Ziegler v. Schwochert

Filing 81

ORDER DISMISSING CASE, denying petition for writ of habeas corpus and denying to issue a certificate of appealability signed by Judge Brett Ludwig on 10/27/20. (cc: all counsel) (MP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

SCOTT EDWARD ZIEGLER,
Petitioner,
Case No. 13-cv-0609-bhl
v.
JASON BENZEL1,
Respondent.

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DISMISSING CASE,
AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY

On May 31, 2013, Scott Edward Ziegler filed a petition for writ of habeas corpus under
28 U.S.C. §2254. (ECF No. 1.) In his petition, Ziegler challenges his state court convictions for
repeated first-degree sexual assault, interference with child custody, two counts of child
enticement, second-degree sexual assault, seven counts of second-degree sexual assault of a
child, and two counts of child abuse. Ziegler noted that his state petition for writ of habeas
corpus was pending in the Wisconsin Court of Appeals and asked the Court to hold his federal
habeas petition in abeyance until the state appellate courts finished reviewing his case. The
Court initially granted Ziegler’s request for a stay to allow for the conclusion of then-ongoing
state court proceedings, ECF No. 13, but later entered an order concluding that he had exhausted

1

The petitioner is currently housed in the Dodge Correctional Institution. https://appsdoc.wi.gov/lop/detail.do.
Because Rule 2 of the Rules Governing Section 2254 Cases in United States District Courts requires the petition to
name as the respondent the state officer who has custody of the petitioner, the Court has substituted the name of the
current warden of the Dodge Correctional Institution. The Clerk is directed to change the caption of this case
accordingly.

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his federal habeas grounds in the Wisconsin state courts and setting a briefing schedule on his
petition, ECF No. 54.2
On February 21, 2017, the Court granted in part and denied in part the respondent’s
motion to dismiss Ziegler’s petition. (ECF No. 66.) The Court concluded that all but two of the
Ziegler’s claims were procedurally defaulted and set a briefing schedule for resolution of the
remaining claims. Following the dismissal order, the remaining claims are: (1) whether the state
trial court’s order that Ziegler wear a “stun belt” on his leg and hidden from the jury’s view
under his clothes violated his due process rights and his right to counsel; and (2) whether the
prosecution’s introduction of Ziegler’s mugshot photo to aid certain witnesses in identifying
Ziegler (who had lost significant weight since his arrest) violated his due process rights. The
parties have briefed both issues and, based on the record, the Court denies Ziegler’s habeas
petition, dismisses the case, and declines to grant a certificate of appealability.
LEGAL STANDARD
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal
court may grant habeas relief only if the state court decision was “either (1) ‘contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,’ or (2) ‘based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding.’” Miller v. Smith, 765 F.3d 754,
760 (7th Cir. 2014) (quoting 28 U.S.C. §2254(d)(1), (2)). A federal habeas court reviews “the
decision of the last state court to rule on the merits of the petitioner’s claim.” Charlton v. Davis,
439 F.3d 369, 374 (7th Cir. 2006) (citation omitted).

2

The Court also appointed Matthew Pinix to represent Ziegler for the limited purpose of helping him amend his
petition to include a succinct statement of his claims. (ECF No. 44.) The Court relieved Pinix of his appointment
on February 17, 2016. (ECF No. 54.)

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“The ‘unreasonable application’ clause requires the state court decision to be more than
incorrect or erroneous. The state court’s application of clearly established law must be
objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (internal citations
omitted). “A state court’s determination that a claim lacks merit precludes federal habeas relief
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)). “If this standard is difficult to meet, that is because it was meant to be.” Id. at 102.
“Section 2254(d) reflects the view that habeas corpus is a ‘guard against extreme malfunctions in
the state criminal justice systems,’ not a substitute for ordinary error correction through appeal.”
Id. at 102-03 (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)).
ANALYSIS
A.

The Wisconsin Supreme Court Did Not Err in Rejecting Ziegler’s “Stun
Belt” Claim.

