Dunlap, Charles A. v. Hepp, Randy

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2179
CHARLES A. DUNLAP,
Petitioner-Appellant,
v.
RANDY HEPP,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 03-C-161—William E. Callahan, Jr., Magistrate Judge.
____________
ARGUED NOVEMBER 8, 2005—DECIDED FEBRUARY 1, 2006
____________
Before BAUER, MANION, and EVANS, Circuit Judges.
EVANS, Circuit Judge. Before us is Charles Dunlap’s
appeal from the denial of his petition for a writ of habeas
corpus. The district court granted a certificate of ap-
pealability on a single issue: whether Dunlap was de-
prived of his Sixth Amendment right to confront wit-
nesses and present a defense by the state trial court’s
application of the Wisconsin rape shield law. Wis. Stat.
§ 972.11(2) (1997-98).
On November 7, 1989, Dunlap babysat then 6-year-old
Jamie F. Afterwards, Jamie told her mother that Dunlap
had “touched her private parts.” Jamie thought her mother
did not believe her, and a few days later she told her father.
2 No. 05-2179
He reported the incident to the police, who obtained a
warrant for Dunlap’s arrest. But Dunlap had left Wisconsin.
He was not arrested until 8 years later when he was found
in California.
When Dunlap’s trial finally began, Jamie was 15 years
old. She testified that when she was 6, she was left in
Dunlap’s care at the home of her mother’s friends, Susan
Smith and Gary Cox, with whom Dunlap had been staying.
Jamie testified that when she was in bed, Dunlap entered
the room and got in the bed beside her. She said he put
his hands inside her underwear and fondled her buttocks
and vagina.
Cross-examination revealed several inconsistencies in
Jamie’s testimony. When she was interviewed in 1989 she
said that Cox’s son Shawn was also in the house at the time
of the incident, but at trial she said she was alone with
Dunlap. In 1989 she did not say that Dunlap penetrated her
vagina with his finger, but at the preliminary hearing, 8
years later, she said he had. Also in 1989 Jamie had not
mentioned that Dunlap had threatened her. At trial, she
said he threatened to kill her parents if she told anyone
what happened.
In an effort to rehabilitate Jamie, the State called
Theresa Hanson, a child protective services investigator for
Walworth County, Wisconsin. Hanson had interviewed
Jamie and prepared a report in 1989. She testified about
typical reporting behaviors of child sexual assault victims.
She said that 6-year-old children often do not grasp the
concepts of “in” and “out” in regard to something being
put into their genitalia. She said 6-year-olds are often
confused about the details of an incident. They also have
trouble with the concepts “before” and “after.” She also said
that fear, guilt, and embarrassment could have explained
the inconsistencies in Jamie’s testimony and her delay in
reporting certain aspects of the assault. In addition, Hanson
No. 05-2179 3
testified that during the 1989 interview, Jamie fidgeted,
kicked the table, put her hands in her mouth, and was
generally reticent about discussing the incident. This
behavior, Hanson said, is consistent with that of a sexual
assault victim.
During cross-examination, Hepp’s counsel attempted
to question Hanson about Jamie’s “detailed and unex-
plained sexual knowledge.” Counsel made an offer of proof,
pointing out that Hanson’s 1989 report included a state-
ment from Ms. Smith. In that statement, Smith, who was
deceased when the case was tried, had revealed concern
about Jamie, who, in Smith’s view, was involved in a
great deal of “seductive behavior,” including touching men
in the genital area, “humping the family dog,” and frequent
masturbation. Smith noted that these behaviors occurred
before the alleged assault by Dunlap.
The State objected to this evidence, saying it was
barred both by the rule against hearsay and the state rape
shield law. The court agreed and excluded the evidence.
Dunlap was convicted of first-degree sexual assault of a
child in violation of Wis. Stat. § 972.11(2). On direct appeal,
he challenged the exclusion of the evidence. The Wisconsin
Court of Appeals reversed Dunlap’s conviction. State v.
Dunlap, 620 N.W.2d 398 (2000). But the Supreme Court
reinstated it. State v. Dunlap, 640 N.W.2d 112 (2002). After
exhausting his state remedies, Dunlap filed a federal
petition for a writ of habeas corpus, which the district court
denied. This appeal followed.
