Williams, Clyde B. v. Bartow, Byran ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4736
CLYDE B. WILLIAMS,
Petitioner-Appellant,
v.
BYRAN BARTOW,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 05 C 89—William C. Griesbach, Judge.
____________
ARGUED OCTOBER 19, 2006—DECIDED MARCH 20, 2007
____________
Before RIPPLE, MANION and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. Petitioner Clyde Williams was
convicted in the state courts of Wisconsin of three counts
of first-degree sexual assault of a child. Following an
unsuccessful motion for a new trial, he appealed his
conviction to the Court of Appeals of Wisconsin. That
court denied relief. See State v. Williams, 677 N.W.2d 691
(Wis. Ct. App. 2004), review denied, 679 N.W.2d 546 (Wis.
2004). He then filed a petition for habeas corpus in the
United States District Court for the Eastern District of
Wisconsin. See 28 U.S.C. § 2254. He alleged the same
grounds for relief that he had presented to the Wisconsin
2 No. 05-4736
appellate court and also added several others. The district
court denied relief, but granted a certificate of appealability
with respect to several of Mr. Williams’ claims, includ-
ing the three that he raises in this court. See R.34, R.38. In
this appeal, Mr. Williams asks us to review only those
claims adjudicated on their merits in state court. For the
reasons set forth in the following opinion, we affirm the
district court’s denial of Mr. Williams’ petition.
I
BACKGROUND
A. Facts
In 1990, two sisters, Annitra J. and Okima J., then five
and six years old, respectively, told police that Mr. Wil-
liams had sexually assaulted them in the restroom of a
public park. After some investigation, the prosecutor
decided not to proceed because, at the time, there was
an inadequate evidentiary basis.
Six years later, in 1996, Tyfonia S., also six years old,
alleged that Mr. Williams had fondled her. She was with
him on a day when he was purchasing a car from her
mother’s boyfriend, Thomas White. White was caring
for Tyfonia and her siblings. The children went with
White and Mr. Williams to Mr. Williams’ mother’s home
to complete the transaction, and the assault apparently
occurred in an elevator when Tyfonia was alone with
Mr. Williams. Based on this incident, the State charged
Mr. Williams with first-degree sexual assault of a child.
In 2001, after a series of trial-ending errors, a success-
ful appeal, multiple re-trials and the addition of new
No. 05-4736 3
charges, Mr. Williams was convicted on counts arising out
of both the 1990 and the 1996 incidents.
B. The Wisconsin Proceedings
1.
During pretrial proceedings for Mr. Williams’ first trial
on a charge relating only to sexual assault of Tyfonia, the
State sought a ruling allowing it to introduce the earlier
incident involving Annitra and Okima as evidence of
other crimes. The trial court declined to rule and, instead,
instructed the State to raise the issue at trial, outside of the
jury’s presence. Mr. Williams’ counsel then sought to
introduce evidence of “the prior sexual experience” of
Tyfonia, the six-year-old victim, “that relate[d] to her . . .
fabricating this incident.” Williams, 677 N.W.2d at 694
(quoting defense counsel) (omission in original). The
court instructed counsel that a hearing would be neces-
sary before any questions concerning the sexual history of
any witness could be asked.
During the course of this first trial, the State called Angie
R., Tyfonia’s mother, who testified that Tyfonia said that
Mr. Williams had penetrated her with his finger while
they were in an elevator. On cross-examination, defense
counsel asked Angie whether she was aware that her own
boyfriend, White, with whom Tyfonia was sometimes
left alone, “had sexually molested two children in the
past.” R.18, Tr.1 at 90. The State objected and the court
considered the issue outside the presence of the jury. In
defense of his question, Mr. Williams’ attorney stated
that he did not believe that he was bound by the court’s
earlier directive that a hearing would be necessary to
resolve questions of admissibility relating to the sexual
4 No. 05-4736
history of any witness because the question did not involve
Tyfonia’s sexual experiences. The State requested a mis-
trial. In its view, the question was improper and highly
prejudicial in light of the court’s earlier ruling. After
hearing arguments, the court asked Mr. Williams’ counsel
about the factual basis for the question posed to Angie.
Following some discussion with counsel and with Mr.
Williams himself, the court determined that there was no
firm factual basis1 and that, in any event, the question was
improper because the acts implied in the question (sexual
intercourse with “post-menstrual” teenagers), although
“reprehensible,” were so dissimilar from the sexual
assault of a six year-old as to render the evidence irrelevant
even had it been suggested with a good faith basis in fact.
Id. at 97. In the colloquy with the judge concerning the
question, defense counsel further admitted that he sought
to introduce specific acts testimony to prove action in
conformity therewith on the part of White, but asserted
that it was permissible because White was not the defen-
dant. Id. at 92-94. The court disagreed and, after consider-
ing counsels’ arguments, stated that it saw no other
alternative to a mistrial because the harm done before the
jury was irremediable and “of such enormity in terms of
the rules of evidence and its effect in the case that I don’t
think it’s appropriate to continue with this case before this
jury.” Id. at 103.
