Todd Peterson v. Timothy Douma , 751 F.3d 524 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2924
TODD E. PETERSON,
Petitioner-Appellant,
v.
TIMOTHY DOUMA,
Respondent-Appellee.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 10-C-0132 — Patricia J. Gorence, Magistrate Judge.
ARGUED OCTOBER 29, 2013 — DECIDED MAY 6, 2014
Before WOOD, Chief Judge, and KANNE and HAMILTON,
Circuit Judges.
HAMILTON, Circuit Judge. Todd Peterson appeals from the
denial of his petition for a writ of habeas corpus challenging his
conviction in Wisconsin state court for sexual assault of a child.
His petition raised multiple challenges to the conviction, but
we granted a certificate of appealability as to only one: whether
his trial attorney’s failure to move to suppress a statement
Peterson made to an off-duty police officer deprived him of his
2 No. 12-2924
Sixth Amendment right to counsel. See 28 U.S.C. § 2253(c). We
conclude that the state court did not unreasonably apply the
clearly established law of Strickland v. Washington, 466 U.S. 668(1984), in evaluating counsel’s performance. Reasonable jurists
could disagree as to application of both the performance
element and the prejudice element of the Strickland standard.
We therefore affirm the district court’s denial of Peterson’s
petition. Along the way, we explain the proper procedure for
requesting amendments to a certificate of appealability.
I. Factual and Procedural Background
A Wisconsin jury convicted Todd Peterson of first degree
sexual assault of a child. See Wis. Stat. § 948.02(1)(e). The jury
heard testimony from Peterson’s victim, a ten-year-old boy we
will call M.W. The boy testified that when he was seven years
old he had slept over at Peterson’s house while his mother was
away at a church retreat, and that on that occasion Peterson
had abused him sexually. Although he regularly saw Peterson
after that, M.W. kept the abuse a secret for more than a year.
M.W. finally unburdened himself to two friends and his older
sister one day while Peterson was at the boy’s house.
The children brought the story to Trisha Liethen, an off-
duty police officer who was also at the house volunteering as
a mentor to M.W.’s sister through the Big Brothers Big Sisters
program. In her trial testimony, Liethen described calling
Peterson up from the basement and confronting him with the
story, which she assumed had taken place recently. Instead of
appearing surprised or denying the allegation, Peterson
corrected her by saying, “that wasn’t when that happened.” At
that point Liethen told him to stay put and called the police.
No. 12-2924 3
The government also presented indirect evidence of
Peterson’s guilt. M.W.’s two friends, his older sister, and his
mother all gave their accounts of the day M.W. came forward,
corroborating the details of the boy’s testimony. In addition,
the court allowed the jury to hear “other acts” evidence
concerning three underage girls whom Peterson had abused in
the past under similar circumstances. See Wis. Stat. § 904.04(2).
The jury was twice instructed to consider this evidence only for
purposes of establishing motive, opportunity, intent, and
absence of mistake. (No such instruction would be required
today; Wisconsin has since amended § 904.04(2) to allow other
acts evidence to show propensity in criminal prosecutions for
sexual assault. 2005–2006 Wis. Legis. Serv. 310 (2005 A.B. 970)
(West). Cf. Fed. R. Evid. 414.) Peterson did not testify in his
own defense and did not call any witnesses. The jury returned
a guilty verdict. Because of his multiple past offenses, Peterson
was sentenced to life in prison without possibility of parole.
Peterson recruited a new lawyer and pursued post-convic-
tion relief in state court. He claimed his trial counsel had been
ineffective and that the other-acts evidence was improperly
admitted. The trial court held an evidentiary hearing and
denied relief. The state appellate court affirmed that decision
as well as Peterson’s conviction. After unsuccessfully petition-
ing the Wisconsin Supreme Court for review, Peterson—now
acting pro se—filed a petition for a writ of habeas corpus in
federal court under 28 U.S.C. § 2254. The district court denied
his petition and denied him a certificate of appealability.
Peterson appealed anyway, which we construed as a request
for a certificate. See Fed. R. App. P. 22(b)(2). A judge of this
court granted the certificate on the ground specified below.
