Owens, George v. Frank, Matthew J. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2809
GEORGE OWENS,
Petitioner-Appellant,
v.
MATTHEW J. FRANK,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 00 C 492—Patricia J. Gorence, Magistrate Judge.
____________
Argued February 17, 2004—DECIDED JANUARY 6, 2005
____________
Before RIPPLE, KANNE and WILLIAMS, Circuit Judges.
RIPPLE, Circuit Judge. George Owens was convicted in a
Wisconsin state court of first degree recklessly endangering
safety while armed, a violation of Wisconsin Statutes
§§ 941.30(1) and the former 939.63(1)(A)(3). After pursuing
postconviction remedies in the Wisconsin state courts,
Mr. Owens filed a petition for a writ of habeas corpus in the
United States District Court for the Eastern District of
Wisconsin. Mr. Owens’ petition was denied, and he ap-
2 No. 03-2809
pealed. For the reasons set forth in the following opinion, we
affirm the judgment of the district court.
I
BACKGROUND
A. Facts
George Owens’ state conviction arose from an incident
that occurred on March 18, 1997, involving his nephew,
Maurice Owens. Mr. Owens and his son, George Owens, Jr.,
went to see Maurice Owens at a Milwaukee residence. After
arriving, Mr. Owens began arguing with Maurice about an
automobile. During the argument, Mr. Owens went back to
his car to retrieve a shotgun. Maurice “ran into the house
and slammed the door as Owens fired the shotgun at the
front door. The shotgun pellets broke the glass of the screen
door and splintered the door frame; some of the pellets
went into the house, breaking portions of the drywall in the
living room.” R.8, Ex.D at 2.
Mr. Owens was arrested and charged on March 24, 1997.
Maurice Owens testified at a preliminary hearing on April
1, 1997. Soon thereafter, on April 18, 1997, Mr. Owens made
a demand for a speedy trial, and a trial was set for July 14,
1997. Maurice Owens, the victim in the incident, was not
produced on the first trial date because the State had been
unable to locate him. The trial then was rescheduled for
August 20, 1997. However, the State still was unable to
locate Maurice, and the trial was reset for October 29, 1997,
over Mr. Owens’ objection.
Prior to the October trial date, the State learned that
Maurice had been the victim of an unrelated homicide. The
State then requested that it be allowed to introduce Maurice
No. 03-2809 3
Owens’ preliminary hearing testimony in his absence; the
trial court granted the request.
The trial commenced on October 29, 1997, as scheduled.
During the course of jury deliberations, the trial court
advised counsel that the foreperson had sent the judge a
note concerning one of the jurors. The note read: “As fore-
person it has come to my attention that [Juror K] has with-
held information regarding her boyfriend, who is currently
on trial. She has made it clear to me in confidence that due
to this situation she cannot be objective.” R.8, Ex.D at 10
(alteration in original). The trial court addressed the issue
by advising counsel that it would reconvene to address the
issue after the jury rendered its verdict. The defense counsel
requested permission to question the juror referenced in the
note, Lavita King. Apparently, the court reserved ruling on
the issue. See R.8, Ex.C at 19. Shortly thereafter, the jury
returned a verdict of guilty.
After the verdict, the court discharged the jury and spoke
with the foreperson. She advised the trial court that King
“could not trust the police and appeared to have a bias
against white officers” and that King “may not have an-
swered truthfully questions regarding knowing the defendant,
his family, having strong feelings that would be anti-police
officers, and matters of that sort.” R.8, Ex.D at 10. The
foreperson also informed the judge that King, at one point
during deliberations, placed her coat over her head and
1
refused to deliberate. R.8, Ex.C at 19.
On the date of Mr. Owens’ sentencing, the court recounted
its conversation with the foreperson. The record on appeal
does not reveal any further requests on the part of Mr.
1
She eventually did deliberate and, as noted above, the jury re-
turned a guilty verdict.
4 No. 03-2809
Owens to procure information from the juror. In November,
Mr. Owens was sentenced to nine years’ imprisonment.
B. State Court Proceedings
Mr. Owens appealed his conviction to the Court of
Appeals of Wisconsin. He asserted “(1) that the trial court
erred in admitting the victim’s preliminary-examination
testimony at trial; (2) that his counsel was ineffective be-
cause he failed to question adequately the victim at the
2
preliminary examination; (3) that his constitutional right to
a speedy trial was violated; and (4) that his right to an
impartial jury was violated.” R.8, Ex.D, at 1-2.
The court first addressed Mr. Owens’ contention that he
was denied an opportunity to cross-examine sufficiently
Maurice Owens at the preliminary hearing. The court
determined that Mr. Owens conceded that the testimony fit
within a firmly rooted hearsay exception; Mr. Owens only
maintained that he was denied effective cross-examination.
The court rejected this assertion by noting that the record
revealed that “the trial court did not significantly limit
Owens’s cross-examination of his nephew.” Id. at 4.
Turning to the alleged denial of a speedy trial, the
Court explained that, under both the State and Federal
Constitutions, “in determining whether a defendant has
been denied his or her right to a speedy trial, a court must
consider: (1) the length of the delay; (2) the reason for the
delay . . .; (3) the defendant’s assertion of his right; and (4)
prejudice to the defendant.” Id. at 8 (citing Doggett v. United
States, 505 U.S. 647, 651 (1992); Barker v. Wingo, 407 U.S. 514,
2
Mr. Owens does not raise this claim on appeal and it will not be
discussed further.
