Lowe v. Clements

Filing 20

ORDER signed by Judge Pamela Pepper on 3/19/2019. 18 Judge Duffin's report and recommendation ADOPTED. 19 Petitioner's objections OVERRULED. 1 Petition for writ of habeas corpus DISMISSED. The court declines to issue certificate of appealability. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DAMEN R. LOWE,
Petitioner,
v.

Case No. 15-cv-425-pp

MARC CLEMENTS,
Respondent.

ORDER ADOPTING JUDGE DUFFIN’S RECOMMENDATION (DKT. NO. 18),
OVERRULING OBJECTIONS (DKT. NO. 19), DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY AND DISMISSING PETITION
I.

Background
A.

Procedural History

On April 10, 2015, the petitioner filed a petition for writ of habeas corpus
under 28 U.S.C. §2254. Dkt. No. 1 at 1. He raised five grounds for relief: (1) the
trial court violated his constitutional right to cross-examine witnesses against
him and present a complete defense; (2) his trial counsel was ineffective; (3) the
State failed to disclose exculpatory evidence; (4) Wis. Stat. §948.025 violated
his right to jury unanimity; and (5) the trial court’s jury instructions misled the
jury. Id. at 6-9. On May 12, 2015, this court screened the petition and allowed
the petitioner to proceed on all five grounds. Dkt. No. 7. The case was fully
briefed on December 17, 2015 but due to the court’s heavy caseload, the case
sat for quite some time. It was eventually referred to Magistrate Judge Duffin
for review. Dkt. No. 17. On June 11, 2018, Judge Duffin issued a report,
recommending that this court dismiss the petition and deny the petitioner a

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certificate of appealability. Dkt. No. 18. The petitioner has objected. Dkt. No.
19.
B.

Facts

Judge Duffin summarized the relevant facts in his report, and while the
petitioner’s objection states that he “reiterates the Statement of Facts from his
Brief in Support of Petition and Reply Brief,” dkt. no. 19, he does not
specifically object to Judge Duffin’s factual recitation. The court recounts
Judge Duffin’s statement of facts below:
Damen Lowe, then both a Racine police officer and school
security officer, physically and sexually assaulted his adopted
daughter, V.A.L. Lowe was very strict with V.A.L. He restricted
her cell phone and social media usage and allowed her to socialize
with only certain boys. Lowe was able to keep close tabs on
V.A.L. because he worked as a security guard at his daughter’s
high school.
In April of 2009 Lowe learned his daughter was failing history and
that she had been using a classmate’s cell phone to send text
messages. Lowe took his daughter out of class, brought her
to the teachers’ lounge, forced her to the ground, handcuffed
her, and demanded to know who she had been texting. She
refused to tell him. Lowe then escorted V.A.L. out of the teacher’s
lounge, through the school, and out to his car in order to
take her home, keeping her handcuffed the whole time and
threatening to punch her in the face if she continued to ask that
he loosen the handcuffs. Later that evening, at home, V.A.L.
reported that Lowe struck her twice on her leg with an open
hand and hit her with a belt on her arm and thigh.
V.A.L. made plans to run away, and the following day told a
friend that Lowe had been sexually abusing her. V.A.L. called
Child Protective Services (CPS) and reported physical, but not
sexual, abuse. That same day she also spoke with detectives
and again did not report sexual abuse. It was not until days
later that V.A.L. reported to CPS that Lowe had been sexually
assaulting her.
According to V.A.L., the sexual abuse began with Lowe
showing her
pornography when she was in fifth grade. Lowe
began having sexual contact with V.A.L. when she was in
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sixth grade. Lowe would require her to engage in sexual acts in
exchange for privileges. This included, for example, instances
where she wanted to go out with friends, permission to get her
tongue pierced, and one
instance where
Lowe had V.A.L.
masturbate him in exchange for letting her listen to a CD in
the car.
Lowe was arrested on May 4, 2009 and charged with repeated
sexual assault of a child, incest, four counts of exposing a child to
harmful material, and one count of child abuse. Shortly after
V.A.L. first made her allegations against Lowe, her mother
informed her that Lowe was not actually her biological father; Lowe
had adopted V.A.L. Lowe proceeded to trial, where his defense
was that V.A.L. fabricated the sexual abuse as a means to
escape Lowe’s strict supervision and discipline. Following a
six-day jury trial, Lowe was found guilty. He was acquitted of
three additional charges of child abuse.
Dkt. No. 18 at 1-3 (internal citations omitted).
The petitioner appealed his conviction. Dkt. No. 1-1 at 6. He raised the
same five issues in the direct appeal that he raises in this petition. Id. The
Court of Appeals thoroughly analyzed each issue, concluded that the petitioner
had waived his challenge to the jury instructions and ruled against him on the
other issues. The petitioner sought review from the Wisconsin Supreme Court.
Dkt. No. 10-6. While the petition listed all five issues, id. at 8-9, it presented no
argument regarding the appellate court’s ruling that the petitioner had waived
the jury instruction issue. The Wisconsin Supreme Court denied the petition
for review. Dkt. No. 1-2.
C.

