Campbell v. Symdon et al

Filing 26

ORDER signed by Judge J P Stadtmueller on 1/29/2020: DENYING 1 Petitioner's Petition for Writ of Habeas Corpus; DENYING Certificate of Appealability; and DISMISSING CASE with prejudice. (cc: all counsel, via mail to Matthew D Campbell)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MATTHEW D. CAMPBELL,
Petitioner,
v.
DENISE SYMDON and EMILY KERR,

Case No. 17-CV-1386-JPS

ORDER

Respondents.
1.

INTRODUCTION
On February 13, 2009, a jury in the Dodge County Circuit Court

found Petitioner Matthew D. Campbell (“Campbell”) guilty of seconddegree sexual assault of a child, using a computer to facilitate a child sex
crime, and causing a child between thirteen and eighteen years of age to
view sexual activity. (Docket #14-1). Campbell used a computer to
communicate with K.A., a fourteen-year-old girl, that he wanted to have
sexual contact with her, and he later went to K.A.’s home while her mother
was away, masturbated in front of her, and squeezed her breast from
behind while she sat at her computer desk. (Docket #14-12 at 2). Campbell
was sentenced to five years’ imprisonment to be followed by ten years of
extended supervision and thirteen years of probation. (Docket #14-1).
Campbell appealed his convictions, arguing that he received
ineffective assistance of counsel in several respects. (Docket #1 at 3–4). The
state courts rejected Campbell’s arguments, finding that he had not
demonstrated that his trial lawyer exhibited deficient performance or that
he was prejudiced by his lawyer’s alleged errors. Campbell subsequently

filed a post-conviction motion seeking a new trial based on newly
discovered evidence. Id. at 4–5. The motion was denied by the circuit court,
the Wisconsin Court of Appeals affirmed, and the Wisconsin Supreme
Court denied Campbell’s petition for review. As of February 2018,
Campbell was on extended supervision under the control of Denise
Symdon and Emily Kerr (“Respondents”), both supervisors in the
Wisconsin Department of Corrections. (Docket #14 at 1).
In October 2017, Campbell filed the instant petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is in custody in
violation of the United States Constitution because his trial lawyer
provided ineffective assistance of counsel and the State of Wisconsin (“the
State”) relied on faulty and misleading evidence to convict him. (Docket #1
at 6–8). Respondents maintain that Campbell has not satisfied his burden
of proving that his claims merit relief under the deferential standards set
forth in Section 2254. (Docket #22). The Court agrees. Because the state court
decisions denying Campbell’s claims were not objectively unreasonable,
Campbell is not entitled to relief under Section 2254. Accordingly, his
petition must be denied.
2.

BACKGROUND
2.1

Trial Proceedings

Campbell was charged in Dodge County Circuit Court with (1)
having sexual contact with K.A., a child under the age of sixteen; (2) using
a computerized communication system to communicate with an individual
who he believed or had reason to believe had not attained the age of sixteen
with the intent to have sexual contact or sexual intercourse with that
individual; and (3) intentionally causing a child between thirteen and
eighteen years of age to view sexually explicit conduct. (Docket #14-18 at
Page 2 of 21

88–90). All three charges stemmed from an incident that occurred on
December 28, 2007, in the city of Waupun, Wisconsin. Id. Campbell was
tried before a jury in February 2009. During direct-examination on the first
day of trial,
[K.A.] testified that Campbell had first contacted her online
by an instant messaging program, using a false name. After
about a week of exchanging messages, including several
sexually explicit ones, [K.A.] invited Campbell to come hang
out at her home while her mother was away. After Campbell
arrived, [K.A.] finished her breakfast, then took Campbell up
to her bedroom, where they watched television. At some
point, [K.A.] went downstairs to let the dogs out and, when
she returned to her bedroom, Campbell was naked on her
bed, masturbating. [K.A.] said that she then went to use her
laptop, so that she could face away from Campbell and ignore
him, but Campbell came up behind her at her computer desk
and squeezed her breast. Shortly thereafter, [K.A.] realized
that her mother’s boyfriend had come home, and when she
advised Campbell of that, he got dressed quickly. [K.A.] told
Campbell that he had forgotten to put his underwear on, and
saw him put a pair of dark red, Speedo-type underwear into
his pocket.
(Docket #14-12 at 2).
During cross-examination, K.A. testified that she did not expect to
have sexual contact with Campbell during their planned encounter at her
home. (Docket #14-5 at 2). The following day, K.A. was confronted with
portions of an Internet chat log containing the instant messaging
communications between her and Campbell. (Docket #14-20 at 14–28). “The
only reasonable inference to be drawn from the excerpt of the chat log . . .
was that [K.A.] expected to have sexual contact with Campbell in her
home.” (Docket #14-5 at 2–3). K.A. admitted that her testimony from the