Ziegler argues that the state courts violated clearly established federal law by requiring
him to wear a stun belt3 under his clothing during trial. (ECF No. 72.) He insists this ruling
violated his due process rights under the 5th and 14th Amendments, and his right to be present
during trial under the 6th Amendment. (ECF No. 72.)
The record is sparse on the reasons the trial court required Ziegler to wear the stun device
but indicates that the device was not visible to the jury. (ECF No. 75-1, 75-2.) The stun device
was addressed by the circuit court during a pre-trial status hearing:
THE COURT: And unless otherwise noted, because he’s in custody, when he’s in
front of the jury, he’ll have the stun belt on. I don’t know any other better word for
it, but it’s the device, the stun device, so that there’s no problems.

While referred to repeatedly as a stun belt, it appears the device was not a belt, worn around Ziegler’s waist or
chest, but rather a smaller, more discreet stun “garter” or strap around his lower leg. (ECF No. 75-2, 77.)
3

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MR. BIHLER: I would note my objection for the record, because I’m not aware –
I don’t know if that’s your practice in all felony cases.
THE COURT: No, it’s not all – it is not a practice in felony cases. It’s a practice
where somebody’s in custody, so that there need not be any shackles or manacles
visible to anybody. A stun belt allows some restraint of a prisoner without being
readily apparent. So unless you’re planning on having very tight clothing for [the
petitioner], it should be undiscernible to the jurors. It’s an effort to make sure that
that’s the case. If you have a question or concern, please consult with the Sheriff’s
Department as to how it works. And if you have any problems or concerns, please
raise them with me after that.
MR. BIHLER: Who would be the contact person in the Sheriff’s Department on
that? I’m sorry.
THE COURT: Captain McDonald, who’s present right now today. So you can talk
to him about that. All right. So we can take that up later, Mr. Bihler, if you have a
problem or concern with that. It’s an effort to make sure that there’s no readily
apparent restraints on [the petitioner]. It’s commonly used when people are in
custody.
(ECF No. 75-1.)
On the first day of trial, the trial judge confirmed that Ziegler was wearing the stun belt
and that it was not visible. (ECF No. 75-2.) In commenting on borrowed clothing that Ziegler
was wearing, the judge indicated he could not see the device, but “believe[d it was] on [the
petitioner’s] leg” and stated “there [were] no visible restraints.” (Id.) To protect Ziegler from
potential prejudice arising from his ill-fitting borrowed clothing, the judge directed that everyone
would remain seated at times when they would normally rise. (Id.) The court then invited
Ziegler’s attorney to raise any other concerns about Ziegler’s clothes. (Id.) After consulting
with Ziegler, his counsel told the court, “We’re fine with the clothes situation.” (Id.) The court
also questioned Ziegler directly about his ability to stand up and walk around with the borrowed
clothes, and Ziegler responded that he could “walk okay” even though the court noted that
Ziegler’s pants were “a little bit big”—partially the result of Ziegler losing “about a hundred
pounds” since entering jail. (ECF No. 75-2.) Ziegler made no mention of the stun device. (Id.)
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The Supreme Court has long recognized that the use of visible shackles on a defendant
during trial raises due process concerns. In Illinois v. Allen, 397 U.S. 337, 344 (1970), the Court
addressed shackling as one of three potential ways for courts to control unruly defendants during
trial. While acknowledging that binding and gagging a defendant might solve Confrontation
Clause issues, the Court warned that “the sight of shackles and gags might have a significant
effect on the jury’s feelings about the defendant.” Id. The Court also expressed concern that
binding and gagging a defendant might impact a defendant’s “ability to communicate with his
counsel,” one of the “primary advantages of being present at the trial.” Id.
Several decades after Allen, the Supreme Court directly addressed the shackling of
criminal defendants in Deck v. Missouri, 544 U.S. 622 (2005). While acknowledging that the
use of shackles, when necessary to restrain an unruly defendant, was not necessarily
constitutionally off limits, the Court identified specific limits on this practice:
Thus, the Fifth and Fourteenth Amendments prohibit the use of physical restraints
visible to the jury absent a trial court determination, in the exercise of its discretion,
that they are justified by a state interest specific to a particular trial. Such a
determination may of course take into account the factors that courts have
traditionally relied on in gauging potential security problems and the risk of escape
at trial.
Deck, 544 U.S. at 629. The Court explained the three-fold rationale underlying the rule: (1)
“visible shackling undermines the presumption of innocence and the related fairness of the
factfinding process;” (2) shackling could interfere with a defendant’s “ability to communicate
with his lawyer,” thus implicating Sixth Amendment concerns about the defendant’s right to
counsel; and (3) visible shackles undermine the court’s “formal dignity, which includes the
respectful treatment of defendants” and “reflects a seriousness of purpose.” Id. at 630-32
(internal quotations and citations omitted).

