Eckstein, Joseph v. Kingston, Phillip ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2929
JOSEPH ECKSTEIN,
Petitioner-Appellant,
v.
PHIL KINGSTON,1
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 03-C-0885—William E. Callahan, Jr., Magistrate Judge.
____________
ARGUED JANUARY 6, 2006—DECIDED AUGUST 16, 2006
____________
Before EASTERBROOK, MANION, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Joseph Eckstein solicited a woman
to murder his wife, and he taped two of the conversations in
which he did so. As did the police. Unsurprisingly, after a
bench trial in Brown County Circuit Court in Wisconsin,
Eckstein was convicted of conspiracy to commit first-degree
homicide and solicitation to commit first-degree homicide.
He was sentenced to 40 years in prison on the conspiracy
1
The caption in this case has been amended to reflect that
Eckstein’s current custodian is Phil Kingston, the warden of the
Waupun Correctional Institution. Rules Governing § 2254 Cases,
Rule 2(a); FED. R. APP. P. 43.
2 No. 05-2929
charge and to 10 years for the solicitation charge, to be
served concurrently.
In a federal habeas corpus petition, Eckstein is now
trying to convince us that the Wisconsin Court of Appeals
was unreasonable in its determination that he did not
receive constitutionally ineffective assistance of counsel, as
defined by the Supreme Court in Strickland v. Washington,
466 U.S. 668 (1984). Because the Wisconsin Court of
Appeals’ decision was reasonable (maybe even inevitable),
we affirm the magistrate judge’s judgment dismissing
Eckstein’s petition.
I
Eckstein was convicted of conspiring to kill his wife,
Annamaria, who had filed for divorce, and soliciting a
woman named Crystal Graham to do the dirty work.
Unfortunately for Eckstein, though thankfully for Anna-
maria, Graham lost her nerve and decided to cooperate with
the police. Even more unfortunate for Eckstein was the fact
that both he and the police, using a wire with Graham’s
consent, taped the final two planning conversations be-
tween Eckstein and Graham. Eckstein was arrested after
the second taped meeting on September 3, 1998; his own
tape of the two conversations was seized from his truck
later that day.
During Eckstein’s trial, Graham was the key witness.
According to Graham, she met with Eckstein several times
in the spring and summer of 1998 for the purpose of
arranging for her to kill his wife. She testified that the
subject first arose in April 1998 when Eckstein told her that
“he wished he knew someone who could get rid of” his wife
or “bump her off.” Graham responded that her son could
find someone to do it. At their second meeting, they negoti-
ated a price of $10,000. Eckstein also provided Graham
with information about his wife, including the type of car
No. 05-2929 3
she drove. At their third meeting, Eckstein told Graham
that he wanted his wife “bumped off” while he was out of
town for a wedding, but Graham told Eckstein that they
were going to plant drugs on Annamaria and send her to
prison rather than kill her because Graham’s son deemed
the latter plan too risky. In preparation, Eckstein gave
Graham keys to Annamaria’s car, a business card with her
photograph, and information about her, including her work
and home addresses and the identities of her friends. He
also gave Graham $1,000 to procure the necessary drugs;
the plan foundered, however, when Graham could not
obtain the drugs. At that point, she returned the $1,000 as
well as Annamaria’s car keys to Eckstein. Graham left town
for a month, but when she returned she talked again with
Eckstein and indicated she was still on board with the plan
to “get rid of” Annamaria. In fact, this was not true. On
August 31, 1998, Graham went to the police, told them
about the plan, and agreed to wear a wire at her next
meeting with Eckstein.
When the two met again on September 2, 1998, both the
police and Eckstein taped the encounter. Eckstein told
Graham that he “would need a[n] exact plan and time
first . . . because . . . the last time I don’t feel you had a
plan.” Graham suggested using a Molotov cocktail, as
Eckstein had suggested at an earlier meeting, but Eckstein
was concerned about her lack of experience. Graham
responded, “Well i[f] I lose my life, I lose it,” to which
Eckstein replied:
No, no, no. There’s a chance of . . . the bottle not hitting
hard enough, not breaking or whatever. . . . Of course[,]
there’s other things to do. . . . [Y]ou know the other
thing is what that one lady does with that cleaner, oven
cleaner. I mean, if somebody I think got that all over
their body and in their mouth and in their lungs or
knocked out and . . . virtually I mean sprayed their
mouth and lungs full of that as well as the whole
body . . . I think they’re gonna be gone.
