Walker, David E. v. Litscher, Jon E. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1009
DAVID E. WALKER,
Petitioner-Appellant,
v.
JON E. LITSCHER,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 01 C 605—Charles N. Clevert, Jr., Judge.
____________
ARGUED JUNE 2, 2005—DECIDED AUGUST 30, 2005
____________
Before FLAUM, Chief Judge, and BAUER and EVANS, Circuit
Judges.
BAUER, Circuit Judge. This habeas corpus appeal
arises from David Walker’s February 1998 conviction for
kidnapping and first-degree sexual assault while armed.
Walker claims that his Sixth Amendment right to confront
the witnesses against him was violated by the exclusion
of evidence reflecting the complainant’s motive to falsely
accuse him of sexual assault. He also advances an inef-
fective assistance of counsel claim. The Wisconsin Court
of Appeals, seconded by the district court, rejected his
arguments and denied his petition. We affirm.
2 No. 05-1009
I. Background
A. Trial and Conviction
Lorinda S., the complaining witness, testified at Walker’s
trial that she was at home alone with her four children on
September 26, 1997, when the defendant unexpectedly
arrived at the house. Lorinda knew Walker because he
dated her stepsister. Upon entering the house, Walker
grabbed Lorinda by the wrists. Lorinda told him to “stop
playing,” and he said, “Bitch, I’m not playing.” He grabbed
her by the neck, bit her on the cheek, and hit her. He
also grabbed a hammer that was sitting on the table
and threatened to hit her with it as he said, “You know
what I want.” Lorinda told him to stop, but he forced her
into the bedroom and ordered her to perform oral sex
on him. When she refused, he hit her, then forcibly pulled
up her dress. He pulled the crotch of her underwear aside,
but was not able to pull them off because she held on to
them. Lorinda testified that he rubbed his penis on her
vagina and “put his stuff on me.”
Lorinda testified that, during the assault, she told her
oldest child, eight-year-old Shontaya B., to call 911, and
Shontaya did. Shontaya took the stand at Walker’s trial and
confirmed her mother’s story. Shontaya testified that she
saw Walker hit, push, and grab her mother while her
mother was saying “stop” and telling him to leave. She saw
her mother crying and she saw Walker pick up a hammer
and try to hit her mother with it. After Walker pushed her
mother into the bedroom, Shontaya went upstairs to call
911. The state played a tape of Shontaya’s 911 call for the
jury:
Dispatcher: Milwaukee Emergency. May I help you?
Shontaya: Hello, there’s a man up [sic] my house.
My mother’s crying and I don’t know
what to do. She told me to call 911.
No. 05-1009 3
Dispatcher: Your mother’s crying?
Shontaya: Yes, and there’s a man over at my house,
and I don’t know what he’s doing to her.
Dispatcher: Is that her boyfriend?
Shontaya: No, it’s a man that, it’s a man that I’ve
seen, you know . . .
Dispatcher: And what’s he doing? Is he arguing?
Shontaya: No, but I’m hearing a lot of bumping and
...
Dispatcher: You’re hearing what?
Shontaya: A lot of bumping.
Dispatcher: Do you think he’s hitting your mother?
Shontaya: Yes.
Dispatcher: Where’s your mother now, inside or out-
side?
Shontaya: She’s downstairs.
Dispatcher: What’s your address?
Shontaya: Um, I don’t know, but I’m . . .
Dispatcher: Okay. I show you’re calling from 1830
N
o
r
t
h
3
1
s
t.
Shontaya: Okay.
Dispatcher: And you say your mother’s in the lower
4 No. 05-1009
[sic] with the man?
Shontaya: Um-hum, and you know he’s telling her
to come in the room.
Dispatcher: Okay. And what’s your name?
Shontaya: Shontaya.
Dispatcher: Shontaya?
Shontaya: Um-hum. Shontaya.
Dispatcher: Okay. And this is downstairs, okay?
Shontaya: Okay.
