Mark Jensen v. William Pollard ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-3639
MARK D. JENSEN,
Petitioner-Appellant,
v.
WILLIAM POLLARD,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 11-C-803 — William C. Griesbach, Chief Judge.
____________________
ARGUED NOVEMBER 7, 2018 — DECIDED MAY 15, 2019
____________________
Before ROVNER, SYKES, and BARRETT, Circuit Judges.
SYKES, Circuit Judge. In a prior appeal, we affirmed an
order granting Mark Jensen’s application for habeas relief
from his conviction for the 1998 murder of his wife, Julie.
Jensen v. Clements, 800 F.3d 892 (7th Cir. 2015). The Wisconsin
Court of Appeals had rejected Jensen’s Confrontation Clause
challenge to the admission of Julie’s “voice from the grave”
letter expressing her fear that her husband might kill her.
The rationale for that ruling was harmless error. We agreed
2 No. 17-3639
with the district court that the state court unreasonably
applied Supreme Court precedent. Id. at 908.
After our mandate issued, the district judge issued a
conditional writ requiring the State of Wisconsin to either
release Jensen or “initiate[] proceedings to retry him” within
90 days. The State timely initiated retrial proceedings. But
before the retrial, the state trial judge concluded that the out-
of-court statements were not testimonial, curing the constitu-
tional defect in Jensen’s first trial. Reasoning that a second
trial was unnecessary, the trial judge reinstated Jensen’s
original conviction. Jensen appealed the new judgment, but
the Wisconsin Court of Appeals has not yet ruled.
In the meantime, Jensen returned to federal court and
moved to enforce the conditional writ, which he argued
guaranteed a retrial without the challenged statements. The
district court denied the motion and we affirm. Our jurisdic-
tion is limited to assessing the State’s compliance with the
conditional writ. The State complied with the writ when it
initiated proceedings for Jensen’s retrial.
I. Background
In March 2002 Kenosha County prosecutors charged
Jensen with first-degree intentional homicide for the death of
his wife, Julie, on December 3, 1998. Julie’s “voice from the
grave” was central to the prosecution’s case. Two weeks
before her death, Julie wrote a letter disclaiming any inten-
tion of suicide and stating that she feared her husband was
going to kill her. She gave the letter to a neighbor in a sealed
envelope with instructions to give it to the police if anything
happened to her. Julie also made similar statements to a
police officer shortly before her death.
No. 17-3639 3
Based on Crawford v. Washington, 541 U.S. 36 (2004), the
Kenosha County Circuit Court concluded that the letter and
statements were testimonial hearsay, inadmissible under the
Confrontation Clause. See U.S. CONST. amend. VI. On inter-
locutory appeal the Wisconsin Supreme Court agreed that
the letter and statements were testimonial. But the court also
held that the trial judge could admit the evidence under the
forfeiture exception to the Confrontation Clause if he found
by a preponderance of the evidence that Jensen caused his
wife’s death. State v. Jensen (“Jensen I”), 727 N.W.2d 518, 536
(Wis. 2007). After a ten-day hearing, the trial judge admitted
the evidence. The State introduced the letter and statements
at trial, and a jury found Jensen guilty.
While Jensen’s appeal to the Wisconsin Court of Appeals
was pending, the United States Supreme Court held that the
forfeiture exception applies only when a defendant acts with
the particular purpose of preventing the witness’s testimony.
See Giles v. California, 554 U.S. 353, 367–68 (2008). The
Wisconsin Court of Appeals affirmed Jensen’s conviction
without deciding whether Giles abrogated Jensen I. It instead
concluded that any error, if one occurred, was harmless.
State v. Jensen (“Jensen II”), 794 N.W.2d 482, 493 (Wis. Ct.
App. 2010). The court also found that Jensen had waived a
separate due-process claim alleging judicial bias. Id. at 504.
The Wisconsin Supreme Court denied Jensen’s petition for
review.
Jensen then turned to federal court. He filed a habeas pe-
tition under 28 U.S.C. § 2254, reasserting his Confrontation
Clause and judicial-bias claims. After observing that the
State did not dispute that Julie’s letter and statements were
testimonial, the district judge held that the admission of the
4 No. 17-3639
evidence was an unreasonable application of the forfeiture
exception and harmless-error doctrine. Jensen v. Schwochert
(“Jensen III”), No. 11-C-0803, 2013 WL 6708767, at *17 (E.D.
Wis. Dec. 18, 2013). The judge issued a conditional writ with
the following mandate:
Jensen is therefore ordered released from cus-
tody unless, within 90 days of the date of this
decision, the State initiates proceedings to retry
him. The Clerk is directed to enter judgment
accordingly. In the event [the State] elects to
appeal, the judgment will be stayed pending
disposition of the appeal.