4 No. 05-2929
When Graham responded that she would do whatever
Eckstein wanted, he replied, “[I]t’s up to you. . . . [W]hat I
want to do is know nothing about it. . . . And I want to be
gone.” Eckstein repeated that he could pay $500 immedi-
ately, $500 immediately after the “job,” and $10,000 as soon
as he was cleared. He worried that he would be blamed and
then repeated,
I wanna be gone so if somebody asks me if I know, I
might say something that would, ya know, conflict or
affect you . . . . Cause if, ya know, I know you’re gonna
shoot her, I might goof up. . . . [I]f they question me
about the shooting, question you about the shooting, ah,
we’re not gonna say the same thing. . . . If I don’t know
anything about something and something happens and
I’m gone someplace else, I have an alibi.
Eckstein also expressed concern that the last plan he and
Graham had made had failed, and then he asked how and
when Graham would act. Graham indicated that she
“plan[ned] on doing it hopefully this weekend if it looks
good.” Later, Graham said she “can hit her one way or the
other,” and Eckstein responded, “one of the best ways, ya
know if I was gonna do it, I’d go for her garage.” At the
same meeting, in addition to suggesting the use of oven
cleaner, Eckstein also indicated by hand gestures that
Graham should slash Annamaria’s throat or stab her in the
stomach. The two agreed that the event would occur the
next weekend while Eckstein was out of town.
The next day, on September 3, 1998, the two met again,
and again both Eckstein and the police recorded their
conversation. Eckstein gave Graham $500, a business card
with Annamaria’s photo, keys to her car, and information
about where to find her. According to the transcript of the
police tape, Eckstein said,
You do this right, ya know, like say in the garage or
something. Ya know, murder her in the garage or do it
No. 05-2929 5
in the garage or something. Load her in the car. Bury
her in the cornfield or something . . . between the rows
of corn. Nobody will ever know it.
Eckstein then suggested that Graham should steal
Annamaria’s car and alter the VIN number to disguise the
theft, before continuing, “Put the person in the car, take the
car and the person, get rid of the person, get rid of the
license plate.” Once again, Eckstein reassured Graham that
he didn’t “care what you wanna do [to] keep track of me, be
with me all the time or whatever you want to do . . . [until]
the smoke clears and then you get the ten grand.” Eckstein
then told Graham that he wanted “a guarantee” that the job
would be done by October 15. Graham responded, “You’ll
either get the money or you’ll get the job and . . . I’m
planning on killing Annamaria this weekend.” Eckstein
signed off with a “Yeah. Okay.”
At trial, the prosecution played the police recording of the
September 2, 1998, conversation and submitted a transcript
of it. The September 3, 1998, conversation was handled
differently. Unaware that he had been successful at record-
ing the September 3, 1998, conversation, Eckstein initially
planned to attempt to keep the police recording out on the
grounds of poor quality, thereby eliminating any record of
that conversation. But when the police discovered
Eckstein’s recording of the September 3, 1998, conversation
on the flip side of the tape from the day before, Eckstein
waived his objection because he believed that his recording
would be admitted anyway. In the end, the court admitted
both recordings for that day, but only Eckstein’s was played
at trial. The transcript for September 3 that was admitted,
however, was from the police recording, which Eckstein now
claims inaccurately reflects his use of the word “murder.”
The magistrate judge presiding over the habeas corpus
proceeding rejected Eckstein’s motion seeking to supple-
ment the record in the district court with the tapes them-
selves.
6 No. 05-2929
Eckstein testified at trial and offered an account of the
events that was different, although not entirely exculpatory.
