Jamie Jardine v. Mike Dittmann
Filing
Filed opinion of the court by PER CURIAM. AFFIRMED. Richard A. Posner, Circuit Judge; Ilana Diamond Rovner, Circuit Judge and Diane P. Wood, Circuit Judge. [6337317-3] [6337317] [09-3929]
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In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3929
JAMIE J. JARDINE,
Petitioner-Appellant,
v.
M IKE D ITTMANN,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 09-C-1043—William C. Griesbach, Judge.
A RGUED JUNE 14, 2011—D ECIDED S EPTEMBER 14, 2011
Before P OSNER, R OVNER, and W OOD , Circuit Judges.
P ER C URIAM. Jamie Jardine, imprisoned in Wisconsin
for sexual assault and attempted homicide, appeals
the dismissal of his petition for a writ of habeas corpus.
See 28 U.S.C. § 2254. Although the district court dismissed the petition summarily, it granted Jardine a certificate of appealability to pursue his claim that, at trial,
Wisconsin officials withheld from him material, exculpatory evidence in violation of his Due Process rights.
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See Brady v. Maryland, 373 U.S. 83 (1963). We affirm. In
doing so, we acknowledge that Jardine’s criminal case
featured police misconduct. But this appeal illustrates
how the constitutional rule announced in Brady does not
reach every instance of misconduct. Brady covers only
material evidence, and in Jardine’s case the materiality
prong has real bite. At bottom, Jardine was doomed
by his own testimony, and that fact prevents us from
concluding that the state court was unreasonable in
finding the missing evidence immaterial.
I.
In 1994, a Wisconsin jury convicted Jardine of sexually
assaulting and attempting to kill Laurie Grandhagen,
a masseuse at Kady’s Sauna and Massage Parlor in Superior. He was sentenced to 60 years’ imprisonment. Statecourt opinions and the petition show that Grandhagen
and Jardine told two very different stories at trial.
According to Grandhagen, Jardine got violent after a
massage. He brandished a gun, handcuffed and sexually
assaulted her, then asked about the parlor’s money
stash and led her down a hall at gunpoint. Before
finding any money, however, he removed the handcuffs
and forced Grandhagen to her knees. Fearing for her
life, Grandhagen lunged for Jardine’s gun when he displayed it a second time. From there her memory is
blank, but the ensuing struggle left her with a crushed
skull and a gunshot wound in her thigh. To explain
the skull fracture and attendant brain trauma, a doctor
testified that the features of the wound were consistent
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with pistol-whipping with the butt of a gun like Jardine’s.
The record does not reveal whether Jardine took any
money.
Jardine’s story had similar elements but a different
bent. He testified that he usually carried a pistol and
handcuffs for his work as a security guard, and that he
had been driving around with the gun that day, contemplating suicide; he changed his mind and went for a
massage instead. Jardine, a repeat customer at Kady’s,
had previously paid another masseuse there (not Grandhagen) for sexual favors in addition to run-of-the-mill
massages. During this session, he inadvertently revealed
his gun to Grandhagen, who then volunteered that the
two could have sex; Jardine, confused, acquiesced. But
he needed extra help getting aroused, so he and
Grandhagen agreed to use the handcuffs; after sex, he
removed them at her request, without ever seeking
the parlor’s money stash or holding her at gunpoint. And
although Jardine admitted asking Grandhagen to kneel
after having sex, he testified that he did so for “no real
reason.” He then showed his gun to Grandhagen again,
this time to demonstrate that it was harmless in his
hands. But the demonstration went awry: Grandhagen
inexplicably seized the gun, which went off, sending her
to the floor. Jardine, seeing blood on Grandhagen’s
head and assuming that she had been shot there rather
than her leg, panicked and fled. When police first questioned him, he denied that he had been at the massage
parlor that night, but he later admitted he had been
there. At no time could he explain how Grandhagen’s
head was injured.
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Jardine was convicted, and he combined his direct
appeal with an unsuccessful motion for a new trial based
on a letter from another masseuse who somehow contradicted both Grandhagen’s trial testimony and his.
After Jardine lost on appeal, he petitioned the Supreme
Court of Wisconsin for review. And while his petition
was pending, the trial court received a new letter from
a police detective who admitted doctoring the crime
scene in some manner to hide evidence of prostitution
at Kady’s.