Judge Duffin’s Recommendation

The Wisconsin Court of Appeals issued a twenty-six-page decision
affirming the petitioner’s conviction. Given that, Judge Duffin’s job at the
federal habeas stage was to determine whether the Court of Appeals’ decision
was contrary to, or an unreasonable application of, clearly established federal
law, or whether the decision was based on an unreasonable determination of
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the facts given the evidence before the trial court. Dkt. No. 18 at 3-4 (citing
Miller v. Smith, 765 F.3d 754, 759-60 (7th Cir. 2014); 28 U.S.C. §§2254(d)(1),
(2)).
1.

Denial of right to cross-examine/present a defense

Judge Duffin explained that the petitioner’s defense theory was that, to
escape the petitioner’s strict parenting techniques, his daughter had lied about
the petitioner having sexually abused her. Dkt. No. 18 at 4. The petitioner had
asked the trial court to admit, or to allow cross-examination about, printouts
from V.A.L.’s MySpace page and police reports indicating that V.A.L.’s mother
had called the police about V.A.L. Id. While the trial court admitted other
evidence of V.A.L.’s misbehavior, the conflicts between V.A.L. and the
petitioner, and the activities V.A.L. engaged in after the petitioner’s arrest of
which the petitioner disapproved, it did not allow the petitioner to introduce
posts and photos showing some specific instances of those activities. Id. at 4-5.
The court also excluded evidence of phone calls V.A.L.’s mother had made to
the police after the petitioner’s arrest, complaining of problems she was having
with her daughter. Id. at 5.
The Wisconsin Court of Appeals found that the trial court had given the
petitioner “‘broad leeway’ regarding evidence about events prior to the
allegations.” Dkt. No. 1-1 at 4. It explained that the trial court allowed the
defense to cross-examine V.A.L. “at length” about things that happened before
she made the sexual assault allegations: “about engaging in activities of which
[the petitioner] did not approve and about her refusal to follow [the petitioner’s]
rules.” Id. V.A.L. had testified about texting boys without her father’s approval,
hanging around with boys who drank and used drugs and had criminal
records, having a boy over without her father’s permission, leaving the house to
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see a boy while her father was working, using MySpace after her father told her
to stop and more. Id. at 4-5. The Court of Appeals explained that while the trial
court had excluded the MySpace posts and police reports from after V.A.L.
alleged that the petitioner assaulted her, it also had allowed cross-examination
about V.A.L.’s post-allegation use of the MySpace account and other activities
of which her father did not approve, “but limited the cross-examination to
prohibit questioning about her drug and alcohol use and sexual activity.” Id. at
5-6. The trial court allowed the defense to question V.A.L. about the following
post-allegation activity: resuming the use of MySpace in a way that V.A.L.’s
father had prohibited, and behaving in ways and having contact with people
that V.A.L.’s father disapproved of. Id. at 6.
The Wisconsin Court of Appeals explained that while the Constitution
grants a criminal defendant the right to effectively cross-examine witnesses
and present favorable testimony, those rights were not absolute. Id. at 7 (citing
Davis v. Alaska, 415 U.S. 308, 318 (1974) (right to cross-examination);
Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (right to admit favorable
testimony); State v. Pulizzano, 155 Wis.2d 633, 645 (Wis. 1990) (rights not
absolute). The evidence a defendant presents still must be more probative than
prejudicial. Id. (citing State v. McCall, 202 Wis.2d 29, 42 (Wis. 1996)). The
court explained that it had reviewed the trial court’s evidentiary rulings for an
erroneous exercise of discretion, citing State v. Rhodes, 336 Wis.2d 64, 75
(Wis. 2011), and noted that even when a defendant makes a constitutional
challenge to an evidentiary ruling, trial judges retain broad discretion “to
impose reasonable limits on cross-examination based on concerns about,
among other things, harassment, prejudice, confusion of the issues, the