4 No. 12-2924
The statute governing habeas relief requires a prisoner who
seeks to appeal a district court’s denial of his petition first to
obtain a certificate of appealability by making “a substantial
showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). The prisoner need not show he is likely to prevail,
but he must show that “reasonable jurists could debate
whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed
further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000), following
Barefoot v. Estelle, 463 U.S. 880, 893 (1983); Jones v. Basinger,
635 F.3d 1030, 1039–40 (7th Cir. 2011).
If granted, the certificate will explain “which specific issue
or issues satisfy the showing required.” § 2253(c)(3). In this
case, the certificate granted to Peterson stated that he had
made a sufficient showing that his Sixth Amendment right to
counsel was violated when his trial attorney did not seek
suppression of Peterson’s incriminating statement to Liethen
that “that wasn’t when that happened.” The certificate further
instructed the parties to “address, along with any other matters
counsel deems advisable, whether the Wisconsin court
unreasonably concluded that Peterson was not in custody
despite the officer’s direction that he remain on the scene until
the arrival of on-duty officers.” We appointed counsel to
represent Peterson in this appeal.
No. 12-2924 5
II. Analysis
Our consideration of Peterson’s habeas petition proceeds in
two steps. We first clarify the issue properly before us in this
appeal. We then review the district court’s conclusion that the
state court’s adjudication of that issue did not involve an
unreasonable application of clearly established federal law. See
28 U.S.C. § 2254(d)(1). We review de novo the district court’s
denial of the petition. Harris v. Hardy, 680 F.3d 942, 948 (7th Cir.
2012).
A. The Certificate of Appealability
Peterson’s habeas corpus petition raised a host of claims,
including six separate grounds for ineffective assistance of
counsel. We found the required substantial showing as to only
one issue: whether trial counsel’s failure to move to suppress
Peterson’s statement to Liethen violated his Sixth Amendment
rights. In this appeal, however, Peterson’s attorney has briefed
not only that claim but also two additional theories of ineffec-
tive assistance of counsel, as well as a stand-alone due process
claim based on the admission of other-acts evidence.
Although not strictly required by the plain text of § 2253,
we have repeatedly said that an appeals panel will decide the
merits of only those issues included in the certificate of
appealability. E.g., Bolton v. Akpore, 730 F.3d 685, 698 (7th Cir.
2013); Fountain v. United States, 211 F.3d 429, 433 (7th Cir. 2000)
(“without an expansion of the certificate by this Court, we are
not required to and will not address” additional issues). Nor
does opposing counsel need to address uncertified issues. E.g.,
Schaff v. Snyder, 190 F.3d 513, 528 n. 16 (7th Cir. 1999);
Sylvester v. Hanks, 140 F.3d 713, 715 (7th Cir. 1998). Even the
6 No. 12-2924
petitioner’s own attorney does not have to pursue uncertified
issues at the petitioner’s demand, provided the attorney has
independently evaluated their merits. Lavin v. Rednour,
641 F.3d 830, 832 (7th Cir. 2011).
Peterson reads the certificate we granted to encompass all
four of the issues he has raised, relying on its instruction that
the parties address, “along with any other matters counsel
deems advisable,” the Wisconsin court’s finding that Peterson
was not in custody. The quoted aside cannot support the
weight Peterson places on it. That language immediately
followed our statement that Peterson had made a substantial
showing of a Sixth Amendment violation “when his defense
attorney at trial failed to move to suppress Peterson’s state-
ment.” That was the issue certified for appeal. The additional
comment was a directive to both parties, in arguing the
certified issue, to address whether Liethen’s command to
Peterson meant he was in police custody, as well as any other
points relevant to the suppression issue. See Fountain, 211 F.3d
at 433 (similar language in a certificate of appealability could
not be read as giving counsel free rein to raise unrelated
arguments). In context, the passage was not an invitation to
revive uncertified issues.1
1
Although Peterson does not raise the point, ineffective assistance of
counsel is a single claim no matter the number of attorney errors it is based
on. See Peoples v. United States, 403 F.3d 844, 847–48 (7th Cir. 2005); Duarte v.
United States, 81 F.3d 75, 77 (7th Cir. 1996). A petitioner in Peterson’s
position might therefore argue that in certifying one theory of ineffective
assistance we opened the door to all others. The language of § 2253,
however, speaks of certifying “issues” rather than “claims,” and our cases
(continued...)
