Timothy Moseley v. Paul Kemper

Filing

Filed opinion of the court by Judge Kanne. AFFIRMED. Richard A. Posner, Circuit Judge; Daniel A. Manion, Circuit Judge and Michael S. Kanne, Circuit Judge. [6850598-1] [6850598] [16-2247]

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In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-2247
TIMOTHY D. MOSELEY,
Petitioner-Appellant,
v.
PAUL S. KEMPER, Warden,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 15-CV-0035 — William C. Griesbach, Chief Judge.

____________________
ARGUED APRIL 13, 2017 — DECIDED DATE JUNE 27, 2017
____________________
Before POSNER, MANION, and KANNE, Circuit Judges.
KANNE, Circuit Judge. Timothy Moseley was convicted on
three counts of possessing nude photos of T.H. that were
taken without her consent. Prior to trial, Moseley moved to
have the court review T.H.’s mental-health records in camera. At issue here is whether the Wisconsin appellate court’s
decision denying that motion is “contrary to, or involved an
unreasonable application of” Supreme Court precedent. 28
U.S.C. § 2254(d)(1).

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Because the Wisconsin appellate court’s decision is not
substantially different from Supreme Court precedent and
because the court did not unreasonably apply that precedent
to Moseley’s case, we reject those arguments.
I. BACKGROUND
Milwaukee police officers arrested Moseley at his house
after M.K. accused him of domestic violence. While searching Moseley’s apartment, officers found handcuffs, rope, and
other items associated with sexual bondage and seized
Moseley’s computer, camera, external hard drive, and CDs.
The Milwaukee Police Department sent the electronic devices to the Computer Crimes Unit at the Department of Justice.
When DOJ detectives searched the devices, they discovered
several nude photos of M.K. and several nude photos and
videos of another woman, T.H.
T.H. worked with Moseley at a U.S. Marshal’s office in
Wyoming. In her statement to the police, T.H. alleged that
Moseley forced her into a sexual relationship by threatening
her job. Her statement also chronicled his abusive behavior
throughout their relationship. For instance, she claimed that
she once passed out after drinking coffee that Moseley had
given her. She said that, while she was drifting in and out of
consciousness, someone handcuffed her, blindfolded her,
and took off her clothes. Investigators found photos of that
incident on Moseley’s computer, as well as other photos of
T.H. that were allegedly taken without her consent.
The state charged Moseley with eight counts of possessing nude photos of T.H. taken without her consent. Wis.
Stat. § 942.09(2)(am)3. Moseley’s primary defense was that he

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and T.H. had been in an ongoing, consensual relationship
and that T.H. had consented to the photos.
Before trial, Moseley moved to have the court review
T.H.’s mental-health records in camera. According to Moseley, T.H. had memory problems. He argued that T.H.’s records contained evidence related to her memory that he could
use to impeach her credibility at trial. He also suggested that
the records might contain statements by T.H. that indicate
their relationship was consensual. The trial court denied the
motion, and the jury convicted Moseley on three of the eight
counts.
Moseley appealed his conviction. The Wisconsin appellate court affirmed the trial court’s denial of in camera review, holding that Moseley had not shown “a specific factual
basis demonstrating a reasonable likelihood that the records
contain relevant information necessary to a determination of
guilt or innocence and is not merely cumulative.” (R. 10-4 at
8–9 (quoting State v. Green, 646 N.W.2d 298, 310 (Wis. 2002)).)
According to the court, the information was immaterial:
even if T.H. had consented to some part of her relationship
with Moseley, that was irrelevant to whether she had consented to the taking of the photos at issue. The court also
concluded that the information was cumulative: T.H.’s
memory issues were on clear display to the jury because she
answered “many questions with ‘I don’t recall.’” (R. 10-4 at
9.) The Wisconsin Supreme Court denied Moseley’s petition
for review.
Moseley then filed a petition for a writ of habeas corpus
in federal district court. He argued that the Wisconsin appellate court’s decision was contrary to clearly established Supreme Court precedent because the court applied Wiscon-

