Mark A. Campbell v. Judy P. Smith , 770 F.3d 540 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3780
MARK A. CAMPBELL,
Petitioner-Appellant,
v.
JUDY P. SMITH, Warden,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 12 CV 225 — Philip G. Reinhard, Judge.
____________________
ARGUED SEPTEMBER 12, 2014 — DECIDED OCTOBER 20, 2014
____________________
Before EASTERBROOK, SYKES, and TINDER, Circuit Judges.
TINDER, Circuit Judge. Mark A. Campbell appeals from
the district court’s denial of his petition for a writ of habeas
corpus under 28 U.S.C. § 2254. He claims that the prosecu-
tor’s comments at his resentencing hearing violated his due
process rights and breached his plea agreement and that his
counsel rendered ineffective assistance in failing to object.
Campbell argues that the Wisconsin Court of Appeals un-
reasonably applied Supreme Court precedent when it decid-
2 No. 13-3780
ed that he could not establish that counsel was ineffective in
failing to object because the prosecutor had not materially
and substantially breached the plea agreement. For the rea-
sons that follow, we affirm.
I. Background
Campbell pleaded guilty in Wisconsin state court to one
count of first degree sexual assault of a child. The victim was
his then ten-year-old daughter. At the time of the offense,
the maximum sentence was sixty years. Pursuant to the plea
agreement, the State agreed to dismiss three other counts
and recommend a sentence of no more than twenty years,
with no more than five to seven years’ initial confinement
and the balance as extended supervision.
The presentence investigation report recommended
twenty to forty years’ initial confinement and seven to ten
years’ extended supervision. At sentencing, the State rec-
ommended a sentence in accordance with the plea agree-
ment. The court sentenced Campbell to a bifurcated sentence
of forty years, with thirty years’ initial confinement and ten
years’ extended supervision. Campbell appealed, arguing
that the trial court failed to consider the state sentencing
guidelines. The Wisconsin Court of Appeals vacated the sen-
tence and remanded for resentencing. State v. Campbell, No.
2008AP2065-CR, 2009 WL 1191945 (Wis. Ct. App. May 5,
2009).
Campbell was resentenced before a different judge. A
second presentence investigation report, prepared after the
remand, also recommended twenty to forty years’ initial
confinement and seven to ten years’ extended supervision.
At the sentencing hearing, the prosecutor presented argu-
No. 13-3780 3
ments as to the sentencing factors to be considered by the
court: the gravity of the offense, Campbell’s character, and
the need to protect the public. Starting with the gravity of
the offense, he referred to “additional information in terms
of the impact” on the victim, Sentencing Tr. 18 Aug. 25, 2009,
and “the devastating impact” on the victim, id. at 19. The
prosecutor said, “I can’t think of a more, short of a homicide
or physically injuring a child, a more horrific offense and
more damaging offense committed against one’s own child.”
Id.
Addressing Campbell’s character, the prosecutor referred
to letters that Campbell had written to his daughter’s thera-
pist, describing them as “threat[s] and ultimatum[s]” as well
as manipulative and devious in tone. Id. at 20. He also men-
tioned Campbell’s claim that his sister had coached the vic-
tim into saying what she had said and a letter of Campbell’s
seeking to lift the no-contact order against him. According to
the prosecutor, “there is absolutely no remorse. There is no
empathy, and there is no accountability….” Id. The prosecu-
tor noted that the presentence report indicated Campbell
had been diagnosed with “a personality disorder, gender
identity disorder” and argued that he had “some very seri-
ous sexuality issues, very serious boundary issues.” Id. at 22.
Turning to the need to protect the public, the prosecutor
argued that the need “is extremely high,” and asserted that
Campbell “takes no responsibility for his behavior or his ac-
tions,” and that “[h]is daughter needs to be protected from
him for as long as can be humanly possible.” Id. Then the
prosecutor advised the court that “[t]he State’s original
agreement back almost two years ago … was a recommen-
dation of 20 years, 20-year sentence. The State doesn’t be-
4 No. 13-3780
lieve anything less than that would be appropriate for Mr.