1
See R.18, Tr.1 at 93-100. Counsel originally stated that he could
present evidence that White had fathered children to two
fourteen year-old mothers in the past. Id. at 94. Upon examina-
tion by the court, it became clear that defense counsel had no
such evidence; instead, it appeared that some eighteen years
earlier, White had fathered the child of the defendant’s
twenty year-old sister.
No. 05-4736 5
Mr. Williams then moved to dismiss the information
based on the mistrial. The court denied that motion,
concluding that the question asked had been “provocative,
prejudicial, immaterial and incendiary,” Williams, 677
N.W.2d at 695, and gave the court no reasonable alterna-
tive but to declare a mistrial. These rulings form the basis
of the double jeopardy argument made in this appeal.
2.
In July 1997, a second trial began, again limited to
charges arising out of the assault on Tyfonia. In addition to
Tyfonia’s testimony, the State called both Annitra and
Okima as part of its effort to establish motive. At the
conclusion of this trial, Mr. Williams was convicted of one
count of first-degree sexual assault of a child and sentenced
to forty years’ imprisonment. Mr. Williams moved for a
new trial on the basis of ineffective assistance of counsel.
His motion was granted by the trial court. The State filed
an untimely appeal, which was dismissed by the Court
of Appeals of Wisconsin in August 1999.
3.
The pre-trial proceedings in Mr. Williams’ third trial for
the sexual assault of Tyfonia then began. In October 1999,
Mr. Williams orally and in writing demanded a speedy
trial. His trial was set to commence on January 4, 2000, but
was twice delayed because Tyfonia had moved out of
state, and the prosecution had difficulty locating her. Trial
was then set for June 14, 2000, but Mr. Williams requested
a delay so that his new counsel could prepare. Trial was
rescheduled for July 10, 2000; in an unrecorded pretrial
6 No. 05-4736
conference,2 the State again requested a postponement
because Annitra and Okima, set to testify as to Mr. Wil-
liams’ other crimes, had been unable to travel from Texas
to the trial. Mr. Williams’ counsel apparently believed the
adjournment was in Mr. Williams’ best interest, primarily
because the State apparently had indicated, upon failure
of plea negotiations, that it intended to file an information
regarding earlier incidents. Mr. Williams’ counsel appar-
ently hoped that some intervening event might prevent
the State from adding those charges.
Shortly thereafter, the State did file an information that
included additional charges based on the 1990 incident
involving Annitra and Okima. These allegations were
consolidated for trial with the allegations concerning
Tyfonia. Mr. Williams requested that trial be postponed
to allow him an opportunity to investigate the newly
added charges. In November, the trial was again postponed
with Mr. Williams’ consent and rescheduled to February
2001. However, due to ensuing court conflicts, Mr. Wil-
liams’ request for juvenile court records of Annitra and
Okima and the scholastic schedules of the child witnesses,
the trial was pushed back to June 18, 2001.
Shortly before trial, Mr. Williams moved to dismiss based
on prosecutorial vindictiveness. He argued that the addi-
tional charges were in retaliation for his earlier success-
ful appeal. The court denied his motion; it concluded that
the testimony of Annitra and Okima in the second trial
provided an adequate basis to explain the prosecutor’s
decision to pursue charges that were previously thought
2
The trial judge summarized the conference at a July 10, 2000
teleconference with both parties. R.19, Tr.15 at 1-5.
No. 05-4736 7
unprovable. The next day, the State again requested an
adjournment because of the unavailability of witnesses.
The third trial eventually began July 16, 2001. It ended
in an unopposed mistrial because of an improper remark
by the prosecution in the presence of the jury. R.20, Tr.30
at 55.
4.
The fourth trial began on July 17, 2001. Mr. Williams
was convicted of all three counts of first-degree sexual
assault of a child. He then filed a motion for a new trial.
The trial court denied the motion with respect to all counts,
but determined that the sentence was in excess of the
statutory maximum in effect at the time in Wisconsin.
Mr. Williams took an appeal to the Court of Appeals of
Wisconsin. That court, reaching the merits of his submis-
sions, affirmed the judgment of the trial court. See Williams,
677 N.W.2d 691. A petition for review was denied in the
Supreme Court of Wisconsin. See Williams, 679 N.W.2d 546.
We shall set forth the pertinent parts of the holding of
the Court of Appeals in the discussion that follows.
C. Habeas Corpus Proceedings in the District Court
Mr. Williams then filed this habeas petition in the Eastern
District of Wisconsin. Undertaking the screening function
under Rule 4 of the Rules Governing Section 2254 Proceedings
in the United States District Courts, the district court allowed
him to proceed on six claims, including that his prosecu-
tion was vindictive and violated the Double Jeopardy
Clause and that he was denied his right to a speedy trial.
The court examined the claims under the standard of
8 No. 05-4736
review provided in the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), 28 U.S.C. § 2254, and denied the
writ.3 We shall set forth the holding of the district court
with respect to each of the issues now raised in this
court in the discussion that follows.