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sin’s standard for obtaining in camera review from Green instead of the Supreme Court’s standard from Pennsylvania v.
Ritchie, 480 U.S. 39, 58 n.15 (1987). In the alternative, he argued that, even if the Wisconsin standard from Green is not
contrary to Ritchie, the Wisconsin appellate court unreasonably applied the standard to his case. The district court denied the petition but granted a certificate of appealability as
to whether Moseley was constitutionally entitled to have the
court review T.H.’s records in camera. This appeal followed.
II. ANALYSIS
Moseley is entitled to federal habeas relief only if he can
show that the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States.” § 2254(d)(1). To do this, Moseley must show
that the state court’s decision was either “contrary to” federal
law or was “an unreasonable application” of federal law. Bell
v. Cone, 535 U.S. 685, 694 (2002). Moseley makes both arguments here: first, he argues that the Wisconsin appellate
court’s decision is contrary to the Supreme Court’s decision
in Ritchie; and second, he argues that, even if the Wisconsin
appellate court’s decision is not contrary to Ritchie, it applied
Ritchie unreasonably.
A state court’s decision is “contrary to” clearly established federal law “if the state court applies a rule different
from the governing law set forth in [Supreme Court] cases.”
Id.; see also Emerson v. Shaw, 575 F.3d 680, 684 (7th Cir. 2009).
The dispute here is about what a defendant must show before a court will review confidential documents in camera.
To be sure, the Wisconsin Supreme Court and the United
States Supreme Court have differently worded standards for

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obtaining in camera review of confidential documents. The
Wisconsin Supreme Court has held that a defendant must
show “a specific factual basis demonstrating a reasonable
likelihood that the records contain relevant information necessary to a determination of guilt or innocence and is not
merely cumulative to other evidence available to the defendant.” Green, 646 N.W.2d at 310. And the United States Supreme Court has held that a defendant must “make some
plausible showing of how” the records would be “both material and favorable to his defense.” Ritchie, 480 U.S. at 58
n.15.
Nevertheless, “contrary to” means much more than a difference in language; it means “‘diametrically different,’ ‘opposite in character or nature,’ or ‘mutually opposed.’” Alston
v. Smith, 840 F.3d 363, 368 (7th Cir. 2016) (quoting Williams v.
Taylor, 529 U.S. 362, 405 (2000)). In short, “the state court’s
decision must be substantially different from the relevant”
Supreme Court precedent for there to be an issue under
§ 2254(d)(1). Williams, 529 U.S. at 405.
Moseley’s argument under the “contrary to” prong of
§ 2254(d)(1) is that Wisconsin courts require “a specific factual showing” while the Supreme Court requires only a
“plausible showing.” According to Moseley, the Supreme
Court’s standard requires less of defendants seeking in camera review. But other than to repeat the different language,
Moseley does not explain how the standards are different.
Moseley offers no explanation for how one can make a
“plausible showing” without presenting the court some factual basis for believing that the records contain material and
favorable evidence. Even under Ritchie, “[t]he mere possibility that … undisclosed information might have helped the

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defense … does not establish ‘materiality’ in the constitutional sense.” Ritchie, 480 U.S. at 58 n.15 (quoting United
States v. Agurs, 427 U.S. 97, 109–10 (1976)). And Wisconsin
courts don’t require a defendant to prove what is in the records before obtaining in camera review; instead, the “test
essentially requires the court to look at the existing evidence in
light of the request and determine … whether the records
will likely contain evidence that is independently probative
to the defense.” Green, 646 N.W.2d at 310 (emphasis added).
So the standard under Ritchie is more burdensome than
Moseley presumes; the Green standard less so. Consequently,
the standards do not diverge in any meaningful way and are
not “contrary to” one another in the way that the Supreme
Court has defined the phrase. 1
Moseley’s argument that the Wisconsin appellate court
unreasonably applied Ritchie fares no better. 2 A state court’s
decision is “unreasonable” under § 2254(d)(1) “if the state
1