5

witness’ safety, or interrogation that is repetitive or only marginally relevant,”
citing Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). Id. at 8.
After reviewing the relevant case law, the Court of Appeals concluded
that the defendant was able to “fully explore V.A.L.’s pre-allegation behavior,
including intense conflict with [the petitioner].” Id. at 11. It listed the
information defense counsel had been able to elicit at trial, and concluded that
“counsel was able to lay ample foundation for the theory that, at the time of the
allegations, V.A.L. was in the habit of breaking [the petitioner’s] rules and
arguably had reason to want to get out from under [the petitioner’s] control.”
Id. The appeals court also reiterated that the trial court had not prohibited all
cross-examination about post-allegation conduct. Id.
The appellate court also concluded that the trial court had not abused its
discretion in weighing the probative versus prejudicial impact of the postallegation evidence. Id. at 12. The appellate court agreed that because the
defendant had proved that V.A.L. did things post-allegation of which the
petitioner did not approve, the specifics of how she did those things would have
been cumulative, and could have confused the jury. Id. Regarding the trial
court’s concerns that the excluded material constituted an improper attack on
V.A.L.’s character, the court of appeals concluded that the trial court had
properly weighed the evidence in that regard, and had not erred. Id. at 14-15.
The court of appeals came to the same conclusion regarding the trial
court’s decision not to allow the defense to use the MySpace pages or postallegation police contacts to impeach V.A.L.’s mother. Id. at 16. The appellate
court explained the ways in which the trial court had properly exercised its
discretion. Id. at 16-17. The court found that one of the petitioner’s appellate
arguments—that the excluded evidence would have revealed that V.A.L. might
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have lied on the stand to avoid being charged with things like breaking curfew
or underage drinking—had not been raised at the trial level, and thus was
waived on appeal. Id. at 17-18.
The court of appeals concluded that even if it had found that the trial
court abused its discretion in excluding the evidence, such error would have
been harmless, because the excluded evidence was cumulative and defense
counsel had been able to elicit plenty of evidence to support the defense theory.
Id. at 18-19.
The petitioner asserts that the exclusion of this evidence violated his
rights to cross-examine witnesses and to present a defense, allowing V.A.L. and
her mother to testify “falsely under the protections of the court’s ruling.” Id. at
6 (quoting petitioner’s brief, Dkt. No. 3 at 10). The petitioner wanted to be able
to ask his daughter why she had been able to run away, break curfew, cause
disturbances and drink without being arrested or cited, and to ask why the
police were called five times about this behavior without any referral to juvenile
authorities. Id. The petition says that it was important for the petitioner to be
able to raise these issues, because it would have allowed him to rebut the
testimony of his daughter and her mother that V.A.L. was just being a typical
teen, and was not acting out. Id.
Judge Duffin observed that the Wisconsin Court of Appeals had
considered these arguments on direct appeal, and he walked through the
salient portions of the court’s decision. Dkt. No. 18 at 5-6. Judge Duffin, like
the court of appeals, recounted the applicable federal law governing the Sixth
Amendment right to cross-examination and to present relevant testimony. Id.
at 7-8. He agreed that the most relevant evidence of V.A.L.’s motive to fabricate
was the evidence of the conflicts between her and the petitioner occurring prior
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to her allegations of sexual assault, and observed that there was nothing in the
record to show that the trial court had limited the scope of cross-examination
on that topic. Id. The court of appeals concluded that the trial court had
excluded the some of the post-allegation evidence because it was irrelevant and
was an attempt to “trash” V.A.L., but noted that the trial court had allowed the
petitioner to question V.A.L. about her use post-allegation use of the MySpace
account, her behavior and her associations. Id. at 5-6. Judge Duffin concluded
that the court of appeals’ conclusions did not constitute an unreasonable
application of federal law. Dkt. No. 18 at 8. He accepted the petitioner’s
argument that post-allegation conduct might have had some relevance to
V.A.L.’s motive to continue to accuse the petitioner, and to testify at his trial.
Id. at 9. But he concluded that that relevance was “marginal at best,” noting
that the petitioner himself had testified that after the incident at the school,
he’d told V.A.L. to go live with her mother, and she’d refused. Id. Judge Duffin
noted that if V.A.L. had been so desperate to get away from her father, she
could have followed his order that night and left; she did not need to fabricate
“a long history of sexual assaults.” Id. at 9-10. He noted that the only thing the
trial court had kept from the jury about the post-allegations MySpace posts
“were the details of what specifically was posted on her MySpace page.” Id. at
10. He agreed with the court of appeals that the excluded evidence carried a
significant risk of confusing the issues (from whether V.A.L.’s allegations of
sexual assault were credible to whether she was a “bad” teenager) and
misleading the jury (as to whether V.A.L. did what she claimed on MySpace
that she had done, or was going to do). Id. Finally, he found it reasonable that
the trial court excluded the details of the post-allegation behavior that had
caused V.A.L.’s mother to call the police. Id. He agreed that the police reports,
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and the allegations in them, “ran an undue risk of painting V.A.L. as a
promiscuous and delinquent teenager, improperly implying that she should not
be believed because of her character.” Id. He also added that in his view, the
police reports undermined the petitioner’s argument that V.A.L. lied because
she wanted to live with her mother, who gave her more freedom; the police
reports showed that V.A.L. was not free to do whatever she wanted at her
mother’s house. Id. at 11.
For all these reasons, Judge Duffin concluded that the petitioner had not
shown that the Wisconsin Court of Appeals’ decision was contrary to or
involved an unreasonable application of clearly-established federal law. Id.
2.

Ineffective assistance of counsel claims

Judge Duffin found that the petitioner had asserted four bases for his
ineffective of counsel claim: (1) that his attorney failed to comply with discovery
demands, which “played in indirect role in the court’s decision to limit the
admissibility of the MySpace and other documents at trial,” id. at 11 (citing
Dkt. No. 3 at 15); (2) that his attorney failed to timely prepare and file a brief in
support of the argument that the trial court should have admitted those
documents,” id. (citing Dkt. No. 3 at 17); (3) that his attorney failed to obtain
the petitioner’s ex-wife’s phone records for use at trial, id. (citing Dkt. No. 3 at
18); and (4) that his attorney should have called the petitioner’s live-in
girlfriend to testify on his behalf, id. at 11-12 (citing Dkt. No. 3 at 19).
The Court of Appeals started with the standard articulated by the
Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984), in
which it held that the defendant must demonstrate both prejudice and
deficient performance; to demonstrate deficient performance, the defendant
must “show specific acts or omissions of counsel that are ‘outside the wide
9