Dispatcher: We’ll get someone out. Thank you.
Shontaya: You’re welcome.
Tr. 137-38.
After Walker left, Lorinda called 911 and told the dis-
patcher that Walker had tried to rape her, and that he bit
her and tried to hit her with a hammer. She also called her
fiancé, Clifton Keeler, who arrived at the house before the
police did.
Walker took the stand in his own defense and testified
that Lorinda invited him to her house and that they had
consensual sex. Walker testified that the mark on Lorinda’s
cheek was a “hickey” that he gave her after their sexual
encounter.
The parties stipulated to the following evidence, which
was presented to the jury: the state crime laboratory
found a small amount of semen on the cervical and
vaginal swabs and the “Woods light” swab, taken from
Lorinda at the hospital in the late afternoon of Septem-
ber 26, 1997, but there was an insufficient amount of semen
for further serological analysis. The nurse from the hospital
testified that the “Woods light” swab was taken from
Lorinda’s right inner thigh and groin. The crime lab report
No. 05-1009 5
also contained a finding that no semen was identified on the
underwear or dress worn by Lorinda, but this was not
presented to the jury by stipulation or otherwise.
Based on the foregoing evidence, the jury convicted
Walker of kidnapping and first-degree sexual assault
while armed, and acquitted him of an intimidation of a
victim charge. The presiding circuit judge sentenced Walker
to 70 years in prison.
B. Post-Conviction Appeals
Walker subsequently filed for post-conviction relief
with the Wisconsin circuit court, arguing, inter alia, that
his Confrontation Clause rights were violated by the
exclusion of evidence that Lorinda had a motive to falsely
accuse him, and that he was denied his right to effec-
tive assistance of counsel when his attorney failed to
introduce the crime lab report finding that no semen
was found on Lorinda’s underwear or dress. The Con-
frontation Clause issue centered on the trial court’s exclu-
sion of evidence that Lorinda’s fiancé, Clifton Keeler, had
previously assaulted her on at least four occasions. All four
of those incidents were memorialized in police reports. The
report of the most recent incident, which occurred on
October 23, 1996, approximately eleven months before
Walker’s sexual assault, noted that Keeler was jealous
because he thought that Lorinda was involved with another
man. Walker argued that the evidence was relevant for two
purposes: truthfulness and motive. Regarding truthfulness,
Walker asserted that this was evidence that Lorinda was
lying when she checked the “no” box in response to the
question “Hit or threatened in the past year?” on a hospital
report related to the incident with Walker. As to motive,
Walker maintained that these prior incidents gave Lorinda
a possible motive to falsely accuse him of rape and falsely
testify that she did not consent to their encounter. Walker’s
6 No. 05-1009
theory was that Lorinda manufactured the sexual assault
story because she feared that Keeler would find out that
they had sex and beat her. The trial court excluded the
evidence. Citing Wisconsin’s analog of Rule 608(b) of the
Federal Rules of Evidence, the court explained that truth-
fulness cannot be attacked by specific instances of conduct.
In addition, the court concluded that the evidence was not
admissible evidence of motive because it was too speculative
and therefore not relevant. The court cited the following
considerations in support of its conclusion that the evidence
was irrelevant: there was no evidence that the prior
beatings by Keeler occurred because Lorinda was having
consensual sex with someone; there was no evidence that
she had ever manufactured a sexual assault to avoid
a beating by Keeler; there was a physical assault compo-
nent connected to the incident with Walker; and
Shontaya provided eyewitness testimony that corro-
borated Lorinda’s account. The court also ruled that any
probative value of the evidence was outweighed by the
prejudicial effect of the evidence. The post-conviction circuit
court summarily affirmed the trial judge’s ruling on the
Confrontation Clause issue. On the ineffective assistance
issue, the court held that Walker was not prejudiced by his
attorney’s failure to introduce the crime lab results.