This is the third time that we have held that Wisconsin's standard for
obtaining in camera review of confidential documents is not contrary to
Ritchie. See Dietrich v. Smith, 701 F.3d 1192, 1195 (7th Cir. 2012); Rizzo v.
Smith, 528 F.3d 501, 506 (7th Cir. 2008); Davis v. Litscher, 290 F.3d 943,
946–48 (7th Cir. 2002).
2

Throughout his case, Moseley continually made reference to the fact
that the prosecuting attorneys had T.H.’s mental-health records. Moseley
argues that the Wisconsin appellate court unreasonably applied Ritchie
because the documents were not privileged after she disclosed them to
the prosecution. According to Moseley, some lesser relevancy standard
should have applied instead of Ritchie. But the Wisconsin appellate court
held that the records were confidential under Wisconsin law, and we
cannot grant habeas on the “belief that a state court has misunderstood
or misapplied state law.” Huusko v. Jenkins, 556 F.3d 633, 637 (7th Cir.
2009).

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court correctly identifies the governing legal principle … but
unreasonably applies it to the facts of the particular case.”
Bell, 535 U.S. at 694. Unreasonable truly means unreasonable: it “demands more than ‘just’ an incorrect application of
federal law.” Winston v. Boatwright, 649 F.3d 618, 624 (7th Cir.
2011). The state court’s decision is reasonable “so long as
‘fairminded jurists could disagree’ on the correctness of the
state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101
(2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)).
At the trial court, Mosely argued that the entire case was
a credibility dispute. According to Moseley, T.H.’s mentalhealth records were important because “T.H. ha[d] been diagnosed with memory lapses and memory problems and
suffered from a mental illness/psychological disorder at the
time of the alleged incident,” T.H. had “told her therapist
about the sexual abuse she suffered at the hands of the Defendant,” and T.H. had referenced her “conversations about
the alleged abuse by the Defendant with her counselor and
her lapses in memory.” (R. 10-2 at 69–70.) Moseley also argued that T.H. might have told her therapist that she consented to a sexual relationship with him. He presented the
same arguments to the Wisconsin appellate court and in his
petition for review to the Wisconsin Supreme Court.3
3

In his brief, Moseley points to nine facts that he claims make a plausible
showing that T.H.’s records contain evidence material and favorable to
his defense. But that evidence first appeared in his habeas petition to the
district court. He did not present those particular factual allegations to
any Wisconsin court. A state court’s decision cannot be unreasonable for
failing to consider evidence never presented to it. Cullen v. Pinholster, 563
U.S. 170, 181–82 (2011).

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Moseley’s allegations might have been enough to induce
the court to grant in camera review but it was not unreasonable to deny his motion, either. As the Wisconsin appellate
court held, it’s not altogether clear why the evidence is relevant, let alone material. See United States v. Cruz-Velasco, 224
F.3d 654, 662 (7th Cir. 2000). Moseley continually alleged that
his relationship with T.H. was consensual. But the case had
nothing to do with whether some of their relationship was
consensual but rather with whether T.H. consented to the
photos in question. Consent to sex or to a relationship in
general does not equate to consent to have explicit photos
taken. And Moseley never argued that T.H.’s records would
prove she consented to the photos, only that she might have
told her therapist she consented to a relationship with him.
Nor was it unreasonable for the Wisconsin appellate
court to hold that the records did not contain material impeachment evidence. Cumulative impeachment evidence is
not material. United States v. Bailey, 510 F.3d 726, 737 (7th Cir.
2007). Moseley wanted access to T.H.’s records in part to expose T.H.’s alleged memory problems. But as the Wisconsin
appellate court noted, Moseley had more than a fair opportunity to bring T.H.’s alleged memory problems to the jury’s
attention. During cross-examination, T.H. responded to
many questions from Moseley’s attorney by saying that she
could not remember. The Wisconsin appellate court reasonably concluded that any comments T.H. made to her therapist about her memory problems would have been cumulative of her testimony in front of the jury.
III. CONCLUSION
For those reasons, the district court’s denial of Moseley’s
petition for a writ of habeas corpus is AFFIRMED.