Schmidt v. Pollard

Filing 48

DECISION AND ORDER Denying Petition 1 for Writ of Habeas Corpus, Dismissing Case, and Granting Certificate of Appealability signed by Judge Charles N Clevert, Jr on 3/20/17. (cc: all counsel)((kwb), C. N. Clevert, Jr.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

SCOTT ERIC SCHMIDT,
Petitioner,
v.

Case No. 13-CV-1150

WILLIAM J. POLLARD,
Respondent.

DECISION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS,
DISMISSING CASE AND GRANTING CERTIFICATE OF APPEALABILITY
Scott Schmidt filed a petition for writ of habeas corpus challenging his May 12, 2010,
judgment of conviction in Outagamie County Circuit Court on one count of first-degree
intentional homicide, one count of first-degree recklessly endangering safety, and one count
of bail jumping. (Doc. 12-1 at 1-2.) After the jury returned a guilty verdict on the three
counts, Judge John A. Des Jardins sentenced Schmidt to life imprisonment with eligibility
for extended supervision after forty years. (Doc. 12-1 at 1.) Schmidt filed a post-conviction
motion seeking a new trial on the homicide charge, arguing that he was denied his right to
present his chosen defense when the trial court refused to permit him to offer the affirmative
defense of adequate provocation at trial. (Doc. 12-2 at 18-19.) Additionally, he argued that
he was denied his right to counsel during a pretrial in camera hearing when his attorney was
not permitted to participate and assist him in tendering an offer of proof respecting the
planned defense. (Id.) When the post-conviction motion was denied, Schmidt filed a direct
appeal with the Wisconsin Court of Appeals. State v. Schmidt, Appeal No. 2011AP001903.
On appeal he raised the same arguments asserted in his post-conviction motion. The

Wisconsin Court of Appeals affirmed the conviction, and the Wisconsin Supreme Court
denied Schmidt’s petition for a writ of certiorari. State v. Schmidt, 2012 WI App 113, cert.
denied, 346 Wis. 3d 284 (2013). For the reasons set forth below, the petition before this
court will be denied.
STATEMENT OF FACTS
On April 17, 2009, Scott Schmidt shot and killed his estranged wife, Kelly
Wing-Schmidt, after an argument. Firing his .22 caliber revolver, Schmidt struck WingSchmidt three times in the head, twice in the left hand, and twice in the right arm. He also
shot his mother-in-law in the chest. The State charged Schmidt with first-degree intentional
homicide in the shooting death of Wing-Schmidt, attempted first-degree intentional homicide
in the shooting of his mother-in-law, and felony bail jumping.
On September 17, 2009, the defense filed a Motion to Include Other Acts Evidence
pursuant Wis. Stat. § 904.04 for use in an adequate provocation defense. An adequate
provocation defense mitigates the offense of first-degree intentional homicide to seconddegree intentional homicide. A motion hearing was set for November 13, 2009; however,
the motion was not addressed. On January 19, 2010, a second motion hearing was
conducted and the State asked the court to bar presentation of any such evidence under
any theory — other acts, habit evidence, or adequate provocation. The defense offered to
supplement the motion, and the court expressed concern that the process would allow for
potentially inadmissible evidence to be presented to the jury. “Well, if I were to accept
everything you had to say, anytime somebody would raise, the you know, the defense of
adequate provocation, then it would open up the door to all kinds of evidence that might be
entirely inadmissible before a jury.” (Doc. 12-9 at 23-24.) Accordingly, the court advised
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the parties that it would conduct an evidentiary hearing to determine what evidence, if any
would be admissible at trial. As the trial court stated, “[I]f the Court were to allow, you know,
the adequate provocation to defense to go forward with all of the these loose ends going
on, you know, possibly for years and months, all of that potentially could come in and be
totally irrelevant to the case if its not tied up properly.” (Doc. 12-9 at 28.) The defense was
ordered to provide a list of witnesses with a summary before the hearing.
During the February 10, 2010, hearing, the trial court concluded that it could require
the defense to disclose a summary of the evidence supporting its motion to determine
admissibility prior to trial. In ruling, the trial court relied on State v. McClaren, 2009 WI 69,
where the Wisconsin Supreme Court discussed the constitutional implications of disclosing
evidence of violent acts committed by the victim that the defendant knew about at the time
of the alleged crime to support a claim of self-defense. Id., 2009 WI 69 at ¶ 5. In McLaren,
the Wisconsin Supreme Court concluded that measures ensuring fair play and the efficient
use of trial time did not invade the Fifth Amendment, violate the Due Process Clause, or
otherwise impinge on any “right to surprise a prosecutor.” Id. Meanwhile, a trial court has
the authority under Wis. Stat. § 906.11 to exercise “‘reasonable control’ over the
presentation of evidence so that it can be done effectively and with minimal waste of time.
Id., 2009 WI 69 at ¶ 26. “To hold otherwise could frustrate a circuit court’s efforts to try to
be certain that a jury is presented with admissible, reliable evidence and to make pretrial
rulings so that the trial runs smoothly.” Id., 2009 WI 69 at ¶ 47.
After the trial court’s ruling, Schmidt’s counsel suggested that “in fact, we would do
an ex parte in camera inspection of the Court and the defendant and seal those records
because I don’t think it would be – it should be allowed to the State and should have that
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information prior to trial.” (Doc. 12–10 at 5.) Notwithstanding the court’s concern that the
hearing would “become a mini-trial,” it proceeded with the in camera proceeding. Schmidt
filed two documents: (1) an offer of proof identifying at least 29 potential witnesses along
with a brief synopsis of their testimony and a legal analysis of the adequate provocation
defense; and (2) an offer of proof with a time line of events from 2004 to the day of the
shooting.
The in camera proceeding was held in chambers, and the court clearly stated that
defense counsel was present but was not participating in the hearing. (Doc. 12-2 at 95.)
Schmidt testified about physical, emotional, and verbal abuse by Wing-Schmidt during their
marriage. (Doc. 12-2.) The court asked how those things affected his state of mind on the
17th, and Schmidt responded:
I guess to me it just was a combination of everything. There was no way –
there was no way out anymore. There was – I went there – I went there to
defend my marriage and to keep my marriage together. I knew full well, or
thought, I guess, in my mind that Chad was going to come and pick her up,
and they were going to go to Chicago. That’s what I thought. I did not know
that they had cancelled their plans or whatever the police reports say. I –
there’s a lot of things in the police reports that I didn’t know at that time.
(Doc. 12-2 at 113.) Schmidt further testified that he had written numerous suicide notes and
letters to the kids “kind of telling them why I couldn’t do it anymore.” (Doc. 12-2 at 116.)
According to Schmidt, he “saw everything gone.”
[E]verything I worked for my entire life just gone. My kids were gone. I –and
she would — her and Barb would poison the kids’ minds, just like they did
Scout and Jory, and they would end up hating me, just like Scout and Jory
hated John. The writing was on the wall. It just – and I thought about
hanging myself. I thought about – I didn’t have any guns. I didn’t have any
guns out at the house. I thought about shooting myself. I did have nothing.
The only – I didn’t – I totally. I didn’t even remember about the pistol till that
day. Otherwise, I had nothing. I was going to hang myself. I was going to
drive my car into an abutment.”
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(Doc. 12-2 at 117-118.)

