Jensen v. Schwochert

Filing 101

ORDER denying 93 Motion to Enforce Judgment. (cc: all counsel) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

MARK D JENSEN,
Petitioner,
v.

Case No. 11-C-803

MARC CLEMENTS,
Respondent.

DECISION AND ORDER DENYING
MOTION TO ENFORCE JUDGMENT

This court granted Petitioner Mark D. Jensen’s application for a writ of habeas corpus on
December 18, 2013, on the ground that the Wisconsin Court of Appeals had unreasonably applied
clearly established federal law in deciding that the admission at his state trial of out-of-court
statements his deceased wife had made implicating him in her death, though a violation of Jensen’s
rights under the Confrontation Clause, was harmless error. Jensen v. Schwochert, No. 11-C-803,
2013 WL 6708767 (E.D. Wis. Dec. 18, 2013), ECF No. 65. The court ordered Jensen “released
from custody unless, within 90 days of the date of this decision, the State initiates proceedings to
retry him.” Id. at *17. On appeal, during which the order was stayed, a divided panel of the Seventh
Circuit affirmed. Jensen v. Clements, 800 F.3d 892 (7th Cir. 2015). Respondent’s petitions for
reconsideration and en banc review were denied.
After the Seventh Circuit’s mandate issued on October 19, 2015 (ECF No. 79), Jensen was
returned to the Kenosha County Jail, and the Kenosha County Circuit Court vacated his judgment
of conviction on December 29, 2015, and set the matter for a new trial. ECF No 86-1 at 21. In the

proceedings leading up to the trial, the circuit court determined that in light of recent Supreme Court
precedent, the statements at issue were not testimonial and their admission at trial did not violate
Jensen’s Sixth Amendment confrontation right. ECF No. 94-9 at 73–74. The circuit court thereafter
determined that its new ruling on Julie’s statements, including her letter and reports to police, cured
the constitutional defect in Jensen’s first trial, and based upon this determination reinstated Jensen’s
conviction and sentence. ECF No. 94-11 at 11–12, 35–36. This matter now returns to this court
on Jensen’s motion to enforce judgment, which argues that the State violated this court’s order to
release or retry Jensen with the series of events that resulted in the reinstatement of his conviction
and sentence. ECF No. 93.
There is no dispute that Jensen has the right to challenge the circuit court’s ruling that the
out-of-court statements of his deceased wife are admissible after all and its decision to enter a
judgment of conviction against him for the murder of his wife based on the earlier verdict, both
procedurally and on the merits. The question presented by the unusual facts of the case is whether
he must first seek review in the appellate courts of the State of Wisconsin before returning to this
court for relief under 28 U.S.C. § 2254. For the reasons set forth below, I conclude that he must
do so. Jensen’s motion will therefore be denied.
BACKGROUND
Earlier orders by this court and the Seventh Circuit recite the history of Jensen’s case in great
detail, so only a brief summary and discussion of recent procedural developments is necessary here.
See Jensen, 800 F.3d at 895–98; Jensen, 2013 WL 6708767, at *1–5. Julie Jensen was found dead
in the Jensens’ home on December 3, 1998. Jensen, 2013 WL 6708767, at *1. Her death was
initially treated as a suicide, but there was no dispute that her death resulted at least in part from