II
DISCUSSION
A. Standard of Review
In this federal habeas corpus case, alleging constitu-
tional error in a state court criminal conviction, we re-
view de novo the district court’s decision denying the
writ. Burgess v. Watters, 467 F.3d 676, 681 (7th Cir. 2006),
cert. denied, 75 U.S.L.W. 3438 (U.S. Feb. 20, 2007) (No. 06-
8943). We review issues of fact resolved by the district
court for clear error. Adams v. Bertrand, 453 F.3d 428, 432
(7th Cir. 2006). In doing so, we, like the district court, must
evaluate the decision of the last state court to have adjudi-
cated the petitioner’s claim on the merits, according to the
standards set forth in AEDPA, 28 U.S.C. § 2254. See Simelton
v. Frank, 446 F.3d 666, 669-70 (7th Cir. 2006), cert. denied, 75
U.S.L.W. 3168 (U.S. Oct. 2, 2006) (No. 05-11643). In this
case, the operative decision is that of the Court of Appeals
of Wisconsin, State v. Williams, 677 N.W.2d 691 (Wis. Ct.
App. 2004).
3
No certificate of appealability was granted as to Mr. Williams’
Ex Post Facto claim. In addition to the three claims presented in
this appeal, a certificate was granted on Mr. Williams’ ineffective
assistance of appellate counsel and due process claims, but
he has not pressed those arguments before this court. See R.38
at 2.
No. 05-4736 9
Under AEDPA, when a state court actually has adjudi-
cated a petitioner’s claims on their merits, a federal habeas
court may grant relief only when the state court’s adjudica-
tion of the claim “(1) resulted in a decision that was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States; or (2) resulted in a
decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d). A decision is
contrary to clearly established law if the state court applied
a rule that contradicted the governing law as set forth in
Supreme Court cases, or if, being confronted with a set of
facts materially indistinguishable from those examined by
Supreme Court precedent, the state court arrived at an
opposite result. Williams v. Taylor, 529 U.S. 362, 405-06
(2000). Alternately, a state court decision involves an
unreasonable application of clearly established law if the
state court identifies the correct rule and unreasonably
applies it to the facts, or if the state court unreasonably
extends, or refuses to extend, a rule of law. Id. at 407-08. In
determining whether Supreme Court precedent has been
applied unreasonably, we do not ask simply whether the
state court’s application was erroneous, or even clearly
erroneous, but whether the decision was “objectively
unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 76 (2003);
Badelle v. Correll, 452 F.3d 648, 654 (7th Cir. 2006) (citing
Williams, 529 U.S. at 410). To draw the line between rea-
sonable errors, which will stand in federal habeas review,
and unreasonable ones, upon which we shall grant the
writ, we must distinguish between those decisions “which
comport with recognized conventions of legal reasoning,”
Ward v. Sternes, 334 F.3d 696, 703 (7th Cir. 2003), and those
which “l[ie] well outside the boundaries of permissible
10 No. 05-4736
differences of opinion,” Hardaway v. Young, 302 F.3d 757,
762 (7th Cir. 2002).
In this deferential and limited review, state court factual
findings are presumed correct. A habeas petitioner bears
the burden of rebutting that presumption by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1). Each of Mr.
Williams’ claims actually was adjudicated on its merits in
the Court of Appeals of Wisconsin, and, therefore, we are
bound by the above AEDPA standards with respect to
all of his claims.
B. Double Jeopardy
Mr. Williams contends that the declaration of a mistrial
in his first trial was inappropriate under the circum-
stances and saved the prosecution from the “disastrous”
first trial. Appellant’s Br. at 11. The result, he claims, was
that he was placed twice in jeopardy for offenses arising
out of the 1996 assault on Tyfonia.
1.
The Court of Appeals of Wisconsin held that the trial
judge was correct in concluding that manifest necessity
supported the mistrial. Williams, 677 N.W.2d at 697-700.
The court’s decision carefully traced the basic principles of
double jeopardy established by the holdings of the Su-
preme Court of the United States. It noted that the state has
the burden of establishing “manifest necessity” for any
mistrial ordered over the objection of a defendant. Id. at
697. It recognized as well that, in assessing the “necessity”
of granting a mistrial in the face of a prejudicial statement
of counsel, great respect was owed to the estimation of the
No. 05-4736 11
trial judge about the extent of the prejudice caused by the
utterance. Id. at 697-98. Turning to the circumstances of
Mr. Williams’ case, it noted that the risk of prejudice here
was of the same kind as that at stake in Arizona v. Washing-
ton, 434 U.S. 497 (1978) (upholding the decision to grant a
mistrial in response to a prejudicial remark made by
defense counsel). Turning to the record, it noted that the
statement had been made after the trial judge had di-
rected that such inquiries were to be made only after
obtaining clearance from the judge. The trial judge also
carefully questioned counsel and found that the question
to the witness lacked a firm basis in fact. The court was
of the view that the trial court had then “entertained
Williams’ suggestion that the court ‘try to save the trial’ but
rejected it stating that ‘the State has been very seriously
harmed. And I don’t know any alternative but declare a
mistrial.’ ” Williams, 677 N.W.2d at 700. The appellate court
concluded:
The record, therefore, persuades us that the trial judge
acted responsibly and deliberately and accorded
careful consideration to Williams’ interest in having
the trial concluded in a single proceeding. Since the
trial judge exercised “sound discretion” in handling the
sensitive problem of possible juror bias created by the
improper question by Williams’ counsel, the mistrial
order is supported by the “high degree” of necessity
that is required in a case of this kind.
