Mull, Jovan T. v. Endicott, Jeffrey P.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 26, 2006*
Decided November 1, 2006
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 06-2408
JOVAN T. MULL, SR. Appeal from the United States District
Petitioner-Appellant, Court for the Eastern District
of Wisconsin.
v.
No. 05-C-363
JEFFREY P. ENDICOTT,
Respondent-Appellee. William E. Callahan, Jr.,
Magistrate Judge.
ORDER
A jury in Wisconsin found Jovan Mull guilty of three counts of reckless
endangerment by use of a dangerous weapon, WIS. STAT. §§ 941.30(1), 939.63, and
one count of intimidating a victim, id. § 940.45(3). The state court sentenced him as
a habitual offender, id. § 939.62, to 41 years’ imprisonment. After pursuing
postconviction remedies in the Wisconsin courts, Mull filed a petition for a writ of
habeas corpus under 28 U.S.C. § 2254. A magistrate judge sitting by consent, see 28
U.S.C. § 636(C), denied Mull’s petition, and he appeals. We affirm.
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 06-2408 Page 2
The state first charged Mull with three counts of first-degree reckless
endangerment with a dangerous weapon after Anthony Poindexter reported to police
that Mull had fired shots at a car occupied by Poindexter, Poindexter’s girlfriend,
and Poindexter’s son. Upon learning of the charges, Mull confronted Poindexter at
his home, apologized for the shooting, offered to pay for the damage to his car, and
told him to “squash” the complaint. When Poindexter refused, Mull responded that
he would “take it up on his own.” The state subsequently filed an additional
complaint charging Mull with intimidation of a victim, and the trial court joined
both cases over Mull’s objection.
Poindexter testified as the only witness at Mull’s preliminary hearings in both
cases, and Mull cross-examined him. Because Poindexter died prior to trial,
however, the court allowed the state to introduce his testimony from these hearings.
The jury found Mull guilty on all four counts.
In his direct appeal Mull raised several arguments, including that the trial
court violated his rights under the Confrontation Clause of the Sixth Amendment by
admitting Poindexter’s preliminary-hearing testimony. The Wisconsin Court of
Appeals rejected that argument, reasoning that Poindexter had been unavailable,
his testimony was reliable, and Mull had the opportunity to effectively cross-
examine him during the preliminary hearings. The Supreme Court of Wisconsin
denied Mull’s petition for review, and Mull did not file a petition for certiorari with
the Supreme Court of the United States.
In his § 2254 petition Mull again raised his Confrontation Clause claim and
argued that it should be analyzed under Crawford v. Washington, 541 U.S. 36
(2004). The magistrate judge explained that the Wisconsin Court of Appeals had
correctly analyzed the claim under the standard set forth in Ohio v. Roberts, 448
U.S. 56 (1980), because Roberts, not Crawford, was the law in effect at the time
Mull’s conviction became final. The magistrate judge further concluded that the
appellate court’s analysis of the confrontation claim was a reasonable application of
the Roberts standard. The court ultimately rejected this claim and the others in
Mull’s petition but issued a certificate of appealability allowing Mull to proceed with
his contention that reading Poindexter’s preliminary-hearing testimony to the jury
violated his constitutional right to confront the witnesses against him.
A federal court may not grant relief on a claim brought under § 2254 unless
the state court’s decision on that claim was contrary to, or involved an unreasonable
application of, clearly established federal law as determined by the Supreme Court
of the United States. 28 U.S.C. § 2254(d)(1). It is not enough for the state court to
be incorrect; the state court must be unreasonable. See Williams v. Taylor, 529 U.S.
362, 410 (2000); Eckstein v. Kingston, 460 F.3d 844, 848 (7th Cir. 2006); see also
No. 06-2408 Page 3
United States v. Wallace, 458 F.3d 606, 610 (7th Cir. 2006) (discussing the
reasonableness requirement of AEDPA). We review the district court's legal
conclusions de novo and its factual findings for clear error. Eckstein, 460 F.3d at
848.
On appeal, Mull argues that the Wisconsin Court of Appeals erroneously
concluded that the trial court did not violate his Sixth Amendment right to
confrontation by admitting Poindexter’s preliminary-hearing testimony at trial.
Although Mull now acknowledges that the appellate court was right to analyze his
claim under Roberts, he maintains that the court nonetheless failed to appreciate
that his case involved “extraordinary circumstances.” But Roberts did not require
courts to consider “extraordinary circumstances” in determining whether a
Confrontation Clause violation occurred. Instead, Roberts held that a trial court
could admit prior testimony consistent with the Confrontation Clause where the
declarant was unavailable and the testimony was sufficiently reliable. 448 U.S. at
65-66; see Owens v. Frank, 394 F.3d 490, 502 (7th Cir. 2005). Under this framework,
the Wisconsin Court of Appeals determined that Poindexter was unavailable because
he died prior to trial, and that his preliminary-hearing testimony was reliable
because it was given under oath subject to cross-examination. Thus, we agree with
the magistrate judge that the Wisconsin Court of Appeals was neither incorrect nor
unreasonable in its application of Roberts to Mull’s claim. See Owens, 394 F.3d at
501-02.
AFFIRMED.