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previous day—that she never expected to have sex with Campbell—was a
lie. Id. at 3.
After K.A. admitted to lying under oath, the trial court excused the
jury and informed K.A. that she had a constitutional right to remain silent
and not to incriminate herself. Id. When questioning resumed, K.A.
invoked her Fifth Amendment right against selfincrimination. The prosecutor moved for the court to grant
her immunity, and trial counsel did not object. The court
granted the motion. . . .
Trial counsel was then permitted to resume crossexamination. Counsel attacked [K.A.’s] credibility on crossexamination, questioning [K.A.] about her prior testimony at
the preliminary hearing in [the] case, her testimony on direct
examination at trial, and statements she made to police
officers. This included highlighting inconsistencies and
admissions by [K.A.] that she had lied on various topics.
Id. at 4–5.
Later in the trial, the State called Christine Byars (“Byars”), a criminal
analyst with the Wisconsin Department of Justice, as an expert witness
regarding computers. (Docket #14-22 at 7–75). Byars testified that
temporary internet files are automatically saved to a computer when a web
page is accessed. Id. at 54. She further testified that the last access date and
time on a file is the last time that file was accessed, meaning “the last time
that . . . the computer drew upon that temporary internet file.” Id. at 55–56.
Byars agreed that “the computer would be drawing upon that temporary
internet file because somebody is looking at that web page on the web.” Id.
at 56.
According to Byars, a computer recovered from K.A.’s bedroom had
last accessed timestamps of 2:28 p.m. and 2:46 p.m. on December 28, 2007—
the date Campbell was at K.A.’s house. Id. at 56, 72. Byars agreed that a
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temporary internet file is automatically created when a computer user looks
at a web page. She also agreed that the fact the last temporary internet file
was at 2:46 p.m. suggested that the user of the computer did not look at any
websites after 2:46. Id. at 56–57.
After the State rested, defense counsel moved to dismiss the charges,
arguing that no rational jury could credit K.A.’s testimony. Id. at 76. The
trial court denied the motion. Id. at 77. The defense then began its case, and
Campbell testified in his own defense.
[Campbell] acknowledged that he had engaged in sexually
explicit chats with [K.A.] under a false computer user name,
but claimed that he did not know [K.A.’s] age during the chats
and that he had taken Ambien the day of the incident and
could not remember any of the sexually explicit chats or why
he had gone over to [K.A.’s] house. Campbell testified that he
did remember he had been laying on [K.A.’s] bed, fully
clothed, watching television, when [K.A.] had undressed and
tried to get him to have sex with her, and that at no time
during the encounter did [K.A.] use her computer.
(Docket #14-12 at 3).
During closing arguments, the prosecutor argued that the timestamp
evidence supported K.A.’s version of events:
So she sits down at the computer, and she goes online. And
let’s remember that there’s evidence to support that. The
times are all goofy. Nobody can really set a real good time.
But we know somebody was on that computer at 2:46. That’s
when the defendant says they were just watching TV or
sitting around on her bed watching TV. Somebody is on the
computer at 2:46 in the afternoon, an hour and 15 minutes
before the cops get there.
(Docket #14-23 at 65). The jury ultimately found Campbell guilty of all three
charges. Id. at 134–37.