The court observed that it appeared that Schmidt was

contemplating these things on the date of the shooting. It then recessed and allowed
Schmidt to review the offer of proof with his attorney. (Id.) When they reconvened, the
court asked how the earlier incidences entered his mind or affected him on the day of the
shooting. Schmidt responded:
I guess it just kind of came to a head, overwhelmed, and eventually just got
– they piled up one after another, just continuously year after year more
stress was added. And I guess really the big turning point for me was when
the house fell through – the sale of the house fell through. Um, there were
more positives than negatives up to that point kind of. And I could work kind
of, you know, points when I got kicked out of the house or things like that. But
after that, it’s like more negatives than positives. And we – with getting in the
accident, Barb being around more, it just added more and more stress to an
already stressful situation. It came to a head on the 17th.
(Doc. 12-2 at 121.) The court asked whether any one of these circumstances weighed
more heavily than the others, to which Schmidt responded:
The isolation, alienation, the trying to come up with money to pay Barb to
watch the kids, to keep food on the table when she was not willing to work the
EM, the repeated verbal and physical abuse that nobody would believe me
because of who – she’s the female and I’m the guy.”
(Id.)
The court took the matter under advisement, and later ruled:
The record should reflect that the Court conducted an in camera conference
with the defendant. And because it was an in camera conference, the Court
feels that it cannot make any extensive findings of fact because that would
affect the defense of the defendant, so I’m just going to render a decision.
The Court finds that the circumstances that led to the death of Kelly Wing did
not involve a provocation and it was not an adequate provocation and denies
the motion.”
(Doc. 12-11.)
At trial, defense counsel acknowledged in his opening statement that Schmidt killed
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Wing-Schmidt, but argued as follows:
Where we vary on the State’s interpretation of this case is Scott Schmidt’s
intent. They’ve been telling you what they think his intent is, but you’re going
to have to determine as jurors what he intended to do that day. You’re going
to have to look at the evidence and make a determination of what you think
he intended to do. The State has their opinion. I will give you mine. But in
the end, the only opinion that counts is yours.
We will argue that he did not go there with the intent to kill Kelly WingSchmidt. In fact, he had no intention. I think the facts will show that. We will
argue that he went there to confront another individual named Chad Lindsley,
who was Kelly Wing-Schmidt’s boyfriend, in an attempt to say, Please stay
away from my wife. I want to work on my marriage. You’ve heard that he
was living out of the house, but through their marriage he had moved in and
out on more than one occasion and they had patched it back up.
(Doc. 12-12 at 44.) Defense counsel outlined the evidence for the jury, including evidence
regarding Wing-Schmidt’s boyfriend, their financial troubles, and his intent to confront her
regarding a confirmation for a hotel room with a king bed. At trial, Schmidt testified
regarding their relationship, including their arguments and financial strain, Wing-Schmidt’s
boyfriend, his reasons for going to the house of the day of the shooting, and why he had the
gun in his possession at the time of the shooting.
The jury was instructed on first-degree intentional homicide, first-degree reckless
homicide, attempted first-degree intentional homicide, first-degree recklessly endangering
safety, and felony bail jumping. Nevertheless, on March 10, 2010, the jury returned a guilty
verdict on first-degree intentional homicide, first-degree recklessly endangering safety, and
felony bail jumping. (Doc. 12-1 at 1-2.) Schmidt was sentenced to life imprisonment with
eligibility for parole after forty years. (Doc. 12-1 at 1.)
On April 7, 2011, defense counsel filed a motion for a new trial arguing that Schmidt
was denied his right to present a defense in violation of the Sixth Amendment when the trial
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court denied his motion to admit evidence related to Wisconsin’s affirmative defense of
adequate provocation. Citing Holmes v. South Carolina, 547 U.S. 319, 324 (2006), counsel
argued that there must be a compelling state interest at stake before a state evidentiary rule
can overcome the defendant’s Constitutional right. After outlining a history of “verbal and
emotional abuse inflicted upon [Schmidt] over the years,” counsel argued that the offer of
proof was adequate to meet the “some evidence” standard and that any deficiencies
stemmed from his being unconstitutionally deprived of counsel at the in camera hearing.
(Doc. 24-1 at 9.) In making this argument, defense counsel cited State v. Felton, 110 Wis.
2d 485, 329 N.W.2d 161 (1983) and State v. Hoyt, 21 Wis. 2d 284, 124 N.W.2d 47, 128
N.W.2d 645 (1964), for their holdings that the trial court must take into account, “not just the
events immediately preceding the fatal incident, but the history of the relationship between
the defendant and the victim.” (Doc. 24-1 at 11.)
Additionally, defense counsel maintained that he was prohibited from participating
in the in camera hearing leaving Schmidt to respond on his own to the court’s questions in
violation of the Sixth Amendment. Defense counsel cited Bell v. Cone, 535 U.S. 685, 695
(2002), in support of the argument that Schmidt was denied the presence of counsel at a
critical stage because the proceeding had significant consequences for his case – its
purpose was to determine whether evidence relating to his defense would be admitted at
trial. Counsel further asserted that the facts paralleled the situation in Ferguson v. State
of Georgia, 365 U.S. 570 (1961), where the Supreme Court held that a defendant was
denied assistance of counsel in making his unsworn statement. The State opposed the
motion, thoroughly discussing the constitutional implications of Schmidt’s arguments.