No. 03-2809 5
530 (1972); Day v. State, 212 N.W.2d 489, 492-94 (Wis. 1973)).
The court determined that the length of delay was a thresh-
old question that required the court to find that the length
was presumptively prejudicial before assessing the re-
maining factors. The court concluded that the seven-month
delay was “relatively short” and “not so unreasonable as to
be presumptively prejudicial.” Id. at 9. Therefore, the court
concluded, it need not consider the remaining factors.
Nevertheless, the court explained that, even if it were to
consider the remaining factors, those considerations, taken
together, did not support Mr. Owens’ claim that he was de-
nied a speedy trial. Although the court acknowledged that
Mr. Owens had “consistently asserted his right to a speedy
trial,” id. at 9, the cause for the delay and its short length
weighed heavily against Mr. Owens’ claim. As to the final
consideration, the court explained that the only prejudice
Mr. Owens offered was that he was unable to cross-examine
Maurice Owens at trial. The court found, however, that
Maurice would have been similarly unavailable at the earlier
trial dates. At any of the trial dates, Maurice Owens would
not have been available to testify; therefore, there was no
prejudice from the short delay and no denial of a speedy
trial.
Finally, the court addressed Mr. Owens’ claim regarding
the denial of an impartial jury. The appellate court re-
counted the contents of the foreperson’s note to the trial
judge and the subsequent conversation between the fore-
person and the judge. The court characterized Mr. Owens’
contentions on this claim as presenting an “undeveloped
argument.” Id. at 10. It explained that whether a new trial
was warranted depended on whether the juror incorrectly
responded to a material question during voir dire and
whether it was more probable than not that the juror was
biased against Mr. Owens. The appellate court determined
6 No. 03-2809
that Mr. Owens had “not alleged any facts to establish that
[King] was biased against him.” Id. at 11. The court stated
that the record only indicated that King “may have been
biased in his favor because the foreperson indicated that the
3
juror may have had a relationship with Owens” and had a
“bias against the white police officers who testified against
[him].” Id. Further, the court held that Mr. Owens had not
alleged any facts that indicated King provided extraneous
prejudicial information to the jury. Concluding there was no
evidence of bias against Mr. Owens, the court denied this
claim and affirmed the conviction.
C. District Court Proceedings
After the Supreme Court of Wisconsin denied Mr. Owens’
petition for review, he filed a petition for a writ of habeas
corpus in the United States District Court for the Eastern
District of Wisconsin. The district court first addressed the
speedy trial claim and explained that the Supreme Court
has adopted a balancing test that weighs both the conduct
of the prosecution and the defendant. To trigger this an-
alysis, the court noted, “the accused must allege that the
interval between accusation and trial has crossed the thresh-
old dividing ordinary from presumptively prejudicial delay.”
R.35 at 9 (citing Doggett, 505 U.S. at 651-52).
The court determined that the Wisconsin appellate court
had applied the correct Supreme Court precedent; it was
only necessary, therefore, to consider whether the Wisconsin
decision involved an “unreasonable application” of that
precedent, specifically, Barker, 407 U.S. 514. The court
rejected Mr. Owens’ assertion that the Wisconsin courts had
3
The Court of Appeals of Wisconsin apparently believed that the
“Owens” with whom King had a relationship was Mr. Owens.
No. 03-2809 7
employed a bright-line rule for presumptive prejudice. The
district court noted that the state court had relied upon
applicable precedent of the Supreme Court of the United
States in determining that the delay was not so unreason-
able as to be presumptively prejudicial. The district court
also held that the state court “went further than necessary”
when it balanced the remaining Barker factors. R.35 at 11.
This further assessment—one that also concluded Mr. Owens
was not prejudiced by the delay—was not an unreasonable
application of the Barker factors.
The district court next addressed Mr. Owens’ Confronta-
tion Clause claim. Mr. Owens had asserted that the Supreme
Court of Wisconsin’s decision in State v. Dunn, 359 N.W.2d
151 (Wis. 1984), “radically limited the scope and standards
for preliminary examinations by limiting their scope to the
plausibility of the witness’s story,” R.35 at 12 (citations
omitted), and therefore that the testimony given during a
preliminary examination did not satisfy the requirements of
the Confrontation Clause. The district court applied the two-
step test set forth in Ohio v. Roberts, 448 U.S. 56 (1980), to
determine whether a Confrontation Clause violation had
occurred. According to Roberts, out-of-court statements can
be admitted without offending a defendant’s confrontation
rights if (1) the witness was unavailable, and (2) the testi-
mony had sufficient “indicia of reliability.” R.35 at 14
(quoting Roberts, 448 U.S. at 65-66). Roberts held that reliabil-
ity could be inferred if the evidence fits within a “firmly
rooted hearsay exception” or otherwise is shown to have
“particularized guarantees of trustworthiness.” Id. at 14.
The district court found that, although the state court did
not cite Roberts, but instead cited State v. Bauer, 325 N.W.2d
857 (Wis. 1982), the state court had applied the standard set
forth in Roberts. Therefore, the district court only asked
8 No. 03-2809
whether the state decision was an unreasonable application
of federal law. The state court held that the trial court did
not significantly limit the cross-examination of Maurice, and
the district court noted that George Owens did not explain
in his habeas petition how his cross-examination was
restricted significantly. The district court, therefore, denied
relief.