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poisoning by ethylene glycol, a chemical used in antifreeze. Id. Prosecutors eventually charged her
husband, Mark Jensen, with first degree intentional homicide on March 19, 2002. Id. at *3. The
case against Jensen relied in part upon a sealed letter she had given to neighbors and several
statements to police that Julie made in the weeks before her death expressing her fear that her
husband was plotting to kill her. Id. at *1–2. The admissibility of the letter and statements has been
the focal point of litigation in this case over the past fifteen years.
Before Jensen’s trial for Julie’s murder, the United States Supreme Court decided Crawford
v. Washington, 541 U.S. 36 (2004), which recast the right protected by the Sixth Amendment’s
Confrontation Clause. As a result, the circuit court determined that Julie’s letter and statements
were inadmissible testimonial statements. Jensen, 2013 WL 6708767, at *3. The State sought an
interlocutory review of that decision, and after granting a bypass petition allowing the case to skip
the Wisconsin Court of Appeals, the Wisconsin Supreme Court reversed the circuit court’s decision.
State v. Jensen, 2007 WI 26, ¶ 2, 727 N.W.2d 518. Although the Wisconsin Supreme Court agreed
with the circuit court that the statements were testimonial, it adopted a broad “forfeiture by
wrongdoing doctrine” and remanded for a hearing to determine whether Jensen had “lost the right
to object on confrontation grounds to the admissibility of out-of-court statements of a declarant
whose unavailability the defendant . . . caused.” Id. On remand, the Kenosha County Circuit Court
conducted a ten-day evidentiary hearing and concluded that Jensen forfeited his confrontation right
by killing Julie and therefore causing her absence from trial. Jensen, 2013 WL 6708767, at *3. As
his defense at the trial that followed, Jensen attempted to show that Julie committed suicide and
sought to frame him for her death, but the jury—which saw the letter and Julie’s other
statements—ultimately convicted Jensen of first-degree intentional homicide. Id. at *4–5.

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While Jensen’s direct appeal to the Wisconsin Court of Appeals was pending, the Supreme
Court decided Giles v. California, 554 U.S. 353 (2008), which rejected the broad forfeiture by
wrongdoing doctrine adopted by the Wisconsin Supreme Court in Jensen’s case. Nevertheless, the
Wisconsin Court of Appeals affirmed Jensen’s conviction on direct review. State v. Jensen, 2011
WI App 3, ¶ 1, 794 N.W.2d 482. Assuming, without deciding, that the circuit court erred under
Giles by admitting the testimonial letter and statements, the court of appeals concluded that any error
was harmless beyond a reasonable doubt in light of the weight of the state’s evidence and the
strength of its case. Id. ¶ 35. The Wisconsin Supreme Court denied Jensen’s petition for review on
June 15, 2011.
On August 24, 2011, Jensen filed a petition for a writ of habeas corpus under 28 U.S.C.
§ 2254, and this court issued its decision granting the petition on December 18, 2013. Jensen, 2013
WL 6708767. Noting that “[t]he parties [did] not dispute that both the letter and Julie Jensen’s
statements to [a police officer] were testimonial,” this court concluded that those “erroneously
admitted testimonial statements had a ‘substantial and injurious effect’ on the jury’s verdict.” Id. at
*6–7, *10 (quoting Brecht v. Abrahamson, 507 U.S. 619, 622 (1993)). Because the erroneous
admission of the letter and statements therefore was not harmless, the decision by the Wisconsin
Court of Appeals constituted an unreasonable application of clearly established federal law. Id. at
*17. The court issued the following direction with regard to Jensen:
Jensen is therefore ordered released from custody unless, within 90 days of the date
of this decision, the State initiates proceedings to retry him. The Clerk is directed to
enter judgment accordingly. In the event Respondent elects to appeal, the judgment
will be stayed pending disposition of the appeal.
Id. Respondent appealed, and the Seventh Circuit affirmed, agreeing that “the improperly admitted
letter and accusatory statements resulted in actual prejudice to Jensen.” Jensen, 800 F.3d at 908.
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Under this court’s order, the 90-day window for the State to release Jensen or initiate proceedings
to retry him opened when the Seventh Circuit issued its mandate on October 19, 2015. ECF No. 79.
On December 29, 2015, the Circuit Court of Kenosha County vacated Jensen’s judgment of
conviction and reopened the case. ECF No. 86-1 at 21. That day, the State also communicated its
intent to retry Jensen. Id. In anticipation of the new trial, Jensen filed a motion on November 29,
2016, to exclude all of Julie’s testimonial statements, including the letter. ECF No. 94-3 at 97.
After two rounds of extensive briefing and oral argument on the motion,1 the circuit court found in
July 2017 that Julie’s letter and statements to officers were non-testimonial based upon the postCrawford evolution of the meaning of “testimonial” in cases such as Michigan v. Bryant, 562 U.S.
344 (2011), and Ohio v. Clark, 135 S. Ct. 2173 (2015), both decided after Jensen’s first trial. ECF
No. 94-9 at 73–74, 96. The circuit court therefore denied Jensen’s motion and concluded that the
letter and related statements would be admissible at Jensen’s new trial. ECF No. 94-9 at 96.
The State took two relevant actions in response the circuit court’s decision that Julie’s letter
and statements would be admissible at Jensen’s second trial. First, Respondent filed a motion for
clarification in this court on August 10, 2017. ECF No. 86. After explaining recent developments
in Jensen’s case, Respondent informed this court that the Kenosha County prosecutors intended to
move the circuit court to reinstate Jensen’s conviction on the grounds that the trial court’s recent
conclusion that the letter and statements were not testimonial “cure[d] the constitutional error
believed to have existed in the first trial.” Id. at 4. Respondent sought clarification as to whether
1