Id.
2.
The district court considered this contention in adjudicat-
ing the present § 2254 petition. It determined that the
12 No. 05-4736
Wisconsin appellate court had considered thoroughly the
relevant issues and had applied correctly Supreme Court
precedent, particularly Arizona v. Washington. R.34 at 4. The
court then concluded that, on the facts, the decision was
neither contrary to, nor an unreasonable application of,
Supreme Court precedent and denied relief.
3.
The Fifth Amendment’s Double Jeopardy Clause, applied
to the states by the Fourteenth Amendment, guarantees
that no one shall “be subject for the same offence to be
twice put in jeopardy of life or limb.” U.S. Const. amend. V.
The clause unequivocally protects a defendant from retrial
for the same offense after an acquittal. Washington, 434 U.S.
at 503. Moreover, because jeopardy attaches prior to
judgment, the protection also reaches a criminal defen-
dant’s “valued right to have his trial completed by a
particular tribunal,” and to be spared from the burdens of
multiple trials, even if those trials do not finally resolve
the merits of the charges. Id. at 503.
At times, this right is “subordinate to the public interest
in affording the prosecutor one full and fair opportunity
to present his evidence to an impartial jury.” Id. at 505.
Generally, “the prosecutor must shoulder the burden of
justifying the mistrial if he is to avoid the double jeopardy
bar. His burden is a heavy one. The prosecutor must
demonstrate ‘manifest necessity’ for any mistrial declared
over the objection of the defendant.” Id. The Supreme Court
has noted that it is not a literal necessity that must
be shown, but necessity of a “high degree.” Id. at 506.
As a general rule, a reviewing court is charged with
determining whether the trial court’s decision that a
No. 05-4736 13
mistrial was justified by manifest necessity was an abuse
of discretion. See United States v. Vaiseta, 333 F.3d 815, 818
(7th Cir. 2003). However, within this general standard,
varying degrees of scrutiny are applied depending on the
nature of the precipitating event. See Washington, 434 U.S.
at 507-09. Different trial situations are amenable to different
degrees of appellate scrutiny. Indeed, in Washington, the
Court pointedly held that, when a mistrial is granted in
response to an improper remark by defense counsel, the
decision of the trial court was entitled to special deference.
Id. at 510. This approach was necessary because “[t]here are
compelling institutional considerations militating in favor
of appellate deference to the trial judge’s evaluation of the
significance of possible juror bias.” Id. at 513; see also id. at
516 (“Neither party has a right to have his case decided by
a jury which may be tainted by bias; in these circumstances,
the public’s interest in fair trials designed to end in just
judgements must prevail over the defendant’s valued right
to have his trial concluded before the first jury impaneled.”
(internal quotation marks omitted)). Nevertheless, despite
that high degree of deference, a reviewing court still must
satisfy itself that the trial court exercised its “sound
discretion” and acted “responsibly and deliberately” in
declaring a mistrial. Id. at 516.
We turn, therefore, to the decision of the Court of Ap-
peals of Wisconsin to determine whether its evaluation of
Mr. Williams’ double jeopardy claim is contrary to or an
unreasonable application of the above standard. In Mr.
Williams’ case, a mistrial was declared following his
counsel’s question to a State witness regarding potential
criminal sexual misconduct of another witness. Williams,
677 N.W.2d at 694. In evaluating Mr. Williams’ claim, the
State applied the standards set forth in Washington. Because
14 No. 05-4736
it neither applied an improper legal standard, nor reached
a conclusion opposite to the Supreme Court on materially
indistinguishable facts, the decision of the Court of Ap-
peals of Wisconsin is not “contrary to” Supreme Court
precedent under Williams v. Taylor, 529 U.S. at 405-06.
We therefore must consider whether the Wisconsin
appellate court’s application of the law to facts of the
instant case was unreasonable. In concluding that the
mistrial was within the discretion of the trial court, the
Wisconsin appellate court focused on the improper nature
of the question, given the trial court’s earlier instruction
that evidentiary questions involving the sexual history
of any witness were to be aired outside the hearing of the
jury, the general irrelevance of the question posed to the
case and its lack of a firm basis in fact. Williams, 677
N.W.2d at 699. The court also weighed the interest of the
defendant in enduring retrial against the highly prejudicial
effect of the question. The court noted that the parties had
a “full opportunity to explain their positions,” id. at 699-
700, and that the trial judge acted “responsibly and de-
liberately,” id. at 700, in concluding that the prejudice
could not be overcome.