Finally, the district court turned to Mr. Owens’ claim that
he was denied his right to an impartial jury. The court re-
counted the test for determining the impartiality of a juror
and noted that due process only “requires ‘a jury capable
and willing to decide the case solely on the evidence before
it, and a trial judge ever watchful to prevent prejudicial
occurrences and to determine the effect of such occurrences
when they happen.’” R.35 at 18 (quoting Smith v. Phillips,
455 U.S. 209, 217 (1982)). The district court explained that
Mr. Owens had not asserted that the state court’s decision
was contrary to or an unreasonable application of federal
law; rather, Mr. Owens challenged the factual findings of
the state court with affidavits containing factual information
that never had been presented to the state courts. The court
refused to permit Mr. Owens to rely on affidavits never
before the state court to rebut the factual findings of the
state court.
The district court then addressed the federal statutory
provision for an evidentiary hearing. The district court
explained that 28 U.S.C. § 2254(e)(2) sets forth the circum-
stances under which it could hold an evidentiary hearing on
a habeas petition. The district court noted that § 2254(e)(2)
focuses on “whether the petitioner was diligent in his efforts
to develop the facts, not on whether they were dis-
coverable.” Id. at 20. The district court then reasoned that
Mr. Owens did not contend that the newly offered infor-
mation—Ms. King’s attendance at Maurice Owens’ funeral
No. 03-2809 9
and “that she may have had an intimate relationship with
Maurice Owens”—“was not discoverable through the ex-
ercise of due diligence at the time of sentencing or at the
time of the petitioner’s appeal.” Id. In fact, to the court, the
opposite appeared to be the case: George Owens, Jr., claimed
that he observed King at Maurice Owens’ funeral prior to
trial and spoke with her while the trial was ongoing. The
court concluded that Mr. Owens was not entitled to an
evidentiary hearing because he had not made the required
showing set out in § 2254(e)(2).
II
DISCUSSION
Pursuant to the Antiterrorism and Effective Death Penalty
Act (“AEDPA”), 28 U.S.C. § 2254(d)(1), habeas relief may be
granted only if the state court’s adjudication on the merits
of a claim “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as deter-
mined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1); see Johnson v. Bett, 349 F.3d 1030, 1034
(7th Cir. 2003) (citing statute). A state court decision is
“contrary to” Supreme Court precedent “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 Supreme Court precedent and arrives at a result
opposite to [the Supreme Court’s decision].” Williams v.
Taylor, 529 U.S. 362, 405 (2000); see also Anderson v. Cowan,
227 F.3d 893, 896-97 (7th Cir. 2000) (quoting same). A state-
court decision involves an unreasonable application of
Supreme Court precedent “if the state court identifies the
correct governing legal rule from this Court’s cases but
unreasonably applies it to the facts of the particular state
10 No. 03-2809
prisoner’s case.” Williams, 529 U.S. at 407. A decision also
may fall within this section if it “either unreasonably ex-
tends a legal principle” from existing precedent “to a new
context where it should not apply or unreasonably refuses
to extend that principle to a new context where it should
apply.” Id. In applying this standard, however, the Court
has cautioned federal habeas courts that “unreasonable”
and “incorrect” are not synonymous: “[A] federal habeas
court may not issue the writ simply because that court
concludes in its independent judgment that the relevant
state court decision applied clearly established federal law
erroneously or incorrectly. Rather, that application must
also be unreasonable.” Id. at 411; see also Early v. Packer, 537
U.S. 3, 11 (2002) (per curiam) (“[D]ecisions which are not
‘contrary to’ clearly established Supreme Court law can be
subjected to habeas relief only if they are not merely errone-
ous, but ‘an unreasonable application’ of clearly established
federal law, or based on ‘an unreasonable determination of
the facts’ (emphasis added).”); Dixon v. Snyder, 266 F.3d 693,
700 (7th Cir. 2001) (“In order to issue a writ of habeas
corpus, the state court decision must be both incorrect and
unreasonable.” (internal citations omitted)).
With these general instructions in mind, we turn to
Mr. Owens’ claims.
A. Impartial Jury Trial
Mr. Owens first maintains that King’s presence on the jury
deprived him of his Sixth Amendment right to an impartial
jury. The state court of appeals found that “Owens [had] not
alleged any facts to establish that Juror K [King] was biased
against him. Indeed, the record discloses that Juror K may
have been biased in Owens’s favor.” R.8, Ex.D at 11 (noting
that the juror stated King may have had a relationship with
No. 03-2809 11
Mr. Owens and that she disliked white police officers who
testified against Mr. Owens). Mr. Owens “does not challenge
the Wisconsin Court of Appeals’ decision on its face.” Reply
Br. at 3-4. Rather, in the district court, Mr. Owens sought to
introduce two affidavits to support his claim that King
actually may have been biased against him, contrary to the
4
factual findings of the state court. The district court,
however, refused to consider Mr. Owens’ submissions.