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On July 27, 2011, the trial court issued a 15-page written decision denying the motion
for a new trial. In so ruling, the trial court first discussed adequate provocation under Wis.
Stat. § 939.44, which has two essential requirements: (1) subjective (defendant acted in
response to provocation); and (2) objective (only provocation sufficient to cause a
reasonable person to lose self-control completely is legally adequate to mitigate the severity
of the offense). The court discussed Schmidt’s testimony as well as the written offer of
proof. Acknowledging that Schmidt only had the burden of production, the court concluded
that Schmidt had not met that burden:
Defendant’s proffered evidence describes a contentious marital relationship,
along with financial issues. While these factors may have been a source of
stress for the defendant, they are not the type that would drive a reasonable
person to kill his spouse. Further, the events on the day of the shooting under
a reasonable view of the evidence, do not establish reasonable, adequate
provocation to render the defendant incapable of forming and executing the
distinct intent to kill his wife.
None of the events over the six-year relationship, including the friction
between Kelly and defendant’s family, the couple’s arguments, Kelly’s
relationship with Chad, and Kelly’s hotel reservation, considered alone or in
combination, meet the test of reasonable adequate provocation of an
“ordinarily constituted person.” The majority of these events were too remote
from the time of the shooting, as most people would have cooled off and had
time to reflect on their course of action in the interim. The defendant was
aware of Kelly’s friendship with Chad for some time before the incident. Just
prior to the shooting, Kelly asked defendant to leave, but defendant followed
her into the home. When Kelly discovered that defendant had a gun and ran
out of the home, defendant ran after her and shot her multiple times. The
Court notes that defendant’s selective amnesia with regard to the shooting
itself, while he has no difficulty recalling and testifying to all the facts and
details before and after the actual shooting.
Cases such as Felton and Head, cited by defendant, can be distinguished
from the instant case, as they involve incidents in which the defendants were
threatened and in imminent physical danger. In those cases, the defendants
were battered spouses who had experienced a long history of violence at the
hands of their victims. Here, the defendant parked some distance away from
the home, concealed a weapon on his person, and shot his wife in the head
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several times. As in Williford, in view of the couple’s history, the argument on
the day of the shooting was no more than an ordinary dispute between them.
The Court finds that the defendant’s offer of proof, both written and in
camera, was not sufficient to place the adequate provocation defense in
issue.
(Doc. 12-2 at 142.)
With respect to Schmidt’s argument that he was denied the right to counsel, the trial
court noted that counsel filed an offer of proof, an amended offer of proof, presented oral
argument at motion hearings on January 19, 2010, and February 10, 2010, and was present
and conferred with Schmidt during the in camera hearing. (Doc. 12-2 at 143.) At no point
did counsel request to actively participate in the in camera hearing. Further, defense
counsel “expressed a preference for, and agreed to, an in camera proceeding for
defendant’s oral offer of proof regarding the adequate provocation defense.” Hence, in
“view of defense counsel’s extensive argument and submissions with regard to the
adequate provocation defense,” the court found no denial of the right to counsel. (Doc. 12-2
at 144.)
On appeal, Schmidt contended that he was deprived of his Sixth and Fourteenth
Amendment right: (1) to a defense when the trial court precluded him from presenting
evidence relevant to adequate provocation at trial; and (2) to counsel when the trial court
allowed defense counsel to be present but not participate in the in camera hearing in which
Schmidt testified regarding the adequate provocation defense. (Doc. 12-2 at eight.)
Schmidt cited Chambers, 410 U.S. 284, 294 (1973), and argued that “due process prohibits
the trial court from applying evidentiary rules so that the critical defense evidence is
excluded.” Additionally, Schmidt submitted that to the extent that the offer of proof was
inadequate to permit the presentation of adequate provocation evidence, it stemmed from
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the denial of this right to have counsel assist him in presenting his oral offer of proof during
the in camera proceeding. In support of this argument, Schmidt cited numerous Supreme
Court cases for their holding that a trial is presumptively unfair where an accused is denied
the presence of counsel at a “critical stage.” See Bell v. Cone, 535 U.S. 685, 695-696
(2002). According to Schmidt, the in camera hearing was a critical stage because it held
significant consequences for him.
On September 5, 2012, the Wisconsin Court of Appeals addressed Schmidt’s
arguments that “he was denied his right to present a defense when the trial court ruled that
Schmidt could not present any evidence in support of an adequate provocation mitigation
defense” and deprived of “his right to counsel during an in camera hearing where Schmidt
testified in support of his mitigation defense.” In affirming the judgment of conviction, the
Court of Appeals concluded that Schmidt’s proffered evidence was inadequate to raise a
provocation issue, as a matter of law, after reviewing the proffer and construing the
evidence in Schmidt’s favor.
The Wisconsin Court of Appeals recounted all of the evidence offered by Schmidt
from the financial pressures to the emotional and physical abuse by Wing-Schmidt.
However, the Court of Appeals admitted that the “some evidence” standard is a relatively
low burden thereby making it a close question as to whether Schmidt placed the objective
component of the adequate provocation defense in issue. To reach this conclusion, the
Court of Appeals relied heavily on two Wisconsin Court of Appeals decisions: Felton, 110
Wis. 2d 485, and Muller v. State, 94 Wis. 3d 450, 289 N.W.2d 570 (1980). Id., 2012 WI
App 113 at ¶¶ 38-41. It concluded that the history of abuse by Wing-Schmidt paled in
comparison to that of Felton where the wife had been physically abused by her husband for
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23 years. Rather, it was more like the infidelity uncovered in Muller where the husband
learned of the infidelity a month before the crime and the prior knowledge negated the
objective component of provocation because there was an adequate cooling off period. Id.,
2012 WI App 113 at ¶ 41 (citing Williford, 103 Wis. 2d at 116-117(“‘even the most
unreasonable of human beings would have cooled off and had time to reflect or deliberate’
about events occurring two weeks or more prior”). Put simply, Wing-Schmidt’s reactions
on the day of the shooting were nothing new to Schmidt.
Next, we address a few deficiencies in Schmidt's offer of proof. First, his offer
of proof fails to explain how his revolver came to be loaded with nine live
rounds of ammunition when it fell down his pants immediately before he lost
control and shot Wing–Schmidt. No reasonable person would leave a loaded
handgun stored in a garage where multiple children might access it. Thus, the
only reasonable inference is that he loaded the pistol that morning. Second,
Schmidt told police he intended to confront Wing–Schmidt when he went to
her home that morning. Indeed, it is implausible that Schmidt still had the
hotel receipt in his pocket days later, and just coincidentally happened to
recall it was there while in the garage.
Thus, the immediate provocation—Wing–Schmidt's arguing with or taunting
Schmidt prior to the shooting—cannot constitute objective adequate
provocation. Schmidt himself was the initial provocateur. A reasonable person
in Schmidt's situation would have expected that confronting Wing–Schmidt
about her paramour would result in the very conduct which she undertook. If
Schmidt acted in the heat of passion, it was because he deliberately chose
to ignite the fire. Schmidt cannot incite a contentious argument and then
legitimately argue that Wing–Schmidt's reciprocal provocation should mitigate
his culpability. Cf. Root v. Saul, 2006 WI App 106, ¶ 26, 293 Wis.2d 364, 718
N.W.2d 197 (“[A] defendant who is the initial aggressor can lose the right to
claim self-defense, unless the defendant abandons the fight and gives notice
to his adversary that he has done so.”); Wis. Stat. § 939.48(2)(c) (“A person
who provokes an attack, whether by lawful or unlawful conduct, with intent to
use such an attack as an excuse to cause death or great bodily harm to his
or her assailant is not entitled to claim the privilege of self-defense.”).
Id., 2012 WI App 113 at ¶¶ 43-44.
The second issue regarding Schmidt’s right to counsel at the in camera hearing was
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less problematic for the Court of Appeals. Because the hearing was a supplementary
hearing conducted for Schmidt’s benefit and counsel was present and conferred with
Schmidt, the Wisconsin Court of Appeals found no denial of the right to counsel. Citing to
Supreme Court precedent such as Bell, the Wisconsin Court of Appeals noted that Schmidt
had “already presented written offers of proof, and had the option to present whatever
additional oral testimony he decided in open court.” Id., 2012 WI App 113 at ¶ 47. The in
camera hearing was designed to prevent prejudice to him by minimizing disclosure of his
defense to the State and discussed by the Wisconsin Supreme Court in State v. McClaren:
Any concerns that a defendant has concerning the disclosure potentially
being used by the prosecutor in the case-in-chief could be addressed by
an in camera review by the circuit court. Such a mechanism has been
endorsed by the United States Supreme Court as a fair way of resolving
disclosure disputes.
Id., 2012 WI App 113 at ¶ 46 (citing Pennsylvania v. Ritchie, 480 U.S. 39, 60, 107 S. t. 989,
94 L. Ed. 2d 40 (1987)). The Wisconsin Supreme Court denied Schmidt’s petition for writ
of certiorari on January 14, 2013. Schmidt, 346 Wis. 2d 284 (2013).