We conclude that the decision of the Court of Appeals of
Wisconsin was not an unreasonable application of clearly
established Supreme Court law. It recognized that Washing-
ton requires that an appellate tribunal give a broad range of
discretion to a trial judge in estimating the degree of juror
bias precipitated by the remark of counsel. The Wisconsin
appellate tribunal reasonably decided that there was no
material distinction between the situation confronted in
Washington, in which a prejudicial remark was made by the
defense attorney in opening arguments, and the situation
here, in which a question of similar prejudicial effect is
improperly put to a witness.
No. 05-4736 15
Consequently, habeas relief was properly denied on this
basis.
C. Vindictive Prosecution
Mr. Williams next submits that the addition of charges
relating to the 1990 incident involving Annitra and Okima,
after he had gained a new trial on the original charge
and declined to enter into a plea agreement relating to the
originally charged 1996 offenses, amounts to vindictive
prosecution.
1.
The Court of Appeals of Wisconsin began its analysis of
this issue by acknowledging that the Supreme Court of
the United States had recognized in Blackledge v. Perry, 417
U.S. 21, 25-29 (1974), and Thigpen v. Roberts, 468 U.S. 27, 30-
33 (1984), that a presumption of vindictiveness arises
when, following a defendant’s successful appeal, greater
punishment is sought by a prosecutor. The state appel-
late court was quick to point out, however, that, in both of
those cases, the prosecutor had increased the gravity of
the charge faced by the defendant for the same conduct as
alleged in the original charge. By contrast, in this case, the
prosecutor had decided to charge Mr. Williams with an
entirely different crime, based on entirely different facts,
against an entirely different victim, and having occurred
in an entirely different time period six years earlier.
Relying on a decision of the United States Court of Appeals
for the Eleventh Circuit in Humphrey v. United States, 888
F.2d 1546, 1549 (11th Cir. 1989), the Wisconsin court took
the view that this distinction is a valid one. Williams, 677
16 No. 05-4736
N.W.2d at 703. It ruled that, while the situation in
Blackledge and Thigpen raised the distinct possibility that a
defendant would be chilled from the exercise of his ap-
pellate rights if he believed that a successful appeal
would result in a second trial on more serious charges for
the same conduct, the same concern was not present
when the prosecutor brings charges based on other con-
duct. In this latter situation, the Wisconsin court con-
tinued, it is not the defendant’s appeal that creates the
opportunity to bring the other charges; the prosecutor may
proceed on the separate charges whether the defendant
takes an appeal in the original case or not. See id. at 704.
Moreover, added the court, in this case, the prosecutor
had acquired new reasons for bringing the charges based
on the earlier incident—the testimony of the two alleged
victims from the first trial. Although the prosecutor had
had the police reports with the statements of the two
young victims for six years, now he had their testimonial
account under oath and subject to cross-examination.
Under these circumstances, said the Wisconsin court, the
decision to charge Mr. Williams with the earlier assaults
is characterized most appropriately as a new approach by
a new prosecutor. See id. The court also noted that the
fact that the prosecutor had threatened to add these
charges if Mr. Williams did not plead guilty to the original
charge did not amount to vindictiveness. See id. at 705;
Bordenkircher v. Hayes, 434 U.S. 357, 360-65 (1978) (holding
that the Due Process Clause is not violated when a pros-
ecutor carries out a threat to reindict a defendant on
more serious charges to which he is subject following
unsuccessful plea negotiations).
No. 05-4736 17
2.
On habeas review, the district court held that the Wis-
consin court had interpreted reasonably the case law of the
Supreme Court of the United States. The district court
concluded that the state court had read correctly Su-
preme Court precedent to find a presumption of vindictive-
ness when a prosecutor brings more serious charges
against a defendant based on the same underlying conduct.
The district court also agreed that these cases were inap-
plicable where, as here, the new charges related to different
underlying conduct. R.34 at 5-6 (citing Humphrey, 888 F.2d
at 1549).
3.
a.
The Due Process Clause of the Fourteenth Amendment
has been interpreted to prohibit prosecutions under
circumstances suggesting a “realistic likelihood of ‘vindic-
tiveness’ ” on the part of the prosecutor. Blackledge, 417 U.S.
at 27. In Blackledge, and again in Thigpen, the Supreme
Court established that a presumption of vindictiveness
follows certain prosecutorial decisions.4 The factual cir-
cumstances of both of these cases involved a defendant
who had been convicted on various misdemeanor counts,
succeeded in appealing his conviction, and, on retrial, the
state prosecutor in each chose to prosecute the same under-
4
Mr. Williams does not argue that he has demonstrated actual
vindictiveness; he contends exclusively that he is entitled to a
presumption of vindictiveness under the circumstances of his
prosecution following a successful appeal.
18 No. 05-4736
lying conduct under a felony charge. The Supreme Court
characterized the situations as posing a “realistic likeli-
hood of vindictiveness” because “the prosecutor, who
has a considerable stake in discouraging convicted mis-
demeanants from appealing and thus obtaining a trial de
novo [can] make retaliatory use of his power to up the
ante.” Thigpen, 468 U.S. at 30 (internal quotation marks
omitted) (italics in original).