range of professionally competent assistance.’” Dkt. No. 1-1 at 19. (citing
Strickland, 466 U.S. at 687). The court observed that it owed great deference to
trial counsel’s decisions, stating that “the defendant must overcome a strong
presumption that trial counsel’s performance was reasonable.” Id. (citing State
v. Trawitzki, 244 Wis.2d 523 (Wis. 2001)). To show prejudice, the defendant
must demonstrate that his trial counsel’s errors were “so serious as to deprive
the defendant of a fair trial and a reliable outcome.” Id. (citing Strickland, 466
U.S. at 687).
The petitioner had first argued that although the state filed a discovery
demand for any evidence the petitioner planned to introduce at trial, his
counsel did not turn over the MySpace pages or the police reports. Id. at 20.
The state then filed a motion in limine, asking the trial court to exclude any
evidence the defense had not disclosed. Id. At the trial, counsel attempted to
introduce the MySpace pages “to impeach V.A.L. and [her mother],” as well as
the “police call log records showing that [V.A.L.’s] mother had called the police
on V.A.L. several times.” Id.
The court of appeals concluded that counsel’s failure to turn these
documents over prior to trial did not constitute deficient performance. As to the
MySpace pages, trial counsel indicated that he did not want to turn over the
pages earlier “because he did not want to ‘stop the flow of information.’” Id. The
court of appeals found this reasonable, and also noted that because the trial
court had explained that the failure to produce the documents pre-trial was not
the reason for excluding them, the petitioner could not show prejudice. Id. As
to the call records, the court similarly concluded that it was not trial counsel’s
failure to turn the records over that caused the trial court to exclude them, so
there was no prejudice. Id.
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While the petitioner’s lawyer did prepare a brief arguing for the
admission of these materials, it appears that he filed it at “4:12 p.m. on the
Friday before Memorial Day weekend when trial was set to start on the
following Tuesday.” Id. at 19. The trial court held a hearing under State v.
Machner, 92 Wis. 2d 797 (Ct. App. 1979), and indicated that the fact that the
brief was filed at the eleventh hour did not influence the court’s evidentiary
rulings.1 Id. at 21. On appeal, the petitioner argued only that “the failure to
comply with the court’s procedural orders ‘affected [his] Compulsory Process
rights.’” Id. The court of appeals concluded that this was not enough to show
ineffective assistance.
The petitioner argued that his trial lawyer should have obtained V.A.L.’s
mother’s phone records; he asserted that the records would have supported
“the defense theory surrounding the events leading up to V.A.L.’s decision to
report [the petitioner] for abuse,” and that the records “would have confirmed
witnesses’ testimony that V.A.L. found out that [the petitioner] was not her
biological father over the weekend following her initial report of physical
abuse.” Id. at 21-22. The court of appeals noted, however, that phone records
would show only when telephone calls took place, not their content. Id. at 22. It
concluded that “a list of which numbers were called when” had “minimal
probative value,” and thus that counsel’s failure to obtain those records and try
to present them at trial was not deficient performance and did not prejudice
the defense. Id. The court also noted that the petitioner did not call V.A.L.’s
mother to testify at the post-conviction hearing; without that, the petitioner
could not show that the mother’s testimony at trial, or the outcome of the trial,
Machner requires that when a defendant challenges trial counsel’s conduct,
there must be a hearing at which that trial counsel is present. Machner, 92
Wis.2d at 804. Such hearings are referred to as Machner hearings.
1

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would have been different if counsel had cross-examined her with the phone
records. Id.
Finally, the petitioner’s trial lawyer indicated that he had decided not to
call the petitioner’s live-in girlfriend because she had attended the school
where the petitioner worked as a security officer, he’d started dating her shortly
after she left the school, and she was young, pretty and resembled the victim.
Id. Trial counsel felt that in a case in which the petitioner was charged with
sexually assaulting his teenaged daughter, it would not be wise to call as a
witness the petitioner’s girlfriend when she resembled that daughter in
appearance and age. Id. The court found this a “reasonable decision” and
concluded that it did not demonstrate deficient performance.
In finding that the court of appeals’ rulings on ineffective assistance were
not contrary to, and did not involve an unreasonable application of, clearly
established federal law, Judge Duffin first pointed out that the petitioner has
yet to demonstrate that counsel’s failure to turn over the MySpace pages and
phone records prior to trial affected the trial court’s decision to exclude those
documents. Dkt. No. 18 at 13. Judge Duffin indicated that the petitioner had
provided him with no more detail regarding his argument about the late-filed
brief than he had provided the court of appeals; he concluded that if the
petitioner was trying to assert that if counsel had filed the brief sooner, the
documents would have been admitted, the argument was defeated by the trial
court’s statements that it had excluded the evidence for other reasons. Id. at
14. Judge Duffin agreed with the court of appeals that the petitioner’s ex-wife’s
phone records had “minimal probative value,” and found the court’s
conclusions in that regard to be a reasonable application of the Strickland
standard. Id. Finally, Judge Duffin found trial counsel’s decision not to call the
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petitioner’s live-in girlfriend to be reasonable, noting that “[the girlfriend] was
14 years younger than [the petitioner] and, in the opinion of [the petitioner’s]
trial counsel, ‘bore . . . a striking resemblance to [V.A.L.],’ so much so that
counsel misidentified the two in photographs.” Id. at 15 (citing Dkt. No. 10-17
at 72-73). Judge Duffin found that “counsel reasonably concluded that calling
[the girlfriend] to testify would have arguably supported the state’s case by
highlighting and corroborating [the petitioner’s] alleged sexual interest in high
school age girls.” Id.
3.