STANDARD OF REVIEW
This petition is governed by the provisions of the Anti–Terrorism and Death Penalty
Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct. 2059, 138 L.
Ed. 2d 481 (1997). AEDPA allows a district court to issue a writ of habeas corpus on behalf
of a person in custody pursuant to a state court judgment “only on the ground that he is in
custody in violation of the Constitution or laws or treaties of the United States.” U.S.C. §
2254(a). The court can only grant an application for habeas relief if it meets the
requirements of 28 U.S.C. § 2254(d), which provides:
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[a]n application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to
any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.

This standard is “difficult to meet” and “highly deferential.” Cullen v. Pinholster, 563
U.S.170, 131 S. Ct. 1388, 1398, 179 L. Ed. 2d 557 (2011). Habeas review must not be
used as a “vehicle to second-guess the reasonable decisions of state courts.” Parker v.
Matthews, 132 S. Ct. 2148, 2149, 183 L. Ed. 2d 32 (2012) (per curiam), quoting Renico v.
Lett, 559 U.S. 766, 779, 130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010). Further, it is not
enough to show that the state court's decision was wrong. White v. Woodall, 134 S. Ct.
1697, 1702, 188 L. Ed. 2d 698 (2014). Supreme Court case law requires that the “the state
court's ruling on the claim being presented in federal court was so lacking in justification that
there was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103, 131 S. Ct.
770, 178 L. Ed. 2d 624 (2011).
At the same time, AEDPA's deferential standard of review applies only to claims that
were actually “adjudicated on the merits in State court proceedings.” 28 U.S.C. § 2254(d).
Where state courts did not reach a federal constitutional issue, § 2254(d) deference applies
“only to those issues the state court explicitly addressed.” Quintana v. Chandler, 723 F.3d