No. 12-2924 7
This does not mean that a petitioner is foreclosed from ever
pursuing additional issues on appeal. The petitioner may ask
the court to amend the certificate of appealability before
briefing begins. See Thompson v. United States, 732 F.3d 826, 831
(7th Cir. 2013), quoting Lavin, 641 F.3d at 832 (counsel “should
not simply brief the additional claims, but should first request
permission to do so”). This procedure clarifies the issues under
review, alerts appellees to the arguments they must answer,
and saves both parties and the court from extensive treatment
of meritless claims or unnecessary rounds of supplemental
briefing. Nor will it erode the certificate’s role as “a screening
device, helping to conserve judicial (and prosecutorial)
resources.” Young v. United States, 124 F.3d 794, 799 (7th Cir.
1997). Where at least one issue has already been certified, the
additional burden of (re)considering whether the petitioner has
made a sufficient showing of another constitutional error will
usually be modest. Cf. Ramunno v. United States, 264 F.3d 723,
725 (7th Cir. 2001) (“If the case presents a substantial constitu-
tional question, then an independently substantial statutory
issue may come along for the ride.”).
We have in the past considered amending certificates of
appealability when asked to do so in the parties’ briefs—even
when a party makes such a request only implicitly, by simply
arguing additional issues. See Ouska v. Cahill-Masching,
1
(...continued)
treat separate theories of ineffective assistance as separate issues for
purposes of § 2253. See, e.g., George v. Smith, 586 F.3d 479, 483 (7th Cir.
2009); Cosby v. Sigler, 435 F.3d 702, 708 (7th Cir. 2006); Rittenhouse v. Battles,
263 F.3d 689, 692–93 (7th Cir. 2001); Fountain, 211 F.3d at 432–33.
8 No. 12-2924
246 F.3d 1036, 1045 (7th Cir. 2001) (collecting cases). But we
have typically shown such flexibility in cases where special
circumstances justified departing from best practices, such as
those “rare instances where the importance of an issue does not
become clear until later in an appellate proceeding,” id. at 1046,
or where a prisoner’s brief is filed pro se, see Lavin, 641 F.3d at
832; Williams v. Parke, 133 F.3d 971, 975 (7th Cir. 1997), or for
the convenience of the court and litigants, see George v. Smith,
586 F.3d 479, 483 (7th Cir. 2009) (certificate amended to better
frame petitioner’s constitutional claim); Rodriguez v. Scillia,
193 F.3d 913, 920–21 (7th Cir. 1999) (court considered uncerti-
fied issue to avoid future successive appeals). We can imagine
other situations where it might be necessary to consider
modifying a certificate after briefing is already underway;
unfairness to the appellee could be remedied in such instances
by inviting supplemental filings. But our recent cases under-
score that these exceptions should not supplant the usual rule
that counsel should ask for an expanded certificate before
briefing additional issues. E.g., Bolton, 730 F.3d at 698; Lavin,
641 F.3d at 832.
Peterson raised three uncertified issues in his opening brief,
in addition to the one for which we granted a certificate of
appealability. The state responded only to the certified issue.
In his reply brief, Peterson asks that we treat his opening brief
as a request to amend the certificate. We do not know why in
this case the request was not made sooner, but because it is at
least arguable that the language of the certificate we issued to
Peterson was not sufficiently clear as to the issues under
review, we consider whether any of his additional issues
should be certified.
No. 12-2924 9
The standard Peterson must meet to warrant amending the
certificate differs depending on whether the district court
resolved the claim on the merits or on procedural grounds.
Where the district court reached the merits, Peterson need only
show that “reasonable jurists” would find the court’s assess-
ment “debatable or wrong.” Slack v. McDaniel, 529 U.S. at 484.
Where the claim was dismissed on procedural grounds, we
will certify an issue only when the proverbial reasonable jurist
would find both the district court’s procedural decision and the
merits of the claim debatable. Id.We begin with the two issues the district court considered
on the merits. Peterson argues that his counsel was ineffective
for choosing not to cross-examine Liethen about the incriminat-
ing statement. Under the clearly established standard of
Strickland v. Washington, 466 U.S. 668, 687 (1984), a petitioner
must show that his counsel’s performance was unreasonable
and that the deficient performance prejudiced his defense.
Peterson argues that his counsel’s decision not to press Liethen
on her testimony—for example, by clarifying whether she
understood Peterson’s statement to be a confession—fell below
a reasonable level of performance. The state court concluded
that it was a valid trial strategy for Peterson’s attorney to
choose not to emphasize the statement any further before the
jury by giving a former police officer an opportunity to explain
it. See United States v. Jackson, 546 F.3d 801, 814 (7th Cir. 2008)
(“deciding what questions to ask a prosecution witness on
cross-examination is a matter of strategy”); United States v. Fish,
34 F.3d 488, 494 (7th Cir. 1994); cf. United States v. Lindsay,
157 F.3d 532, 536 (7th Cir. 1998) (lawyers often make reason-
able strategic choice not to request limiting instructions so as
10 No. 12-2924
“to avoid underscoring the troublesome material for the jury”).