Campbell given the pattern of behavior on his part, given
the contacts with his daughter’s therapist.” Id. Campbell’s
counsel did not object to any part of the prosecutor’s argu-
ment.
The prosecutor did not advise the court of the State’s rec-
ommendation of no more than five to seven years’ initial
confinement. Campbell’s counsel did not object to that omis-
sion either. Instead, during his argument, defense counsel
informed the court that “the plea bargain in this case was
five to seven years in and the balance of 20 on extended su-
pervision.” Id. at 25. Counsel argued that based on Camp-
bell’s history, “that’s probably where this should fall.” Id.
The judge said that he had “listened very carefully” to
the comments of the prosecutor, defense counsel, and
Campbell. Id. at 28. The judge also stated that he considered
the presentence investigation report’s recommendation of
twenty-seven to fifty years, with twenty to forty years’ initial
confinement, as well as the attorneys’ recommendations, the
sentencing guidelines, and the aggravating factors that the
offense was “ongoing in nature, and that [Campbell] had a
position of authority and trust with the victim.” Id. at 34. The
judge sentenced Campbell to a bifurcated sentence of forty-
four years, consisting of thirty-four years’ initial confinement
and ten years’ extended supervision.
Campbell filed a petition for postconviction relief in state
court, alleging ineffective assistance of counsel in failing to
object to the prosecutor’s remarks at the sentencing hearing
and in failing to object to the prosecutor’s omission of the
initial confinement recommendation of no more than five to
seven years. The state court held an evidentiary hearing at
No. 13-3780 5
which it heard testimony from Campbell, the counsel who
represented him at the first sentencing, and counsel who
represented him at the resentencing. The court found that
there had been no breach of the plea agreement and alterna-
tively that, if there was a breach, it was a technical breach,
not a material and substantial breach. The court denied the
petition for relief, concluding that Campbell could not estab-
lish that counsel was ineffective in failing to object because
the prosecutor had not materially breached the plea agree-
ment. Campbell appealed.
Regarding the State’s failure to recommend five to seven
years’ initial confinement, the Wisconsin Court of Appeals
concluded that “Campbell has failed to prove that the State’s
conduct materially and substantially breached the plea
agreement.” State v. Campbell, 794 N.W.2d 276, 279 ¶ 9 (Wis.
Ct. App. 2010). The court gave four reasons for that conclu-
sion: (1) the prosecutor merely omitted one of the plea
agreement’s terms and “did not affirmatively contradict a
term of the plea agreement,” id. ¶ 10; (2) “Campbell’s coun-
sel clarified the prosecutor’s omission,” stating that “the plea
bargain … was five to seven years in and the balance of
twenty on extended supervision,” id. ¶ 11; (3) “the prosecu-
tor did not dispute Campbell’s counsel’s clarification of the
plea agreement,” id. ¶ 12, and if the prosecutor had disa-
greed with the defense’s statement, one would expect him to
have objected; and (4) the court was aware of the plea
agreement’s terms before sentencing, id. ¶ 13.
As for the prosecutor’s remarks at the resentencing hear-
ing, the court of appeals agreed with the circuit court that
the “remarks did not undermine the State’s sentence rec-
ommendation.” Id. at 281 ¶ 18. While the prosecutor implic-
6 No. 13-3780
itly had argued “for a significant sentence,” the court con-
cluded that “a twenty-year sentence is just that.” Id. The
Wisconsin Court of Appeals determined that Campbell had
failed to show a material and substantial breach of the plea
agreement and therefore could not establish ineffective assis-
tance of counsel in failing to object to the State’s conduct; the
court accordingly affirmed the trial court. Id. ¶ 19. Campbell
filed a writ of certiorari with the Wisconsin Supreme Court,
which denied his petition without addressing the merits.