Id. The State appealed and we affirmed. Jensen, 800 F.3d at
908. The writ issued on October 19, 2015.
On December 29 the state trial judge vacated Jensen’s
conviction, and the prosecution noticed its intent to retry
him. Jensen predictably moved to exclude Julie’s statements.
The prosecution objected, arguing that two Supreme Court
decisions postdating Jensen II narrowed the definition of
“testimonial,” abrogating Jensen I’s holding that Julie’s letter
and statements were testimonial for purposes of Confronta-
tion Clause analysis. See Ohio v. Clark, 135 S. Ct. 2173 (2015);
Michigan v. Bryant, 562 U.S. 344 (2011). The trial judge
agreed. Applying Wisconsin’s law-of-the-case doctrine, he
concluded that Jensen I no longer controlled and ruled that
Julie’s statements were not testimonial.
At this point the State asked the federal habeas court for
clarification. Its position was that the trial court’s latest
ruling cured any constitutional error, so it intended to move
for reinstatement of the original judgment if the conditional
No. 17-3639 5
writ allowed it. The district judge clarified that the State was
not required to release Jensen because it initiated retrial
proceedings within 90 days of the order. The prosecution
then asked the state trial court to reinstate Jensen’s original
conviction. The judge granted that request, reasoning that no
purpose would be served by holding a duplicate trial with
identical evidence. Jensen’s appeal from the new judgment is
pending in the state court of appeals.
While still exhausting his state remedies, Jensen returned
to federal court with a motion challenging the reinstatement
of the conviction. He argued that the State didn’t comply
with the writ because it didn’t actually retry him. Alterna-
tively, he asked the district judge to adjudicate his judicial-
bias claim, which wasn’t resolved in the original habeas
proceedings.
The judge declined to do either. He instead held that the
conditional writ only compelled the State to initiate retrial
proceedings and that the State had done so. But he didn’t
stop there. The judge determined that § 2254 “require[d]”
him to “inquire into whether the State’s actions constitute[d]
a good faith effort to comply with the substance, as well as
the form, of the court’s order.” He then examined the state
court’s post-writ proceedings in detail. After concluding that
the State had colorable legal grounds to seek reinstatement
of Jensen’s conviction, the judge denied relief. Jensen ap-
pealed.
II. Discussion
When a district court issues a conditional habeas writ, it
retains jurisdiction to determine compliance. See Hudson v.
Lashbrook, 863 F.3d 652, 656 (7th Cir. 2017). But once the State
6 No. 17-3639
complies with the writ, the district court loses jurisdiction.
Id. Accordingly, the only question properly before this court
is whether the State complied with the writ. 1
The relevant facts are undisputed: After initiating pro-
ceedings to retry Jensen, the State sought to introduce Julie’s
letter and statements. Relying on Supreme Court decisions
that postdated Jensen II, the trial judge held that the evidence
was admissible and granted the State’s ensuing motion to
reinstate the conviction. That new judgment is now under
review by the Wisconsin Court of Appeals. The sole federal
dispute centers on the meaning of the conditional writ. We
review a district court’s interpretation of its conditional writ
for abuse of discretion. Pidgeon v. Smith, 785 F.3d 1165, 1172
(7th Cir. 2015).
The writ mandates that Jensen must be “released from
custody unless … the State initiates proceedings to retry
him.” The district judge rejected Jensen’s contention that the
writ guaranteed him a trial free of Julie’s letter and state-
ments. The judge reasoned that the State could not have
complied with such a writ within 90 days given the com-
plexity of the case. He also explained that the language of
the writ left room to resolve the case without a new trial.
That is, the writ “deliberately required only the initiation of
proceedings for a retrial within the time allowed in order for
the State to comply with the writ.”
That interpretation was not an abuse of discretion. It
neatly tracks the conditional writ’s unambiguous language.
Conversely, Jensen’s proposed interpretation asks us to
ignore the writ’s instruction to “initiate proceedings” in
1 We thus lack jurisdiction to consider Jensen’s judicial-bias claim.
No. 17-3639 7
favor of a more robust command for a “trial free of [Julie’s]
letter.” The Supreme Court has cautioned that courts
“should not infer … conditions from silence” when inter-
preting conditional writs. Jennings v. Stephens, 135 S. Ct. 793,
799 (2015). Instead, a petitioner’s “rights under the judgment
were what the judgment provided.” Id. at 798. The judgment
here gave the State two options: release Jensen or initiate
proceedings to retry him. It did not contain an implicit right
to retrial without Julie’s letter or statements.