Neither the Supreme Court nor this court has addressed
directly the applicability of Thigpen and Blackledge to
situations where the defendant is charged, post-appeal, on
the basis of different criminal conduct, as opposed to a
heightened charge on the basis of the same underlying
conduct. As both the state court of appeals and the dis-
trict court noted, the Eleventh Circuit has ruled that,
because Blackledge and Thigpen do not address prosecutorial
action involving other criminal conduct, the presumption of
vindictiveness invoked by the Supreme Court in those
cases is not applicable. Therefore, when the prosecutorial
conduct involves other criminal conduct, the defendant
must demonstrate actual vindictiveness rather than relying
on the presumption recognized in Blackledge and Thigpen.
See Humphrey, 888 F.2d at 1549.5 The Ninth Circuit has
reached the same conclusion. In United States v. Martinez,
785 F.2d 663 (9th Cir. 1986), that court said:
If the additional charge “aris[es] out of the same
nucleus of operative facts as the original charge,” a
5
Humphrey v. United States, 888 F.2d 1546 (11th Cir. 1989),
evaluated a claim by a defendant that the state issued an
indictment charging him with other crimes based on other
conduct in retaliation for an on-going direct appeal and a
collateral attack on his first conviction. Id. at 1549.
No. 05-4736 19
presumption of vindictiveness is raised. If, however,
the second charge is unrelated to the first, the pre-
sumption does not arise. . . .
. . . . Nothing in Blackledge [v. Perry] presumed to
give the defendant a free ride for separate crimes
he may have committed, or to prevent a prosecutor
from bringing new charges as a result of changed
or altered circumstances which properly bear on
prosecutorial discretion.
Id. at 669 (internal citations omitted) (bracketed alterations
in original) (finding a presumption of vindictiveness
inappropriate when Arizona authorities filed charges
against the defendant only after he was acquitted on
unrelated charges in Colorado).
Our task in evaluating Mr. Williams’ contention is to
determine whether the resolution of the vindictive prosecu-
tion issue by the Court of Appeals of Wisconsin was
contrary to, or involved an unreasonable application of,
clearly established federal law, or was based on an unrea-
sonable determination of the facts in light of the evidence
presented in the state court proceeding.
The Wisconsin appellate court interpreted Thigpen and
Blackledge in accord with the Eleventh Circuit’s decision
in Humphrey and the Ninth Circuit’s decision in Martinez.
We cannot conclude that Blackledge and Thigpen clearly
establish a different rule than that applied by the Wis-
consin court. Nor can we say that the facts of those cases
are materially indistinguishable from this case such that
we might deem the decision of the Wisconsin court
“contrary to” Supreme Court precedent. See Williams v.
Taylor, 529 U.S. at 405-06. Moreover, we cannot say that the
Wisconsin court’s decision involved an “unreasonable
20 No. 05-4736
application” of that precedent in that the state court could
be said to have unreasonably refused to extend the prece-
dent to cover the issue. Blackledge and Thigpen rely on the
chilling effect of prosecutorial decisions that appear to
punish a defendant for exercising his federally protected
rights. See Blackledge, 417 U.S. at 27-28. While expressly
stating that there was no evidence of bad faith on the part
of the prosecutor, the Court noted that it was constitution-
ally impermissible for the State to “respond” to the defen-
dant’s invocation of his right to a de novo trial with a
greater charge. Id. at 28-29.
Here, by contrast, it is not evident that the state court
“responded” to a successful appeal with more significant
charges; instead, it brought those additional charges
while in the course of pursuing a retrial on the same charge
related to the 1996 event. Moreover, as the Wisconsin
court emphasized, the prosecutor now had the trial testi-
mony of the two victims, given under oath and subjected to
cross-examination. Previously, he had only the police
report statements of two very young children. These
circumstances were therefore vastly different from those
confronted by the original prosecutor in the 1990 incident,
when Annitra and Okima were the five and six year-old
victims (who were, presumably, incapable of substantial
testimony, even assuming, for the sake of argument, that
they were able to take and understand the oath). As fifteen
and sixteen year-olds, they were better suited to offer
testimony, and the trial court found that this change
alone established “abundant reason, other than vindic-
tiveness which would explain the conduct of the district
attorney.” R.20, Tr.27 at 16. In affirming that ruling, the
state appellate court stated, “[a]rmed with the knowledge
[on the basis of their testimony in an earlier trial] that the
No. 05-4736 21
witnesses were credible and their testimony could with-
stand cross-examination, the charging prosecutor felt he
could prove the case.” Williams, 677 N.W.2d at 704. These
circumstances simply are not cut of the same cloth as the
ones that confronted the Supreme Court in Blackledge and
Thigpen. See United States v. Heidecke, 900 F.2d 1155, 1160
(7th Cir. 1990) (“The existence of a rational reason for
the [subsequent] indictment further suggests that there
is no reasonable likelihood of vindictiveness.”).