Brady claim

Next, Judge Duffin summarized the petitioner’s argument that the state
had violated Brady v. Maryland, 373 U.S. 83 (1963) as follows:
[The petitioner] contends that “[t]he State did not tell the defense
about V.A.L.’s unsubstantiated claim that she previously called the
police to report her father’s abuse and [the petitioner] intercepted
the police and turned them away.” ([Dkt.] No. 3 at 23-24.) The state
acknowledged learning of V.A.L.’s claim in the week before trial,
investigating it, but not finding any information corroborating it.
([DKT.] No. 10-11 at 104.) At trial, the state asserted “It’s not
exculpatory in nature . . . by any means, and it isn’t something
that is in the sole possession of the State. The Defendant was . . .
the witness will testify the Defendant was there.” ([Dkt.] No. 10-11
at 105.)
[The petitioner] alleges that the fact that the state was unable to
find a police report corroborating V.A.L.’s allegation was
exculpatory. According to [the petitioner], the absence of a
corroborating police report demonstrates that V.A.L.’s statement
that she previously called the police to report her father’s abuse
was false. He contends that V.A.L.’s fabrication of this evidence
“makes it more likely that she fabricated the sexual assault
allegations.” ([Dkt.] No. 3 at 24.)
Dkt. No. 18 at 16-17.
The court of appeals began by explaining how the issue had come up:
during V.A.L.’s direct testimony at trial, the prosecutor had asked her why she
13

had not told anyone about an occasion when the petitioner had hit her. Dkt.
No. 1-1 at 24. The petitioner’s attorney objected because he thought V.A.L. was
“going to testify about a prior call to the police regarding [the petitioner’s]
abuse, and trial counsel had not been given pretrial notice about this
testimony.” Id. The judge then asked the prosecutor whether there was any
corroboration of the police call; the state responded that there was not. The
trial court sustained the petitioner’s objection to the line of questioning,
because there was no corroboration of the incident. Id.
Against that background, the court of appeals noted that the trial court
had sustained the petitioner’s objection to the line of questioning. Id. It found
that the remedy for violating Brady was exactly that—exclusion—and it
concluded that the petitioner’s Brady argument was moot. Id. at 24-25. It also
observed that evidence V.A.L. had called the police to report the petitioner’s
abuse, and that they had come to the house but that the petitioner had turned
them away, was “hardly exculpatory.” Id. at 25. As to the petitioner’s theory
that the evidence could have been exculpatory if he could have used the
absence of corroboration to argue that V.A.L. lied about the call ever
happening, the court of appeals pointed out that it was the petitioner himself
who’d objected to the admission of any testimony about the alleged incident. Id.
The court also explained that the petitioner had not taken any steps, postconviction, to determine whether the call had or had not taken place. Id.
Before Judge Duffin, the petitioner argued that because the state had not
been able to find a police report corroborating V.A.L.’s allegation, she lied when
she made that allegation, which made it more likely that she lied about the
petitioner having sexually assaulted her. Dkt. No. 18 at 17. Judge Duffin
agreed with the petitioner that the disclosure of this information in the middle
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of V.A.L.’s direct examination was “last-minute,” but he pointed out—as had
the court of appeals—that the petitioner still could have used the information
to make exactly the attack he made on appeal and in this petition. Id. Rather
than trying to exclude V.A.L.’s testimony that she called the police and the
petitioner turned them away, the petitioner could have let her testify to that
effect, then cross-examined her about whether there was any proof that the
events actually happened. Id. Rather than doing that, the petitioner chose to
seek exclusion of the allegations, and the trial court gave him what he asked
for. Id. at 17-18.
Judge Duffin also found reasonable the appellate court’s opinion that
testimony about the alleged event would not have been exculpatory, and agreed
that the petitioner did not produce any post-conviction evidence that there was
no evidence anywhere to support V.A.L.’s claim. Id. at 18. Without that, Judge
Duffin found, the petitioner could not show that the state’s failure to turn over
information about V.A.L.’s allegations was material to his defense. Id.
4.

Claim that Wis. Stat. § 948.025 violates unanimity
requirement

The petition alleges that Wis. Stat. §948.025 violates “jury unanimity
provisions by stating the jury does not need to agree on the individual acts that
comprise the three sexual assaults or if a particular violation was a sexual
assault under § 948.02(1) or (2).” Dkt. No. 1 at 24-25.
Section 948.025 is a “repeater” statute; it imposes enhanced penalties on
defendants convicted of multiple acts of sexual assault. Section 948.025(1)(c)
provides that if a defendant commits three or more violations of the first- or
second-degree sexual assault statutes (Wis. Stat. §§ 948.02(1) and (2),
respectively) of the same child within a specific time period, the defendant is
guilty of a Class C felony. Section 948.025(2)(e) says that if that repeater
15

