Dunlap, Charles A. v. Hepp, Randy ( 2006 )


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  •                            In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    No. 05-2179
    CHARLES A. DUNLAP,
    Petitioner-Appellant,
    v.
    RANDY HEPP,
    Respondent-Appellee.
    ____________
    Appeal from the United States District Court
    for the Eastern District of Wisconsin.
    No. 03-C-161—William E. Callahan, Jr., Magistrate Judge.
    ____________
    ARGUED NOVEMBER 8, 2005—DECIDED FEBRUARY 1, 2006
    ____________
    Before BAUER, MANION, and EVANS, Circuit Judges.
    EVANS, Circuit Judge. Before us is Charles Dunlap’s
    appeal from the denial of his petition for a writ of habeas
    corpus. The district court granted a certificate of ap-
    pealability on a single issue: whether Dunlap was de-
    prived of his Sixth Amendment right to confront wit-
    nesses and present a defense by the state trial court’s
    application of the Wisconsin rape shield law. 
    Wis. Stat. § 972.11
    (2) (1997-98).
    On November 7, 1989, Dunlap babysat then 6-year-old
    Jamie F. Afterwards, Jamie told her mother that Dunlap
    had “touched her private parts.” Jamie thought her mother
    did not believe her, and a few days later she told her father.
    2                                               No. 05-2179
    He reported the incident to the police, who obtained a
    warrant for Dunlap’s arrest. But Dunlap had left Wisconsin.
    He was not arrested until 8 years later when he was found
    in California.
    When Dunlap’s trial finally began, Jamie was 15 years
    old. She testified that when she was 6, she was left in
    Dunlap’s care at the home of her mother’s friends, Susan
    Smith and Gary Cox, with whom Dunlap had been staying.
    Jamie testified that when she was in bed, Dunlap entered
    the room and got in the bed beside her. She said he put
    his hands inside her underwear and fondled her buttocks
    and vagina.
    Cross-examination revealed several inconsistencies in
    Jamie’s testimony. When she was interviewed in 1989 she
    said that Cox’s son Shawn was also in the house at the time
    of the incident, but at trial she said she was alone with
    Dunlap. In 1989 she did not say that Dunlap penetrated her
    vagina with his finger, but at the preliminary hearing, 8
    years later, she said he had. Also in 1989 Jamie had not
    mentioned that Dunlap had threatened her. At trial, she
    said he threatened to kill her parents if she told anyone
    what happened.
    In an effort to rehabilitate Jamie, the State called
    Theresa Hanson, a child protective services investigator for
    Walworth County, Wisconsin. Hanson had interviewed
    Jamie and prepared a report in 1989. She testified about
    typical reporting behaviors of child sexual assault victims.
    She said that 6-year-old children often do not grasp the
    concepts of “in” and “out” in regard to something being
    put into their genitalia. She said 6-year-olds are often
    confused about the details of an incident. They also have
    trouble with the concepts “before” and “after.” She also said
    that fear, guilt, and embarrassment could have explained
    the inconsistencies in Jamie’s testimony and her delay in
    reporting certain aspects of the assault. In addition, Hanson
    No. 05-2179                                                  3
    testified that during the 1989 interview, Jamie fidgeted,
    kicked the table, put her hands in her mouth, and was
    generally reticent about discussing the incident. This
    behavior, Hanson said, is consistent with that of a sexual
    assault victim.
    During cross-examination, Hepp’s counsel attempted
    to question Hanson about Jamie’s “detailed and unex-
    plained sexual knowledge.” Counsel made an offer of proof,
    pointing out that Hanson’s 1989 report included a state-
    ment from Ms. Smith. In that statement, Smith, who was
    deceased when the case was tried, had revealed concern
    about Jamie, who, in Smith’s view, was involved in a
    great deal of “seductive behavior,” including touching men
    in the genital area, “humping the family dog,” and frequent
    masturbation. Smith noted that these behaviors occurred
    before the alleged assault by Dunlap.
    The State objected to this evidence, saying it was
    barred both by the rule against hearsay and the state rape
    shield law. The court agreed and excluded the evidence.
    Dunlap was convicted of first-degree sexual assault of a
    child in violation of 
    Wis. Stat. § 972.11
    (2). On direct appeal,
    he challenged the exclusion of the evidence. The Wisconsin
    Court of Appeals reversed Dunlap’s conviction. State v.
    Dunlap, 
    620 N.W.2d 398
     (2000). But the Supreme Court
    reinstated it. State v. Dunlap, 
    640 N.W.2d 112
     (2002). After
    exhausting his state remedies, Dunlap filed a federal
    petition for a writ of habeas corpus, which the district court
    denied. This appeal followed.