State v. Campbell, 797 N.W.2d 525 (Wis. 2011).
Campbell then filed a § 2254 petition, claiming that his
counsel rendered ineffective assistance in failing to object to
the State’s breach of the plea agreement. Although the peti-
tion asserted only that the Wisconsin Court of Appeals’ deci-
sion was contrary to or unreasonably applied Santobello v.
New York, 404 U.S. 257 (1971), the district court interpreted
the petition as claiming that the appellate court unreasona-
bly applied Santobello and Strickland v. Washington, 466 U.S.
668 (1984). The district court rejected both claims and denied
the petition. Campbell v. Tegels, No. 12 CV 225, 2013 WL
6044406 (W.D. Wis. Nov. 14, 2013). Campbell sought a certif-
icate of appealability in this court, and one was granted on
(1) whether Campbell’s due process rights were violated and
his plea agreement breached by the prosecutor’s arguments
at his resentencing hearing, and (2) whether Campbell re-
ceived ineffective assistance of counsel because his lawyer
failed to object to the prosecutor’s alleged breach.
II. Analysis
Under the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), we may grant a writ of habeas corpus on a
claim that a state court has adjudicated on the merits if the
No. 13-3780 7
state court’s decision “was contrary to, or involved an un-
reasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1); Lopez v. Smith, No. 13-946, 2014 WL
4956764, at *1 (U.S. Oct. 6, 2014) (per curiam). “If no state
court has squarely addressed the merits of a habeas claim,
we review the claim de novo under the pre-AEDPA standard
of 28 U.S.C. § 2243,” Ruhl v. Hardy, 743 F.3d 1083, 1091 (7th
Cir. 2014), disposing of the claim “as law and justice re-
quire,” Harris v. Thompson, 698 F.3d 609, 623 (7th Cir. 2012)
(internal quotation mark omitted), cert. denied, 133 S. Ct. 2766
(2013).
We review de novo the district court’s denial of a § 2254
petition. Ford v. Wilson, 747 F.3d 944, 949 (7th Cir. 2014).
“[A]lthough we technically hear this appeal from the district
court,” id., we focus on “‘the decision of the last state court
to rule on the merits of the petitioner’s claim,’” id. (quoting
McNary v. Lemke, 708 F.3d 905, 913 (7th Cir.), cert. denied, 134
S. Ct. 136 (2013)). Here, that was the Wisconsin Court of Ap-
peals’ decision denying Campbell’s petition, a decision that
we review with deference. Harris v. Hardy, 680 F.3d 942, 948
(7th Cir. 2012).
A state court decision “unreasonably applies federal law
if the ‘court identifies the correct governing legal rule ... but
unreasonably applies it to the facts of the particular state
prisoner’s case.’” McNary, 708 F.3d at 913 (citations omitted).
An “unreasonable application of” federal law means “objec-
tively unreasonable, not merely wrong; even ‘clear error’
will not suffice.” White v. Woodall, 134 S. Ct. 1697, 1702 (2014)
(quoting Lockyer v. Andrade, 538 U.S. 63, 75–76 (2003)). “[A]
state prisoner must show that the state court’s ruling on the
8 No. 13-3780
claim … was so lacking in justification that there was an er-
ror well understood and comprehended in existing law be-
yond any possibility for fairminded disagreement.” Harring-
ton v. Richter, 131 S. Ct. 770, 786–87 (2011). When reviewing a
state court decision under § 2254(d)(1), “we presume that the
court’s factual determinations are correct unless [the peti-
tioner] rebuts the presumption by clear and convincing evi-
dence.” Newman v. Harrington, 726 F.3d 921, 928 (7th Cir.
2013) (internal quotation marks omitted).