charge is tried to a jury, “in order to find the defendant guilty the members of
the jury must unanimously agree that at least 3 violations of [first-degree or
second-degree sexual assault] occurred within the specified period of time but
need not agree on which acts constitute the requisite number.”
The court of appeals disposed of the petitioner’s argument that the
statute is unconstitutional by explaining that the Wisconsin Supreme Court
already had rejected that argument. Dkt. No. 1-1 at 25. The court explained
that in State v. Johnson, 243 Wis. 2d 365 (Wis. 2001), the Supreme Court
“squarely addressed and rejected this same challenge to § 948.025.” Id. The
court quoted Johnson: “[W]hile jury unanimity is required on the essential
elements of the offense, when the statute in question establishes different
modes or means by which the offense may be committed, unanimity is
generally not required on the alternate modes or means of communication.” Id.
(quoting Johnson, 243 Wis. 2d at 372-73.
In federal court, the petitioner asked the court to adopt the reasoning of
the dissent in Johnson. Dkt. No. 18 at 19. He asked Judge Duffin to conclude
that the statute did not comport with the fairness requirements of the Due
Process clause. Id. The petitioner cited Richardson v. United States, 526 U.S.
813, 820 (1999) in support of his argument. Id. at 20.
Judge Duffin first noted that the petitioner’s jury did not have to decide
whether the predicate acts of sexual assault constituted first-degree sexual
assault under Wis. Stat. §948.02(1) or second-degree sexual assault under
§948.02(2); the trial court instructed them only on the elements of seconddegree sexual assault. Id. So “the only issue before [Judge Duffin was] whether
it is contrary to clearly established federal law to not require the jury to be
unanimous as to which three violations of Wis. Stat. § 948.02(2) formed the
16

basis for conviction under Wis. Stat. § 948.025(1)(e).” Id. Judge Duffin
disagreed that Richardson supported the petitioner’s theory, noting that the
Richardson case involved a different statute, and that the Supreme Court had
based its finding—that the jury had to be unanimous as to which three federal
drug offenses a defendant had committed to find a defendant guilty of a
continuing criminal enterprise—on the specific language of that statute. Id. at
20-21. He found that the Richardson Court did not hold that the Constitution
requires jury unanimity for state statutes regarding repeated offenses of child
sexual assault. Id. at 21.
5.

Jury instruction claim

Judge Duffin rejected the petitioner’s argument that the jury instructions
“created an inaccurate statement of the law or at the very least misled the
jurors[.]” Id. (quoting Dkt. No. 3 at 27). Judge Duffin observed, as did the court
of appeals, that in the post-conviction proceedings, the petitioner had waived
his ability to contest jury instructions when he failed to object to them at the
jury instruction conference. Id. Further, Judge Duffin remarked that the
petitioner never fairly presented his jury instructions argument to the
Wisconsin Supreme Court—his petition for review in that court contained no
corresponding argument—and that he had procedurally defaulted on that
claim. Id. at 22-23 (citing Lockheart v. Hulick, 443 F.3d 927, 929 (7th Cir.
2006)).
6.

Certificate of Appealability

Finally, Judge Duffin recommended that this court “deny [the petitioner]
a certificate of appealability, the petitioner having failed to make a substantial
showing of the denial of a constitutional right, see 28 U.S.C. §2253(c)(2).” Id. at
23.
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D.

Petitioner’s Objection

The petitioner asks this court to “conduct a de novo review to determine
whether to grant his petition for Writ of Habeas Corpus or whether to grant a
certificate(s) of appealability.” Dkt. No. 19 at 1. He says that he “relies upon his
previous briefings and pleadings in asking this court to reject the Magistrate
Judge’s recommendations regarding his basis for the Petition for Writ of
Habeas Corpus.” Id.
After this blanket objection, the petitioner specifically objects to Judge
Duffin’s recommendation that this court decline to issue a certificate of
appealability. The petitioner points out that in Buck v. Davis, ___ U.S. ___, 137
S.Ct. 759 (2017), the Supreme Court held that a court should issue a
certificate of appealability if reasonable jurists could disagree with the court’s
resolution of a petitioner’s constitutional claims, or could conclude that the
petitioner’s issues are worthy of proceeding further. Dkt. No. 19 at 2. He argues
that reasonable jurists could disagree on four of his five claims—whether he
was denied the right to present a defense, whether he was denied ineffective
assistance of counsel, whether the state violated Brady and whether Wis. Stat.
§948.025 violated his right to jury unanimity. Id. at 3. He asks the court to
grant his petition, or “[i]f nothing else,” to grant him a certificate of
appealability on those four issues.
II.

Discussion
A.