A petition for a writ of habeas corpus on behalf of a
person in state custody can be granted only if the state
court proceeding resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly estab-
lished federal law as determined by the United
States Supreme Court. 28 U.S.C. § 2254(d)(1). A decision is
“contrary to” established federal law as determined by the
4 No. 05-2179
Supreme Court if “the state court arrives at a conclusion
opposite to that reached by [the Supreme Court] on a
question of law,” or “if the state court confronts facts that
are materially indistinguishable from a relevant Su-
preme Court precedent and arrives at a result opposite”
to that reached by the Supreme Court. Williams v. Taylor,
529 U.S. 362, 405 (2000). A state court decision is an
unreasonable application of Supreme Court precedent when
the court “correctly identifies the governing legal rule but
applies it unreasonably to the facts of a particu-
lar prisoner’s case . . . .” Williams, at 407-08. Dunlap’s
petition falls under the “unreasonable application” prong of
§ 2254(d)(1). In order for us to grant relief under this
provision, the decision of the Wisconsin Supreme Court
must be unreasonable—not simply erroneous and incorrect.
Williams, at 411. On appeal from the district court’s denial
of a writ of habeas corpus, we review findings of fact for
clear error and legal conclusions de novo. Rittenhouse v.
Battles, 263 F.3d 689 (7th Cir. 2001).
The Sixth Amendment to the United States Constitu-
tion guarantees the right of an accused in a criminal
prosecution to be confronted by the witnesses against him.
The purpose of the Confrontation Clause is to “secure
for the opponent the opportunity of cross-examination.”
Davis v. Alaska, 415 U.S. 308, 315-16 (1974). Nevertheless,
trial judges retain “wide latitude insofar as the Confronta-
tion Clause is concerned to impose reasonable limits
on . . . cross-examination based on concerns about, among
other things, harassment, prejudice, confusion of the issues,
the witness’ safety, or interrogation that is repetitive or
only marginally relevant.” Delaware v. Van Arsdall, 475
U.S. 673, 679 (1986).
In this case, the parties agree that the governing Su-
preme Court precedent is found in Chambers v. Mississippi,
410 U.S. 284 (1973), and Davis v. Alaska, 415 U.S. 308No. 05-2179 5
(1974).1 While the Wisconsin Supreme Court did not
specifically mention these cases in its Dunlap decision, the
case the court relied on, State v. Pulizzano, 155 Wis. 2d 633,
456 N.W.2d 325 (1990), rests on Chambers and Davis and
recognizes clearly that “consistent with Chambers and
Davis in some cases a defendant’s confrontation and
compulsory process rights might require that evidence of a
complainant’s prior sexual conduct be admit-
ted, notwithstanding the fact that the evidence would
otherwise be excluded by the rape shield law.” Pulizzano, at
331. The Wisconsin Supreme Court was looking at the right
question. The issue before us is whether it was unreason-
able in light of Chambers and Davis to conclude that
Dunlap’s rights were not violated.
Both Chambers and Davis are fact-based decisions.
Chambers was accused of murder arising out of an incident
in Woodville, Mississippi. One Saturday evening in 1969,
two Woodville policemen—James Forman and
Aaron “Sonny” Liberty—entered a local bar and pool hall to
execute a warrant for the arrest of a man named C.C.
Jackson. Jackson resisted and a hostile crowd of some 50
people gathered. When the officers attempted to handcuff
Jackson, a number of men intervened and wrestled him
free. Forman radioed for help and Liberty took a 12-gauge,
sawed-off shotgun from the officers’ squad car. Ultimately,
five or six pistol shots were fired, and Liberty was hit
several times in the back. Before he died, Liberty fired his
1
Dunlap emphasizes that recent Confrontation Clause cases
show that the Court is giving added importance to the Sixth
Amendment, citing Blakely v. Washington, 124 S. Ct. 2531 (2004),
United States v. Booker, 125 S. Ct. 738 (2005), and Crawford v.
Washington, 541 U.S. 36 (2004). However, he does not argue that
the decision in his case is an unreasonable application of these
recent cases. As does Dunlap, we take seriously, however, the
Court’s renewed interest in Sixth Amendment jurisprudence.