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849, 853 (7th Cir. 2013), citing Wiggins v. Smith, 539 U.S. 510, 534, 123 S. Ct. 2527, 156
L. Ed.2d 471 (2003). As a consequence, the court must inquire into whether the claim was
adjudicated on the merits to determine whether in AEDPA's “highly deferential standard
kicks in.” Fargo v. Douma, 2016 WL 5415747 at 8 (citing Davis v. Ayala, 135 S. Ct. 2187,
2198 (2015) (citation omitted)).
To be adjudicated on the merits, the state court is not required to give reasons.
Johnson v. Williams, __ U.S. __, 133 S. Ct. at 1094 (2015), quoting Harrington, 131 S. Ct.
at 784-85; see also Fargo, 2016 WL 5415747 at 10-11. Indeed, "[w]hen a federal claim has
been presented to a state court and the state court has denied relief, it may be presumed
that the state court adjudicated the claim on the merits in the absence of any indication or
state law procedural principles to the contrary." Id. (quoting Richter, 131 S. Ct. at 784-785).
Moreover, the federal claim may be regarded as adjudicated on the merits where the state
standard subsumes the federal standard. Johnson, 133 S. Ct. 1099, 185 L. Ed. 2d 105 at
(2013). On the other hand, where the state courts did not reach a federal constitutional
issue, “the claim is reviewed de novo.” Cone v. Bell, 556 U.S. 449, 472, 129 S. Ct. 1769,
173 L. Ed. 2d 701 (2009).
Schmidt’s first argument is that he was deprived of his right to present a defense
when he was not allowed to argue adequate provocation. Schmidt framed the issue in
constitutional terms before the state courts; however, the trial court and the Wisconsin Court
of Appeals decided this issue as a matter of state evidence law. In briefing the habeas
petition, respondent argued that this issue was not decided as a matter of federal law and
therefore not cognizable under § 2254:
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A review of the state court’s decision reveals that the court’s resolution of
Schmidt’s adequate-provocation claim cannot fairly be read as relying primarily
on federal law or interwoven with federal law. In resolving that claim, the state
court cited only Wisconsin cases and statutes. The state court did not treat his
adequate-provocation claim as being interwoven with federal law, and neither
should this court.
(Doc. 35 at 6.)
The Supreme Court’s presumption in Williams is that the state courts must be given
the benefit of the doubt when their opinions do not cover every topic raised by the petitioner.
A careful reading of the Court of Appeals’ decision reveals that it was based on the
application of two Wisconsin Statutes, § 939.44(1) and § 940.01(2)(a), and Wisconsin cases,
Felton, Head, and Muller. None of these cases addressed the defendant’s constitutional
right to present a defense; however, Felton addressed the constitutional right to effective
assistance of counsel finding prejudice in counsel’s failure to raise the provocation defense
where the facts would have been sufficient to warrant instruction on heat-of-passion
manslaughter. Because the state courts did not address the federal constitutional issue,
review must be de novo for there is no state court judgment to which the court could defer.
Harris v. Thompson, 698 F.3d 609, 625 (7th Cir. 2012).
Respondent argues that Schmidt is impermissibly attempting to use the habeas
petition to review the state courts’ decisions on state evidentiary standards. However,
Schmidt clearly called into question his constitutional right to present a defense. Indeed, this
case presents a conflict between the Sixth and Fourteenth Amendment rights to present
evidence in support of a defense and the “state’s right to regulate the presentation of
evidence in its courts.” Johnson v. Chrans, 844 F.2d 482, 484 (7th Cir. 1988). It is axiomatic
that “[s]tate and federal rulemakers have broad latitude under the Constitution to establish
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rules excluding evidence from criminal trials.” Holmes v. South Carolina, 547 U.S. 319, 324,
126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006); see also Montana v. Egelhoff, 518 U.S. 37, 42,
1727, 116 S. Ct. 2013, 135 L. Ed. 2d 361 (1996)(holding that due process does not
guarantee a defendant the right to present all relevant evidence.) On the other hand, that
latitude is limited by a defendant’s constitutional rights to due process and to present a
defense, rights originating in the Sixth and Fourteenth Amendments. Holmes, 547 U.S. at
324, 126 S. Ct. 1727. “While the Constitution prohibits the exclusion of defense evidence
under rules that serve no legitimate purpose or that are disproportionate to the ends that
they are asserted to promote, well-established rules of evidence permit trial judges to
exclude evidence if its probative value is outweighed by certain other factors such as unfair
prejudice, confusion of the issues, or potential to mislead the jury.” Id., 547 U.S. at 325-326.
The Seventh Circuit Court of Appeals has employed a balancing approach to resolve
this conflict in accordance with the Supreme Court’s analysis in Green v. Georgia, 442 U.S.
95, 97, 99 S. Ct. 2150, 2151, 60 L. Ed. 2d 738 (1979) and Chambers v. Mississippi, 410 U.S.
284, 295, 93 S. Ct. 1038, 1045, 35 L. Ed. 2d 297 (1973). Johnson, 844 F.2d at 484. The
task is “to evaluate the exculpatory significance of [relevant and competent] evidence and
then to balance it against the competing state interest in the procedural rule that prevented
the defendant from presenting this evidence at trial.” Id.
Recently, the Seventh Circuit Court of Appeals, in an en banc decision, examined the
clash between ordinary evidence rules and the Constitutional right to present a defense.
Kubusch v. Neal, 838 F.3d 845 (7th Cir. 2016). In Kubusch, the trial court excluded the
videotaped testimony of a girl who would have testified that she saw the defendant at the