Standard of Review

The Federal Rules of Civil Procedure apply in habeas cases. Rule 12,
Rules Governing Section 2254 Cases in the United States District Court. Rule
72(b)(1) allows a district court to refer a case to magistrate judge, who then
“conduct[s] the required proceedings,” and “enter[s] a recommended
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disposition.” Fed. R. Civ. P. 72(b)(1). A dissatisfied party has fourteen days from
the date the magistrate judge issues the recommendation to file “specific
written objections.” Fed. R. Civ. P. 72(b)(2) (emphasis added); see also 28
U.S.C. §636(b)(1) (“A judge of the court shall make a de novo determination of
those portions of the report or specific proposed findings or recommendations
to which an objection is made”). The petitioner must specify “each issue for
which review is sought,” but need not specify “the factual or legal basis of the
objection.” Johnson v. Zema Sys. Corp., 170 F.3d 734, 741 (7th Cir. 1999). The
district court is required to conduct a de novo review “only of those portions of
the magistrate judge’s disposition to which specific written objection is made.”
Id. at 739. “If no objection or only partial objection is made, the district court
judge reviews those unobjected portions for clear error.” Id. (citations omitted).
“The clear error standard means that the district court can overturn the
magistrate judge’s ruling only if the district court is left with the definite and
firm conviction that a mistake has been made.” Weeks. v. Samsung Heavy
Indus. Co., Ltd., 126 F.3d 926, 943 (7th Cir. 1997).
The federal habeas statute, 28 U.S.C. § 2254, provides that a court “shall
not” grant a habeas petition on any claim that was adjudicated on the merits in
state court unless the state court’s adjudication of the claim “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 “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.” 28 U.S.C. §§2254(d)(1) and (2); Harrington v. Richter, 562 U.S. 86,
97-98 (2011).

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B.

General Objection

The petitioner asks the court to conduct a de novo review “to determine
whether to grant his Petition for Writ of Habeas Corpus,” “relies upon his
previous briefings and pleadings in asking this court to reject the Magistrate
Judge’s recommendations regarding his basis for the Petition for Writ of
Habeas Corpus,” reiterates the facts from his petition and reply, and concludes
by asking the court to “grant his Petition for the reasons previously detailed in
his pleadings and briefs.” Dkt. No. 19 at 1, 7. Specifically regarding his claim
that Judge Duffin should have recommended that this court grant a certificate
of appealability as to his challenge to the jury instructions, the petitioner
includes a footnote saying that he “relies on his previous arguments regarding
the challenge to the jury instructions.” Id. at 7 n.1.
Neither 28 U.S.C. §636 nor the Federal Rules of Civil Procedure require a
district court to conduct a de novo review of a magistrate judge’s
recommendation based on a blanket objection to the entire recommendation.
At least two judges in this district have concluded that such a general objection
does not give rise to the district court’s obligation to conduct a de novo review.
United States v. Molinaro, 683 F.Supp. 205, 211 (E.D. Wis. Mar. 14, 1988)
(“Without specific reference to portions of the Magistrate’s decision and legal
discussion on the objected portion, the district court’s duty to make a de novo
determination does not arise. The general statements that a party ‘objects’ and
‘incorporates all arguments previously made to the magistrate’ will not
suffice.”); see also United States v. Hogan, Case No. 11-CR-130, 2013 WL
265230, at *1 (E.D. Wis. Jan. 18, 2013). The court will not conduct a de novo
review of Judge Duffin’s entire recommendation.

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Reviewing those portions of the recommendation to which the petitioner
did not specifically object under the clear error standard, this court is not left
with the “definite and firm conviction that a mistake has been made.” Weeks,
126 F.3d at 943. The court whole-heartedly agrees with Judge Duffin that the
court of appeals’ rulings neither were contrary to or involved an unreasonable
application of clearly established federal law nor resulted from unreasonable
determinations of the facts based on what was presented to the trial court.
Regarding the argument that the petitioner was denied his right to crossexamine or to present a defense: the petitioner did present evidence supporting
his theory that V.A.L. made up the sexual assault allegations to get out from
under the petitioner’s strict thumb. The petitioner did present evidence that
V.A.L. was, for lack of a better word, a “difficult” teenager. He did present
evidence that she had a motive to get the petitioner in trouble. The fact that the
trial court limited the amount of post-allegation evidence the petitioner could
present was—as the court of appeals found—harmless error, if any, and the
court of appeals’ decision in that regard was not constitutionally defective.
As to the petitioner’s arguments that his counsel was ineffective, none of
his arguments supports that conclusion. The failure to turn over evidence
pretrial did not impact the court’s decision to exclude that evidence, so the
petitioner cannot show prejudice. The same is true for the timing of the brief.
Like the other courts, this court is unclear on how failure to obtain and present
records of phone numbers called by the victim’s mother was prejudicial to the
petitioner’s case. And not only does the court conclude that counsel’s decision
not to call the petitioner’s live-in girlfriend was not deficient, it suspects that if
counsel had called the girlfriend, some might have considered that to constitute
ineffective assistance of counsel.
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The state’s failure to disclose to the petitioner pre-trial the fact that the
victim alleged that she had called the police to report the petitioner’s abuse,
but that the petitioner had intercepted the police when they responded, did not
violate Brady. The evidence, by itself, was inculpatory, not exculpatory, which
likely is why trial counsel objected. The petitioner appears to argue, however,
that the state should have notified him pre-trial that it had not been able to
verify V.A.L.’s allegations. He says that if he could have used the fact that the
state had not been able to corroborate the allegations to argue that V.A.L. lied
about them, he might have been able to argue that V.A.L. probably lied about
the sexual assault allegations. This string of possibilities does not prove a
Brady violation—the petitioner has not shown that V.A.L. did lie (as Judge
Duffin noted, there is no evidence that the state checked every possible source
of corroborating information, such as dispatch records, in its attempts to
corroborate the allegations, and the issue came up during V.A.L.’s examination
on the witness stand), he has not shown that the fact that she lied was
suppressed, and he has not shown that even if the jurors had known that
V.A.L. lied about calling the police and the petitioner turning them away, it
would have had an impact on the verdict.
Regarding the petitioner’s challenge to the constitutionality of Wis. Stat.
§948.025, the petitioner asks this federal court to overturn a Wisconsin
Supreme Court decision dating back eighteen years. He first asked the court of
appeals for that relief—relief that the court of appeals, which is bound by the
Wisconsin Supreme Court’s decisions, could not grant. He asked Judge Duffin
for this relief based on the United States Supreme Court’s interpretation of a
federal statute that is structured differently from Wis. Stat. §948.25. In his
objection to Judge Duffin’s recommendation that this court decline to issue a
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certificate of appealability, he argues that this court should look to Schad v.
Arizona, 501 U.S. 624 (1991) in determining whether reasonable jurists could
differ as to “whether Wisconsin’s statute violates the Due Process demands of
fundamental fairness and rationality.” Dkt. No. 19 at 7. Aside from the fact that
this court does not decide clear error by determining whether reasonable
jurists could differ, the Court in Schad declined to hold unconstitutional jury
instructions that “did not require agreement on whether the defendant was
guilty of premeditated murder or felony murder.” Schad, 501 U.S. at 627. In
reaching that decision, the Court noted that it was “not free to substitute [its]
own interpretations of state statutes for those of a State’s courts.” Id. at 636.
This court is no more free to do so than the Supreme Court.
Finally, Judge Duffin did not commit clear error in finding—as did the
court of appeals—that the petitioner has waived his jury instruction argument
by failing to raise it at the jury instruction conference or to argue it in his
petition for review to the Wisconsin Supreme Court.
None of Judge Duffin’s recommendations on any of these issues
constituted clear error.
C.