Consequently, Mr. Owens “challenges [the district court’s]
refusal to allow him to rebut [the state court] decision with
affidavits containing information not known or reasonably
discoverable at the time of Owens’ trial and postconviction
proceedings.” Reply Br. at 3-4.
Generally speaking, “a determination of a factual issue
made by a State court shall be presumed to be correct. The
applicant shall have the burden of rebutting the presump-
tion of correctness by clear and convincing evidence.” 28
U.S.C. § 2254(e)(1); Ellsworth v. Levenhagen, 248 F.3d 634, 638
(7th Cir. 2001) (“ ‘[S]tate court factual findings that are
reasonably based on the record are accorded a presumption
of correctness.’ ” (citations omitted)). However, before we
are able to determine whether Mr. Owens has rebutted this
factual finding, we must consider whether he may include,
4
George Owens’ affidavit asserts that after trial his son, George
Owens, Jr., contacted him and informed him that he knew King
and that “she was probably the girlfriend of Maurice Owens or
knew him very well.” R.25 at 2. His son also informed him that he
had observed King crying at Maurice’s funeral. See id. In George,
Jr.’s affidavit he claims that King had an intimate relationship
with Maurice, that he frequently saw King at Maurice’s home
before trial, that King called him at home during the trial and
they discussed the funeral and those present, and that King
signed the guest book at the funeral and sent her condolences to
the family. See R.31.
12 No. 03-2809
for this federal habeas review, facts that he did not submit
to the state court. We must consider what impact the
underdevelopment of the factual record in the state court
has on Mr. Owens’ ability to supplement that record by the
two affidavits submitted, for the first time, to the district
court.
The ability of a habeas petitioner to introduce new evi-
dence into the record depends on the interplay between two
provisions: 28 U.S.C. § 2254(e)(2) and Habeas Corpus Rule
7. Section 2254(e)(2) addresses the requirements to obtain an
evidentiary hearing. It provides: “If the applicant has failed
to develop the factual basis of a claim in State court proceed-
ings, the court shall not hold an evidentiary hearing on the
claim unless the applicant shows . . . a factual predicate that
could not have been previously discovered through the
5
exercise of due diligence.” 28 U.S.C. § 2254(e)(2)(A) (em-
phasis added). Habeas Rule 7 preceded the enactment of
this provision and speaks to when a district court may
expand the record. It provides that the district “judge may
direct that the record be expanded by the parties by the
inclusion of additional materials relevant to the determina-
tion of the merits of the petition.” Habeas Corpus Rule 7(a).
Pertinent to the present situation, Rule 7(b) explains that
“[a]ffidavits may be submitted and considered as a part of
the record.” Id.(b).
However, affidavits providing new information in a
habeas petition will rarely permit resolution of a claim with-
out an evidentiary hearing to assess credibility. See, e.g.,
5
Section 28 U.S.C. § 2254(e)(2)(B) also requires that the peti-
tioner demonstrate “the facts underlying the claim would be suf-
ficient to establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would have found
the applicant guilty of the underlying offense.”
No. 03-2809 13
Rules Governing § 2254 Cases, Rule 7, advisory committee
note (“When the issue is one of credibility, resolution on the
basis of affidavits can rarely be conclusive.” (quoting Raines
v. United States, 423 F.2d 526, 529-30 (4th Cir. 1970))); Smith
v. Zant, 887 F.2d 1407, 1433 n.15 (11th Cir. 1989) (“[W]e fail
to see how the state habeas court could have made a de-
cision on Fisher’s credibility when Fisher never gave oral
testimony. We previously have expressed doubts as to
whether a credibility determination can be fairly made on a
paper record.”). Therefore, the information that Mr. Owens
wishes to present by affidavit actually requires testimonial
evidence that necessitates not only inclusion of documents
into the expanded record, but also concomitant credibility
determinations.
We addressed similar efforts to supplement the record in
Boyko v. Parker, 259 F.3d 781 (7th Cir. 2001). In Boyko, the
habeas petitioner requested that the district court consider
a transcript that had not been presented first to the state
court. We recognized “that Mr. Boyko ha[d] not yet asked
the district court to hold an evidentiary hearing; instead, he
[sought] permission to conduct discovery and to expand the
record.” Id. at 790. However, we explained, “[t]hese pro-
cedural devices . . . can be used to introduce new factual
information into the record in lieu of an evidentiary hearing.
When expansion of the record is used to achieve the same
end as an evidentiary hearing, the petitioner ought to be
subject to the same constraints that would be imposed if he
had sought an evidentiary hearing.” Id. at 790 (citations and
footnote omitted). We therefore held that the petitioner
must satisfy § 2254(e)(2)’s “requirements before he may
place new factual information before the federal court.” Id.
at 790. Thus, to introduce the new affidavits, Mr. Owens
must satisfy the standards of § 2254(e)(2).
Section 2254(e)(2) provides:
14 No. 03-2809
If the applicant has failed to develop the factual basis
of a claim in State court proceedings, the court shall not
hold an evidentiary hearing on the claim unless the
applicant shows that—
(A) the claim relies on—
(i) a new rule of constitutional law, made retroac-
tive to cases on collateral review by the Supreme
Court, that was previously unavailable; or
(ii) a factual predicate that could not have been
previously discovered through the exercise of due
diligence; and
(B) the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would
have found the applicant guilty of the underlying
offense.