We agree, and on that basis we conclude that Peterson has not
made a substantial showing of constitutional deprivation on
this issue.
Peterson also claims that his counsel rendered ineffective
assistance by not challenging the indictment’s six-month
window for the charged crime. That long period, he argues,
prevented him from putting on an alibi defense based on a
five-day trip he took to Texas around the time of M.W.’s eighth
birthday. (M.W. reported that the abuse had occurred about
two weeks before that birthday.) Even assuming that this
conduct was unreasonable, Peterson cannot show he was
prejudiced by the inability to present a paper-thin alibi. This
was not a case of mistaken identity, and there was no dispute
that M.W. had spent the night at Peterson’s. A defense assert-
ing that Peterson was out of state on the night in question
would have had to overcome the testimony of numerous
witnesses that Peterson had been at home with M.W. It would
also have had to account for the signed statement Peterson
gave police that M.W. had spent that night with him and that
the two had shared a bed. This issue should not be certified.
The third and last of Peterson’s uncertified arguments is
that the admission of other-acts evidence at trial violated his
due process right to a fair trial under the Fourteenth Amend-
ment. The district court denied this claim on procedural
grounds, finding that Peterson had defaulted it by failing to
raise it in state court. Peterson did object to the evidence, but
he did so entirely on the basis of state evidence law. See Wis.
Stat. § 904.04. Peterson never raised a constitutional due
process argument in state court, either explicitly or by relying
No. 12-2924 11
on facts and/or case law that should have put the state court on
notice as to the federal constitutional nature of his claim. See
Verdin v. O'Leary, 972 F.2d 1467, 1473–74 (7th Cir. 1992).
Nor has Peterson made a substantial showing that his
constitutional claim has merit. The trial court allowed the
other-acts testimony after an extensive pre-trial hearing in
which it excluded evidence concerning one of Peterson’s past
victims as insufficiently probative but ruled admissible the
evidence about three other victims. The judge twice gave the
jurors limiting instructions as to the proper use of the evidence.
Even at this stage of the proceedings, Peterson has pointed to
no clearly established federal law that the state court applied
unreasonably. As we said in a similar case, because Peterson
“has identified no Supreme Court precedent the courts of the
State of Wisconsin may have applied unreasonably in permit-
ting the admission of prior bad act evidence against him, relief
must be denied as to the claim.” Hammer v. Karlen, 342 F.3d
807, 811 (7th Cir. 2003).
Peterson has not made the required showing for the three
uncertified issues he has briefed on this appeal. We therefore
decline to amend the certificate of appealability.
B. Peterson’s Certified Issue
We turn then to the sole issue certified for appeal: whether
Peterson’s lawyer rendered ineffective assistance by failing to
move to suppress his statement to Leithen that “that wasn’t
when that happened.” Under 28 U.S.C. § 2254(d)(1), our review
is limited to deciding whether the state court’s resolution of
this issue unreasonably applied the Strickland analysis to
Peterson’s claim.
12 No. 12-2924
Peterson argues that his attorney should have tried to
suppress his incriminating statement under Miranda v. Arizona,
384 U.S. 436 (1966), on the ground that he made it during
custodial interrogation. Liethen was a police officer when these
events unfolded (she later retired on disability), but on the day
in question she was at M.W.’s house in her role as a volunteer
Big Sister. Peterson claims that because he knew at the time
that Liethen was a police officer, and because she directed him
to come up from the basement, he was in custody throughout
the conversation and his attorney should have moved to
suppress. The state court disagreed, finding that Peterson was
not in custody when Liethen confronted him and therefore that
his attorney had not acted unreasonably. The court added that
Peterson was not prejudiced because the trial judge later said
that he would have denied such a suppression motion.
Contrary to the state court’s analysis, “the Strickland
prejudice inquiry is an objective one” and cannot rest solely on
the trial judge’s say-so. Bailey v. Lemke, 735 F.3d 945, 950 (7th
Cir. 2013); see also Strickland, 466 U.S. at 695 (prejudice inquiry
“should not depend on the idiosyncracies of the particular
decisionmaker”); Harris v. Thompson, 698 F.3d 609, 648 (7th Cir.
