Cory Welch v. Randall Hepp , 793 F.3d 734 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1164
CORY M. WELCH,
Petitioner-Appellant,
v.
RANDALL HEPP,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 12-CV-683 — Nancy Joseph, Magistrate Judge.
____________________
ARGUED APRIL 29, 2015 — DECIDED JULY 14, 2015
____________________
Before BAUER, MANION, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Cory Welch was convicted by a
jury of eight counts of armed robbery, conspiracy, fleeing an
officer, and misdemeanor bail-jumping. Forty-two witnesses
testified against him, including twelve police officers. Two
officers in their testimony referred to other criminal charges
against Welch. After exhausting his appeals in the state
courts, Welch filed a petition under 28 U.S.C. § 2254 assert-
ing that the admission of those statements violated his right
2 No. 14-1164
to a fair trial and that his counsel was ineffective for not con-
testing them. The district court denied relief.
The Wisconsin appellate court had concluded that any
error in admitting the two officers’ statements would have
been harmless because of the quantity and quality of evi-
dence against Welch. We certified the fair-trial question for
appeal under 28 U.S.C. § 2253(c). We conclude that the Wis-
consin appellate court’s decisions on both the ineffective-
assistance and fair-trial issues were reasonable, so we affirm
the district court’s judgment.
I. Factual and Procedural Background
For several weeks a band of armed men were robbing
restaurants and businesses in a Milwaukee neighborhood.
The robbers wore dark sweatshirts and ski masks, and car-
ried backpacks or duffel bags. One night, police officers saw
three men approach a store. They wore dark clothing, with
hoods pulled down over their faces. One was carrying a
backpack. One of the men attempted to enter the store while
the other two flanked the building and watched the street.
They found the doors locked and fled. As police officers pur-
sued the men, two jumped into a running green Buick Sky-
lark driven by yet a fourth person. The third would-be rob-
ber fled on foot.
The men in the car led police on a high-speed chase, but
police soon arrested them and confiscated the car, which
turned out to be registered to Welch. Other officers went in
search of the man who had not made it into the getaway car.
They discovered Welch hiding under a car near the store.
Welch first told them he had been carjacked, but he later said
he had been “unwittingly duped into being the getaway
No. 14-1164 3
driver.” State v. Welch, 800 N.W.2d 957, ¶ 25 (Wis. App. 2011)
(Table). Police searched the car and discovered a backpack,
two ski masks, two dark hooded sweatshirts, and a pair of
leather gloves.
Welch eventually was charged with sixteen crimes stem-
ming from the string of robberies. See Welch, 800 N.W.2d
957, ¶ 2. The charges were severed into two trials. In his first
trial, a jury found him guilty of all four counts. In the second
trial—the one relevant to this appeal—a jury found him
guilty of eight counts of armed robbery. The second trial
took nine days. The jury heard testimony from three of
Welch’s accomplices, five other witnesses who testified about
details that linked him to the robberies, two forensic experts,
twelve police officers, and twenty robbery victims. The ac-
complices identified Welch as a participant in five of the
robberies. They also testified that Welch had bragged that he
had committed 46 robberies, bought his car with robbery
proceeds, and called it “the Moneymaker” because he used
it to escape robberies.
A number of witnesses testified about how the robberies
of their respective businesses occurred, including that they
were committed by two black men—one of whom matched
Welch’s height and weight—wearing ski masks and hoodies,
and carrying duffel bags or backpacks. Witnesses also identi-
fied a green Buick Skylark at the scenes of the robberies.
Police officers testified that they had searched the car and
found two ski masks inside. Forensic experts testified that
both masks had DNA almost certainly belonging to Welch
on them. One witness also testified that the robber shot at
the floor during a robbery. A forensic expert later testified
that shell casing found in the store matched the gun that
4 No. 14-1164
Welch’s girlfriend testified he had taken from her and re-
fused to give back. (The gun had been thrown out of “the
Moneymaker” during the police chase but was later re-
trieved by police.)
During the second trial, two police officers, Officers
Simmert and Huerta, made the statements that are the basis
of this appeal. In response to questioning by defense coun-
sel, Officer Simmert said: “Based on the things that I know
about him, his character, the crimes that I know he’s commit-
ted, I took a look in the car to make sure that nothing was
secreted.” Officer Huerta stated (incorrectly): “Yes, I believe
that we were in another proceeding with the defendant,
Cory Welch, where he was on trial for about 11, 12 other
robberies ... .” Neither side objected to these statements.