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In affirming the circuit court’s decision to require Ziegler to wear a stun device during his
trial, the Wisconsin Supreme Court relied on the non-visible nature of the device. The
Wisconsin Supreme Court explained that “the circuit court expressly found that [the petitioner]
was wearing ‘no visible restraints.’” (ECF No. 58-6.) It further noted that this finding was
“supported by several photographs in the record, taken before jury selection.” (Id.) The
Wisconsin Supreme Court rejected Ziegler’s speculation that the jury might have been aware of
the stun device based on the trial judge having expressed his belief that “the stun belt was on [the
petitioner’s] leg.” (Id.) It explained that Ziegler offered “no evidence that the stun belt was
located anywhere else or was otherwise visible.” (Id.) The Wisconsin Supreme Court also
observed that neither Ziegler nor his counsel “expressed any concerns relating to the restraint. In
fact, their only complaint about [the petitioner’s] appearance was the bagginess of his borrowed
clothing. It goes without saying that [the petitioner’s] loose pants made it even less likely that the
stun belt was visible underneath.” (Id.) The Wisconsin Supreme Court thus accepted the lower
court’s findings that the device was not visible and rejected Ziegler’s post-conviction challenges
to the use of the stun belt.
This Court must presume the state court’s factual determinations are correct absent clear
and convincing evidence that they are unreasonable. Schriro v. Landrigan, 550 U.S. 465, 473-74
(2007). There is no such clear and convincing evidence here. While Ziegler speculates that the
stun belt “could have been seen by and prejudiced the jury,” ECF No. 72, this Court cannot
overrule the Wisconsin Supreme Court’s decision based on that speculation.
The Wisconsin Supreme Court heavily relied on the concealed nature of the stun belt, and
for good reason. If the jury was unaware of the stun belt, they could not have drawn any
impermissible inferences from it about Ziegler’s guilt or innocence. Cases from this circuit and

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others have repeatedly emphasized the importance of the restraint’s visibility in the due process
analysis. See Stephenson v. Neal, 865 F.3d 956, 958-59 (7th Cir. 2017) (holding that a criminal
defendant’s counsel was constitutionally ineffective and vacating a defendant’s death sentence
where counsel failed to object to a state court’s ruling requiring the defendant to wear a stun belt
visible to several jurors during the penalty phase of his murder trial); United States v. Cooper,
591 F.3d 582, 588 (7th Cir. 2010) (“Critically, these were not visible shackles. The record
indicates instead that the jury could not see the shackles, because Cooper was sitting at a skirted
table, rendering his ankles invisible.”); Wrinkles v. Buss, 537 F.3d 804, 815 (7th Cir. 2008) (“If
the jurors did see the stun belt during trial, then Wrinkles could demonstrate prejudice. . . . Thus,
Wrinkles’s habeas petition hinges on the belt’s visibility.”); Sparks v. Dorethy, No. 14-CV-1044,
2020 WL 1472128, at *7 (S.D. Ill. Mar. 26, 2020) (“Sparks seeks to extend this rule to
circumstances where the restraints are not visible to the jury. No matter how compelling such an
argument may be, the Supreme Court has not adopted that principle. Even though federal courts
of appeal and Illinois state courts may have extended the reasoning of Deck to hidden shackles,
federal habeas relief cannot rest on such lower court holdings.”); Leonard v. Warden, Ohio State
Penitentiary, 846 F.3d 832, 842 (6th Cir. 2017) (“For purposes of this appeal, however, ‘visible’
marks the key inquiry for us because a claim based on Deck ‘rises or falls on the question of
whether the stun belt was visible to the jury.’”). There is no reason this case should be treated
differently. The record does not show any basis to find that any of the jurors were aware that
Ziegler wore a stun device during trial.
Ziegler cites cases from the Eleventh and Ninth Circuits, United States v. Durham, 287
F.3d 1297 (11th Cir. 2002) and Gonzalez v. Pliler, 341 F.3d 897 (9th Cir. 2003), for the
proposition that requiring a defendant to wear a stun belt can violate the Due Process Clause