On July 21, 2000, the Wisconsin Court of Appeals af-
firmed the lower court’s decision. With regard to the
Confrontation Clause issue, the court explained:
The trial court reasoned that the relevance of the
October 23, 1996 incident to Lorinda’s motive to fabri-
cate the nonconsensual nature of sex with Walker was
minimal. The court noted the evidence that Lorinda
called Keeler in tears and told him that Walker had
assaulted her, she had her daughter call 911, her
daughter witnessed Walker’s physically abusive behav-
ior, and Lorinda had a bite mark on her cheek from
Walker. Given this evidence, the trial court could
No. 05-1009 7
reasonably consider Walker’s theory tying the October
23, 1996 incident to a motive to lie about Walker to be
too speculative. The court also expressed a concern
about the effect of stereotype, which we understand to
mean that the trial court was concerned about the effect
on the jury of evidence suggesting that Lorinda had
previously had consensual sex with another man
besides her fiancé. It is likely that if Walker introduced
evidence of the October 23, 1996 incident, whether
Lorinda had been involved with another man would
become a focus of the trial. That would be irrelevant to
the charges against Walker, but distracting and un-
fairly prejudicial to the State’s case. We conclude that
the court could reasonably decide that there was a
minimal logical connection between the October 23,
1996 incident with Keeler and Lorinda’s motive to lie
about Walker, and that any probative value the October
23, 1996 incident might have was substantially out-
weighed by the danger of unfair prejudice.
App. 116. The court also rejected the ineffective assistance
of counsel claim, reasoning that the lack of semen on
Lorinda’s dress and underwear did not necessarily
strengthen Walker’s case or undercut Lorinda’s testimony.
On June 15, 2001, Walker filed a petition for a writ
of habeas corpus in the Eastern District of Wisconsin.
The court denied the petition on September 3, 2003.
Walker’s appointed counsel then filed a motion for re-
lief from judgment under Rule 59(e), asserting mani-
fest error of law. On July 28, 2004, the district court denied
the motion. The court held that Walker’s case
was distinguishable from controlling Supreme Court
precedent on the Confrontation Clause issue and that the
asserted error was harmless in any event. The court
also concluded that the Wisconsin Court of Appeals’ applica-
tion of the prejudice prong of the Supreme Court’s decision
in Strickland v. Washington, 466 U.S. 668 (1984) was
8 No. 05-1009
neither contrary to or an unreasonable application of clearly
established federal law. The district court then granted a
certificate of appealability on both the Confrontation Clause
issue and the ineffective assistance of counsel claim.
II. Discussion
A. Standard of Review
We review the district court’s decision to deny Walker’s
habeas petition de novo. Searcy v. Jaimet, 332 F.3d 1081,
1087 (7th Cir. 2003). Because Walker’s habeas petition
was filed after the effective date of the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L.
104-132, the provisions of the AEDPA govern our review.
Myarrt v. Frank, 395 F.3d 782, 784-85 (7th Cir. 2005).
Under the AEDPA, as relevant to this case, a writ cannot be
granted unless the state court adjudication of the claim
“resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law
. . . .” 28 U.S.C. § 2254(d)(1). “[C]learly established Federal
law” refers to the holdings of the Supreme Court’s cases “as
of the time of the relevant state-court decision.” Williams v.
Taylor, 529 U.S. 362, 412 (2000). “To run afoul of §
2254(d)(1)’s contrary-to standard, the state court must have
either (i) adopted a rule that contradicts the governing law
of the U.S. Supreme Court or (ii) on a set of facts materially
indistinguishable from those at issue in the applicable
Supreme Court precedent, reached a different result.” Ward
v. Sternes, 334 F.3d 696, 703 (7th Cir. 2003) (citing Wil-
liams, 529 U.S. at 405, and Washington v. Smith, 219 F.3d
620, 628 (7th Cir. 2000)). “Under the ‘unreasonable applica-
tion’ clause, a federal habeas court may grant the writ if the
state court identifies the correct governing principle from
the Court’s decisions but unreasonably applies the principle
to the facts of the prisoner’s case.” Williams, 529 U.S. at
413. Even if the state court erroneously applied federal law,
No. 05-1009 9
we may only grant the writ if the decision was objectively
unreasonable. Yarborough v. Alvarado, 541 U.S. 652, 665
(2004).