On the basis of the detective’s letter, Jardine filed
another new-trial motion, which the trial court ignored
for years. Eventually, Jardine renewed his motion; the
trial court cursorily dismissed it; and, later, the Court of
Appeals remanded the case to the trial court for
further consideration, “because the real controversy
regarding the letter allegedly from the detective ha[d]
not been heard.” Further, the court explained, the allegations went “to the crux of the State’s case” and seemed
“particularly relevant to the sexual assault charges and
are too important to be left unresolved.” Yet, while the
motion was again pending in the trial court, Jardine’s
counsel withdrew it; the record does not show precisely
when. And later—again, the record does not say
when—Jardine filed a new motion for DNA testing
and related relief. His motion was granted, at least with
respect to the DNA testing. Among the items tested
were semen-stained sheets and towels from the massage
parlor, apparently withheld by the detective in the runup to trial, and Jardine’s gun. At least three other men
(and not Jardine) had ejaculated on the sheets and
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towels at some time, and the butt of the gun yielded no
testable genetic material.
The trial court denied Jardine any relief on the basis
of the test results, however, and the Court of Appeals
upheld that determination in a written, unpublished
decision. The Supreme Court of Wisconsin denied review.
Jardine then filed a petition under 28 U.S.C. § 2254,
arguing, as relevant here, that the sheets and towels,
together with the gun, were unconstitutionally suppressed before and at trial. The district court summarily
dismissed the petition without requesting a response
from the warden or additional state-court records, concluding that Jardine’s claim about the DNA-tested evidence failed on the merits and any other claims were
untimely. Days later, Jardine requested a certificate of
appealability, which the district court granted. He
moved simultaneously for reconsideration, and the district court ordered that motion administratively terminated.
II.
Jardine argues that his gun and the stained sheets
and towels from the massage parlor were exculpatory,
material evidence suppressed by Wisconsin officials in
violation of his Due Process rights as outlined in Brady.
(The certificate of appealability suggested that Jardine
could also argue ineffective assistance of counsel, but
his briefs are silent on that issue.) The warden attacks
the materiality of the evidence, but first questions
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whether the petition is timely—although he concedes
that gaps in the record left the district court unable to
answer that question. The warden also asserts that
Jardine defaulted his claims by failing to apprise the
Wisconsin courts of their federal nature. Jardine’s statecourt filings are mostly absent from the record, and
their absence clouds any inquiry into timeliness or default. Because we can resolve the merits but not the
procedural questions on the scant record, we turn
directly to the substance of Jardine’s claims.1
1
The record is thin because the district court granted a certificate of appealability after summarily dismissing the petition.
Although district courts need not review state-court transcripts and pleadings in many § 2254 proceedings, including
those involving Brady claims, see Simental v. Matrisciano, 363
F.3d 607, 612 (7th Cir. 2004), and although summary dismissal
without the warden’s response has been commonplace for
years, see, e.g., Small v. Endicott, 998 F.2d 411, 414 (7th Cir. 1993),
common sense says that coupling summary dismissal with a
certificate of appealability is poor practice. The conclusion that
a constitutional claim is debatable among reasonable jurists,
as required for a certificate of appealability under 28 U.S.C.
§ 2253(c), see Slack v. McDaniel, 529 U.S. 473, 484 (2000), sits in
obvious tension with the conclusion that the claim “plainly
appears” from the petition and attachments to be a loser, as
required for summary dismissal under Rule 4 of the Rules
Governing Section 2254 Cases in the United States District
Courts. All the more so if, as here, the district court premises
the certificate on reasonable debate about the import of suppressed evidence in light of all the other evidence.
(continued...)
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A.
The parties dispute the exculpatory value of Jardine’s
gun, the butt of which—years after trial—contained no
trace of Grandhagen’s DNA. Jardine says this shows
his gun was not used to bash her head in; the warden
says otherwise, trading on the time Jardine had to wipe
away any gore before he was caught. But in this fight the
parties overlook a simpler problem: by Jardine’s account,
Wisconsin never suppressed the gun. Suppression, for
Brady purposes, happens only when prosecutors and police
fail to disclose evidence not otherwise available to a
1
(...continued)
Further, the district court’s approach to this case spawned an
appeal that was likely avoidable. If the state-court records
turned out to give the warden a slam-dunk on the timeliness
or fair-presentment issues, then no certificate of appealability
should have issued, regardless of the merits. See Slack, 529
U.S. at 485; Davis v. Borgen, 349 F.3d 1027, 1029 (7th Cir. 2003);
Anderson v. Litscher, 281 F.3d 672, 674 (7th Cir. 2002). Moreover,
a remand in these circumstances would still need to include
time for the warden to develop the record and raise affirmative defenses. See Ray v. Boatwright, 592 F.3d 793, 798-99
(7th Cir.), cert. denied, 131 S. Ct. 595 (2010).