See ECF No. 94-3 at 97–100 & ECF No. 94-4 at 1–9 (Jensen’s motion); ECF No. 94-5 at
47–89 (State’s response); ECF No. 94-6 at 70–100, ECF No. 94-7 at 1–100, & ECF No. 94-8 at
1–45 (first motion hearing); ECF No. 94-8 at 47–71 (Jensen’s response brief); ECF No. 94-8 at
75–85 (State’s reply); ECF No. 94-8 at 88–89 (Jensen’s response letter); ECF No. 94-8 at 90–95
(State’s response letter); ECF No. 94-8 at 97–100, ECF No. 94–9 at 1–100, & ECF No. 94-10 at
1–2 (second motion hearing).
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reinstatement of Jensen’s conviction under these circumstances would comply with this court’s order
that Jensen be “released from custody unless, within 90 days of the date of this decision, the State
initiates proceedings to retry him.” Id. at 5. This court granted Respondent’s motion in an August
18, 2017 order. ECF No. 90. Recognizing that this court possessed continuing jurisdiction to assess
Respondent’s compliance with the conditional writ of habeas corpus, this court concluded that,
because “[t]he State did in fact initiate proceedings to retry Jensen within 90 days of the effective
date of the court’s order[,] . . . Respondent is not required to release Jensen from his custody.” Id.
at 5. The court further observed that because “Jensen is no longer in Respondent’s custody, but is
being held awaiting trial in the Kenosha County Jail[,] . . . Respondent has no power to release him
in any event.” Id. at 5–6. However, the court declined to offer an opinion “as to whether the circuit
court’s determination that the challenged statements are non-testimonial is proper and whether
Jensen’s previous conviction can be constitutionally reinstated without a new trial,” recognizing that
addressing either would constitute improper issuance of an advisory opinion. Id. at 6.
Second, as represented to this court, the State filed a motion in the Kenosha County Circuit
Court on August 11, 2017, seeking to reinstate Jensen’s judgment of conviction and accompanying
life sentence. ECF No. 94-10 at 42–56.2 The circuit court held a hearing on the motion on
September 1, 2017 . Id. at 97–100 & ECF No. 94-11 at 1–10. Citing this court’s August 18, 2017
order, the circuit court concluded that “it’s clear that the State would not be in contempt if there
were no trial because the State did, in fact, reinitiate proceedings to try” Jensen. ECF No. 94-11 at
4. The circuit court further found that, as a result of its decision to admit Julie’s letter and
statements at the upcoming trial, “the evidence in a new trial would be materially the same as in the
2