2012) (granting habeas relief based on ineffective assistance;
state court improperly relied on trial judge’s statement that
greater diligence by counsel would not have changed his
mind).
Despite the state court’s mistaken reasoning, our role in this
appeal is limited to asking “whether reasonable jurists could
disagree with the state court’s conclusion, not whether they
could disagree over its reasoning.” McNary v. Lemke, 708 F.3d
No. 12-2924 13
905, 920 (7th Cir. 2013); see also Harrington v. Richter, 131 S. Ct.
770, 788 (2011) (“The question is whether there is any reason-
able argument that counsel satisfied Strickland’s deferential
standard.”). Under this standard, we cannot say that the state
court reached an unreasonable conclusion in applying Strick-
land to the facts of this case.
Whether a suspect is in custody is decided based on
objective standards. The issue is whether, under all the
circumstances surrounding the interrogation, a reasonable
person would have felt free to leave. Howes v. Fields, 132 S. Ct.
1181, 1189 (2012). The totality of circumstances here did not
suggest that Peterson’s statement was made under custodial
interrogation. Although Peterson knew Liethen was a police
officer, she was off-duty and out of uniform at the time of their
conversation. Unlike the off-duty officer in Wilson v. O'Leary,
895 F.2d 378, 379–80 (7th Cir. 1990), on which Peterson relies,
Liethen did not display her badge, draw her weapon, or take
any other action that would have led Peterson to believe she
was acting in her role as a police officer rather than as a private
citizen. Liethen told him (we will assume quite sternly) to come
up from the basement and then told him what she had just
heard from the children. These were the actions of a responsi-
ble adult, and we agree with the state court that Peterson was
not in custody simply because he knew that Liethen was a
police officer.
The fact that Liethen told Peterson not to leave after he
made his incriminating statement does not alter the character
of their earlier exchange, even if Liethen’s command might
have meant that Peterson at that point was in custody. See
14 No. 12-2924
Berkemer v. McCarty, 468 U.S. 420, 442 (1984) (statements
suspect makes without Miranda warnings before being taken
into custody are admissible). Nor did Liethen say anything else
to Peterson to elicit any further response. The beginning of
custody, assuming it was that, marked the end of interrogation
and thus the end of Peterson’s potential argument for suppres-
sion.
Despite our doubts that the evidence should have been
suppressed, we are less certain than was the state court that the
lawyer’s decision not to move to suppress was a reasonable
strategy. The “Sixth Amendment does not require counsel …
to press meritless arguments before a court,” Lilly v. Gilmore,
988 F.2d 783, 786 (7th Cir. 1993), and it is always good strategy
to avoid wasting time or the court’s attention with claims that
are going nowhere. Peterson’s claim lay somewhere north of
meritless. Confronted with a client who made an incriminating
statement to a police officer without receiving Miranda warn-
ings, another lawyer might well have filed a motion to sup-
press despite the fact that Liethen was off duty and did not
physically restrain Peterson’s movement. Cf. Gentry v. Sevier,
597 F.3d 838, 851 (7th Cir. 2010) (state court unreasonably
applied Strickland where attorney’s failure to seek suppression
of evidence seized during an obviously unconstitutional search
and seizure was “beyond the pale of an objectively reasonable
strategy”). Nevertheless, given the weakness of this particular
suppression claim, we cannot say that the state court unreason-
ably applied Strickland in evaluating the performance of
Peterson’s attorney.
No. 12-2924 15
That weakness, along with the other direct evidence against
Peterson, also means that Peterson cannot show that his
attorney’s decision not to file the motion prejudiced his
defense. Prejudice here means “a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at
694; see also Harris, 698 F.3d at 645–46 (granting habeas relief
requires finding not only that attorney error changed outcome
but that state court’s conclusion otherwise was unreasonable).
Even if the statement had been suppressed, it is difficult to
conclude that it would have changed the outcome of the trial
given the account M.W. gave on the witness stand and the
testimony of so many corroborating witnesses.
Evaluating the sole issue certified for appeal under the
standard set out in 28 U.S.C. § 2254, we cannot say that the
state court unreasonably applied Strickland to the decision of
Peterson’s trial counsel not to seek suppression. The judgment
of the district court is AFFIRMED.