28 U.S.C. § 2254(e)(2). In Williams v. Taylor, 529 U.S. 420, 437
(2000) (Williams II), the Court explained that “failed to
develop the factual basis,” as used in this opening clause of
§ 2254(e)(2), is a “conditional clause” which must be satis-
fied before the remainder of § 2254(e)(2) comes into play. Id.
at 431. The Court further stated that this clause “directs
attention to the prisoner’s efforts in state court”: “Under the
opening clause of § 2254(e)(2), a failure to develop the
factual basis of a claim is not established unless there is lack
of diligence, or some greater fault, attributable to the
prisoner or the prisoner’s counsel.” Id. at 431-32. In other
words, “[t]he question is not whether the facts could have
been discovered but instead whether the prisoner was dil-
igent in his efforts.” Id. at 435. If Mr. Owens establishes that
he was diligent in his attempts to develop the factual record
in the state court, he does not have to satisfy the remaining
provisions of § 2254(e)(2) in order to obtain an evidentiary
No. 03-2809 15
hearing. See id. (stating that “only a prisoner who has neg-
lected his rights in state court need satisfy these conditions”).
Applying this standard to the facts before it, the Court in
Williams II determined that the petitioner had been diligent
in developing the factual record in the state court. In that
case, the petitioner, while still in state court, had requested
the appointment of a private investigator to look into al-
leged irregularities and improprieties in empaneling the
jury. The state supreme court denied the motion. After filing
a federal habeas action, an investigator working on behalf
of the petitioner discovered that the key witness and a juror
had been married and that a prosecuting attorney had
provided legal services to the couple in securing a divorce.
Despite the fact that the relationships were uncovered with
ease, the Supreme Court held that counsel’s first request
satisfied the conditional clause in § 2254(e)(2). See id. at 443.
Mr. Owens contends that “there was no lack of diligence”
on his part in developing the factual record in the state
court. Mr. Owens argues that, when the note concerning
King’s unwillingness to deliberate first surfaced, he re-
quested the opportunity to make further inquiries of King.
The record does not disclose whether the court ever formally
ruled on the request; however, it is clear that Mr. Owens
6
was not afforded that opportunity. Furthermore, Mr. Owens
asserts that he never knew, or had reason to know, about his
nephew’s relationship with King until his son revealed that
information to him at some time after he was sentenced.
Consequently, Mr. Owens maintains that he did not “fail”
to develop the record but was prevented from doing so by
the state court.
6
Instead, the court conducted a private interview and summa-
rized the discussion at the sentencing proceedings.
16 No. 03-2809
We cannot agree with Mr. Owens’ assertions concerning
his diligence. As noted above, the burden is on Mr. Owens
to establish the diligence that absolves him of meeting the
remaining requirements of § 2254(e)(2). Mr. Owens, how-
ever, cannot establish his own diligence in developing the
factual record in state court. It is true that, when the initial
problem with King arose, Mr. Owens requested that the
court allow him to question King. However, when the court
later revealed to the parties its lengthier discussions with
the foreperson concerning King, Mr. Owens did not renew
his request. Furthermore, although the state trial court
reported to the parties that King “may not have answered
truthfully questions regarding knowing the defendant [and]
his family,” R.8, Ex.C at 19, apparently neither Mr. Owens
nor his counsel questioned family members about their
knowledge of King or of her potential bias. Finally, neither
the affidavit of Mr. Owens nor that of his son set forth the
time frame in which they discussed Maurice’s relationship
with King. Mr. Owens states in his affidavit that it was after
his trial; however, he does not affirmatively state that the
information was given to him at a time that he could not
have presented it, in some manner, to the state court.
“Diligence for purposes of the opening clause depends
upon whether the prisoner made a reasonable attempt, in
light of the information available at the time, to investigate
and pursue claims in state court . . . .” Williams II, 529 U.S.
at 435. There is no question that, in the present case, Mr.
Owens’ counsel initially asked to question King. Here, un-
like the situation in Williams II, additional information was
presented to Mr. Owens first by way of the court. After
receiving that information, Mr. Owens did not endeavor
to question family members who may have known King.
Later, Mr. Owens was informed by his son that King and
Maurice were romantically involved. Again, the record does
not reflect any effort by Mr. Owens to present this infor-
No. 03-2809 17
mation to the state court, nor does Mr. Owens argue to this
court that such a mechanism was unavailable or would have
been futile. Consequently, based on the record before us, we
do not believe that Mr. Owens made reasonable attempts to
develop the factual basis for his claim in state court.
Because Mr. Owens has not satisfied the conditional
clause of § 2254(e)(2), he also must meet the remainder of
the requirements set forth in that section. Mr. Owens, how-
ever, does not claim that he is able to make the necessary
showings, nor do we believe that Mr. Owens could show, for
instance, that no reasonable factfinder would have found
him guilty of reckless endangerment absent the alleged
constitutional error. See 28 U.S.C. § 2254(e)(2)(B). Conse-
quently, we affirm the district court’s denial of habeas relief
on Mr. Owens’ impartial jury claim.