See also ECF No. 94-10 at 69–77 (Jensen’s response); id. at 84–94 (State’s reply); id. at
95–96 (Jensen’s response letter).
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first trial.” Id. Questioning the appropriateness of investing court time and resources in holding a
duplicate trial, the circuit court granted the State’s motion. Id. at 5. The circuit court entered the
new judgment of conviction and life sentence for Jensen on September 8, 2017. Id. at 11–12. A
September 18, 2017 written order briefly elaborated on the circuit court’s reasoning: “There is no
constitutional necessity at this point for proceeding with a new trial for [Jensen] has already been
tried to a jury with [the letter and statements] placed before it and has been found guilty.” Id. at
35–36 (alterations in original) (quoting Jackson v. Denno, 378 U.S. 368, 394 (1964)). Returning
to this court, Jensen filed his motion to enforce judgment on September 29, 2017. ECF No. 93.
ANALYSIS
A district court that grants a petition for a writ of habeas corpus may nonetheless “delay the
release of a successful habeas petitioner in order to provide the State an opportunity to correct the
constitutional violation found by the court.” Hilton v. Braunskill, 481 U.S. 770, 775 (1987).
Consequently, when a district court issues a conditional writ of habeas corpus, the court “retains
jurisdiction to determine whether a party has complied with the terms of [the] conditional order.”
Phifer v. Warden, U.S. Penitentiary, Terre Haute, Ind., 53 F.3d 859, 861 (7th Cir. 1995). When
a State fails to correct the constitutional violation within the time established by the district court,
“the consequence . . . is always release.” Wilkinson v. Dotson, 544 U.S. 74, 87 (2005) (Scalia, J.,
concurring). But “[o]nce . . . the habeas writ [is] complied with, . . . the district court [loses]
jurisdiction over the case.” Hudson v. Lashbrook, 863 F.3d 652, 656 (7th Cir. 2017).
Jensen first argues that this court’s conditional writ was clear: “if the State failed to retry
Jensen without the letter, Jensen was entitled to release.” Mot. to Enforce J., ECF No. 93 at 18.
But that is not what this court’s order said. As the court noted in its Decision and Order Granting

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Respondent’s Motion for Clarification, the order stated that Jensen was to be “released from custody
unless, within 90 days of the date of this decision, the State initiates proceedings to retry him.”
ECF No. 90 at 5 (quoting ECF No. 65 at 33) (emphasis added). Given the complexity and length
of the original trial, the court certainly did not expect the State to retry Jensen within 90 days of the
effective date of its order. The original trial lasted six weeks and involved experts in toxicology,
pathology, and psychiatry. Moreover, cases in which a writ of habeas corpus is issued frequently
do not result in a retrial. The parties are often able to reach agreement on a disposition that obviates
the need for a new trial. Given this uncertainty over whether the parties would need to retry the
case, and if they did, how much time they would need to prepare for and complete a new trial, the
court deliberately required only the initiation of proceedings for a retrial within the time allowed in
order for the State to comply with the writ. And as the court likewise noted in its clarification order,
the State did comply at least with the letter of the court’s conditional writ: “The State did in fact
initiate proceedings to retry Jensen within 90 days of the effective date of the court’s order.” Id.
As a result, the court concluded that the State was not required to release Jensen from its custody
at that time. Id.
The State argues that having already determined that it complied with the letter of the writ
by initiating proceedings to retry Jensen, the court no longer has jurisdiction over the original
petition: “[W]hen a state meets the terms of the habeas court’s condition, thereby avoiding the writ’s
actual issuance, the habeas court does not retain any further jurisdiction over the matter.” Gentry v.
Deuth, 456 F.3d 678, 692 (6th Cir. 2006) (citing Pitchess v. Davis, 421 U.S. 482, 490 (1975) (per
curiam)). But surely, a State cannot claim to have complied with a conditional order for release
under § 2254 by vacating the previous judgment, initiating proceedings for a new trial, and then, with