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time of the murders. By the time of the trial, the girl no longer had any recollection of seeing
either the defendant or his son. For that defendant, the “stakes could not be higher:
because the state courts found Chambers inapplicable, the jury never heard evidence that,
if believed, would have shown that Kubsch could not have committed the crimes.” Id., 838
F.3d at 846. Acknowledging that the witness’s inability to vouch for the accuracy of her prior
statement meant that it could not be admitted for the truth under Indiana Rule of Evidence
803(5), the Seventh Circuit concluded that the “the last word does not belong to state law” “it belongs to the Due Process Clause of the Fourteenth Amendment to the U.S.
Constitution.” Id., 838 F.3d at 853.
The Seventh Circuit relied on the decision in Chambers and the 33 cases citing
Chambers after it was handed down. Id., 838 F.3d at 856. Kubsch and Chambers involved
murder prosecutions, state evidentiary rules, the exclusion of evidence vital to the defense,
and circumstances providing assurance that it was reliable. In some of the cases decided
after Chambers, the court ruled that state evidentiary rules must yield to the defendant’s
fundamental right to present a defense. In other cases, Chambers did not require the state
evidence rule to be overridden. Id., 838 F.3d at 857. For example, In Montana v. Egelhoff,
518 U.S. 37, 116 S. Ct. 2013, 135 L. Ed. 2d 361 (1996), the defendant charged with
homicide introduced evidence of extreme intoxication but the court instructed the jury that
it could not consider the condition in determining whether he had the requisite mental state.
Justice Scalia labeled Chambers “highly case-specific error correction” and found the state’s
rule to be consistent with common law. Id., 838 F.3d at 857. In addition, Clark v. Arizona,
548 U.S. 735, 126 S. Ct. 2709, 165 L. Ed. 2d 842 (2006), involved Arizona’s rule restricting
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consideration of defense evidence of mental illness and incapacity to its bearing on the claim
of insanity thereby eliminating any significance with respect to mens rea. Id., 548 F.3d at
858. Quoting Holmes, the Supreme Court held that this state rule did not violate due
process: “While the Constitution prohibits the exclusion of evidence under rules that serve
no legitimate purpose or are disproportionate to legitimate ends, it does permit the exclusion
of evidence if its probative value is outweighed by factors such as prejudice, confusion, or
potential to mislead.” Id.
Ultimately, the Seventh Circuit gleaned five lessons to be learned from the “the
Chambers line of cases.” First, the Chambers principle has prevailed in cases dealing with
the exclusion of evidence or the testimony of defense witnesses and not “a defendant’s
ability to present a defense.” Id., 548 F.3d at 858, quoting Gilmore v. Taylor, 508 U.S. 333,
113 S. Ct. 2112, 124 L. Ed. 2d 306 (1993). Second, all of the cases in which the Court has
applied Chambers involved murder and often the death penalty. Id. Third, the evidence
must be essential to the defendant’s ability to present a defense and not cumulative,
impeaching, unfairly prejudicial, or potentially misleading. Id. Fourth, the evidence must be
reliable and trustworthy (and one way is to show that it closely resembles evidence that
would be admissible under the state’s rules). Finally, the rule cannot operate in an arbitrary
matter in the case at hand. Id. Applying these lessons, the Seventh Circuit determined that
in Kubsch, the total exclusion of relevant evidence necessitated the issuance of a writ,
particularly where the evidence was the strongest evidence of actual innocence and it was
unusually reliable. Id., 833 F.3d at 862.
Unlike Chambers, Crane, and Holmes, the evidence that Schmidt wished to introduce
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at trial did not present evidence of innocence but rather an affirmative defense arising under
state law. Indeed, the jury was instructed on first-degree intentional homicide and firstdegree reckless homicide, but not receive an additional instruction regarding second-degree
intentional homicide. Further, defense counsel argued that Schmidt did not intend to shoot
Wing-Schmidt on the day that he went to her house and there was testimony at trial
regarding the strain in Schmidt’s marriage, his desire to stay married, their financial burdens,
Wing-Schmidt’s infidelity, his call to Wing-Schmidt’s boyfriend the week before the shooting,
the reasons he went to the house on the day of the shooting, and his state of mind at the
time of the shooting.
The evidence that Schmidt wanted to present was excluded for a myriad of reasons.
Under state law, a defendant seeking to mitigate first-degree intentional to second-degree
intentional homicide, a defendant bears the burden of producing some evidence of adequate
provocation. “Provocation” is defined as “something which the defendant reasonably
believes the intended victim has done which causes the defendant to lack self-control
completely at the time of causing death,” id. § 939.44(1)(b); and provocation is “adequate”
when it is “sufficient to cause complete lack of self-control in an ordinarily constituted
person,” id. § 939.44(1)(a). The adequacy requirement is the objective component of the
defense; it requires proof of “such mental disturbance, caused by a reasonable, adequate
provocation as would ordinarily so overcome and dominate or suspend the exercise of the
judgment of an ordinary man, as to render his mind for the time being deaf to the voice of
reason: make him incapable of forming and executing that distinct intent to take human
life....” Johnson v. State, 129 Wis. 146, 108 N.W. 55, 60–61 (1906). However, provocation