B. Confrontation Clause
Walker’s first argument is that the Wisconsin Court of
Appeals’ decision on his Confrontation Clause challenge
was “contrary to” clearly established federal law in that the
court confronted facts materially indistinguishable from the
Supreme Court’s decision in Olden v. Kentucky, 488 U.S.
227 (1988) (per curiam), and nevertheless arrived at a
different result. We disagree. Though the facts in Olden are
superficially similar to the instant facts in ways that the
facts in many sexual assault cases would be, they are not
indistinguishable. In Olden, two men were indicted for
kidnapping, rape, and forcible sodomy. Id. at 228. The
Olden defendants asserted a defense of consent. Id. at 229.
The defendants’ “theory of the case was that [the complain-
ant] concocted the rape story to protect her relationship
with [her boyfriend].” Id. at 230. The complainant admitted
that she had been out drinking at a bar, “became somewhat
intoxicated,” and voluntarily left with one of the defendants.
Id. at 228. According to the complainant, the defendants
then raped her and dropped her off at her boyfriend’s house.
Id. Her boyfriend, the half-brother of one of the assailants,
heard a noise outside of his home, went out to investigate,
and saw his girlfriend get out of the assailant’s car. Id. at
228-29. The complainant immediately told her boyfriend
that the men raped her. Id. at 229. The jury acquitted
one defendant on all charges and acquitted the second
defendant of kidnapping and rape, but convicted him
of forcible sodomy. Id. at 230.
The defendant convicted of sodomy appealed his convic-
tion on the basis of the Confrontation Clause. Id. At trial,
10 No. 05-1009
the co-defendants wanted to demonstrate that the com-
plainant had motive to lie by introducing evidence that
the complainant was living with her boyfriend at the time of
trial. Id. This was the same boyfriend who had seen her get
out of his half-brother’s friend’s car in an intoxicated state
on the night of the incident. Id. The trial judge excluded all
evidence of the complainant’s living situation and did not
allow defense counsel to cross-examine the complainant on
the issue even after she claimed on direct examination that
she was living with her mother. Id. at 230. The Supreme
Court in Olden held that the court’s refusal to permit cross-
examination on the complainant’s cohabitation with her
boyfriend violated the defendant’s Sixth Amendment right
to confront the witnesses against him. Id. at 232-33. The
Court emphasized that “the exposure to a witness’ moti-
vation in testifying is a proper and important function
of the constitutionally protected right of cross-examination.”
Id. at 231 (internal quotations and citations omitted). The
Court acknowledged that trial courts have discretion to
impose reasonable limits on cross-examination, but con-
cluded that “the limitation here was beyond reason”
because the evidence about the complainant’s relationship
had such strong potential to cast doubt on her testimony.
Id. at 232.
The instant case is distinguishable. Given the Olden
complainant’s admission that she had been out drinking
with the defendants on the night of the incident, her
voluntary departure from the bar with the men, her
admission that the men dropped her off at her boyfriend’s
house after the incident (a gesture that seems unusual
in light of her allegations), her boyfriend’s testimony that
he saw her get out of the defendant’s car on the night of the
incident and his possible suspicion of infidelity, and her
continued cohabitation with the boyfriend at the time of
trial, the defendants’ theory of the case was plausible and
had a factual basis in the evidence. The jury apparently
No. 05-1009 11
believed so, considering that it acquitted one defendant of
kidnapping, rape, and sodomy and acquitted the other of
kidnapping and sodomy even in the absence of evidence of
the complainant’s cohabitation with her boyfriend at the
time of trial. Walker’s defense, on the other hand, was
somewhere between absurd and impossible. According to
Walker, Lorinda called him over to have sex during the
middle of the day while she was watching her four children,
all under the age of nine. When Walker appeared, Lorinda
shepherded the children into a room and had sex with him.