6 No. 05-2179
gun into an alley in the direction from which the shots
toward him were fired. As the crowd in the alley scat-
tered, Liberty deliberately fired a second shot, which hit
Chambers. Officer Forman could not see which of the men
shot Liberty. Another officer testified that he saw Cham-
bers do the deed. Yet another officer said he could not
see whether Chambers had a gun, but he saw Chambers
“break his arm down” shortly before shots rang out. Liberty
was taken to a hospital, where he was dead on arrival.
Another man named Gable McDonald may have been
in the crowd that evening. Sometime after the shooting, he
gave a sworn confession to Chambers’ attorneys saying that
he was the one who shot Officer Liberty. He also said that
he had previously told a friend that he did the shooting. A
month later, at Chambers’ preliminary hearing, McDonald
repudiated his confession and said he was not even present
at the shooting but was down the street drinking beer with
a friend.
When Chambers went to trial, one of his defenses
was that McDonald, not he, was the shooter. He called
McDonald as a witness in an attempt to place his confession
before the jury. This effort was thwarted by a Mississippi
rule of evidence, which held that a party may not impeach
his own witness, and by the rule against hearsay. The court
refused to find that McDonald was an “adverse” witness,
and this precluded cross-examination which would have put
McDonald’s repudiated confession before the jury. When
Chambers tried to call three witnesses to whom McDonald
had also allegedly admitted that he was the shooter, the
evidence was likewise excluded. The Mississippi Supreme
Court upheld each ruling.
The United States Supreme Court reversed, saying that
in “these circumstances, where constitutional rights directly
affecting the ascertainment of guilt are implicated, the
hearsay rule may not be applied mechanistically to defeat
No. 05-2179 7
the ends of justice.” The Court also pointed out that the
decision “establish[ed] no new principles of constitutional
law” nor did the decision “signal any diminution in the
respect traditionally accorded to the States in the establish-
ment and implementation of their own criminal trial rules
and procedures.” Chambers, at 302, 303.
Davis v. Alaska is similarly fact-specific. When the Polar
Bar in Anchorage closed one February evening in 1970,
there was over a thousand dollars in its safe. At about
midday the next day, the safe was missing. Later that
day, Alaska State Troopers received word that a safe
was discovered about 26 miles outside Anchorage near
the home of Jess Straight. It turned out to be the safe
from the bar, and it had been pried open and emptied out.
Richard Green, Straight’s stepson, told the troopers that he
had seen and spoken with two men standing alongside a car
near where the safe was discovered. Green picked a picture
of Davis out of a six-person photo array. Davis was arrested
the next day. The day after that, Green picked him out of a
lineup.
Green was a crucial witness for the State. But he had
a juvenile record. Prior to trial, the State moved for a
protective order to prevent any mention of the record.
Defense counsel wanted to use the record to show that
Green could have fingered Davis to shift suspicion away
from himself. Additionally, Green could have been con-
cerned about jeopardizing his own freedom—he was on
probation at the time. In other words, his record would have
been useful to Davis to show bias and prejudice and not to
call Green’s general character into question.
The trial court granted the motion for a protective order,
relying on Alaska Rule of Children’s Procedure 23, which
stated, in essence, that in most cases, juvenile disposi-
tions are not admissible as evidence during judicial proceed-
ings. The Alaska Supreme Court affirmed the conviction on
8 No. 05-2179
the basis that defense counsel was able to adequately
question Green regarding possible bias or prejudice without
using Green’s juvenile record.
The Supreme Court determined that the “accuracy and
truthfulness of Green’s testimony were key elements in
the State’s case . . . .” At 317. In that circumstance, the
Court said:
Serious damage to the strength of the State’s case
would have been a real possibility had petitioner
been allowed to pursue this line of inquiry. In this
setting we conclude that the right of confrontation is
paramount to the State’s policy of protecting a juven-
ile offender.
At 319.
The question for us is whether the Wisconsin Supreme
Court’s decision in Dunlap’s case amounts to an unrea-
sonable application of these cases. First of all, we note
that the court was well aware that
evidence of a sexual assault complainant’s sexual
history may be admitted over the rape shield law to
protect the defendant’s constitutional right to present a
defense.