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is the subjective part of the defense. A defendant must show that the events in question did
in fact produce the required mental disturbance at the time of the homicide. State v. Williford,
103 Wis.2d 98, 307 N.W.2d 277, 284 (1981). Even the Seventh Circuit has recognized that
whether the objectively reasonable person would have lost control “is typically limited to
those events that immediately precede the killing.” Kerr v. Thurmer, 639 F.3d 315 (7th Cir.
2011).
As discussed above, the Wisconsin Court of Appeals carefully reviewed Felton and
Muller, specifically in its analysis of the objective component of provocation. Id. 36-41; State
v. Felton, 110 Wis. 2d 485, 329 N.W.2d 161 (1983); Muller, 94 Wis. 2d 450, 289 N.W.2d 570
(1980). The evidence did not rise to the level of abuse in Felton, and closely resembled the
evidence in Muller. Indeed, the court’s analysis is not inconsistent with the Chambers line
of cases discussed in Kubsch holding that state evidence rules may restrict consideration
of certain evidence and the court found that Schmidt could not satisfy the objective prong
of the affirmative defense. As determined by the state courts, Schmidt was not suddenly
surprised by his wife’s infidelity or threats to prevent Schmidt from seeing his children and
acted as the initial provocateur. Because no reasonable person would leave a loaded
handgun in a garage where multiple children had access, the “only reasonable inference is
that he loaded the pistol that morning.”