    A petition for a writ of habeas corpus on behalf of a
    person in state custody can be granted only if the state
    court proceeding resulted in a decision that was contrary to,
    or involved an unreasonable application of, clearly estab-
    lished federal law as determined by the United
    States Supreme Court. 
    28 U.S.C. § 2254
    (d)(1). A decision is
    “contrary to” established federal law as determined by the
    4                                               No. 05-2179
    Supreme Court if “the state court arrives at a conclusion
    opposite to that reached by [the Supreme Court] on a
    question of law,” or “if the state court confronts facts that
    are materially indistinguishable from a relevant Su-
    preme Court precedent and arrives at a result opposite”
    to that reached by the Supreme Court. Williams v. Taylor,
    
    529 U.S. 362
    , 405 (2000). A state court decision is an
    unreasonable application of Supreme Court precedent when
    the court “correctly identifies the governing legal rule but
    applies it unreasonably to the facts of a particu-
    lar prisoner’s case . . . .” Williams, at 407-08. Dunlap’s
    petition falls under the “unreasonable application” prong of
    § 2254(d)(1). In order for us to grant relief under this
    provision, the decision of the Wisconsin Supreme Court
    must be unreasonable—not simply erroneous and incorrect.
    Williams, at 411. On appeal from the district court’s denial
    of a writ of habeas corpus, we review findings of fact for
    clear error and legal conclusions de novo. Rittenhouse v.
    Battles, 
    263 F.3d 689
     (7th Cir. 2001).
    The Sixth Amendment to the United States Constitu-
    tion guarantees the right of an accused in a criminal
    prosecution to be confronted by the witnesses against him.
    The purpose of the Confrontation Clause is to “secure
    for the opponent the opportunity of cross-examination.”
    Davis v. Alaska, 
    415 U.S. 308
    , 315-16 (1974). Nevertheless,
    trial judges retain “wide latitude insofar as the Confronta-
    tion Clause is concerned to impose reasonable limits
    on . . . cross-examination based on concerns about, among
    other things, harassment, prejudice, confusion of the issues,
    the witness’ safety, or interrogation that is repetitive or
    only marginally relevant.” Delaware v. Van Arsdall, 
    475 U.S. 673
    , 679 (1986).
    In this case, the parties agree that the governing Su-
    preme Court precedent is found in Chambers v. Mississippi,
    
    410 U.S. 284
     (1973), and Davis v. Alaska, 
    415 U.S. 308
    No. 05-2179                                                   5
    (1974).1 While the Wisconsin Supreme Court did not
    specifically mention these cases in its Dunlap decision, the
    case the court relied on, State v. Pulizzano, 
    155 Wis. 2d 633
    ,
    
    456 N.W.2d 325
     (1990), rests on Chambers and Davis and
    recognizes clearly that “consistent with Chambers and
    Davis in some cases a defendant’s confrontation and
    compulsory process rights might require that evidence of a
    complainant’s prior sexual conduct be admit-
    ted, notwithstanding the fact that the evidence would
    otherwise be excluded by the rape shield law.” Pulizzano, at
    331. The Wisconsin Supreme Court was looking at the right
    question. The issue before us is whether it was unreason-
    able in light of Chambers and Davis to conclude that
    Dunlap’s rights were not violated.
    Both Chambers and Davis are fact-based decisions.
    Chambers was accused of murder arising out of an incident
    in Woodville, Mississippi. One Saturday evening in 1969,
    two Woodville policemen—James Forman and
    Aaron “Sonny” Liberty—entered a local bar and pool hall to
    execute a warrant for the arrest of a man named C.C.
    Jackson. Jackson resisted and a hostile crowd of some 50
    people gathered. When the officers attempted to handcuff
    Jackson, a number of men intervened and wrestled him
    free. Forman radioed for help and Liberty took a 12-gauge,
    sawed-off shotgun from the officers’ squad car. Ultimately,
    five or six pistol shots were fired, and Liberty was hit
    several times in the back. Before he died, Liberty fired his
    1
    Dunlap emphasizes that recent Confrontation Clause cases
    show that the Court is giving added importance to the Sixth
    Amendment, citing Blakely v. Washington, 
    124 S. Ct. 2531
     (2004),
    United States v. Booker, 
    125 S. Ct. 738
     (2005), and Crawford v.
    Washington, 
    541 U.S. 36
     (2004). However, he does not argue that
    the decision in his case is an unreasonable application of these
    recent cases. As does Dunlap, we take seriously, however, the
    Court’s renewed interest in Sixth Amendment jurisprudence.