He stated that it was Graham who initially came up with
the idea of “tak[ing] care” of his problems with Annamaria,
that Graham suggested three options—plant drugs on
Annamaria, take her out of the country, or kill her—and
that he only agreed to pay $10,000 to plant drugs. Eckstein
admitted paying Graham $1,000 to obtain the drugs and
demanding the money’s return when the plan stalled. The
next time Graham told him that she was “working on a plan
for Annamaria,” Eckstein testified, he did not believe her
because he “knew better from all the experience and the
stories [he] heard before.” He testified that he called
Graham then because he wanted her to serve as a witness
in his divorce, and that he taped their conversations to
protect himself because he thought Graham was acting
strangely. Eckstein claimed that he believed that Graham
was still talking about a plan to plant drugs on Annamaria.
He nixed the Molotov cocktail idea, he said, because he did
not want Annamaria to get hurt. It was Graham, not he,
who had first suggested oven cleaner at an earlier (unre-
corded) meeting as a means of self-protection. He testified
that he was just being agreeable when he said “Yeah.
Okay.” to her statement about killing Annamaria that
weekend because “[w]hatever she would say, I wouldn’t
believe anyway.” He also testified that it was his under-
standing that references to “hurting” or “getting rid of”
Annamaria involved planting drugs on her, not killing her,
and that he knew that Graham was mentally unstable and
incapable of killing Annamaria.
The judge did not buy Eckstein’s story and found him
guilty. Following his conviction, he engaged in two full
rounds of appeals and post-conviction review in the state
courts. In the second, he raised the same two arguments he
now pursues—that his counsel was ineffective for failing to
suppress the recording of his September 3, 1998, meeting
with Graham and for failing to use Graham’s mental illness
No. 05-2929 7
to discredit her. The circuit court and Wisconsin Court of
Appeals both rejected these arguments, and the Wisconsin
Supreme Court denied review. Eckstein filed a petition for
habeas corpus in federal court, and the parties consented to
jurisdiction before a magistrate judge pursuant to 28 U.S.C.
§ 636(c). The district court found that the state court had
not applied federal law unreasonably, but it granted a
certificate of appealability (COA) on the question whether
Eckstein was denied effective assistance of counsel either
through the failure to cross-examine Graham on her mental
state or the failure to seek suppression of Eckstein’s tape of
the September 3, 1998, conversation.
II
Our review in this case is constrained by the
Antiterrorism and Effective Death Penalty Act (AEDPA),
which provides that habeas corpus relief may not be
granted unless the state court proceeding “resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as deter-
mined by the Supreme Court.” 28 U.S.C. § 2254(d)(1); see
Brown v. Payton, 544 U.S. 133, 141 (2005). It is not enough
for the state court to be wrong or incorrect; the state
court must be unreasonable. See Danks v. Davis, 355
F.3d 1005, 1008 (7th Cir. 2004). We review the district
court’s legal conclusions de novo and its factual findings for
clear error. See Charlton v. Davis, 439 F.3d 369, 372 (7th
Cir. 2006).
The legal rules governing Eckstein’s claim that his trial
counsel was ineffective were established in Strickland v.
Washington, 466 U.S. 668 (1984). Under Strickland, a
defendant must show that her counsel’s performance was
objectively unreasonable or deficient and that she was
prejudiced as a result. Id. at 687. “[T]here is a strong
presumption that [an] attorney performed effectively.”
Berkey v. United States, 318 F.3d 768, 772 (7th Cir. 2003).
8 No. 05-2929
Furthermore, “[t]he reasonableness of counsel’s perfor-
mance is to be evaluated from counsel’s perspective at the
time of the alleged error and in light of all the circum-
stances.” Kimmelman v. Morrison, 477 U.S. 365, 381 (1986).
Even if counsel’s performance was deficient, a petitioner
must also show that “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different,” meaning “a probabil-
ity sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694. “In weighing the effect of
counsel’s errors, the court must consider the totality of the
evidence before the judge. . . . [A] verdict or conclusion that
is overwhelmingly supported by the record is less likely to
have been affected by errors than one that is only weakly
supported by the record.” Hough v. Anderson, 272 F.3d 878,
891 (7th Cir. 2001).