B. Confrontation
Mr. Owens next argues that he was denied his Sixth
Amendment right to confront the witnesses against him
when the trial court admitted into evidence the preliminary
hearing testimony of Maurice Owens. The Court of Appeals
of Wisconsin applied the standard set forth in State v. Bauer,
325 N.W.2d 857 (Wis. 1982), which, in turn, incorporated the
framework set forth in Roberts, 448 U.S. 56, to determine
whether Mr. Owens’ Sixth Amendment right had been
7
violated. At the time of Mr. Owens’ direct ap
7
The fact that the state court relied upon its own case as opposed
to relying directly on the federal standard is of no moment: “So
long as the standard [the state court] applied was as demanding
as the federal standard . . . the federal claim is deemed adjudi-
cated on the merits and . . . entitled in this habeas corpus
(continued...)
18 No. 03-2809
peal, Roberts articulated the federal standard for evaluating
Confrontation Clause violations; thus, we evaluate only
whether the state court’s application of the rule to Mr.
8
Owens’ claim was an unreasonable one.
7
(...continued)
proceeding to the deference prescribed by section 2254(d)(1).”
Oswald v. Bertrand, 374 F.3d 475, 477 (7th Cir. 2004) (internal
citations omitted).
8
Section 2254(d)(1) provides that habeas relief shall not be af-
forded unless a state court reached a result “that was contrary to,
or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States . . . .” Furthermore, the law to be applied is the law as de-
termined by the Supreme Court of the United States “at the time
[the petitioner’s] state court conviction became final.” Williams v.
Taylor, 529 U.S. 362, 390 (2000); see id. at 412 (noting that the
phrase “clearly established Federal law, as determined by the
Supreme Court of the United States” contained in 28 U.S.C.
§ 2254(d)(1) “refers to the holdings, as opposed to the dicta, of
th[e] [Supreme] Court’s decisions as of the time of the relevant
state-court decision.”). At the time of the state court decisions,
there is no question that Ohio v. Roberts, 448 U.S. 56 (1980), set
forth the applicable standard for evaluating Mr. Owens’
Confrontation Clause claim.
Since that time, however, the Supreme Court reconsidered part
of the holding of Ohio v. Roberts. In Crawford v. Washington, 124
S. Ct. 1354 (2004), the Court overruled that portion of Roberts
that permitted testimonial evidence to be used against a defen-
dant even when the prior testimony had been elicited without an
opportunity for cross-examination. See Crawford, 124 S. Ct. at1369 (citing Roberts and noting that the rationales of its prior
decisions have not remained faithful to the original meaning of
the Confrontation Clause); id. at 1370 (“Where testimonial
statements are involved, we do not think the Framers meant to
leave the Sixth Amendment’s protection to the vagaries of the
rules of evidence, much less to amorphous notions of ‘reliability.’”).
(continued...)
No. 03-2809 19
In Roberts, the Supreme Court held accordingly:
[W]hen a hearsay declarant is not present for cross-ex-
amination at trial, the Confrontation Clause normally
requires a showing that he is unavailable. Even then, his
statement is admissible only if it bears adequate “indicia
of reliability.” Reliability can be inferred without more
in a case where the evidence falls within a firmly rooted
hearsay exception. In other cases, the evidence must be
excluded, at least absent a showing of particularized
guarantees of trustworthiness.
448 U.S. at 66.
Applying this standard, the Court of Appeals of
Wisconsin found, and Mr. Owens did not dispute, that the
preliminary examination testimony fit within a firmly rooted
9
hearsay exception. Nevertheless, Mr. Owens maintained
8
(...continued)
Neither Mr. Owens nor the respondent has provided Crawford
to this court as supplemental authority for their respective posi-
tions. Furthermore, neither of the parties have suggested to this
court that, as a new rule of constitutional procedure, Crawford
should be applied retroactively to Mr. Owens according to the
standards of Teague v. Lane, 489 U.S. 288 (1989). We are hesitant
to address this weighty issue when neither party has presented it
to the court, and, therefore, reserve the question for another day.
However, we note in passing that one circuit court has addressed
the issue and has determined that Crawford should not be applied
retroactively to cases on collateral review. See Brown v. Uphoff,
381 F.3d 1219, 1225-26 (10th Cir. 2004).
9
The applicable hearsay exception was Wis. Stat. § 908.045(1).
In relevant portion it provides:
The following are not excluded by the hearsay rule if the
declarant is unavailable as a witness:
(continued...)
20 No. 03-2809
that the preliminary hearing setting did not provide suf-
ficient opportunity for cross-examination with respect to a
witness’ credibility. The state court rejected Mr. Owens’
argument and found that “[t]he record discloses that the
trial court did not significantly limit Owens’s cross-exami-
nation of his nephew at the preliminary examination, and
that Owens’s confrontation right was thus satisfied.” R.8,
Ex.D at 4.
We do not believe that the state court’s application of
Roberts was unreasonable. Roberts sets forth a two-part test.
In order to use a witness’ out-of-court statement against the
defendant, the prosecution first must demonstrate that the
witness is unavailable. This requirement clearly is satisfied
here because the witness passed away prior to trial. See, e.g.,
Haywood v. Wolf, 658 F.2d 455, 460 (7th Cir. 1981).
