Clarence Brown v. Brad D. Schimel , 633 F. App'x 322 ( 2015 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued September 9, 2015
Decided December 17, 2015
Before
RICHARD A. POSNER, Circuit Judge
DANIEL A. MANION, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 14-3511
CLARENCE BROWN, Appeal from the United States District
Court for the Eastern District of
Petitioner-Appellant, Wisconsin.
v. No. 13-cv-00570
BRAD D. SCHIMEL, William C. Griesbach,
Attorney General of the State of Chief Judge.
Wisconsin,
Respondent-Appellee.
ORDER
Clarence E. Brown appeals the district court’s denial of relief under 28 U.S.C.
§ 2254 (habeas corpus) on his claim that Wisconsin’s prohibition against carrying a
concealed weapon, Wis. Stat. § 941.23 (effective 2007–2011), is unconstitutional under the
No. 14-3511 Page 2
Second Amendment as applied to him. Because the district court did not err in finding
that Brown’s as-applied claim was procedurally defaulted, we AFFIRM.
I. Background
Police officers encountered Brown on October 2009 while responding to a
complaint that shots had been fired in the neighborhood of 25th and West Locust Street
in Milwaukee, Wisconsin. Brown, who was on 26th Street, flagged down the officers and
directed them to a man on the corner whom Brown believed to be the shooter. Yet,
instead of arresting the man on the corner, the officers arrested Brown because he was
carrying a concealed handgun in his waistband. The officers searched the man on the
corner and let him go because he had no weapon; they charged Brown with violating
Wis. Stat. § 941.23, which provided that “[a]ny person except a peace officer who goes
armed with a concealed and dangerous weapon is guilty of a Class A misdemeanor.”1
According to Brown, he was an innocent bystander who found himself
unwittingly in the middle of a crime scene. He claims that, after he heard the gunshots
and while he was trying to urge a group of children to go inside, he discovered the
handgun on the ground. He picked up the gun only to protect himself and the nearby
children from the gun’s possible misuse. He even unloaded the gun and placed the
bullets in the bed of a nearby pickup truck. He concealed the gun only because he was in
a high-crime neighborhood and did not want to be mistaken as a dangerous person or
perhaps even the shooter.
The state, however, did not recognize Brown as a benevolent bystander. At oral
argument the state said that it believed Brown was the shooter, but it does not appear
that it always believed this. Rather, according to the trial transcripts, the state believed
Brown armed himself after the shots were fired and tried to hide the fact when the
officers approached him. An officer testified that he saw Brown try to surreptitiously
hide the bullets in the truck bed and that Brown only admitted to carrying the gun when
the officer asked him why he had bullets. In any event, the state did not advance a theory
regarding when or why Brown armed himself. Instead, the state relied solely on the
officers’ testimony that they discovered Brown carrying a concealed handgun, that he
1 The statute in question was effective 2007–2011 and has since been amended to allow a person with a
license to carry a concealed firearm in a situation such as this. Wis. Stat. § 941.23(2)(d) (effective November
1, 2011). All references to the statute in the body of the order refer to the version effective 2007–2011.
No. 14-3511 Page 3
admitted that he was carrying the handgun, and that the handgun he carried required
special knowledge to unload.
It is not known, and it really does not matter, whether the jury believed that
Brown took and concealed a gun he found on the ground to prevent its misuse, or
whether they believed that Brown armed himself for protection against a shooter in a
high-crime neighborhood. What is clear is that the jury believed that Brown was armed
with a handgun, that he knew he had a handgun, and that the handgun was
concealed—the elements of the charge. Consequently, they convicted Brown of violating
Wis. Stat. § 941.23. At sentencing, the trial judge did not believe Brown’s testimony that
he was unfamiliar with the gun and that he immediately told the police officers about
the gun. The judge sentenced him to four months’ confinement, and stayed the sentence
pending the outcome of this appeal.2
Brown sought post-trial relief and then appealed his conviction on three grounds:
1) that Wis. Stat. § 941.23, on its face, violated the Second Amendment of the Constitution;
2) that Wis. Stat. § 941.23, as applied to him, violated Article I, Section 25 of the Wisconsin
Constitution according to State v. Hamdan, 665 N.W.2d 785 (Wis. 2003); and 3) that the
trial judge abused her discretion by not permitting Brown to present the defense of
coercion. The Wisconsin Court of Appeals denied Brown relief and affirmed the trial
court. State v. Brown, 815 N.W.2d 407 (Wis. Ct. App. 2012). The Wisconsin Supreme
Court denied Brown’s petition for review, 822 N.W.2d 882 (Wis. 2012), and the United
States Supreme Court denied certiorari, Brown v. Wisconsin, 133 S. Ct. 2023 (2013).
Brown then sought habeas corpus relief under 28 U.S.C. § 2254. Before the district
court, Brown argued that Wis. Stat. § 941.23 was unconstitutional under the Second
Amendment of the United States Constitution both on the statute’s face and as applied
to him. The district court denied Brown’s facial challenge because the Wisconsin Court
of Appeals did not issue “a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law” as required by 28 U.S.C. § 2254(d)(1). The
2 A misdemeanor conviction and four months’ confinement is, on the whole, a rather substantial outcome
for a man with no criminal record who the state thought at the time was merely trying to protect himself in
a high-crime neighborhood where shots had just been fired. It remains questionable despite the fact that
Brown concealed the handgun. After all, how else was Brown to prevent others, including police officers
responding to a report that someone had just fired a gun, from initially considering him to be the threat?