But while the judge’s interpretation of his order is correct,
we are skeptical that § 2254 required him to scrutinize the
prosecutor’s good faith. As with all conclusions of law, we
consider this issue de novo. See Warren v. Baenen, 712 F.3d
1090, 1096 (7th Cir. 2013). Looking beyond the express terms
of a writ to assess the State’s good faith risks creating the
very unstated conditions that courts cannot read into writs.
See Jennings, 135 S. Ct. at 799. And asking whether post-writ
proceedings are “shams” requires examining the legal merits
of state proceedings prior to exhaustion. See 28 U.S.C.
§ 2254(b)(1). Indeed, the district court’s inquiry here dis-
cussed the very issues that remain pending in Jensen’s direct
appeal in the Wisconsin Court of Appeals.
We have long held that courts should presume that states
will comply with equitable remedies in good faith. Jenkins v.
Bowling, 691 F.2d 1225, 1234 (7th Cir. 1982). This presump-
tion applies with particular force in § 2254 proceedings,
where “[f]ederalism and comity principles pervade.” Johnson
v. Foster, 786 F.3d 501, 504 (7th Cir. 2015). A conditional writ
under § 2254 is not “a general grant of supervisory authority
over state trial courts.” Jennings, 135 S. Ct. at 799; see also
Hudson, 863 F.3d at 656 (“The writ is directed to the person
8 No. 17-3639
detaining another: it is not directed at the state government
in toto.”). In short, jurisdiction to assess state compliance
with conditional writs is constrained by the actual remedy
ordered by the court—that is, the terms of the writ.
In this case the conditional writ required the State to
either release Jensen or “initiate proceedings to retry him.”
The State did the latter, and at that moment the district court
lost jurisdiction. Jensen’s custody flows from a new judg-
ment reinstating the original conviction on an alternative
ground from that challenged in Jensen III. See Coulter v.
McCann, 484 F.3d 459, 466 (7th Cir. 2007) (holding that post-
writ proceedings in state court can confirm that no constitu-
tional violation occurred in the first place). We lack jurisdic-
tion to explore whether that judgment is constitutionally
infirm. Jensen is free to challenge any perceived constitu-
tional errors via his direct appeal in state court. Indeed, he
must exhaust those remedies before raising any constitu-
tional claims in a new § 2254 petition.
AFFIRMED.
No. 17-3639 9
ROVNER, Circuit Judge, concurring in part and concurring in
the judgment. I agree with my colleagues that we may review
only for abuse of discretion the district court’s determination
that the State complied with the writ. And I am persuaded that,
once we have concluded that there is no abuse of discretion,
there is nothing left for the federal courts to do until the
petitioner has exhausted state court remedies and brings a new
federal habeas proceeding. I do not agree, however, that it was
inappropriate for the district court to examine whether the
State complied in good faith with the writ or instead engaged
in sham proceedings in order to circumvent the writ.
The majority cites Jenkins v. Bowling, 691 F.2d 1225, 1234
(7th Cir. 1982), for the proposition that, “We have long held
that courts should presume that states will comply with
equitable remedies in good faith.” But Jenkins also makes clear
that the presumption is rebuttable and that federal courts have
the power to correct noncompliance:
When formulating equitable remedies against a
state—an entity still to be regarded as having
some sovereign dignity—a federal court should
try to minimize their abrasive potential. It should
presume that the state will attempt to comply in
good faith with the letter and spirit of its ruling.
Events may rebut the presumption in particular
cases[.] … If the state does try [to evade the
order], the federal courts have all the powers
they need, including the power to issue manda-
tory injunctions as detailed and specific as the
situation requires, backed up by all the force of
10 No. 17-3639
the United States, to make their decisions effec-
tive.
Jenkins, 691 F.2d at 1234. Although Jenkins did not address
habeas proceedings, it did involve a federal court “formulating
equitable remedies against a state,” and the comity concerns
are comparable.
In my view, the district court properly assessed whether
there was good faith compliance with the writ, or a possible
bad faith effort to circumvent the writ. That was especially
appropriate in a case where the State sought to reinstate (and
in fact did reinstate) the very same judgment that the federal
courts had found constitutionally infirm, a procedural scenario
that I believe I have not encountered in my nearly thirty-five
years on the federal bench. The district court’s analysis of
whether the State had engaged in sham proceedings to
circumvent the writ was part and parcel of its review of
whether the State had complied with the writ. Therefore, I
respectfully concur in part, and concur in the judgment.