

testify to the abuse suffered by Mandy violated his right to confront Mandy,

Mr. Loeblein argues, and his appellate counsel's failure to raise this issue fell below the

level of advocacy expected of effective counsel.

Mr. Loeblein relies on Olesen v. Class, 164 F.3d 1096 (8th Cir. 1999), to

support his argument. In Olesen, 164 F.3d at 1100-01, see also id. at 1097-98, we

found that allowing a therapist, instead of the alleged victim, to testify to sexual abuse

violated the defendant's sixth amendment right of confrontation. Mr. Loeblein's case,

however, differs significantly from Olesen, because here the victim herself testified to

the alleged abuse. It is true that the expert witness in this case testified that the various

personalities of persons with multiple personality disorders often do not have the same

personal knowledge of what happened to the person; and thus, if the expert's testimony

is believed, it is possible that E.M., as Emma, testified to information that she had only

heard from Mandy.
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The infirmity in Mr. Loeblein's argument is that it depends entirely on the state

trial court's having believed the expert's testimony. We do not know whether or not the

court did so, but the court was free to reject it, and Mr. Loeblein has the burden of

proving that the court did not reject it, which he cannot do. We note, too, that none of

E.M.'s testimony indicated that she did not have firsthand knowledge of everything to

which she testified. Her testimony was in the first person, saying that the abuse

happened to her, not that it had happened to Mandy. She was also fully aware of the

details of the abuse about which she testified. The record, therefore, supports a

conclusion that E.M. was personally aware of everything to which she testified.

In evaluating confrontation clause claims, we ask if "the defendant [had] 'ample

opportunity to discredit' the testimony of the relevant witness," United States v. Hall,

171 F.3d 1133, 1146 (8th Cir. 1999), cert. denied, 120 S. Ct. 1437 (2000), quoting

United States v. Brown, 110 F.3d 605, 611 (8th Cir. 1997). It seems apparent to us

that the relevant witness was E.M., as she was the individual who testified to having

suffered the abuse. Mr. Loeblein's trial counsel seems to have been able to conduct a

full cross-examination of E.M. He challenged her on numerous details of her testimony

and was never met with the response that only Mandy knew the answer to a question.

Because Mr. Loeblein had the opportunity to discredit E.M.'s testimony, we find no

confrontation clause violation. As there was no violation, Mr. Loeblein could not have

been prejudiced by his appellate counsel's failure to raise this issue on appeal. See

Strickland v. Washington, 466 U.S. 668, 687 (1984). There was nothing unreasonable

about the Missouri courts' rejection of this claim, therefore, and consequently we deny

it.

 

We have considered Mr. Loeblein's other claims and find them to be without

merit.
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V.

For the foregoing reasons, we affirm the judgment of the district court.

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.