Eckstein complains about two aspects of his lawyer’s
performance, which we review below. It is important to
recall, however, that it is not enough to criticize counsel for
failing to take particular steps. Instead, one must also
address what action counsel did take, and then evaluate her
performance as a whole. See U.S. ex rel. Hampton v.
Leibach, 347 F.3d 219, 248 n.14 (7th Cir. 2003). With that
in mind, we turn to Eckstein’s first point: that counsel was
ineffective for failing to pursue and use available evidence
of Graham’s mental illness to impeach her. No one familiar
with her mental state, he asserts, would believe that
Eckstein intended to hire Graham to kill his wife.
A fair amount of evidence about Graham’s mental state
emerged, both during pretrial proceedings and at trial.
During cross-examination at a preliminary hearing,
Graham admitted that she was “very low, very depressed.”
Her father was terminally ill, her daughter and grandchild
had moved to California, her son was in prison, and she had
financial problems. Graham testified that she was under a
doctor’s care for manic depression and post-traumatic stress
No. 05-2929 9
syndrome, and that in September 1998 she was taking
medications including Prozac and lithium. She admitted
that she had “difficulty remembering things in stressful
situations.” At trial, Graham repeated some of this informa-
tion, disclosing that she suffered from clinical depression
and had been medicated for that condition for a decade and
that her son was in a mental hospital. Eckstein’s lawyer did
not use any of this evidence to cross-examine Graham at
trial; instead, he tailored his cross-examination to showcase
the holes in Graham’s memory as they related to earlier
non-taped conversations and to corroborate Eckstein’s
account of events. In essence, the trial counsel chose to use
Graham’s lack of credibility to attempt to defeat the finding
of an agreement necessary for the conspiracy charge, rather
than to suggest that Eckstein lacked intent because he
knew that she would not follow through.
At the post-conviction hearing, Eckstein’s counsel indi-
cated that he had reviewed the preliminary hearing tran-
script and was aware of Graham’s mental health problems,
but that he chose not to focus on them because of the tapes
that corroborated Graham’s account. Inquiries about her
mental stability, he concluded, would not have made a
difference. In evaluating the record, the Wisconsin Court of
Appeals concluded that this decision was a strategic one
that it saw no reason to second-guess. It is apparent that
the court knew that the governing Supreme Court prece-
dent was Strickland, and therefore we evaluate only
whether the state court applied Strickland unreasonably.
This occurs when the state court application of the estab-
lished federal law yields a conclusion “lying well outside the
boundaries of permissible differences of opinions.”
Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002). We
see no need to belabor the point here. It would have been
pointless for counsel to harp on Graham’s mental problems
when her testimony was entirely corroborated by the tapes
that Eckstein himself and the police had made. Our review
10 No. 05-2929
of counsel’s performance as a whole shows that he did a
thorough job of raising serious doubts about her credibility.
Furthermore, even if the trial counsel’s failure to impeach
Graham with evidence of her mental illness amounted to
deficient performance, it is plain that there was no preju-
dice. The trial court emphasized that the tapes erased
whatever doubt might have lingered because of the inherent
strangeness of the situation, commenting that “I concluded
that [Graham’s testimony] is true because of the clear and
overwhelming evidence corroborating it, both in the forms
of the physical evidence that w[as] retrieved, as well as the
tape recordings of the conversations that form the basis of
the charges.” The Wisconsin Court of Appeals added that
there was no prejudice because “[a]dditional testimony
regarding her psychological problems would [ ] not likely
have led the court to reach a different conclusion.” It based
that conclusion both on the damning recordings and on
Graham’s testimony on direct examination that she suffered
from clinical depression, took medication, and could not
remember some conversations due to stress. That testimony
left no doubt that the trial court was well aware of Gra-
ham’s mental illness; it was also aware, thanks to the cross-
examination of trial counsel, of the holes in her memory and
her testimony.