Campbell argues that the state court unreasonably ap-
plied Santobello and Strickland. Under Santobello, “when a
plea rests in any significant degree on a promise or agree-
ment of the prosecutor, so that it can be said to be part of the
inducement or consideration, such promise must be ful-
filled,” 404 U.S. at 262. Thus, a prosecutor’s breach of a plea
agreement can be actionable. See id. at 263. However, if the
breach is insubstantial, immaterial, technical, or cured, then
the defendant is entitled to no relief. See United States v. Diaz-
Jimenez, 622 F.3d 692, 694 (7th Cir. 2010); Hartjes v. Endicott,
456 F.3d 786, 790 (7th Cir. 2006).
Under Strickland, a defendant “must show that counsel’s
performance was deficient. This requires showing that coun-
sel made errors so serious that counsel was not functioning
as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” 466 U.S. at 687. A defendant also “must show
that the deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable.” Id. Both showings must be made; a failure of proof
as to either one will defeat the claim. Id.
No. 13-3780 9
When a petitioner challenges a state court’s application
of Strickland under § 2254(d), our review is “doubly” defer-
ential as to issues decided by the state court. Richter, 131 S.
Ct. at 788. Unreasonableness under Strickland must not be
equated with unreasonableness under § 2254(d). Id. “When §
2254(d) applies, the question is not whether counsel’s actions
were reasonable. The question is whether there is any rea-
sonable argument that counsel satisfied Strickland’s deferen-
tial standard.” Id.
Because defense counsel did not object to the prosecu-
tor’s failure to make the recommendation of five to seven
years’ initial confinement and did not object to any of the
prosecutor’s sentencing arguments, the habeas petition seeks
relief for alleged ineffective assistance of counsel rather than
a due process violation or breach of the plea agreement.
Nonetheless, the Santobello issue is embedded in the Strick-
land analysis. The state court and the district court correctly
decided that, if there was no breach, or if any breach was not
material and substantial, defense counsel’s failure to object
was not ineffective assistance. Thus, we consider whether
the state court unreasonably applied Santobello in deciding
that the State did not materially and substantially breach the
plea agreement.
Campbell asserts that the prosecutor breached the plea
agreement in two ways: first, by failing to recommend initial
confinement of five to seven years, and second, by under-
mining that recommendation with his arguments. The issue
whether a prosecutor substantially and materially breached
a plea agreement is a question of law. See United States v.
Kelly, 337 F.3d 897, 901 (7th Cir. 2003). As noted, a prosecu-
tor’s breach of a plea agreement can be actionable, Santobello,
10 No. 13-3780
404 U.S. at 263, but where the breach is insubstantial, imma-
terial, technical, or even cured, a defendant is entitled to no
relief, see Diaz-Jimenez, 622 F.3d at 694–96; Hartjes, 456 F.3d at
790.
At the resentencing hearing, the prosecutor made a rec-
ommendation that Campbell receive a twenty-year sentence
but neglected to recommend an initial confinement term of
five to seven years. We have stated that “subsequent actions
by the prosecution can justify an inference that the [prosecu-
tor’s breach of a plea agreement] was indeed harmless.” Di-
az-Jiminez, 622 F.3d at 696; see also Hartjes, 456 F.3d at 792 (the
prosecutor’s misstatement at sentencing that additional
charges had been “read in,” meaning that the court could
deem them as admitted, was corrected by defense counsel
who clarified that the defendant denied the other charges).
During his argument, Campbell’s counsel reminded the
court that the plea bargain in the case was for five to seven
years in confinement and the balance of the twenty years on
extended supervision. Significantly, the prosecutor did not
object. Had he disagreed with such a recommendation, one
would have expected him to speak up. While the prosecutor
did not take affirmative action to cure the alleged breach, the
prosecutor’s silence when defense counsel discussed the
plea bargain can be understood as tacit agreement with it,
and that tacit agreement effected a cure. At the least, it can-
not be said that the Wisconsin Court of Appeals’ determina-
tion that the prosecutor’s breach was not material and sub-
stantial “was so lacking in justification that there was an er-
ror well understood and comprehended in existing law be-
yond any possibility for fairminded disagreement.” Harring-
ton, 131 S. Ct. at 786–87.