Once unavailability is established, the second prong
requires that the statements offered “bear[ ] adequate ‘in-
dicia of reliability.’ ” Roberts, 448 U.S. at 66. In Roberts, the
Court determined that the preliminary hearing transcript
bore “sufficient ‘indicia of reliability’ and afforded ‘the trier
of fact a satisfactory basis for evaluating the truth of the
prior statement’ ” because counsel had “an adequate
opportunity to cross-examine [the witness], and counsel . . .
availed himself of that opportunity.” Id. at 73 (quoting
California v. Green, 399 U.S. 149, 161 (1970) (alterations in
9
(...continued)
(1) Former testimony. Testimony given as a witness at
another hearing of the same or a different proceeding, or in a
deposition taken in compliance with law in the course of
another proceeding, at the instance of or against a party with
an opportunity to develop the testimony by direct, cross-, or
redirect examination, with motive and interest similar to
those of the party against whom now offered.
No. 03-2809 21
original)). Expounding upon Roberts, the Supreme Court has
explained that an “adequate opportunity” does not neces-
sarily mean cross-examination of the length and breadth
afforded during trial: “Generally speaking, the Confrontation
Clause guarantees an opportunity for effective cross-exami-
nation, not cross-examination that is effective in whatever
way, and to whatever extent, the defense might wish.”
Delaware v. Fensterer, 474 U.S. 15, 20 (1985); see also Green,
399 U.S. at 166 (noting that even though preliminary hearing
testimony is often a “less searching exploration into the
merits,” the opportunity to cross-examine the witness may
still satisfy the Confrontation Clause).
In applying Roberts, this circuit has upheld the use of
preliminary hearing testimony against a defendant when
the witness is unavailable. In Haywood, we acknowledged
that preliminary hearing testimony is often a “ ‘less search-
ing exploration into the merits’ ” than cross-examination at
trial, id. at 462 (quoting Barber v. Page, 390 U.S. 719, 725
(1968)), because the only function of a preliminary hearing
is to determine whether probable cause exists for holding
the accused for trial, see id. at 461. Despite the limited scope
of the inquiry, however, we explained that preliminary hear-
ing testimony is not “inherently unreliable” simply because
it was “not subjected to as extensive cross-examination as it
could have been at trial.” Id. at 462. We determined that the
testimony in Haywood met the second prong of the Roberts
test because it “was given under circumstances that were
intended to impress upon him the importance of telling the
truth.” Id. at 463. It was not a “casual statement made in an
informal setting” in which one reasonably might have felt
“at liberty to exaggerate or color his version of an event.” Id.
Further, in Haywood, the witness “testified in open court
under oath and subject to criminal penalties for perjury.” Id.
“His testimony was not about someone far removed from
22 No. 03-2809
the proceedings; [the defendant] was seated directly before
him. . . .” Id. We explained that, although counsel’s opportu-
nity to cross-examine the witness was more limited than at
trial, it was “more than adequate to allow him to determine
precisely what [the witness] claimed to know and the
claimed basis for his knowledge.” Id.
Each statement applies with equal force to the preliminary
hearing testimony of Maurice Owens. Maurice Owens
appeared in open court, under oath, and in front of the
defendant. He identified the defendant as the person who
had fired a shotgun at a door through which he had walked.
Mr. Owens’ counsel was able to cross-examine Maurice
about the argument he and Mr. Owens had, the timing of
the events and the basis for Maurice’s knowledge. There-
fore, as in Haywood, the examination of Maurice allowed Mr.
Owens to determine what Maurice claimed to have seen as
well as the events that formed the basis of his testimony.
Before this court, Mr. Owens makes a general assertion
that he was denied an opportunity to “examine the witness’
credibility.” Petitioner’s Br. at 34. Mr. Owens, however, does
not explain how the limitations on preliminary hearing
testimony curtailed his ability to cross-examine Maurice
Owens and, further, does not identify specific questions that
he would have put to Maurice if he had been given more
leeway in the examination. In short, Mr. Owens does not
come forward with evidence that the cross-examination was
so limited as to deny “ ‘the trier of fact a satisfactory basis for
evaluating the truth of the prior statement.’ ” Roberts, 448 U.S.
at 65-66 (quoting Green, 399 U.S. at 161). Therefore, we
cannot conclude that the state appellate court’s decision was
an unreasonable application of Roberts—the clearly estab-
lished federal law as determined by the United States
Supreme Court “at the time his state court conviction
became final.” Williams, 529 U.S. at 380.
No. 03-2809 23
C. Speedy Trial
Mr. Owens claims he was denied his Sixth Amendment
right to a speedy trial. The Court of Appeals of Wisconsin
correctly identified Barker, 407 U.S. 514, and Doggett, 505
U.S. 647, as the standard for determining whether a defen-
dant’s right to a speedy trial has been abridged.
In Barker, the Supreme Court set forth four factors to
assess whether a defendant has been denied a speedy trial:
“Length of delay, the reason for the delay, the defendant’s
assertion of his right, and prejudice to the defendant.” Barker,
407 U.S. at 530. “The length of delay is to some extent a
triggering mechanism. Until there is some delay which is
presumptively prejudicial, there is no necessity for inquiry
into the other factors that go into the balance.” Id. at 530.
The Court reiterated this proposition in Doggett:
Simply to trigger a speedy trial analysis, an accused
must allege that the interval between accusation and
trial has crossed the threshold dividing ordinary from
“presumptively prejudicial” delay since, by definition,
he cannot complain that the government has denied him
a “speedy” trial if it has, in fact, prosecuted his case with
customary promptness.