Because Jardine does not challenge the state court’s characterization of his testimony, and because the state-court decisions
and Jardine’s petition give us enough for review on the
merits, these considerations do not change the outcome
today. Still, we respectfully advise district judges who plan
on issuing a certificate of appealability to avoid Rule 4 and
let the warden respond to the petition with exhibits.
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reasonably diligent defendant. United States v. Gray, 2011
WL 3437510, at *3 (7th Cir. Aug. 8, 2011); Harris v. Kuba,
486 F.3d 1010, 1015 (7th Cir. 2007). Nothing in Jardine’s
petition suggests his defense team was unaware of his
own gun’s existence, the state’s possession of it, or the
prosecution’s theory of its role in the crime. Nor does
Jardine allege that he unsuccessfully requested access
to the gun. Thus, Jardine’s Brady claim about his gun
never leaves the ground. See Harris, 486 F.3d at 1015
(prosecution did not withhold defendant’s own alibi
from him); United States v. Lee, 399 F.3d 864, 865 (7th
Cir. 2005) (prosecution did not suppress defendant’s
own pants, which contained a gun).2
B.
At first blush, Jardine’s argument about the semenstained sheets and towels, which showed (after DNA
testing) that other men had sexual encounters at the
parlor, gets more traction. (Jardine also mentions a hair
sample that turned out not to be his, but the hair could
2
Potentially, Jardine’s claim about the gun could also be
framed as one of ineffective assistance of counsel, as the
district court suggested in its order granting a certificate of
appealability. But Jardine’s brief ignores that theory. At all
events, declining to request DNA testing can be sound
strategy when weaknesses in a defendant’s story could lead
reasonable lawyers to think the client guilty and any test
results potentially damning. See Harrington v. Richter, 131 S. Ct.
770, 789-90 (2011).
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easily belong to the purchaser of a bona fide massage.) The
evidence supports his contention that the parlor doubled
as a brothel and, according to him, explains why
Grandhagen might have offered him sex, reveals her
motivation to cover up her prostitution career by lying,
and contradicts the testimony of Denise McKay, another
masseuse who denied generally that prostitution took
place at the parlor and specifically that Jardine had once
purchased her sexual services. Derivatively, Jardine
argues that the evidence of prostitution could, by bolstering his testimony that Grandhagen consented, negate
his motive to fatally silence a rape victim. What is
more, the evidence seems to have actually been suppressed.
But not all suppressed evidence that has some
tendency to exculpate or impeach is material under
Brady, and relief may be granted only if introducing the
evidence would have cast “the whole case in such a
different light as to undermine confidence in the verdict.” Strickler v. Greene, 527 U.S. 263, 290 (1999) (quoting
Kyles v. Whitley, 514 U.S. 419, 435 (1995)). Logically, inadmissible evidence is immaterial under this rule. Moreover, because this proceeding is subject to 28 U.S.C.
§ 2254(d), Jardine can prevail only if he shows that the
state court’s materiality determination was unreasonable, rather than merely incorrect. See Harrington v.
Richter, 131 S. Ct. 770, 785-86 (2011). This court must fill
any gaps in the state court’s discussion by asking what
theories “could have supported” the state court’s conclusion. Id. at 786.
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Here, Jardine’s argument that the evidence of prostitution was material founders on his own testimony. His
story places him alone at the scene and raises a very
troubling question: How was Grandhagen’s head injured
so badly on the night she was shot in the leg, and in a
manner that suggested pistol-whipping with the butt of
a gun like Jardine’s? Even if we imagine, for the sake
of argument, that the blood Jardine says he saw on
Grandhagen’s head had spurted to that location from
the gunshot wound in her leg, how likely is it that
some other malefactor with a similar gun appeared on
the scene that same night and took the opportunity to
pistol-whip her? Or is Jardine’s theory that when he
shot her (inadvertently, by his account), her fall caused an
injury that a medical expert would mistake for a pistolwhipping wound? Most important, would knowing that
one or more of the masseuses (maybe Grandhagen,
maybe not) was a prostitute help a reasonable juror
answer either of these questions in Jardine’s favor? We
think not. There is no room in Jardine’s own story for
other attackers, notwithstanding Grandhagen’s initial
confusion, in early police interviews, about how many
attackers there were, or her misidentification of Jardine
in a photo line-up some time during or after her recovery. Nor is there a plausible basis for contending that
the evidence of prostitution somehow means Grandhagen suffered a freakish fall, rather than the pistolwhipping suggested by expert analysis of her injuries.