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no further analysis or development of the record, simply reinstating the same judgment that was the
subject of the previous order. To be meaningful, a federal court’s jurisdiction to determine whether
a party has complied with the terms of its order allows, indeed requires, the court to inquire into
whether the State’s actions constitute a good faith effort to comply with the substance, as well as
the form, of the court’s order, or instead amounts to nothing more than a sham intended to
circumvent the federal court’s writ.
Jensen suggests that the State has not acted in good faith. He argues that rather than use the
opportunity afforded by the conditional writ to retry him, the State has sought to delay his retrial,
defy this court’s order, and further violate his constitutional rights. He contends that the State
waited seventeen months after the federal mandate before submitting its brief arguing that the letter
was not testimonial and never presented the argument to this court pursuant to Rule 60(b)(6). The
State then defied this court’s ruling, Jensen contends, by duping the trial judge into revisiting the
settled issue of whether the letter was testimonial and ruling it admissible. The State then went even
further, Jensen argues, and convinced the trial judge to take the unprecedented step of skipping the
trial and reinstating his conviction. Mot. to Enforce J., ECF No. 93 at 7, 27.
Jensen overlooks the fact that it was a state court, not the prosecutor or other officer of the
executive branch of state government, that ultimately set the trial date, ruled that the letter was nontestimonial after all, and reinstated the judgment of conviction. The State court might have been in
error, but to claim that the judge was “duped” and characterize the court’s rulings as the State’s
deliberate defiance of this court’s order ignores the lengthy briefing on the issues offered by the
parties in the state court proceedings, the independent analysis undertaken by the trial court, and the
respect due to state courts and state proceedings. As the Seventh Circuit recently noted in another

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habeas case challenging the proceedings in state court following the issuance of a conditional order
of release, “State authorities applying their own criminal laws are not marionettes controlled by the
federal courts, and the writ of habeas corpus, while a ‘great writ,’ is not without limit. The writ is
directed to the person detaining another: it is not directed at the state government in toto.” Hudson,
863 F.3d at 655–56.
The circuit court in this case did not lightly undertake the task of revisiting an issue that had
been seemingly decided by the Wisconsin Supreme Court more than ten years earlier in the lengthy
procedural history of this case. The question of whether the letter and related statements were
testimonial under current law was raised by the State in its response to Jensen’s motion in limine
seeking to preclude the State from making any reference to or attempting to admit into evidence in
any manner Julie Jensen’s letter. The State filed a 100-page brief in response, 26 pages of which
argued that under the Supreme Court’s more recent decisions in Bryant and Clark, the letter and
related statements to police were not testimonial statements within the meaning of the Confrontation
Clause of the Sixth Amendment. ECF No. 94-5 at 48–74. As the State pointed out, it is true that
in the years since Jensen’s trial, the United States Supreme Court has issued a number of decisions
that have arguably narrowed the definition of the kind of “testimonial statements” to which Crawford
held the Confrontation Clause strictly applies. Id. at 52–53.
In Bryant, for example, decided three years after Jensen’s conviction, the Court held that
statements by the mortally wounded victim of a shooting identifying the shooter and location of the
shooting in response to questions put to him by police officers dispatched to the place to which he
had fled were not testimonial. In reaching this conclusion, the Court noted that “the most important
instances in which the [Confrontation] Clause restricts the introduction of out-of-court statements

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are those in which state actors are involved in a formal, out-of-court interrogation of a witness to
obtain evidence for trial.” 562 U.S. at 358. The primary purpose of the police interrogation in that
case, the Court observed, was to enable police assistance to meet an ongoing emergency, rather than
to gather evidence to prove past events potentially relevant to later criminal prosecution. The Court
also commented on the informality of the encounter: “the questioning in this case occurred in an
exposed, public area, prior to the arrival of emergency medical services, and in a disorganized
fashion. All of those facts make this case distinguishable from the formal station-house interrogation
in Crawford.” Id. at 366. Based on its consideration of these factors, the Court concluded that the
victim’s statements to police were not testimonial and that their admission at trial did not violate the
Confrontation Clause. Id. at 378.
Then in Ohio v. Clark, decided more than seven years after Jensen’s previous conviction, the
Court held that a three-year-old victim’s statements to his preschool teachers identifying the
defendant as the person who caused his injuries were not testimonial. There the Court again
reiterated the importance of the purpose of the interrogation and the formality surrounding it as
important factors to consider in determining whether the resulting statement was testimonial. 135
S.Ct. at 2179–80. “In the end,” the Court stated, “the question is whether, in light of all the
circumstances, viewed objectively, the ‘primary purpose’ of the conversation was to ‘creat[e] an
out-of-court substitute for trial testimony.’” Id. at 2180 (quoting Bryant, 562 U.S. at 358). In
holding that the child victim’s statements were not testimonial, the Court noted that the interrogation
was by teachers, not police, and for the purpose of protecting the child from further abuse, not to
gather evidence for a prosecution. Id. at 2181.