    6                                               No. 05-2179
    gun into an alley in the direction from which the shots
    toward him were fired. As the crowd in the alley scat-
    tered, Liberty deliberately fired a second shot, which hit
    Chambers. Officer Forman could not see which of the men
    shot Liberty. Another officer testified that he saw Cham-
    bers do the deed. Yet another officer said he could not
    see whether Chambers had a gun, but he saw Chambers
    “break his arm down” shortly before shots rang out. Liberty
    was taken to a hospital, where he was dead on arrival.
    Another man named Gable McDonald may have been
    in the crowd that evening. Sometime after the shooting, he
    gave a sworn confession to Chambers’ attorneys saying that
    he was the one who shot Officer Liberty. He also said that
    he had previously told a friend that he did the shooting. A
    month later, at Chambers’ preliminary hearing, McDonald
    repudiated his confession and said he was not even present
    at the shooting but was down the street drinking beer with
    a friend.
    When Chambers went to trial, one of his defenses
    was that McDonald, not he, was the shooter. He called
    McDonald as a witness in an attempt to place his confession
    before the jury. This effort was thwarted by a Mississippi
    rule of evidence, which held that a party may not impeach
    his own witness, and by the rule against hearsay. The court
    refused to find that McDonald was an “adverse” witness,
    and this precluded cross-examination which would have put
    McDonald’s repudiated confession before the jury. When
    Chambers tried to call three witnesses to whom McDonald
    had also allegedly admitted that he was the shooter, the
    evidence was likewise excluded. The Mississippi Supreme
    Court upheld each ruling.
    The United States Supreme Court reversed, saying that
    in “these circumstances, where constitutional rights directly
    affecting the ascertainment of guilt are implicated, the
    hearsay rule may not be applied mechanistically to defeat
    No. 05-2179                                                 7
    the ends of justice.” The Court also pointed out that the
    decision “establish[ed] no new principles of constitutional
    law” nor did the decision “signal any diminution in the
    respect traditionally accorded to the States in the establish-
    ment and implementation of their own criminal trial rules
    and procedures.” Chambers, at 302, 303.
    Davis v. Alaska is similarly fact-specific. When the Polar
    Bar in Anchorage closed one February evening in 1970,
    there was over a thousand dollars in its safe. At about
    midday the next day, the safe was missing. Later that
    day, Alaska State Troopers received word that a safe
    was discovered about 26 miles outside Anchorage near
    the home of Jess Straight. It turned out to be the safe
    from the bar, and it had been pried open and emptied out.
    Richard Green, Straight’s stepson, told the troopers that he
    had seen and spoken with two men standing alongside a car
    near where the safe was discovered. Green picked a picture
    of Davis out of a six-person photo array. Davis was arrested
    the next day. The day after that, Green picked him out of a
    lineup.
    Green was a crucial witness for the State. But he had
    a juvenile record. Prior to trial, the State moved for a
    protective order to prevent any mention of the record.
    Defense counsel wanted to use the record to show that
    Green could have fingered Davis to shift suspicion away
    from himself. Additionally, Green could have been con-
    cerned about jeopardizing his own freedom—he was on
    probation at the time. In other words, his record would have
    been useful to Davis to show bias and prejudice and not to
    call Green’s general character into question.
    The trial court granted the motion for a protective order,
    relying on Alaska Rule of Children’s Procedure 23, which
    stated, in essence, that in most cases, juvenile disposi-
    tions are not admissible as evidence during judicial proceed-
    ings. The Alaska Supreme Court affirmed the conviction on
    8                                                 No. 05-2179
    the basis that defense counsel was able to adequately
    question Green regarding possible bias or prejudice without
    using Green’s juvenile record.
    The Supreme Court determined that the “accuracy and
    truthfulness of Green’s testimony were key elements in
    the State’s case . . . .” At 317. In that circumstance, the
    Court said:
    Serious damage to the strength of the State’s case
    would have been a real possibility had petitioner
    been allowed to pursue this line of inquiry. In this
    setting we conclude that the right of confrontation is
    paramount to the State’s policy of protecting a juven-
    ile offender.
    At 319.
    The question for us is whether the Wisconsin Supreme
    Court’s decision in Dunlap’s case amounts to an unrea-
    sonable application of these cases. First of all, we note
    that the court was well aware that
    evidence of a sexual assault complainant’s sexual
    history may be admitted over the rape shield law to
    protect the defendant’s constitutional right to present a
    defense.