Given both that two Courts of Appeals have held that
the bringing of unrelated charges stands outside the
Blackledge-Thigpen presumption and that the factual
circumstances of this case indicate legitimate reasons for
adding charges related to separate incidents involving
trial witnesses, we certainly cannot say that this decision
of the Court of Appeals of Wisconsin lies so far outside
the bounds of permissible interpretations of Supreme Court
precedent to qualify as objectively unreasonable under
Williams v. Taylor.
b.
Likewise, we must conclude that the Court of Appeals of
Wisconsin did not apply clearly established federal law
unreasonably in holding that the decision to add further
charges following an unsuccessful attempt to obtain a
plea also did not give rise to a presumption of vindictive-
ness. In Bordenkircher v. Hayes, 434 U.S. 357 (1978), the
Supreme Court held that a prosecutor’s addition of charges
following unsuccessful plea negotiations did not violate
due process when the prosecutor fully disclosed the
alternatives and the defendant was plainly subject to
prosecution on the additional charges. The Court acknowl-
22 No. 05-4736
edged that, when a state uses the tools in its prosecutorial
arsenal to retaliate and punish a defendant for the exer-
cise of a federally protected right, its action is unconstitu-
tional. Id. at 363. It further held, however, that “in the ‘give-
and-take’ of plea bargaining, there is no such element of
punishment or retaliation so long as the accused is free to
accept or reject the prosecution’s offer.” Id.; see also
United States v. Goodwin, 457 U.S. 368 (1982) (declining to
adopt a presumption of vindictiveness where a pros-
ecutor adds felony charges to an original misdemeanor
indictment after the defendant declines a plea offer and
insists on a jury trial). In short, the Supreme Court has
applied a presumption of vindictiveness “exclusively in the
post-trial context,” United States v. Jarrett, 447 F.3d 520,
525 (7th Cir. 2006), and has specifically considered and
rejected claims that a presumption is applicable when,
following failed plea negotiations, additional charges
are brought against a defendant. We already have con-
cluded that the Wisconsin courts did not unreasonably
apply federal law in holding that the appeal and retrial
circumstances in this case did not justify application of the
presumption; we decline to hold that clearly established
federal law dictates a different result when, on retrial,
unsuccessful plea negotiations lead to additional charges.
Accordingly, we affirm the district court’s denial of
habeas relief to Mr. Williams on his claim of vindictive
prosecution.
D. Speedy Trial
Finally, Mr. Williams contends that his right to a speedy
trial was violated by the substantial delays involved in
his final trial.
No. 05-4736 23
1.
In his state appeal, Mr. Williams claimed that, of the
delay of nearly three years, just over one year was fairly
attributable to the prosecution. The Court of Appeals of
Wisconsin disagreed; it regarded this characterization of
the delay as too generous to Mr. Williams. In reaching
this conclusion, the state appellate court undertook a
detailed examination of each delay, and concluded that no
more than four months of delay were attributable to the
State. At the beginning of its analysis, the court set forth its
approach. First, it would identify the delays attributable
to the defendant because those periods cannot be consid-
ered in determining whether the defendant was denied a
speedy trial. Williams, 677 N.W.2d at 700. Second, it would
identify the delay caused by the State.6 Third, it would
require an explanation by the State for all such periods. To
be a valid reason, continued the appellate court, the
delay must be one intrinsic to the case itself.
Having set forth its methodology, the court then engaged
in a fact-specific and detailed examination of the delays in
this case. In the course of that examination, the appellate
court held that adjournments requested by the State as it
6
Notably, the Court of Appeals of Wisconsin also identified a
third type of delay, those attributable to the ordinary demands
of the judicial system and therefore not attributable to either
party. State v. Williams, 677 N.W.2d 691, 701 (Wis. Ct. App. 2004).
However, the court did acknowledge that instances of “institu-
tional delay,” id. at 702,—not attributable to the “ordinary
demands of the judicial system,” id. at 701,—are attributable
to the State.
24 No. 05-4736
awaited word from its witnesses, who had relocated out
of state, were not delays fairly attributable to the prosecu-
tion in the speedy trial analysis.
2.
The district court found that Mr. Williams’ speedy trial
claim properly was denied under Barker v. Wingo, 407 U.S.
514 (1972). Although several years passed between the
bringing of charges and the commencement of Mr. Wil-
liams’ trial, the court noted that the state court had found
that most of the delay was either due to Mr. Williams’
“own affirmative conduct . . . or was not fairly attributable
to any actions of the prosecutor.” R.34 at 6-7. Given the
relative shortness of the delay attributable to the State, and
that Mr. Williams himself had not consistently demanded
a speedy trial, the district court found that the state court’s
resolution of the issue was “not erroneous, much less
unreasonable,” and denied the petition on this ground as
well. Id. at 7.
3.
The Sixth Amendment guarantees that a criminal defen-
dant enjoys “the right to a speedy and public trial.” U.S.