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2.2

Post-Conviction Proceedings

Campbell obtained new counsel for post-conviction proceedings.
(Docket #1 at 11). He filed a motion for a new trial on the ground that his
trial lawyer was constitutionally ineffective for several reasons. (Docket
#14-5 at 5). The trial court denied the motion following a hearing in which
Campbell’s trial lawyer (and others) testified. (Docket #14-24 and #14-25).
Campbell appealed, arguing (among other things) that his trial
lawyer was ineffective for not objecting to or moving to strike K.A.’s direct
testimony when she invoked her Fifth Amendment rights on crossexamination and for failing to consult or retain an expert as to the effects of
Ambien CR. (Docket #14-2; Docket #14-3; Docket #14-4). On July 24, 2014,
the Wisconsin Court of Appeals issued a decision affirming Campbell’s
judgment of conviction and the order denying his motion for a new trial.
(Docket #14-5). Regarding K.A.’s testimony, the appellate court determined
that Campbell had failed to demonstrate that his trial lawyer performed
deficiently, finding that a motion to strike would have been unsuccessful.
Id. at 7–10. Because “Campbell was able to conduct a full cross-examination
of [K.A.], in the court’s view, “there was no basis in this case for striking
[her] testimony.” Id. at 9.
As to the second issue, the appellate court determined that Campbell
had failed to demonstrate that he was prejudiced by his trial lawyer’s
failure to more thoroughly develop a so-called Ambien defense. Id. at 12–
15. The court limited its analysis to Count Two, concluding “that there is
not a reasonable probability that the jury would have acquitted Campbell
of using a computer to facilitate a child sex crime.” Id. at 13. According to
the court, “the undisputed evidence strongly support[ed] a jury finding [on
that count].” Id. at 15.
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Campbell sought review of the appellate court’s decision, raising the
same two issues described above. (Docket #14-6 and Docket #14-7). The
Wisconsin Supreme Court summarily denied his petition for review on
October 6, 2014. (Docket #14-8). Campbell did not file a petition for
certiorari in the United States Supreme Court. (Docket #1 at 4).
Proceeding without the assistance of counsel, on November 12, 2015,
Campbell filed a motion for post-conviction relief seeking a new trial
pursuant to Wis. Stat. § 974.06. (Docket #1 at 4). He argued that newly
discovered evidence showed that Byars’s timestamp testimony was invalid,
and thus, its use violated his rights to due process and fundamental
fairness. Id. The alleged newly discovered evidence was an affidavit from
Daniel R. Meinke (“Meinke”), a certified examiner on the software Byars
used to analyze the seized computer. (Docket #14-9 at 58–60). Meinke
opined that “solely relying on last accessed date and time stamps, as a
means of validating human user activity on a computer, is faulty and is not
generally accepted as a best practice by computer forensic experts.” Id. at
59. He further opined that “a last accessed date and time stamp attribute is
not necessarily recorded as the result of human interaction.” Id. That is,
“automated operating system processes, application processes, and
network processes all have the ability to update last accessed date and time
stamps of files without a user’s knowledge, action, or even physical
presence.” Id. The circuit court rejected Campbell’s arguments and denied
his motion without a hearing. Id. at 83–85.
Campbell appealed again. (Docket # 14-9; Docket #14-10; Docket #1411.) On June 23, 2017, the Wisconsin Court of Appeals issued a decision
affirming the denial of Campbell’s § 974.06 motion. (Docket #14-12). The
appellate court determined that, at best, Meinke’s opinion would have
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provided less corroboration for K.A.’s version of events, but it would not
have disproven her account altogether. (Docket #14-12 at 4). The court also
found that Campbell was negligent in failing to pursue the expert opinion
prior to trial. Id. at 4–5. Lastly, the court held that, given the strength of
other evidence, it was “not reasonably probable that the newly discovered
expert opinion would lead to a different result at a new trial.” Id. at 5.
Again, Campbell sought review of the appellate court’s decision.
(Docket #14-13 and Docket #14-14.) The Wisconsin Supreme Court
summarily denied his petition for review on September 11, 2017. (Docket
#14-15).
2.3