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It was in light of these more recent decisions that the State argued Julie’s letter and related
statements to police prior to her death should not be considered testimonial. The State also argued
in its response to Jensen’s motion in limine that under a well-established exception to the law of the
case doctrine, the court could and should revisit the question of whether the letter and related
statements were testimonial. ECF No. 94-9 at 74–77. That exception applies when controlling legal
authority has arrived at a contrary decision of the law under which an earlier determination was
made. Id. at 74 (citing State v. Brady, 130 Wis. 2d 443, 448, 388 N.W.2d 151 (1986), and White
v. Murtho, 377 F.2d 428, 431–31(5th Cir. 1967)). Only after additional and extensive briefing and
argument by both parties did the court render its decision that the law of the case doctrine did not
bar the court from revisiting the issue and that, under the more recent decisions of the United States
Supreme Court, the letter and related statements to the police were not testimonial and therefore
admissible at trial. ECF No. 94-9 at 68–74.
In light of the circuit court’s conclusion that the letter and related statements were not
testimonial and thus their admission at trial did not violate the Confrontation Clause, the State then
moved for reinstatement of the judgment of conviction based on the jury’s verdict in the previous
trial. “The defendant is not entitled to a new trial,” the State argued, “since he has already had a trial
by a jury of his peers which was free of constitutional error.” Br. in Supp. of Mot. to Reinstate, ECF
No. 94-10 at 42. In the State’s view, the determination by the federal courts that the Wisconsin
Court of Appeals had unreasonably applied clearly established federal law in finding the admission
of such evidence harmless error was not dispositive once the circuit court found that admission of
the same evidence was not error. Since the original jury trial was not tainted by the erroneous
admission of evidence in violation of Jensen’s confrontation rights, the State argued that the circuit

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court should reinstate the previous judgment of conviction, or alternatively, enter a new judgment
of conviction on the jury’s verdict. Id. at 51. The circuit court agreed and granted the State’s
motion.
Whether the circuit court was free to revisit the issue at this stage of the proceedings, and
if so, whether the letter and related statements are indeed non-testimonial and thus admissible under
the Confrontation Clause are, to be sure, important questions that Jensen has every right to
challenge. But his challenge to the circuit court’s rulings, at least as an initial matter, must be by
appeal to the Wisconsin appellate courts. This is because the trial court’s reinstatement of the
judgment of conviction represents a new state court judgment for purposes of § 2254, and a federal
court cannot grant relief from such a judgment “unless it appears . . . the applicant has exhausted the
remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A).
In this respect, the case is similar to Hudson v. Lashbrook, 863 F.3d 652 (7th Cir. 2017).
There, a federal district court, following Lafler v. Cooper, 566 U.S. 156 (2012), held that but for
the ineffective assistance provided by his trial attorney, the petitioner would have accepted the State
of Illinois’ plea offer of twenty years rather than go to trial which, upon conviction, resulted in a
mandatory life term. 863 F.3d at 654. Based upon this determination, the federal court ordered the
State to reoffer the petitioner the original plea deal of twenty years. In accordance with the federal
court’s order, the State extended the offer, which the petitioner accepted, and then both parties filed
a joint motion to vacate the original conviction and sentence. Noting that she would have rejected
the plea agreement based on the petitioner’s criminal history even if she was considering it for the
first time, however, the state judge refused to accept the agreement and denied the motion. Id. The
petitioner then returned to the federal district court on a motion to enforce that court’s order. The