    Dunlap, 
    640 N.W.2d at 118
    . The court noted that admissi-
    bility determinations required a balancing of the inter-
    ests of the parties. In that context, the court set out the five
    criteria that must be met, under Pulizzano, before the rape
    shield law gives way. Concentrating on the second crite-
    rion—whether the acts the defendants wants ad-
    mitted closely resemble those in the present case—the court
    determined they did not. The acts Dunlap was accused
    of—touching Jamie’s buttocks and vagina—were found to be
    not sufficiently like Jamie’s alleged prior sexual behavior to
    warrant admission of the evidence.
    No. 05-2179                                                  9
    Certain principles intersect in our analysis of whether
    this decision is unreasonable. The first is that the Con-
    frontation Clause standards are very general. We have
    remarked that
    rulings on Confrontation Clause issues are very fact-
    specific and involve case-by-case determinations. At the
    same time, and perhaps for that very reason, the
    Confrontation Clause standards are very general,
    making it difficult to call a state court ruling in this
    area “objectively unreasonable.”
    Walker v. Litscher, 
    421 F.3d 549
    , 557 (7th Cir. 2005). In
    Yarborough v. Alvarado, 
    541 U.S. 652
    , 664 (2004), the Court
    discussed rules which are general in nature and the fact
    that a very general rule allows for a good deal of leeway in
    reaching decisions:
    [T]he range of reasonable judgment can depend in part
    on the nature of the relevant rule. If a legal rule
    is specific, the range may be narrow. Applications of the
    rule may be plainly correct or incorrect. Other rules are
    more general, and their meaning must emerge in
    application over the course of time. Applying a general
    standard to a specific case can demand a substantial
    element of judgment. As a result, evaluating whether a
    rule application was unreasonable requires considering
    the rule’s specificity. The more general the rule, the
    more leeway courts have in reaching outcomes in case
    by case determinations.
    Additionally, the very standard set out in § 2254 limits
    our analysis. As the Supreme Court discussed in Williams
    v. Taylor, the Antiterrorism and Effective Death Penalty
    Act (AEDPA) “modifies the role of federal habeas courts
    in reviewing petitions filed by state prisoners.” At 403. Prior
    to the enactment of AEDPA in 1996, federal courts, on
    habeas, made independent determinations regarding the
    constitutionality of state court rulings. As Williams
    10                                               No. 05-2179
    v. Taylor, at 411, makes clear, after AEDPA, that is no
    longer the case:
    [A] federal habeas court may not issue the writ simply
    because that court concludes in its independent judg-
    ment that the relevant state-court decision ap-
    plied clearly established federal law erroneously or
    incorrectly. Rather, that application must also be
    unreasonable.
    Interestingly for our current discussion, the way AEDPA
    has altered our role is starkly apparent in three of our
    habeas cases involving rape shield laws. Relief was denied
    in all three cases. However, prior to AEDPA, in Stephens v.
    Miller, 
    13 F.3d 998
     (7th Cir. 1994), Indiana’s law underwent
    our almost painful, independent en banc scrutiny (11 judges
    participated), which resulted in six separate opinions plus
    the opinion of the court. In contrast, since 1996, consistent
    with AEDPA, our opinions give far greater deference to the
    state courts. See Hammer v. Karlen, 
    342 F.3d 807
     (7th Cir.
    2003); Pack v. Page, 
    147 F.3d 586
     (7th Cir. 1998). In
    Hammer, the state court determined that the evidence
    Hammer wished to present was not highly relevant and
    that his interest in presenting it was outweighed by the
    State’s interest in protecting the privacy of sexual assault
    victims under Wisconsin’s rape shield law. Citing Hennon
    v. Cooper, 
    109 F.3d 330
    , 334 (7th Cir. 1997), we said that for
    a petitioner to obtain relief, “the state court must not only
    have reached an incorrect result, but a truly ‘unreasonable’
    one. . . . Thus, if the state court’s decision is ‘at least
    minimally consistent with the facts and circumstances of
    the case,’ the federal court is powerless to grant relief.”
    Hammer, at 810. In Pack, the Illinois Appellate Court had
    also applied a balancing approach under which the trial
    judge had discretion to weigh the competing interests of the
    parties under the Illinois statute. We said that when federal
    constitutional law calls for the exercise of discretion, if a
    petitioner has a full opportunity to litigate the issue, a
    No. 05-2179                                               11
    responsible, thoughtful decision is adequate to support the
    judgment. We also noted that the fact that we might not
    have reached the same result were we considering the case
    on direct appeal “is beside the point.” At 589.
    In the present case, we cannot find that the Wisconsin
    Supreme Court decision is an unreasonable application
    of established law as set out by the U.S. Supreme Court
    in Chambers or Davis. A highly significant factor is that the
    Wisconsin court recognized that its rape shield law must
    yield if it would deprive a defendant of his constitutional
    rights.