“If Schmidt acted in the heat of passion, it was

because he deliberately chose to light the fire.” 2012 WI App 113 at ¶ 44.
Ultimately, when the court looks to the lessons learned from the Chambers line of
cases, Schmidt was arguing a mitigating circumstance in the murder but not a complete
defense. Schmidt was given an opportunity to present his evidence in a hearing — as

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suggested by defense counsel – after the trial court raised concerns about relevance,
confusion, and prejudice. A state court has a legitimate interest in excluding cumulative,
confusing or misleading, or unfairly prejudicial evidence. Here, the exclusion was neither
arbitrary nor disproportionate to the evidentiary purpose advanced by the exclusion.
Next, Schmidt argues that he had a right to assistance of counsel during the in
camera hearing regarding the evidence supporting his defense because it was a critical
stage of trial. His attorney was present at the in camera hearing although he was not
allowed to question Schmidt. Schmidt, 2012 WI App 113. Schmidt’s interaction with counsel
was limited to their conversation during the recess.
The parties agree that the AEDPA deference standard applies to this issue because
the Wisconsin courts addressed the constitutional component of this claims. Under the
same § 2254 standard discussed above, this court finds that the decision of the Wisconsin
Court of Appeals was not an unreasonable application of clearly established law. It is true
that the Sixth Amendment guarantees an accused the assistance of counsel not just at trial,
but whenever it is necessary to assure a meaningful defense. U.S. v. Wade, 388 U.S. 218,
18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967).

Moreover, “[t]he complete denial of counsel

during a critical stage of a judicial proceeding mandates a presumption of prejudice." U.S.
v. Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). The Supreme Court
has defined "critical stage" as a phase of trial in which "[a]vailable defenses may be as
irretrievably lost, if not then and there asserted." Hamilton v. Alabama, 368 U.S. 52, 54, 82
S. Ct. 157, 7 L. Ed. 2d 114 (1961). However, there is no clearly established case law
ordaining a state court violates the right to counsel at a critical stage when defense counsel

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is present but unable to confer with the defendant during in camera pretrial hearing where
the prosecutor is barred from the proceedings.
The Wisconsin Court of Appeals considered the in camera hearing "merely a
supplementary proceeding conducted for [Schmidt’s] benefit." Schmidt, 2012 WI App 113
at ¶¶ 45-46, 344 Wis. 2d 336, 824 N.W.2d 839. Acknowledging that it may have been more
efficient to have counsel guide Schmidt’s testimony during the in camera hearing, the Court
of Appeals found the trial court’s exercise of its discretion to be reasonable. Id. Further,
with respect to Schmidt’s argument that this was a critical stage of the proceedings, the
Wisconsin Court of Appeals noted that counsel "had already presented written offers of
proof, and had the option to present whatever additional oral testimony he desired in open
court. [He] merely chose not to present additional affidavits or testimony . . ." Id. The Court
of Appeals found that "because the in camera hearing did not supplant Schmidt's opportunity
to present evidence in support of his affirmative defense, ... it was not a critical stage." Id.
Such a finding is not an unreasonable application of, clearly established federal law
or an unreasonable determination of the facts in light of the evidence presented in state
court. The record reveals that defense counsel outlined the parameters for such a hearing
following the court’s discussion of McLaren and the constitutional concerns of presenting
such evidence:
A suggestion that I was going to bring up today is that the Court, if you are
going to ask for evidence from the defendant or evidence that goes to his
subjective belief for adequate provocation, is that, in fact, we would do an ex
parte in camera inspection of the Court and the defendant and seal those
records because I don’t think it would be – it should be allowed to the State
and should have the information prior to trial.
So I would be agreeable and agree with the State – or the Court’s analysis.
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(Doc. 12-10 at 5.) Although the narrative was rambling during the in camera hearing,
Schmidt has never identified any evidence supporting his proposed affirmative defense that
the trial court did not hear or consider in its ruling. Thus, the court finds no violation of his
due process right to present a defense and no violation of his right to assistance of counsel
in the state court proceedings.
Now, therefore,
IT IS ORDERED that the petition for habeas relief is denied.
IT IS FURTHER ORDERED that a certificate of appealability is granted on Schmidt’s
argument that the state court violated his right to present a defense when it ruled he had not
met his burden on the state law affirmative defense of adequate provocation. In addition,
the court will grant a certificate of appealability on the issue of whether it was a violation of
his right to counsel to allow counsel to be present at an in camera hearing but otherwise limit
counsel’s participation during Schmidt’s offer of proof on the affirmative defense.
IT IS FURTHER ORDERED that this case is dismissed.
Dated at Milwaukee, Wisconsin, this 20th day of March, 2017.
BY THE COURT
s/ C. N. Clevert, Jr.
C. N. Clevert, Jr.
U.S. District Court

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