Doggett, 505 U.S. at 651-52. However, the Court explained
that, due to the imprecise nature of the speedy trial right,
the length that will be considered presumptively prejudicial
“is necessarily dependent upon the peculiar circumstances
of the case.” Barker, 407 U.S. at 530-31. Thus, for example,
the delay that will be tolerated for an ordinary street crime
is less than will be permissible for a more complex case.
We do not believe that the Court of Appeals of Wisconsin
unreasonably applied this standard in adjudicating Mr.
Owens’ claim. The court correctly identified the four factors
to be considered in determining whether a defendant had
24 No. 03-2809
been denied his right to a speedy trial and also correctly
characterized the first factor as a “threshold consideration.”
R.8, Ex.D at 9. The court then determined that the seven-
month delay in bringing Mr. Owens to trial was “relatively
short” and therefore not “presumptively prejudicial.” Id.The court nevertheless considered the remaining factors; it
stated:
The record reveals that Owens consistently asserted his
right to a speedy trial. The short delay in proceeding to
trial and the cause for the delay, however, weigh heavily
against Owens’s claim. As noted, Owens was not pro-
duced for the first scheduled trial date, and the victim,
Owens’s nephew, was unavailable on both the first and
second scheduled trial dates. The only prejudice that
Owens claims to have suffered as a result of the delay in
proceeding to trial is that his nephew had died and was
unable to be confronted regarding his testimony. This
claim of prejudice is not supported by the record,
however, because Owens’s nephew was not present for
the earlier trial dates, and thus he would not have been
available for cross-examination if the trial had pro-
ceeded earlier. Owens’s constitutional right to a speedy
trial was not violated.
Id. at 9-10.
Despite this thorough analysis, Mr. Owens maintains that
the Court of Appeals of Wisconsin did not heed the in-
struction in Barker that a court must consider the particular
circumstances of each case to determine whether the delay
is presumptively prejudicial. We believe that this argument
is without merit. The state appellate court noted that the
delay was “relatively short” and not “unreasonable,” id. at 9;
the court also quoted the instruction in Doggett that, “[d]e-
pending on the nature of the charges,” delays approaching
one year have been considered presumptively prejudicial,
No. 03-2809 25
id. (quoting Doggett, 505 U.S. at 651 n.1) (emphasis added).
These statements indicate that the court both recognized its
responsibility to look at the circumstances of the case and
considered the delay in comparison to other cases. There-
fore, we believe that the Court of Appeals of Wisconsin
undertook the correct analysis even though it did not
comment on the specific characteristics or complexity of
Mr. Owens’ case.
Further, even if the state appellate court had erred in
determining that the seven-month delay was not pre-
sumptively prejudicial, the court assessed the remaining
balancing factors in accordance with Barker. The court
acknowledged that Mr. Owens had asserted his right to a
speedy trial and that this factor weighed in his favor. How-
ever, the remainder of the factors weighed against
Mr. Owens. The court noted that, not only had there been
a relatively short delay, but there also had been good cause
for the delay: The victim could not be located and therefore
could not be made to appear for the first and second
scheduled trial dates.
Mr. Owens argues that the State is to blame for not
finding Maurice Owens, and, therefore, this factor should
not weigh against him in the speedy-trial analysis. How-
ever, Mr. Owens has not pointed to any evidence that sug-
gests that the missing witness was a “deliberate attempt to
delay the trial in order to hamper the defense.” Barker, 407
U.S. at 531. Instead, as Barker itself explained, “a valid
reason, such as a missing witness, should serve to justify
appropriate delay.” Id.Finally, Mr. Owens did not establish any prejudice as a
result of the delay. Mr. Owens’ only claim of prejudice is
that, as a result of Maurice’s death, he was unable to con-
front Maurice at his trial. In most instances, when “wit-
26 No. 03-2809
nesses die or disappear during a delay, the prejudice is
obvious.” Barker, 407 U.S. at 532. However, in the present
situation, the state appellate court noted, Maurice Owens
was not present at either of the previous trial dates, and,
therefore, Mr. Owens would not have been able to cross-
examine Maurice Owens had the trial occurred on one of
10
these earlier dates. Without some specific demonstra-
tion that the State impermissibly caused the delay or was
deficient in their efforts to locate a key witness, the prejudice
can be attributable only to the preexisting condition of a
missing witness and not to any delay in the trial. See id.(“Prejudice, of course, should be assessed in light of the
interests of defendants which the speedy trial right was
designed to protect.”).
In sum, the application of Barker and Doggett to
Mr. Owens’ speedy-trial claim was not unreasonable.
Consequently, Mr. Owens is not entitled to habeas relief on
this basis.
Conclusion
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
10
Mr. Owens does not claim that Maurice Owens’ preliminary
hearing transcript would not have been admissible against him on
the prior dates; indeed, such a claim appears untenable. See Wis.
Stat. § 908.04(1) (“ ‘Unavailability as a witness’ includes situations
in which the declarant: . . . (d) Is unable to be present or to testify
at the hearing because of death or then existing physical or
mental illness or infirmity; or (e) Is absent from the hearing and
the proponent of the declarant’s statement has been unable to
procure the declarant’s attendance by process or other reasonable
means.”).
No. 03-2809 27
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-6-05