    To repeat, Dunlap wanted to cross-examine the Child
    Protective Services investigator Hanson about a state-
    ment in her 1989 report that Susan Smith expressed
    concern about Jamie’s “seductive behavior,” including
    touching men in the genital area, “humping the family dog,”
    and masturbation. As we said, the Wisconsin Supreme
    Court’s focus was on whether the acts the defendant wished
    to present closely resembled those involved in the present
    case, a factor which is relevant to the balance which must
    be struck between the defendant’s rights and the state’s
    interest in protecting the victim. The court found that the
    acts were not sufficiently similar, a finding which we simply
    can’t judge to be unreasonable.
    Additionally, we think it is important to note the rea-
    sons for which Hanson’s testimony was offered by the State,
    what that testimony was, and the reasons the trial judge
    rejected Dunlap’s request to cross-examine her. First, the
    reason it was offered. The defense cross-examination of
    Jamie was intense and revealed certain inconsistencies
    between what she told Hanson when she was 6 years old
    and what she said both in the preliminary hearing and the
    trial when she was 15. It is fair to say that the cross-
    examination was vigorous—much as it would have been had
    Jamie been an adult at the time of trial, say nothing of at
    12                                                No. 05-2179
    the time of the incident. Summing up what had been
    testified to so far on cross-examination, counsel asked the
    following questions and received positive answers to each:
    First of all, on one occasion you have indicated in you[r]
    statement right after this happened that you and
    Shawn and Mr. Dunlap were present and most recently
    you stated only you and Mr. Dunlap were present,
    correct?
    ....
    And you also testified or you stated in 1989 that Mr.
    Dunlap did not insert his finger into you and most
    recently in March of 1998 [at the preliminary hearing]
    you stated that he did insert his finger in you, is that
    correct?
    ....
    And also in 1989 you stated that he never said what
    would happen to you if you told anybody and most
    recently in March of 1998 you said that if you told
    anybody he told you that—he told you that he would
    kill your parents, correct?
    Other questions were asked about whether she had ever
    met Dunlap before the night in question, whether she
    had ever been in the house before, etc. This sort of question-
    ing of a then-15-year-old girl about what happened when
    she was 6 years old went on at some length. On redirect, the
    prosecution asked what was probably the only necessary
    question: “Jamie, you were six years old when this hap-
    pened?”
    Not content to rest on that obvious point, however, the
    prosecution called Hanson to testify. The focus of her
    testimony was on what a 6-year-old understands, thinks,
    and remembers. She discussed the ability of a 6-year-old to
    understand various concepts, such as “in” and “out” as it
    No. 05-2179                                                13
    refers to something being put inside their genitalia. She
    also testified that young children often engage in pro-
    gressive disclosure of events, giving only the “tip of the
    iceberg” in an initial interview, perhaps because they
    are embarrassed or just want to get the interview over with.
    Hanson also was asked whether Jamie’s behavior during
    her interview was consistent with the behavior of a child
    sexual assault victim. The answer was yes. This was the
    only time that her testimony touched on whether Jamie was
    an abuse victim.
    The defense argued that the latter question led to the
    conclusion that it was Dunlap who had assaulted Jamie. To
    undermine this conclusion, the defense wanted to present
    the other remarks from Hanson’s report—the information
    about Jamie’s sexual precociousness supplied by Susan
    Smith. The problem was that Smith had died and there had
    been no investigation into whether her statements were
    true. They were included in the report, Hanson said, only to
    give social workers a full picture of what might be happen-
    ing. The trial judge excluded the evidence, saying both that
    Hanson was testifying primarily about characteristics of 6-
    year-olds so the information was not relevant, and that
    Smith was not subject to cross-examination so the reliabil-
    ity of the evidence was in question.
    Unlike the evidence excluded in Chambers, the state-
    ments attributed to Smith do not “directly affect[ ] the
    ascertainment of guilt . . . .” Chambers, at 302. That Jamie
    might have been abused on a prior occasion does not mean
    Dunlap did not abuse her as well on November 7, 1989.
    Obviously, also, the evidence here was not nearly so reliable
    or relevant as that excluded in Davis; that is, an official
    court record that went directly to the possible bias of a star
    witness. It cannot be said that the Wisconsin Supreme
    Court’s decision upholding the exclusion of this evidence is
    grounded on an unreasonable application of Chambers or
    Davis.
    14                                        No. 05-2179
    Accordingly, the judgment of the district court is
    AFFIRMED.
    A true Copy:
    Teste:
    ________________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    USCA-02-C-0072—2-1-06