But she did not want her boyfriend to find out about the
encounter. To that end, instead of simply never telling her
boyfriend about the tryst, she told her daughter to call 911
while she was in the middle of having sex with Walker. Tr.
of 911 Call (“[My mother] told me to call 911.”). Lorinda also
put on a good show for her children by crying, and Walk-
er got into the act of setting himself up for a false sex-
ual assault charge by hitting Lorinda before they had
sex. Id. The foregoing defense, Walker asserts, hinged
on his being able to explore the fact that Lorinda was a
victim of domestic violence, at least as recently as
eleven months before Walker sexually assaulted her. We
fail to see the connection between the stale report of
domestic violence at the hands of her boyfriend and the far-
fetched, pre-planned set-up of Walker on sexual assault
charges. In contrast to Olden where the limitation was
“beyond reason” because evidence about the complainant’s
relationship had such strong potential to cast doubt on her
testimony, the restriction placed on Walker’s cross-exami-
nation of Lorinda was well within the trial judge’s wide
discretion to impose reasonable limits on cross-examination
because it did not have potential to cast doubt on Lorinda’s
testimony. We accordingly conclude that the Wisconsin
Court of Appeals’ decision was not contrary to Olden.
Walker also asserts that the reviewing court’s decision
was an “unreasonable application” of the principles an-
12 No. 05-1009
nounced in Olden, Delaware v. Van Arsdall, 475 U.S. 673(1986), and Davis v. Alaska, 415 U.S. 308 (1974). He faces
an uphill battle on this argument under the AEDPA
because it is not enough to show that a state court er-
roneously applied clearly established federal law; the
petitioner must also show that the court applied the law “in
an objectively unreasonable manner.” Bell v. Cone, 535 U.S.
685, 699 (2002). For the reasons stated above, we see no
problem with the Wisconsin Court of Appeals’ application
of the principles announced in Olden to this case. The
court’s ruling was also consistent with Van Arsdall. In Van
Arsdall, the Court held that Confrontation Clause errors
are subject to the Chapman v. California, 386 U.S. 18(1967), harmless error analysis. Because the Wisconsin
Court of Appeals did not find any Confrontation Clause
error, it had no occasion to apply the harmless error
analysis. Moreover, the Van Arsdall Court emphasized that
trial courts have wide latitude “to impose reasonable limits
on such cross-examination based on concerns about . . .
interrogation that is . . . only marginally relevant,” id. at
679, which accurately describes the excluded evidence in
this case. At any rate, even if the reviewing court’s applica-
tion of Olden or Van Arsdall was erroneous, it was not
objectively unreasonable, which dooms his argument with
regard to those cases.
Nor was the state court’s application of the principles
discussed in Davis objectively unreasonable. Davis involved
the robbery of a large safe from a bar in Anchorage, Alaska.
Davis, 415 U.S. at 309. The only eyewitness was a sixteen-
year-old who claimed to have seen the defendants near his
house with a crowbar (the safe was recovered near the
eyewitness’ house). Id. at 310. It turned out that the
eyewitness was on probation for burglary himself, a fact
which defense counsel wanted to explore on cross-examina-
tion. Id. at 310-11. The state court precluded impeachment
on the issue because it conflicted with Alaska’s interest in
No. 05-1009 13
preserving the confidentiality of juvenile adjudications of
delinquency. Id. at 311. The Supreme Court reversed on the
basis of the Confrontation Clause. Id. at 320. The Court
noted that a few of the eyewitness’ responses to questions
on cross-examination were almost certainly false in light of
his juvenile record but that the trial court’s ruling pre-
vented defense counsel from impeaching him on the
issue. Id. at 314. The Court observed that “[i]t would
be difficult to conceive of a situation more clearly illus-
trating the need for cross-examination,” and remanded
the case for further proceedings. Id. As may already be
evident, Davis is of no assistance to Walker due to
the unique factual scenario in that case: a crucial prose-
cution witness, who may have wondered if he was also
a suspect for the crime, was telling lies at trial that
were protected by the court’s evidentiary ruling. The
instant case simply did not involve those circumstances.