Dunlap, 640 N.W.2d at 118. The court noted that admissi-
bility determinations required a balancing of the inter-
ests of the parties. In that context, the court set out the five
criteria that must be met, under Pulizzano, before the rape
shield law gives way. Concentrating on the second crite-
rion—whether the acts the defendants wants ad-
mitted closely resemble those in the present case—the court
determined they did not. The acts Dunlap was accused
of—touching Jamie’s buttocks and vagina—were found to be
not sufficiently like Jamie’s alleged prior sexual behavior to
warrant admission of the evidence.
No. 05-2179 9
Certain principles intersect in our analysis of whether
this decision is unreasonable. The first is that the Con-
frontation Clause standards are very general. We have
remarked that
rulings on Confrontation Clause issues are very fact-
specific and involve case-by-case determinations. At the
same time, and perhaps for that very reason, the
Confrontation Clause standards are very general,
making it difficult to call a state court ruling in this
area “objectively unreasonable.”
Walker v. Litscher, 421 F.3d 549, 557 (7th Cir. 2005). In
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004), the Court
discussed rules which are general in nature and the fact
that a very general rule allows for a good deal of leeway in
reaching decisions:
[T]he range of reasonable judgment can depend in part
on the nature of the relevant rule. If a legal rule
is specific, the range may be narrow. Applications of the
rule may be plainly correct or incorrect. Other rules are
more general, and their meaning must emerge in
application over the course of time. Applying a general
standard to a specific case can demand a substantial
element of judgment. As a result, evaluating whether a
rule application was unreasonable requires considering
the rule’s specificity. The more general the rule, the
more leeway courts have in reaching outcomes in case
by case determinations.
Additionally, the very standard set out in § 2254 limits
our analysis. As the Supreme Court discussed in Williams
v. Taylor, the Antiterrorism and Effective Death Penalty
Act (AEDPA) “modifies the role of federal habeas courts
in reviewing petitions filed by state prisoners.” At 403. Prior
to the enactment of AEDPA in 1996, federal courts, on
habeas, made independent determinations regarding the
constitutionality of state court rulings. As Williams
10 No. 05-2179
v. Taylor, at 411, makes clear, after AEDPA, that is no
longer the case:
[A] federal habeas court may not issue the writ simply
because that court concludes in its independent judg-
ment that the relevant state-court decision ap-
plied clearly established federal law erroneously or
incorrectly. Rather, that application must also be
unreasonable.
Interestingly for our current discussion, the way AEDPA
has altered our role is starkly apparent in three of our
habeas cases involving rape shield laws. Relief was denied
in all three cases. However, prior to AEDPA, in Stephens v.
Miller, 13 F.3d 998 (7th Cir. 1994), Indiana’s law underwent
our almost painful, independent en banc scrutiny (11 judges
participated), which resulted in six separate opinions plus
the opinion of the court. In contrast, since 1996, consistent
with AEDPA, our opinions give far greater deference to the
state courts. See Hammer v. Karlen, 342 F.3d 807 (7th Cir.
2003); Pack v. Page, 147 F.3d 586 (7th Cir. 1998). In
Hammer, the state court determined that the evidence
Hammer wished to present was not highly relevant and
that his interest in presenting it was outweighed by the
State’s interest in protecting the privacy of sexual assault
victims under Wisconsin’s rape shield law. Citing Hennon
v. Cooper, 109 F.3d 330, 334 (7th Cir. 1997), we said that for
a petitioner to obtain relief, “the state court must not only
have reached an incorrect result, but a truly ‘unreasonable’
one. . . . Thus, if the state court’s decision is ‘at least
minimally consistent with the facts and circumstances of
the case,’ the federal court is powerless to grant relief.”
Hammer, at 810. In Pack, the Illinois Appellate Court had
also applied a balancing approach under which the trial
judge had discretion to weigh the competing interests of the
parties under the Illinois statute. We said that when federal
constitutional law calls for the exercise of discretion, if a
petitioner has a full opportunity to litigate the issue, a
No. 05-2179 11
responsible, thoughtful decision is adequate to support the
judgment. We also noted that the fact that we might not
have reached the same result were we considering the case
on direct appeal “is beside the point.” At 589.
In the present case, we cannot find that the Wisconsin
Supreme Court decision is an unreasonable application
of established law as set out by the U.S. Supreme Court
in Chambers or Davis. A highly significant factor is that the
Wisconsin court recognized that its rape shield law must
yield if it would deprive a defendant of his constitutional
rights.