After a series of appeals in state court, Welch moved for
post-conviction relief on the grounds, as relevant here, that
he was denied the right to a fair trial because the officers’
statements had been unfairly prejudicial, and that his trial
and post-conviction counsel were ineffective for failing to
move for a mistrial because the officers’ statements had de-
prived him of a fair trial. He asserted that the jury would
have reached a different verdict absent those statements.
The Wisconsin appellate court denied relief. Welch, 800
N.W.2d 957, ¶ 28. The court assumed for purposes of argu-
ment that defense counsel erred by failing to ask for a mis-
trial or raise the mistrial issue later, but found no prejudice,
as would be needed for relief under Strickland v. Washington,
466 U.S. 668, 687 (1984). Welch, 800 N.W.2d 957, ¶¶ 20–28.
The court also evaluated whether the judge erred by allow-
ing the evidence. Citing several cases from Wisconsin, see
State v. Williams, 644 N.W.2d 919, 931 (Wis. 2002), the court
No. 14-1164 5
applied a harmless-error analysis and reviewed whether the
error contributed to the conviction. Welch, 800 N.W.2d 957,
¶¶ 22–28. The court cited the litany of evidence against
Welch, including his changing story about why he was hid-
ing under the car, his accomplices’ identifications of him as a
co-conspirator, his bragging about committing the robberies,
his DNA on the two ski masks, and his ownership of “the
Moneymaker.” Welch, 800 N.W.2d 957, ¶¶ 23–28. The court
concluded that if there was any error, it did not influence the
verdict.
Welch petitioned in federal court for a writ of habeas
corpus under 28 U.S.C. § 2254. The district court denied his
petition and declined to issue a certificate of appealability.
We granted a certificate of appealability for the question
whether Welch’s right to a fair trial was violated by the offic-
ers’ improper statements.
II. Analysis
As an initial matter, the parties disagree about how we
should construe Welch’s claim. The state argues that Welch
failed to raise the fair-trial claim in any of his state court pro-
ceedings and thus has defaulted federal review of it. In oral
argument, the state conceded that Welch had exhausted the
claim whether he was denied a fair trial when the jury was
exposed to the prejudicial information, but maintained that
Welch never raised the question whether the judge’s actions
in admitting the evidence denied him a fair trial. We will not
split hairs that finely. In either case Welch argued that the
officers’ statements made his trial unfair. He exhausted state
remedies for the fair-trial claim.
6 No. 14-1164
The parties debate whether Welch’s trial and appellate
counsel were constitutionally ineffective for failing to argue
that Welch had been denied a fair trial. But we did not certi-
fy that issue for appeal, and the parties did not move to ex-
pand the certificate of appealability before briefing it. While
appellate jurisdiction requires a certificate of appealability,
see 28 U.S.C. § 2253(c)(1); Gonzalez v. Thaler, 132 S. Ct. 641,
649 (2012), a defect in a certificate concerning one claim does
not deprive of us jurisdiction over that claim. Gonzalez, 132 S.
Ct. at 649, and we are not bound to enforce the requirements
of 28 U.S.C. § 2253(c) against Welch.
We can consider procedural issues not argued by the par-
ties. Day v. McDonough, 547 U.S. 198, 209 (2006). We have re-
peatedly reminded habeas corpus petitioners, especially
when represented by counsel, to request permission before
arguing non-certified claims. See Peterson v. Douma, 751 F.3d
524, 529–30 (7th Cir. 2014) (we will decide the merits of only
certified claims); Thompson v. United States, 732 F.3d 826, 831
(7th Cir. 2013) (parties wishing to raise non-certified claims
should first request permission to do so), quoting Lavin v.
Rednour, 641 F.3d 830, 832 (7th Cir. 2011); Fountain v. United
States, 211 F.3d 429, 433 (7th Cir. 2000) (we will not address
additional issues unless certificate of appealability is ex-
panded to include them). Limiting appeals to certified issues
helps to avoid wasting time of the court and opposing par-
ties, see Peterson, 751 F.3d at 530; Young v. United States, 124
F.3d 794, 799 (7th Cir. 1997), and the interests of justice here
do not otherwise require us to consider the non-certified is-
sue, see Ouska v. Cahill-Masching, 246 F.3d 1036, 1045 (7th Cir.