Eckstein finally suggests that there is a reasonable
probability that a fuller exploration of Graham’s mental
state would have changed the outcome because it would
have demonstrated that he was never serious about killing
his wife precisely because he knew that Graham could not
and would not murder Annamaria. This argument is
speculative at best; it is certainly not one that the state
court was compelled to adopt. In fact, there is a real risk
that the trial court might have looked at Graham’s mental
instability in the opposite way and concluded that Eckstein
had found someone mentally unstable enough to commit
murder for an acquaintance for $10,000. Intent is almost
No. 05-2929 11
always demonstrated by circumstantial evidence. Here, the
state courts were aware of Graham’s mental illness, of the
lunacy of this particular plan, and of Eckstein’s own
testimony that he agreed because he knew Graham would
not carry out the job. The Wisconsin Court of Appeals easily
met AEDPA’s reasonableness standard when it concluded
that more evidence about Graham’s mental state would not
have created a reasonable probability of a different verdict.
Eckstein’s second complaint about counsel targets the
attorney’s failure to seek suppression of Eckstein’s own tape
of the September 3, 1998, conversation. The state trial court
agreed with Eckstein that his counsel’s performance in
failing to seek suppression and exclusion of Eckstein’s tape
had been deficient, but it held that there was no prejudice.
The Wisconsin Court of Appeals followed suit by refusing to
address the legality of the police’s search and instead
basing its denial of relief on the lack of prejudice. Strick-
land approves of this approach, see 466 U.S. at 697, and
thus we too turn immediately to the question of prejudice.
Eckstein contends that the Wisconsin Court of Appeals
applied the wrong test for prejudice, and thus, as
§ 2254(d)(1) puts it, applied law “contrary to” Strickland. In
its paraphrase of the Strickland standard, the Court of
Appeals stated, “To satisfy the prejudice prong, the defen-
dant must show that counsel’s errors were serious enough
to render the resulting conviction unreliable.” In analyzing
prejudice, the Court of Appeals again said, “We conclude
that Eckstein was not prejudiced because there is no
evidence the conviction was unreliable.” This use of the
wrong standard is contrary to Strickland, Eckstein argues,
relying on Washington v. Smith, 219 F.3d 620, 632-33 (7th
Cir. 2000), in which the state court applied a standard of
prejudice articulated by the Supreme Court in Lockhart v.
Fretwell, 506 U.S. 364, 369 (1993), that looks beyond
outcome determination to the fundamental fairness of the
proceeding. The Fretwell standard applies only in the
12 No. 05-2929
“unusual circumstance where the defendant attempts to
demonstrate prejudice based on considerations that, as a
matter of law, ought not inform the inquiry,” such as where
the state court decision had been overturned. Id. at 373(O’Connor, J., concurring). In Washington, where the
ineffective assistance was the failure to investigate, the
Fretwell standard was inappropriate because no such
unusual circumstance was present. 219 F.3d at 632.
Although this court concluded that the state court had
applied the wrong legal test “contrary to” Strickland, we
went on to ask whether the state court had silently applied
the correct Strickland standard. Id. at 633. On that alter-
nate ground, we found that the state court’s decision was
unreasonable. Id.The Wisconsin Court of Appeals did not make the same
mistake in this case. Unlike the situation in Washington,
the state court’s explanation of the prejudice standard cites
Strickland and is not “contrary to” it. The court’s conclusion
reflects the proper inquiry, where it says that “[a]dditional
testimony . . . would therefore not likely have led the court
to reach a different conclusion.” The court’s occasional
references to reliability do not undermine its holding.
Strickland itself states that to show prejudice one must
demonstrate “that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable.” See 466 U.S. at 687. Furthermore, what is
important is that the overall reasoning is consistent with
Strickland. See Mitchell v. Esparza, 540 U.S. 12, 16 (2003)
(“[A] state court need not even be aware of [Supreme Court]
precedents, so long as neither the reasoning nor the result
of the state-court decision contradicts them.”) (internal
quotation marks omitted). See also Floyd v. Hanks, 364
F.3d 847, 852-53 (7th Cir. 2004) (concluding that the state
court properly considered and applied the Strickland
prejudice test, despite a reference to “reliability” as used in
Fretwell). The Wisconsin Court of Appeals’ decision satisfied
these standards.
No. 05-2929 13
Even if the state court had articulated the wrong preju-
dice standard in this case, its error would have been
harmless, because a re-evaluation under the correct
standard would lead to the same conclusion. See Winters v.