To repeat, Dunlap wanted to cross-examine the Child
Protective Services investigator Hanson about a state-
ment in her 1989 report that Susan Smith expressed
concern about Jamie’s “seductive behavior,” including
touching men in the genital area, “humping the family dog,”
and masturbation. As we said, the Wisconsin Supreme
Court’s focus was on whether the acts the defendant wished
to present closely resembled those involved in the present
case, a factor which is relevant to the balance which must
be struck between the defendant’s rights and the state’s
interest in protecting the victim. The court found that the
acts were not sufficiently similar, a finding which we simply
can’t judge to be unreasonable.
Additionally, we think it is important to note the rea-
sons for which Hanson’s testimony was offered by the State,
what that testimony was, and the reasons the trial judge
rejected Dunlap’s request to cross-examine her. First, the
reason it was offered. The defense cross-examination of
Jamie was intense and revealed certain inconsistencies
between what she told Hanson when she was 6 years old
and what she said both in the preliminary hearing and the
trial when she was 15. It is fair to say that the cross-
examination was vigorous—much as it would have been had
Jamie been an adult at the time of trial, say nothing of at
12 No. 05-2179
the time of the incident. Summing up what had been
testified to so far on cross-examination, counsel asked the
following questions and received positive answers to each:
First of all, on one occasion you have indicated in you[r]
statement right after this happened that you and
Shawn and Mr. Dunlap were present and most recently
you stated only you and Mr. Dunlap were present,
correct?
....
And you also testified or you stated in 1989 that Mr.
Dunlap did not insert his finger into you and most
recently in March of 1998 [at the preliminary hearing]
you stated that he did insert his finger in you, is that
correct?
....
And also in 1989 you stated that he never said what
would happen to you if you told anybody and most
recently in March of 1998 you said that if you told
anybody he told you that—he told you that he would
kill your parents, correct?
Other questions were asked about whether she had ever
met Dunlap before the night in question, whether she
had ever been in the house before, etc. This sort of question-
ing of a then-15-year-old girl about what happened when
she was 6 years old went on at some length. On redirect, the
prosecution asked what was probably the only necessary
question: “Jamie, you were six years old when this hap-
pened?”
Not content to rest on that obvious point, however, the
prosecution called Hanson to testify. The focus of her
testimony was on what a 6-year-old understands, thinks,
and remembers. She discussed the ability of a 6-year-old to
understand various concepts, such as “in” and “out” as it
No. 05-2179 13
refers to something being put inside their genitalia. She
also testified that young children often engage in pro-
gressive disclosure of events, giving only the “tip of the
iceberg” in an initial interview, perhaps because they
are embarrassed or just want to get the interview over with.
Hanson also was asked whether Jamie’s behavior during
her interview was consistent with the behavior of a child
sexual assault victim. The answer was yes. This was the
only time that her testimony touched on whether Jamie was
an abuse victim.
The defense argued that the latter question led to the
conclusion that it was Dunlap who had assaulted Jamie. To
undermine this conclusion, the defense wanted to present
the other remarks from Hanson’s report—the information
about Jamie’s sexual precociousness supplied by Susan
Smith. The problem was that Smith had died and there had
been no investigation into whether her statements were
true. They were included in the report, Hanson said, only to
give social workers a full picture of what might be happen-
ing. The trial judge excluded the evidence, saying both that
Hanson was testifying primarily about characteristics of 6-
year-olds so the information was not relevant, and that
Smith was not subject to cross-examination so the reliabil-
ity of the evidence was in question.
Unlike the evidence excluded in Chambers, the state-
ments attributed to Smith do not “directly affect[ ] the
ascertainment of guilt . . . .” Chambers, at 302. That Jamie
might have been abused on a prior occasion does not mean
Dunlap did not abuse her as well on November 7, 1989.
Obviously, also, the evidence here was not nearly so reliable
or relevant as that excluded in Davis; that is, an official
court record that went directly to the possible bias of a star
witness. It cannot be said that the Wisconsin Supreme
Court’s decision upholding the exclusion of this evidence is
grounded on an unreasonable application of Chambers or
Davis.
14 No. 05-2179
Accordingly, the judgment of the district court is
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-1-06