That said, we must accept the facts leading to the state’s decision to prosecute as presented.
No. 14-3511 Page 4
district court reasoned that the Supreme Court, in District of Columbia v. Heller, 554 U.S.
570, 626–27 (2008), at a minimum, left open the question of whether bans on carrying a
concealed weapon were constitutional. Brown v. Milwaukee Cty. Cir. Ct., No. 13-C-570,
2014 WL 5312569, at *4 (E.D. Wis. 2014). The district court also denied Brown’s
as-applied challenge on the grounds that the Wisconsin Court of Appeals’ decision was
not “based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding” as required by 28 U.S.C. § 2254(d)(2). Brown,
2014 WL 5312569, at *5. Yet, more importantly for this appeal, the district court found
that Brown had procedurally defaulted his as-applied challenge by failing to raise it
before the Wisconsin Court of Appeals. Id. We granted Brown a certificate of
appealability on his as-applied claim only, and instructed the parties to brief the
antecedent question of whether Brown procedurally defaulted the claim.
II. Analysis
We review a district court’s denial of a habeas petition de novo. Smith v. McKee,
598 F.3d 374, 381 (7th Cir. 2010).
Brown’s as-applied challenge before the Wisconsin Court of Appeals was that
Wis. Stat. § 941.23 violated the Wisconsin Constitution according to Hamdan, a state law
case. Brown limited his as-applied challenge to state law grounds for obvious reasons:
Hamdan was a successful as-applied challenge to Wis. Stat. § 941.23 under the Wisconsin
Constitution’s Second Amendment analog, Article I, Section 25. The Wisconsin Supreme
Court held that Wis. Stat. § 941.23 did not prevent Hamdan from carrying a concealed
handgun in his store. His interest in bearing arms for his safety was protected by the
Wisconsin Constitution. That interest outweighed the state’s interest in enforcing the
statute. Also carrying the handgun openly in his store would have been dangerous and
counterproductive to this right. Hamdan, 665 N.W.2d at 811–12. Even though Hamdan
bears many similarities to Brown’s case, it is of no use to his habeas petition. Hamdan is a
Wisconsin case applying Wisconsin law, and the district court can grant Brown habeas
corpus relief only if “he is in custody in violation of the Constitution or laws or treaties of
the United States.” 28 U.S.C. § 2254(a).
Before the district court, then, Brown changed his as-applied challenge to argue
that Wis. Stat. § 941.23 was unconstitutional as applied to him under the Second
Amendment of the United States Constitution, an argument Brown did not make before
the Wisconsin Court of Appeals. The only time Brown connected his as-applied claim to
No. 14-3511 Page 5
federal law in the Wisconsin Court of Appeals was in his reply brief, in passing, as a
one-sentence backup for his facial challenge: “Even if Wisconsin’s Concealed Carry
statute survives a facial challenge to its constitutionality, the Appellant’s actions should
still be protected ‘as applied’ under Heller.” Dist. Ct. Doc. 10-5 at 6. Despite this naked
assertion, the reply brief’s as-applied argument was limited to the Wisconsin
Constitution and Hamdan. Id. at 7–8. Similar to this court, the Wisconsin Court of
Appeals does not consider claims first argued in a reply brief to be properly raised
before the court. Techworks, LLC v. Wille, 770 N.W.2d 727, 740 (Wis. Ct. App. 2009).
Brown did not fairly present his federal as-applied challenge to the Wisconsin Court of
Appeals, and a “failure to fairly present each habeas claim to the state’s appellate and
supreme court in a timely manner leads to a default of the claim, thus barring the federal
court from reviewing the claim’s merits.” Smith, 598 F.3d at 382.
Brown argues that his claim is not procedurally defaulted because a court may
hold that a statute is unconstitutional as applied as an alternative remedy for a facial
challenge. Since Brown brought a facial challenge, the argument goes, the court can
choose to grant relief in the form of an as-applied exception rather than hold the statute
to be unconstitutional on its face. See Citizens United v. Fed. Election Comm’n, 558 U.S. 310,
331 (2010). This argument fails because, as the district court noted, “here the distinction
isn’t between facial versus as-applied challenges [under the U.S. Constitution], it is
between arguments made under the state and federal constitutions. [Brown]’s as-applied
challenge raised only questions of state law.” Brown, 2014 WL 5312569, at *5 n.1. Brown
seeks to preempt us from coming to the same conclusion by arguing that Wisconsin’s
right to keep and bear arms is similar enough to the Second Amendment (they are both
considered fundamental rights) that the analysis would be substantially the same. See
State v. Cole, 665 N.W.2d 328, 336 (Wis. 2003). But this similarity, by itself, was not
enough to fairly present Brown’s federal as-applied claim to the Wisconsin Court of
Appeals.
III. Conclusion
Because Brown procedurally defaulted on his as-applied claim, the judgment of
the district court is AFFIRMED.