Moreover, the state court of appeals’ ruling in the this
case was not an objectively unreasonable application of
the general principles about cross-examination and bias
discussed in Davis.
As the foregoing analysis illustrates, rulings on Con-
frontation Clause issues are very fact-specific and in-
volve 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 unreason-
able.” On this point, the Supreme Court’s discussion
in Yarborough warrants repeating:
[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
14 No. 05-1009
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 determination.
Id. at 664.
In sum, the Wisconsin Court of Appeals’ ruling on the
Confrontation Clause issue was not “contrary to” Olden
because Olden involved the exclusion of bias evidence
with very strong potential to cast doubt on the complain-
ant’s testimony, and the evidence excluded in this case
was remote, without connection to the incident at issue, and
devoid of potential to undermine Lorinda’s testimony and
the prosecution case. Furthermore, the ruling was not an
“unreasonable application” of the broad cross-examination
principles discussed in Olden, Van Arsdall, and Davis. We
accordingly reject Walker’s argument that his writ should
be granted due to the state court’s decision on his Confron-
tation Clause challenge.
C. Ineffective Assistance of Counsel
Walker also asserts that the Wisconsin Court of Appeals’
decision on his ineffective assistance of counsel was an
unreasonable application of Strickland v. Washington, 466
U.S. 668 (1984). To establish his ineffective assistance
of counsel claim, Walker bears the heavy burden of showing
that his attorney’s performance fell below an objective
standard of reasonableness and that he was prejudiced by
the deficient performance. Strickland, 466 U.S. at 687-88.
A failure to establish either prong is fatal to an ineffective
assistance of counsel claim. Hough v. Anderson, 272 F.3d
878, 890 (7th Cir. 2001).
Walker’s challenge centers on the state crime lab find-
ings. The parties stipulated to the fact that a small amount
No. 05-1009 15
of semen was found on the cervical, vaginal, and inner and
groin swabs, but that the amount was insufficient for
further serological analysis. Though the crime lab report
also contained a finding that no semen was identified on the
underwear or dress worn by Lorinda, Walker’s attorney
failed to present the finding to the jury. Walker views his
attorney’s failure to present that portion of the crime lab
report as ineffective assistance of counsel and contends that
the Wisconsin Court of Appeals unreasonably applied
Strickland in rejecting his claim. We disagree.
The Wisconsin Court of Appeals correctly identified
Strickland as the controlling Supreme Court case on the
issue and concluded that Walker had not met the prej-
udice prong of the Strickland test. The court noted that
the only testimony as to whether Walker ejaculated
was Lorinda’s ambiguous testimony that Walker “put
his stuff on me.” Furthermore, the court reasoned that
the lack of semen on Lorinda’s dress and underwear did not
necessarily strengthen Walker’s case or undercut Lorinda’s
testimony. We agree with the state court’s analysis and
conclusion. Walker did not testify that he ejaculated.
Lorinda’s testimony about Walker’s “stuff” could reasonably
be interpreted as a reference to ejaculation or his penis.
Even if she was referring to ejaculation, she did not testify
that he ejaculated on her dress and underwear; she testified
that he “put his stuff on me,” which may be why a small
amount of semen was found on the cervical, vaginal, and
inner thigh and groin swabs. Regardless of whether Walker
ejaculated and if he did, where the semen landed, it was
reasonable for the reviewing court to conclude that Walker’s
attorney’s failure to introduce the lack of semen finding did
not undermine confidence in the outcome of the proceed-
ings, particularly given the weight of the evidence against
Walker.
16 No. 05-1009
III. Conclusion
For the above-stated reasons, we AFFIRM the district
court’s denial of Walker’s petition for a writ of habeas
corpus.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-30-05