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even if there is no evidence the device was visible to jurors. (ECF No. 72.) But Ziegler cannot
obtain habeas relief on the ground that the Wisconsin Supreme Court did not follow Durham and
Pliler. Decisions from the federal circuit courts of appeals “cannot form the basis for habeas
relief” because they “[do] not constitute ‘clearly established Federal law, as determined by the
Supreme Court.’” Parker v. Matthews, 567 U.S. 37, 48-49 (2012) (quoting 28 U.S.C.
§2254(d)(1)). Even though Ziegler says that Durham and Pliler flow from the principles of
Allen and Deck, ECF No. 77, the Supreme Court has said that circuit courts of appeals cannot
“refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule
that [the Supreme Court] has not announced.” Lopez v. Smith, 547 U.S. 1, 7 (2014) (quoting
Marshall v. Rodgers, 569 U.S. 58, 64 (2013)). A right is not “clearly established” until the
United States Supreme Court has made it “concrete.” Bland v. Hardy, 672 F.3d 445, 448 (7th
Cir. 2012) (citing Wright v. Van Patten, 552 U.S. 120, 125-26 (2008); Carey v. Musladin, 549
U.S. 70, 77 (2006)). And in this case, the United States Supreme Court has not held that the
inquiries proposed by Durham and Pliler are required by the Due Process Clause.
Indeed, the Court is not aware of any United States Supreme Court case clearly
establishing that when a court forces a petitioner to wear a hidden stun belt, the court violates the
petitioner’s constitutional rights sufficiently to warrant habeas relief. Deck discusses the
diminishing effect of visible shackles and “prisoners irons” on the constitutional right to counsel.
Deck, 544 U.S. at 631. The United States Supreme Court, however, has not clearly established
that the federal constitution precludes the use of stun belts not visible to the jury; it has not
clearly established requirements regarding the use of stun belts that the circuit court judge in this
case failed to take. The Court also is unaware of any facts in the record suggesting that the stun

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belt actually interfered with Ziegler’s ability to communicate with his attorney or participate in
his own defense. See id. The Court will deny relief.
B.

The Use of Ziegler’s Booking Photo Did Not Violate Due Process.

Ziegler also contends he is entitled to habeas relief based on the state court’s admission
during his trial of a photo taken of him at the time he was arrested and booked on the state court
charges. (ECF No. 72.) He insists that the use of the mug shot photo “violated his 5th and 14th
amendment rights to due process and a fair trial.” (Id.)
Ziegler faces a particularly high hurdle in seeking federal habeas relief based on the state
court’s admission of the booking photo. The erroneous admission of evidence under state rules
of evidence does not implicate federal habeas review “unless it is so egregiously prejudicial as to
implicate constitutional principles.” Richardson v. Lemke, 745 F.3d 258, 275 (7th Cir. 2014).
Further, “[s]tate court evidentiary rulings only implicate the Due Process Clause when ‘evidence
is so extremely unfair that its admission violates fundamental conceptions of justice.’” Id.
(quoting Perry v. New Hampshire, 565 U.S. 228, 237 (2012)). “[W]hen the state merely fails to
limit the prosecution’s evidence, the only constitutional principle to which the defendant can
appeal is a catch-all sense of due process . . . and the appeal almost always fails.” Watkins v.
Meloy, 95 F.3d 4, 6-7 (7th Cir. 1996) (collecting cases). “If the evidence is probative, it will be
very difficult to find a ground for requiring as a matter of constitutional law that it be excluded;
and if it is not probative, it will be hard to show how the defendant was hurt by its admission.”
Id. at 7.
The record shows the trial court admitted a photo of Ziegler taken following his arrest in
connection with the prosecution’s efforts to confirm witness identifications of him. (ECF No.
75-4, 75-5, 75-6.) In response to questions from the court on the first day of trial, Ziegler