Const. amend. VI. The Supreme Court elaborated on the
substance of this right in Barker v. Wingo, 407 U.S. 514
(1972). Acknowledging that the speedy-trial right is a
circumstance-specific inquiry that is ill-suited for abso-
lute rules, Barker nevertheless provides a practical analyti-
cal approach that ensures that, in evaluating the facts of a
particular case, courts take into account both the interests
of the prosecution and of the defendant through the
No. 05-4736 25
application a four-factor balancing analysis. Id. at 530.
Under this approach, a court must consider the “[l]ength of
delay, the reason for the delay, the defendant’s assertion
of his right, and prejudice to the defendant.” Id.
The length of the delay serves as a “triggering mecha-
nism,” id.; without some presumptively prejudicial lapse
of time, there is no need to examine the rest of the factors,
id. In this case, the State conceded, and the Court of
Appeals of Wisconsin agreed, that the period of two years
and eleven months, following the defendant’s successful
appeal of his first conviction and the commencement of
his third trial, was presumptively prejudicial and triggers
the analysis set forth in Barker. See Williams, 677 N.W.2d
at 700.
United States v. Loud Hawk, 474 U.S. 302, 315 (1986),
characterizes the second Barker factor, the reason for the
delay, as “[t]he flag all litigants seek to capture.” The Court
of Appeals of Wisconsin was therefore correct in treating as
a critical factor the comparative fault of the parties in
causing the resulting delays. Mr. Williams does not chal-
lenge this general proposition. Indeed, in challenging the
appellate court’s apportionment of fault in the delays, Mr.
Williams points to no precedent of the Supreme Court that
requires an opposite conclusion with respect to any
particular instance of delay. Instead, he principally seeks to
charge the State with delays resulting from its inability to
secure witnesses.7 In evaluating this claim, we note that
Barker explicitly noted that the location of a missing witness
is a valid reason for delay. 407 U.S. at 531. In our own
interpretation of Barker, we have suggested that, in the
absence of some showing by the defendant that “the
7
Appellant’s Br. at 27-29.
26 No. 05-4736
missing witness was a deliberate attempt to delay the trial
in order to hamper the defense,” we shall not charge the
State with that delay. Owens v. Frank, 394 F.3d 490, 505 (7th
Cir. 2005) (internal citation and quotation marks omitted).
Accordingly, there is no reason to conclude that the Court
of Appeals of Wisconsin unreasonably applied Supreme
Court precedent in determining that the delay attributable
to the State amounted to four months.
In evaluating Mr. Williams’ assertion of the right to a
speedy trial, the third Barker factor, the Court of Appeals
of Wisconsin noted that Mr. Williams had been inconsistent
in his assertion of his speedy trial right, either by caus-
ing certain delays himself or by consenting to delays
requested by the State. Before this court, Mr. Williams
points to instances in which he asserted his right or ob-
jected to the State’s request for an adjournment. The Court
of Appeals did not dispute that Mr. Williams had raised
the speedy trial issue; instead, it concluded that the fact
that he did not uniformly assert his right “significantly
diminish[ed] the weight of his demand.” Williams, 677
N.W.2d at 702. Mr. Williams cites no authority that contra-
dicts this approach; indeed, our own precedent could be
read to support the methodology of the Court of Appeals
of Wisconsin, see United States v. Taylor, 196 F.3d 854, 862
(7th Cir. 1999) (concluding, when a defendant had raised
his speedy trial right simultaneously with his own re-
quest for delay, the inconsistency makes his “demand”
“entitled to little, if any, weight”).
The Court of Appeals of Wisconsin did not consider
extensively the issue of actual prejudice to the defendant.
It simply remarked, in conclusory fashion, that the de-
lays were not prejudicial. We must conclude, however,
that Mr. Williams has made no persuasive showing that
No. 05-4736 27
he was prejudiced by the delay in prosecuting his third
trial. Barker identifies three interests in light of which a
defendant’s claim of prejudice should be evaluated: “(i) to
prevent oppressive pretrial incarceration; (ii) to minimize
anxiety and concern of the accused; and (iii) to limit the
possibility that the defense will be impaired.” 407 U.S. at
532. Mr. Williams contends that he was prejudiced with
respect to the third interest. Specifically, he claims that the
defense was prejudiced with regard to “key timing issues,”
Appellant’s Br. at 31; essentially, he claims that the wit-
nesses’ memories had gone stale and that additional
witnesses able to provide probative testimony relating
to timing in 1990 could not be identified for the court in
2001. In each circumstance, however, he does not make
clear how the delays he has identified were responsible
for any prejudice.
We must conclude that on his speedy trial claim, like
the others raised in this proceeding, Mr. Williams has
failed to demonstrate that the decision of the Court of
Appeals of Wisconsin is contrary to, or involves an unrea-
sonable application of, clearly established law as articu-
lated by the Supreme Court. See 28 U.S.C. § 2254(d)(1).
Conclusion
For the reasons stated above, we affirm the district
court’s denial of Mr. Williams’ petition.
AFFIRMED
28 No. 05-4736
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-20-07