Certificate of Appealability

The petitioner specifically objected only to Judge Duffin’s
recommendation that this court decline to issue a certificate of appealability. In
that context, the petitioner asserts that reasonable jurists could disagree about
four of the five issues he raised in the petition, and points to specific areas
within each issue where he thinks there could be disagreement. The objection
repeatedly asserts that “reasonable jurists could disagree” about some of Judge
Duffin’s specific conclusions. It asserts that reasonable jurists could disagree
with Judge Duffin’s conclusion that the post-arrest evidence regarding the
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MySpace page was marginally relevant, or was confusing or misleading. Dkt.
No. 19 at 4. It asserts that reasonable jurists could disagree about whether
V.A.L.’s mother’s testimony that she approved of the MySpace posts, or that
V.A.L. was a normal teen, “opened the door” to the admission of the excluded
evidence. Id. at 5. It asserts that reasonable jurists could disagree about
whether trial counsel’s alleged errors demonstrated “a lack of diligence.” Id. It
asserts that reasonable jurists could disagree about the late disclosure of
V.A.L.’s unsubstantiated claim that she’d called the police violated the state’s
obligations under Brady v. Maryland, 373 U.S. 83 (1963). And it asserts that
reasonable jurists could disagree whether Wis. Stat. §948.025 violates due
process and fundamental fairness. Id. at 7.
The structure of the petitioner’s objection ignores the court of appeals’
thorough adjudication of all the claims the objection identifies. Given that, no
district court—no “reasonable jurist”—could grant habeas relief on those
claims unless the court of appeals’ decision was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States,” or “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.” The issue is not whether reasonable
jurists could disagree that the post-arrest MySpace pages were of marginal
relevance. The issue is whether reasonable jurists could disagree that the
Wisconsin Court of Appeals’ conclusions that (a) trial counsel was able to
explore V.A.L.’s behavior before the petitioner was arrested (in other words,
evidence of her motive to lie about the sexual assaults), (b) the exclusion was
proper to guard against jury confusion and the introduction of cumulative
evidence, (c) the trial court properly limited cross-examination of V.A.L.’s
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mother, and (d) any error on the trial court’s part was harmless, were contrary
to federal law or based on an unreasonable determination of the facts given the
evidence presented at trial. The question is not whether reasonable jurists
could differ that the petitioner’s trial counsel was not ineffective, or that the
state did not violate Brady, or that the petitioner’s constitutional challenge to
Wis. Stat. §948.25 was resolved by Johnson. It is whether reasonable jurists
could disagree that the Wisconsin Court of Appeals’ conclusions were contrary
to federal law or based on an unreasonable determination of the facts given the
evidence presented at trial.
Conducting a de novo review of these issues, the court finds that
reasonable jurists could not disagree regarding whether the Wisconsin Court of
Appeals’ rulings on these issues were contrary to federal law or were based on
an unreasonable determination of the facts. This court declines to issue a
certificate of appealability.2
III.

CONCLUSION
The court OVERRULES the petitioner’s objections. Dkt. No. 19.
The court ADOPTS Judge Duffin’s recommendation. Dkt. No. 18.
The court ORDERS that the petition is DISMISSED.
The court DECLINES to issue a certificate of appealability.
Dated in Milwaukee, Wisconsin this 19th day of March, 2019.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

While the petitioner cannot appeal this court’s decision not to issue a
certificate of appealability, he does have the ability to seek such a petition from
the Seventh Circuit. Rule 11(a), Rules Governing section 2254 Cases in the
United States District Courts.
2

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