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explained that he’d lost “about a hundred pounds” since entering jail. (ECF No. 75-2.) Several
of the teenage girls that Ziegler was alleged to have sexually assaulted were able to identify him
in court despite the weight loss. (ECF No. 75-3, 75-4, 75-5.) When one of his alleged victims
could not, the prosecution used Ziegler’s arrest photo and the witness identified the photo as a
picture of Ziegler. (ECF No. 75-4.) The prosecution later had two other witnesses, Ziegler’s
former roommates, confirm that the photo depicted Ziegler as he looked in 2007, when the
alleged crimes were committed. (ECF No. 75-5.) Two other witnesses who testified to Ziegler’s
sexual advances toward underage girls were unable to identify him in court, but confirmed that
the arrest photo depicted Ziegler as he looked at the time they knew him. (Id.) Another witness
identified Ziegler in the courtroom, but explained he looked “a lot thinner, [had] more hair and
some glasses.” (Id.) Finally, the prosecution introduced testimony from a police detective, who
confirmed that the photo used to identify Ziegler was “taken in association with his arrest” on
January 28, 2008. (Id.)
Ziegler contends the introduction of the photo is contrary to United States v. Harrington,
490 F.2d 487 (2nd Cir. 1973) and that the Wisconsin Supreme Court misapplied clearly
established federal law when it upheld the use of the mugshot under Harrington. (ECF No. 72.)
In Harrington, the Second Circuit ruled that a defendant was entitled to a new trial based on a
district court’s admission of mug shot photos in circumstances that unfairly “focused the jury’s
attention on the pictures” to the point at which they prejudiced the verdict. Id. at 495-97. The
Second Circuit identified three factors to analyze in determining whether to admit a booking
photo: (1) whether there is a “demonstrable need to introduce” the photo; (2) whether the
condition of the photo "impl[ies] that the defendant has a prior criminal record;” and (3) whether

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the manner in which the photo is introduced draws particular prejudicial attention to its source.
Id. at 494.
Ziegler’s Harrington-based challenge to the photo evidence faces several problems.
First, because Harrington is a Second Circuit Court of Appeals decision and not a United States
Supreme Court decision, it is not clearly established federal law within the meaning of AEDPA.
Ziegler does not offer, and this Court is not aware of, any United States Supreme Court case
holding that it is unconstitutional for a court to apply Harrington to analyze the use of a mugshot
at a trial, or that the Wisconsin Supreme Court violated Ziegler’s constitutional rights to due
process when it found no error with the publication of his mugshot at trial.
Second, even if Harrington did apply, its requirements were satisfied. Given the
evidence of his substantial weight loss and the changes to his physical appearance, there was
demonstrable need for the prosecution to use the photo to aid in witness identification of Ziegler.
See Harrington, 490 F.2d at 494. That some witnesses may have been able to recognize him
after losing weight does not make it error to admit evidence to assist others who could not.
Moreover, while the Wisconsin Supreme Court mistakenly stated that the photo was not
published to the jury (an error respondent concedes), nothing in the record suggests the photos
implied Ziegler had a prior criminal record. The record shows the prosecution laid a proper
foundation by having arresting officers confirm that the photo was taken in connection with his
arrest in the same case. And, the manner of the photo’s introduction was not unfairly prejudicial.
See id. The parties litigated the photo’s admission outside the jury’s presence, and the jury
would hardly have been surprised that Ziegler had been arrested and booked into jail on the
serious charges he was facing.