Jardine faces still another obstacle to collateral relief:
A Wisconsin court already concluded that the evidence
of other men’s fluids on sheets and towels would
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be inadmissible under state law. If used to show that
Grandhagen herself had sex with other customers, either
to bolster Jardine’s testimony that she consented or to
impeach her generally, introducing the evidence would
violate Wisconsin’s sweeping rape-shield law, W IS. S TAT.
§ 972.11(2). If used to impeach McKay, the witness
who denied trading sex acts for Jardine’s money and
testified that there was no prostitution at the parlor, it
apparently would fall afoul of the state’s rule against
impeachment through extrinsic evidence of collateral
acts, W IS. S TAT. § 906.08(2). So the state court concluded,
and federal courts in § 2254 proceedings defer to statecourt descriptions of state law even if they do not agree
with those descriptions. Estelle v. McGuire, 502 U.S. 62, 6768 (1991); Sussman v. Jenkins, 636 F.3d 329, 352 (7th
Cir. 2011); George v. Smith, 586 F.3d 479, 484 (7th Cir.
2009), cert. denied, 130 S. Ct. 3414 (2010). Furthermore,
the Wisconsin court did not see, and Jardine has not
explained, how evidence that prostitution took place at
Kady’s could be relevant if not used to support inferences about Grandhagen’s own sexual activity or to
impeach McKay.
Still, the evidence would be material for Brady purposes if, had the defense known of that evidence and
sought to introduce it at trial, the state rules would necessarily have yielded to Jardine’s federal rights under
the Confrontation Clause. Cf. Sussman, 636 F.3d at 352,
358 (explaining, in ineffective-assistance context, that
petitioner can show prejudice if Wisconsin court’s determination of inadmissibility under rape-shield law
would itself violate Confrontation Clause). In light of
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§ 2254(d) and Harrington, see 131 S. Ct. at 785-86, the
relevant question is whether a reasonable court would
have been forced to deem the evidence of prostitution “highly probative, noncumulative, nonconfusing,
nonprejudicial . . . [and] vital to the central issue in the
case,” Redmond v. Kingston, 240 F.3d 590, 592 (7th Cir.
2001). But evidence that a sexual-assault complainant
often consented to sex with other men is archetypally
prejudicial and not highly probative of consent in a
particular case; precisely that concern underlies rapeshield statutes. See State v. Pulizzano, 456 N.W.2d 325, 330
(Wis. 1990). Perhaps for that reason, the Supreme Court
has never deemed a rape-shield statute unconstitutional. Hammer v. Karlen, 342 F.3d 807, 812 n.6 (7th Cir.
2003). And it would not be unreasonable for the Wisconsin court to conclude, after balancing the competing
interests, that the evidence was inadmissible for any
relevant purpose. See Dunlap v. Hepp, 436 F.3d 739, 745
(7th Cir. 2006); Hammer, 342 F.3d at 812; Pack v. Page, 147
F.3d 586, 589 (7th Cir. 1998). Similarly, it is hard to see
how the Wisconsin courts would be unreasonable in
concluding that Jardine had no constitutional right to
impeach McKay rather than Grandhagen with evidence
of prostitution—unless the Wisconsin courts were
gravely mistaken in twice characterizing McKay’s role
in the trial as inconsequential.
At all events, portraying Grandhagen as promiscuous,
or poking holes in her and McKay’s testimony, would
not solve Jardine’s biggest problem: Grandhagen’s
vicious head wound, acquired on the evening he admittedly had sex with and shot her, and inflicted in a man-
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ner consistent with pistol-whipping with the butt of a
gun like his.
III.
Despite the police misconduct that sparked Jardine’s
petition, the law requires that we A FFIRM the judgment
of the district court.
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