2001).
No. 14-1164 7
In this case the procedural misstep is harmless, though,
because Welch cannot succeed under either theory. He did
not show that the Wisconsin appellate court’s decision was
“so lacking in justification” that there is no possibility for
“fairminded disagreement.” See Harrington v. Richter, 562
U.S. 86, 103 (2011). Our review of the state court decision is
highly deferential. See Cullen v. Pinholster, 131 S. Ct. 1388,
1398 (2011); Campbell v. Reardon, 780 F.3d 752, 761 (7th Cir.
2015). We review the Wisconsin appellate court’s application
of the ineffective-assistance and harmless-error standards to
determine whether the court applied them unreasonably or
contrary to clearly established federal law as determined by
the Supreme Court of the United States. See 28 U.S.C.
§ 2254(d)(1); Lopez v. Thurmer, 573 F.3d 484, 489 (7th Cir.
2009).
Regarding the ineffective-assistance argument, Welch
needs to show that the Wisconsin appeals court unreason-
ably found that no prejudice resulted from the error.
See Strickland, 466 U.S. at 687. On the fair-trial claim, Welch
needs to show that the appellate court incorrectly deter-
mined that the comments did not affect the verdict.
See Brecht v. Abrahamson, 507 U.S. 619 (1993); Chapman v. Cali-
fornia, 386 U.S. 18 (1967); Jones v. Basinger, 635 F.3d 1030,
1052–53 (7th Cir. 2011). He has not made either showing.
Welch argues that the evidence against him was weak,
and thus that the Wisconsin appellate court’s conclusions on
both claims were unreasonable. He points to a number of
arguable weaknesses in the evidence, including that one of
the alleged accomplices changed his testimony and had a
prior perjury conviction, and that none of the victims ever
8 No. 14-1164
positively identified Welch. (Recall that the robbers wore
masks.)
The record supports the state court’s application of
Strickland and its conclusion that no prejudice resulted from
any error. The Wisconsin appellate court considered the sub-
stantial quantity and quality of the evidence against Welch,
including the victims’ testimony establishing a clear modus
operandi, Welch’s flight from law enforcement, his accom-
plices’ testimony identifying him as a participant in multiple
robberies, the DNA found on the ski masks, and the duffel
bag found in “the Moneymaker,” not to mention the exist-
ence and name of “the Moneymaker” itself. We also cannot
overlook the victims’ testimony as to the robbers’ heights,
weights, and skin tones even if the victims could not identify
faces. See, e.g., United States v. Birk, 453 F.3d 893, 899 (7th
Cir. 2006) (no prejudice from counsel’s failure to object to
improper character evidence when evidence against defend-
ant was overwhelming); Cooper v. United States, 378 F.3d 638,
642 (7th Cir. 2004) (no prejudice when counsel failed to ob-
ject to improper evidence where evidence of guilt was
strong).
On the fair-trial issue, Welch must show actual prejudice
under Brecht, 507 U.S. at 637; see Davis v. Ayala, 576 U.S. —,
135 S. Ct. 2187, 2197–98 (2015). The state court found any er-
ror harmless. That determination is subject to deference un-
der 28 U.S.C. § 2254(d)(1). Davis, 135 S. Ct. at 2198–99.
The state court’s finding of harmless error here was not
only reasonable but correct. The state court assumed it was
improper to allow the jury to hear the officers’ statements
but concluded that the comments did not skew the jury’s
ability to assess accurately the accomplice testimony, the
No. 14-1164 9
DNA and ballistics evidence, and all the other evidence ty-
ing Welch and his “Moneymaker” to numerous robberies.
We agree. Because the evidence against Welch was so strong,
the two statements he considers improper neither prejudiced
him nor influenced the jury’s verdict. See, e.g., Ashburn v.
Korte, 761 F.3d 741, 755–56 (7th Cir. 2014) (finding reasonable
application of harmless-error standard when one exhibit was
admitted erroneously; evidence against defendant was
“overwhelming”); Brown v. Rednour, 637 F.3d 761, 767 (7th
Cir. 2011) (finding reasonable application of harmless-error
standard when jury took police report into deliberation
room; evidence tied getaway vehicle to defendant and sever-
al eyewitnesses identified defendant). The state court rea-
sonably denied relief, and the district court correctly did so.
AFFIRMED.