No. 13-3780 11
We now consider whether the Wisconsin Court of Ap-
peals unreasonably determined that what the prosecutor did
say did not materially and substantially breach the plea
agreement. Although the State “is not permitted to pull the
rug out from under a defendant who has negotiated a plea
agreement by taking steps to induce the judge to give a
higher sentence,” United States v. Hauptman, 111 F.3d 48, 51
(7th Cir. 1997), relief is not available unless a breach is sub-
stantial, id. at 51–52. And as Campbell acknowledges, “San-
tobello does not specifically address implicit repudiations of a
plea agreement.” The Constitution does not require that a
prosecutor “enthusiastically” make an agreed-upon sentenc-
ing recommendation. United States v. Benchimol, 471 U.S. 453,
455–56 (1985). Furthermore, a prosecutor may without
breaching a plea agreement present the aggravating sentenc-
ing factors to argue that the recommended sentence is ap-
propriate. See State v. Naydihor, 678 N.W.2d 220, 230–32 (Wis.
2004) (holding that the State did not breach the plea agree-
ment where the prosecutor’s arguments “supported the rec-
ommended sentence and were relevant to the pertinent sen-
tencing factors the court was required to consider”); State v.
Williams, 637 N.W.2d 733, 745 (Wis. 2002) (“The State must
balance its duty to convey relevant information to the sen-
tencing court against its duty to honor the plea agreement.”);
see also State v. Smith, 558 N.W.2d 379, 389 n.14 (Wis. 1997)
(stating that “the primary factors” that a sentencing court
“must consider are: (1) the gravity of the offense, (2) the
character and rehabilitation needs of the defendant, and (3)
the need for protection of the public”).
Here, the prosecutor addressed the pertinent sentencing
factors that the court had to consider, and recommended a
sentence of twenty years. We agree with the state court and
12 No. 13-3780
district court that the prosecutor’s remarks did not under-
mine the State’s sentence recommendation and “balance[d]
[the state’s] duty to convey relevant information to the sen-
tencing court against its duty to honor the plea agreement.”
Although the prosecutor’s arguments emphasized negative
information, it seems that there wasn’t much positive to be
said about Campbell or the offense. Further, the prosecutor’s
arguments supported the position that a significant sentence
was appropriate. A bifurcated sentence of twenty years is
not an insignificant sentence, and five to seven years is not a
short term of imprisonment. With one possible exception
addressed below, we conclude that the state court reasona-
bly determined that the prosecutor’s resentencing arguments
did not materially and substantially breach the plea agree-
ment. See United States v. Salazar, 453 F.3d 911, 914–15 (7th
Cir. 2006) (holding that the government did not breach its
plea agreement where the prosecutor referred to the defend-
ant as “a cold-blooded killer” yet, consistent with the plea
agreement, requested a sentence at the low end of the guide-
lines range).
That said, we are most troubled by the prosecutor’s
statement that Campbell’s “daughter needs to be protected
from him for as long as can be humanly possible.” Such a
statement might be construed as an argument for the maxi-
mum sentence possible, thus undermining the bargained-for
recommendation. As we know, the maximum sentence
Campbell faced was sixty years, consisting of forty years’
initial confinement and twenty years’ extended supervision.
See Wis. Stat. §§ 948.02(1)(b), 939.50(3)(b), 973.01(2)(b). This
particular statement of the prosecutor comes close to cross-
ing that “fine line” that separates the prosecutor’s conduct in
conveying pertinent sentencing information from undermin-
No. 13-3780 13
ing the plea agreement. But even if this particular statement
undermined the plea agreement, Campbell’s claim still fails
because, as we address below, he cannot show prejudice.
And even if the prosecutor’s omission of the initial confine-
ment recommendation and affirmative arguments in combi-
nation amounted to a material and substantial breach the
plea agreement, Campbell’s inability to demonstrate preju-
dice dooms his petition.