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The Seventh Circuit faced a similar situation in a direct criminal appeal in United States
v. Roux, 715 F.3d 1019 (7th Cir. 2013). In Roux, a jury convicted the defendant “of inducing or
coercing a minor to create sexually explicit images in violation” of federal law. 715 F.3d at
1021. By the time of trial, the defendant had lost 30 to 40 pounds and the government therefore
sought to introduce photographs taken of him at his arrest, showing him at the heavier weight in
which he was depicted in the explicit images. Id. at 1027-28. The district court overruled the
defendant’s objection that the photographs would be unfairly prejudicial and admitted two
forward-facing photos from his arrest. Id. On appeal, the Seventh Circuit affirmed the district
court’s admission of the photos. Id. at 1028. The Court of Appeals confirmed that it did not
matter whether the jury might have been aware that the photos were photos from the defendant’s
booking. Id. at 1028-29. It explained that “it would not have been a surprise to [the jurors] that
Roux had been arrested and photographed at [the time of his arrest], given that he had, after all,
been indicted.” Id.
Similarly, the use of Ziegler’s booking photo in this case does not strike the Court as
particularly prejudicial. First, if jurors correctly guessed that the photo was an arrest photo,
given that Ziegler was on trial, it would hardly have been a surprise to them that he had been
arrested. Second, the possibility that the jurors might have incorrectly inferred that the mugshot
resulted from a prior or subsequent arrest, and then drawn an improper negative view of Ziegler,
is too speculative to overturn his conviction. Third, trial witnesses clarified that the mugshot was
taken in connection with Ziegler’s arrest in January of 2008. While Ziegler complains that the
language was not perfectly precise, the remote possibility that a misguided juror might have
misconstrued the testimony and engaged in incorrect speculation is too remote a possibility on
which to base habeas relief.

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Moreover, Ziegler’s prejudice arguments fall flat given the Wisconsin Supreme Court’s
correct observation that identity was not an issue at his trial. There was no dispute that Ziegler
was the person the victims had accused of assaulting them, that he was the person in the booking
photo, and that he lost significant weight since his arrest. Multiple victims and other witnesses
identified him in court. His defense was that the victims were lying, not that they were
mistaking him for someone else.
Finally, Ziegler asserts that the Wisconsin Supreme Court erred when it determined that
the use of the booking photo at trial did not constitute an impermissible “showup.” (ECF No.
72.) But the use of the mugshot was simply not a showup. A showup is a procedure where law
enforcement officers show one suspect to a witness and ask the witness to make an identification.
See, e.g., Coleman v. City of Peoria, Ill., 925 F.3d 336, 348 n.14 (7th Cir. 2019). Courts have
condemned showups because they can be “so unnecessarily suggestive and conducive to
irreparable mistaken identification” as to violate due process. United States ex rel. Kirby v.
Sturges, 510 F.2d 397, 402 (7th Cir. 1975) (quoting Stoval v. Denno, 388 U.S. 293, 302 (1967)).
While some witnesses in this case could not identify Ziegler in court, they had identified Ziegler
as their attacker. They identified him by name, they described him as the owner of “Twisted”
and they described his residence. There was nothing improperly suggestive about the
prosecutor’s use of the mugshot to obtain the witnesses’ identification of Ziegler.
The admission of his mugshot was not so prejudicial that it violated Ziegler’s
constitutional due process rights. The Court does not find the decision of the Wisconsin
Supreme Court to be unreasonable, and therefore will deny relief on this claim.

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Certificate of Appealability
Under Rule 11(a) of the Rules Governing Section 2254 Cases, the Court must consider
whether to issue a certificate of appealability. A court may issue a certificate of appealability
only if the applicant makes “a substantial showing of the denial of a constitutional right.” 28
U.S.C. §2253(c)(2). The standard for making a “substantial showing” is whether “reasonable
jurists could debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Peterson v. Douma, 751 F.3d 524, 528 (7th Cir.
2014) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). The Court declines to issue
a certificate of appealability, because no reasonable jurist could debate that Ziegler has not stated
a ground for habeas relief under 28 U.S.C. §2254.

CONCLUSION
The Court DENIES the petition for writ of habeas corpus, ECF No. 1.
The Court DENIES TO ISSUE a certificate of appealability.
The Court ORDERS that this case is DISMISSED and will enter judgment accordingly.
SO ORDERED on October 27, 2020.
s/ Brett H. Ludwig
BRETT H. LUDWIG
United States District Judge

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