Miller, 274 F.3d 1161, 1167-68 (7th Cir. 2001) (concluding
that the state court’s erroneous application of Fretwell did
not require reversal of conviction because de novo review
under the Strickland standard rendered the same result).
There simply was no “reasonable probability of a different
result.”
The final point Eckstein raises is a procedural one about
the district court’s handling of his request to expand the
record to include the two tapes made on September 3, 1998.
In essence, he is asserting that the district court’s proce-
dural ruling refusing to admit the tapes led to his inability
to demonstrate the alleged constitutional flaw in the state
court proceedings. See 28 U.S.C. § 2253(c)(2). See Slack v.
McDaniel, 529 U.S. 473, 484-85 (2000) (holding that where
a habeas corpus petition is dismissed on procedural grounds
a petitioner must show both a substantial showing of a
constitutional right and that reasonable minds disagree
about the procedural decision). Although this issue is not
identified in the COA, it is the type of preliminary proce-
dural matter Slack had in mind, and both parties have
briefed it without comment. We thus discuss it briefly.
Eckstein complains that the district court’s decision
prevented him from proving that he was prejudiced by
counsel’s failure to ask the court to suppress the September
3, 1998, recording. A comparison of the recording and the
police transcript would have shown, he thinks, that he
never used the word “murder.” Rule 7(a) of the Rules
Governing Section 2254 Cases provides that “the 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.” We review the decision
not to expand the record for an abuse of discretion. See
14 No. 05-2929
Anderson v. Attorney General of Kansas, 425 F.3d 853, 858
(10th Cir. 2005). In this case, although the court expanded
the record in some respects, it declined to admit the
recordings, noting the limited scope of habeas corpus review
and that the transcripts of both police recordings were in
the record. The magistrate judge indicated that he did not
see how listening to the tapes themselves would be relevant
to the issues in the case because whether the state court’s
decision was unreasonable did not turn on the exact content
of the tapes.
Although it might have been prudent to accept the tapes,
we conclude nevertheless that the district court did not
abuse its discretion. Even if we assume that Eckstein is
correct that he never utters the word “murder” on the tape,
there are so many other references to the planned killing of
Annamaria that this alleged inaccuracy is irrelevant. There
is no dispute, after all, about the September 2, 1998,
conversation, in which Eckstein rejected the Molotov
cocktail idea and suggested in its place the use of oven
cleaner. Later in that same conversation Eckstein talks
about his need for an alibi. Even if there had been no
conversation the next day, this September 2, 1998, taped
conversation likely would be sufficient to uphold the
conviction, particularly when combined with Graham’s
testimony. In addition, the police obtained from Graham the
$500 deposit that Eckstein paid her the next day, as well as
the identification card and other materials he provided.
Finally, without Eckstein’s September 3, 1998, tape in the
record, we still have the police tape—although it is not as
comprehensive—and the transcript of it. Nothing in either
the September 2 tapes or the police version of the Septem-
ber 3 conversation makes Eckstein’s story of a conspiracy to
plant drugs plausible. After all, he was suggesting that
Graham bury his wife in a corn field and steal her car.
Finally, and Eckstein does not dispute the accuracy of these
words, he responded “Yeah. Okay.” to Graham’s statement
that she was planning to kill his wife that weekend.
No. 05-2929 15
In his brief, Eckstein suggests that the fact that “[o]nly
two references in the state’s tape, as reflected in the ‘tran-
script’ of that tape, suggest that the plan is to kill
Annamaria rather than to plant drugs” somehow absolves
the transcript and/or the police’s own tape of its damning
quality. We are not sure why or how the word “only” can be
linked with the number “two” here: how many references to
murder does Eckstein think should be necessary to convict?
Our own conclusion is that the alleged error Eckstein has
identified had no chance of affecting the outcome.
III
Evaluating counsel’s performance as a whole, as we must,
and giving proper deference to the district court’s handling
of the habeas corpus proceeding, we find no reason to
disturb Eckstein’s conviction. We therefore AFFIRM the
district court’s denial of his 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—8-16-06