The Wisconsin Court of Appeals determined that coun-
sel’s failure to object was not deficient, and did not reach the
prejudice element of the Strickland test. We therefore assess
this element de novo. See Porter v. McCollum, 558 U.S. 30, 39
(2009); Rompilla v. Beard, 545 U.S. 374, 390 (2005). Setting
aside the circumstances in which prejudice may be pre-
sumed, which are inapplicable here, it is not enough to show
that counsel’s errors might have affected the outcome of the
proceeding. Strickland, 466 U.S. at 692–993. Rather, a defend-
ant “must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the pro-
ceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the
outcome.” Id. at 694. The likelihood of a different outcome
“must be substantial, not just conceivable.” Richter, 131 S. Ct.
at 792. Where a breach of a plea agreement denies the de-
fendant of rights related to sentencing, “the question with
regard to prejudice is not whether [the defendant] would
have entered the plea” but whether the breach “affected …
his sentence.” Puckett v. United States, 556 U.S. 129, 142 n.4
(2009). The Supreme Court has observed that when the pros-
ecutor has breached a plea agreement, the defendant “will
not always be able to show prejudice, either because he ob-
tained the benefits contemplated by the deal anyway (e.g.,
14 No. 13-3780
the sentence that the prosecutor promised to request) or be-
cause he likely would not have obtained those benefits in
any event.” Id. at 141–42.
Campbell has not shown prejudice. Both presentence in-
vestigation reports recommended twenty to forty years’ ini-
tial confinement and seven to ten years’ extended supervi-
sion. Given those recommendations, as well as the gravity of
the offense perpetrated on Campbell’s own child, Camp-
bell’s personal characteristics and lack of remorse and ac-
countability, and the need to protect the public, no reasona-
ble person could have expected that any rational judge
would sentence Campbell to anything near five to seven
years’ initial confinement. Indeed, at the first sentencing
hearing, where the prosecutor made the bargained-for initial
confinement recommendation, the judge sentenced Camp-
bell to thirty years’ initial confinement. At the resentencing
hearing, where the prosecutor did not make the recommen-
dation, a second judge sentenced Campbell to thirty-four
years’ initial confinement. These two terms are fairly close in
length; neither term is anywhere near the bargained-for rec-
ommendation of five to seven years. This demonstrates that
there is no substantial likelihood that but for defense coun-
sel’s failures to object, Campbell likely would have been sen-
tenced to five to seven years’ initial confinement.
Moreover, in determining whether a petitioner has
shown prejudice, courts may consider evidence about the
actual decision-making process, provided that it is part of
the sentencing record. See Strickland, 466 U.S. at 695. The sec-
ond judge explained his decision-making in reaching the
sentence of thirty-four-years’ initial confinement, including
that:
No. 13-3780 15
given your age and the age of the victim, I think
that your age at release would be approximately
70 years old, and the age of the victim would be
approximately mid 40s. I think that allows the vic-
tim to grow up without fear of contact with you
and not only get out of her own minority … [but
also] get passed young adulthood without fear of
encounters with you.
I also feel this gets you to an old enough age
where the risks to the public would be substantial-
ly reduced because of your age. I think any less
would not protect the public and also would not
impact the victim.
Sentencing Tr. 36, Aug. 25, 2009. A sentence of five to seven
years’ initial confinement is too short to accomplish these
desired ends. The judge’s sentencing explanation further
supports the conclusion that there is no likelihood that
Campbell would have received a sentence of five to seven
years’ initial confinement, or even a lesser sentence, had the
prosecutor made the agreed-upon recommendation. Nor has
Campbell shown that he likely would have received such a
term of initial confinement had the prosecutor not made the
arguments that Campbell maintains undermine the bar-
gained-for recommendation.
III. Conclusion
The Wisconsin Court of Appeals did not unreasonably
apply Strickland in determining that Campbell cannot estab-
lish that his counsel was ineffective. We accordingly AFFIRM
the district court’s denial of Campbell’s § 2254 petition.