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district court denied the motion on the grounds that the petitioner’s state appeal remained pending
and that “the Illinois Appellate Court should have the first opportunity to both define Lafler’s
discretionary factors and in deciding how to resentence or treat a reoffered plea, and to determine
whether the state trial court operated within the bounds of fair discretion in this case.” Id. at 655.
The Seventh Circuit affirmed, noting that “[o]nce the state reoffered the plea deal, the habeas writ
was complied with, and the district court lost jurisdiction over the case.” Id. at 656. Explaining
further, the court noted:
The state judge, faced with what she thought was also not a case or controversy,
declined to opine until, finally, she considered and rejected it. Whether she had
jurisdiction, and whether her merits ruling was proper or improper are matters of
state law, pending on appeal. And it bears mentioning that at no point was the state
judge herself a party before the federal district judge in this case.
Id.
Similarly, in this case, the state trial judge, who was not himself a party before the court,
concluded that significant changes in the law concerning a defendant’s Sixth Amendment right to
confront the witnesses against him allowed him to revisit an issue that the Wisconsin Supreme Court
had seemingly decided more than ten years ago when the case first came before it prior to Jensen’s
trial. Given the state supreme court’s determination under then-existing law that the letter and
related statements were testimonial, the State shifted to the alternative theory of
admissibility—forfeiture by wrongdoing—that the supreme court had approved in the same decision.
After the expenditure of much time and effort, the State succeeded in introducing the evidence under
that theory, resulting in Jensen’s conviction, only to have the broad form of the forfeiture by
wrongdoing exception that the Wisconsin Supreme Court had adopted in Jensen I rejected by the
United States Supreme Court in Giles. Whether under this unique set of circumstances the state trial

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court had the authority to revisit the issue of whether the letter and related statements were
testimonial, as well as whether the court’s determination on the merits that they were not, are
matters of state and federal law of which Jensen is free to seek review in the Wisconsin Court of
appeals. Indeed, it appears that Jensen has already filed a Notice of Intent to Seek Post Conviction
Relief from the new judgment of conviction entered against him. See Wisconsin Circuit Court
Access for Kenosha County Case No. 2002CF000314, at https://wcca.wicourts.gov (last visited
Nov. 27, 2017).
The fact that the circuit court characterized its action as “reinstating” the judgment of
conviction, as opposed to entering a new judgment of conviction on the original verdict, does not
change the result. It remains the case that the original conviction was vacated and the State initiated
proceedings for a new trial. Only after the trial court later determined that the letter and statements
that were the subject of the previous harmless error analysis were not testimonial under current law
and thus lawfully admissible did the court decide that the original trial was free of error and the
resulting verdict valid. It thereupon ordered entry of a judgment of conviction upon the verdict
rendered after the earlier trial, thereby giving rise to new rights for Jensen to appeal and/or seek
post-conviction relief. It is for the Wisconsin appellate courts to determine, at least as an initial
matter, whether this procedure is lawful and complies with the Constitution and laws of the United
States, as well as those of the State of Wisconsin.
Finally, the court declines Jensen’s request to take up the due process judicial bias claim
raised in his original petition. This court granted Jensen’s original petition based on his harmless
error argument, so it was not necessary to address his due process argument at that time. Jensen
argued that he was denied due process of law because the judge who adjudicated his trial was no

15

longer impartial after forming an opinion as to Jensen’s guilt as a consequence of the forfeiture
hearing ordered by the Wisconsin Supreme Court. As already discussed above, however, Jensen
obtained the relief he sought in his original habeas corpus petition: the Kenosha County Circuit Court
vacated his tainted judgment of conviction, and the State chose to initiate a new prosecution. The
judgment of conviction resulting from that renewed prosecution is the one now before the court,
meaning that any remaining objections to Jensen’s previous judgment of conviction are moot. To
the extent he believes that bias on the part of the previous judge infected the jury trial upon which
a different judge entered a new judgment of conviction, he is free to raise that issue in the appellate
courts of Wisconsin and, if unsuccessful, seek federal relief pursuant to § 2254.
CONCLUSION
For the reasons set forth above, the court concludes that the State of Wisconsin complied
with this court’s conditional order when the State initiated a new prosecution after the Kenosha
County Circuit Court vacated Jensen’s life sentence and judgment of conviction. As a result, the
court concludes that it no longer possesses jurisdiction over Jensen’s petition. Thus, the State now
holds Jensen in custody pursuant to a judgment as to which Jensen has not yet exhausted his state
court remedies. Jensen’s motion to enforce judgment (ECF No. 95) is therefore DENIED.
SO ORDERED this 27th day of November, 2017.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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