Federal Habeas Proceedings

On October 11, 2017, Campbell filed a federal habeas petition
pursuant to Section 2254 presenting three grounds for relief: (1) trial counsel
was ineffective for not moving to strike K.A.’s direct testimony and for not
objecting to the immunity given to K.A. during cross-examination; (2) trial
counsel was ineffective for not consulting or retaining an Ambien expert to
testify at trial; and (3) the State used faulty and misleading forensic
testimony to convict him. (Docket #1 at 6–8).
The matter was randomly assigned to United States Magistrate
Judge David E. Jones. In accordance with Magistrate Judge Jones’s briefing
schedule, Campbell filed a brief in support of his petition on March 14, 2018,
(Docket #17), Respondents submitted their brief in opposition on July 3,
2018, (Docket #22), and Campbell filed a reply on July 30, 2018, (Docket #23).
The matter was randomly reassigned to this Court in October 2019.
3.

LEGAL STANDARD
State criminal convictions are generally considered final. Review

may be had in federal court only on limited grounds. Under the
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Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a
prisoner in custody pursuant to a state-court judgment of conviction is
entitled to federal habeas relief only if he is “in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
With respect to claims adjudicated on the merits in state court, a federal
court can grant an application for a writ of habeas corpus “only if the state
court’s decision was contrary to clearly established Supreme Court
precedent, involved an unreasonable application of such precedent, or was
based on an unreasonable determination of the facts in light of the evidence
presented in state court.” Promotor v. Pollard, 628 F.3d 878, 888 (7th Cir. 2010)
(citing 28 U.S.C. § 2254(d)); see also White v. Woodall, 134 S. Ct. 1697, 1702
(2014). The burden of proof rests with the petitioner. Cullen v. Pinholster, 563
U.S. 170, 181 (2011). The relevant decision for this Court to review is that of
the last state court to rule on the merits of the petitioner’s claim. Charlton v.
Davis, 439 F.3d 369, 374 (7th Cir. 2006). In Campbell’s case, there are two
such decisions under review: the Wisconsin Court of Appeals’ July 24, 2014
and June 23, 2017 opinions.
A state-court decision runs contrary to clearly established Supreme
Court precedent “if it applies a rule that contradicts the governing law set
forth in [those] cases, or if it confronts a set of facts that is materially
indistinguishable from a decision of [the Supreme] Court but reaches a
different result.” Brown v. Payton, 544 U.S. 133, 141 (2005). A state court
unreasonably applies clearly established Supreme Court precedent when it
applies that precedent to the facts in an objectively unreasonable manner.
Id.; Bailey v. Lemke, 735 F.3d 945, 949 (7th Cir. 2013). A state-court decision
is based on an unreasonable determination of the facts “when it ‘rests upon
fact-finding that ignores the clear and convincing weight of the evidence.’”
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McManus v. Neal, 779 F.3d 634, 649 (7th Cir. 2015) (quoting Goudy v.
Basinger, 604 F.3d 394, 399 (7th Cir. 2010)).
AEDPA undoubtedly mandates a deferential standard of review.
The Supreme Court has “emphasized with rather unexpected vigor” the
strict limits imposed by Congress on the authority of federal habeas courts
to overturn state criminal convictions. Price v. Thurmer, 637 F.3d 831, 839
(7th Cir. 2011). It is not enough for the petitioner to prove the state courts
were wrong; he must also prove they acted unreasonably. Harrington v.
Richter, 562 U.S. 86, 101 (2005); Campbell v. Smith, 770 F.3d 540, 546 (7th Cir.
2014) (“An ‘unreasonable application of’ federal law means ‘objectively
unreasonable, not merely wrong; even ‘clear error’ will not suffice.’”)
(quoting White, 134 S. Ct. at 1702).
Indeed, the habeas petitioner must demonstrate that the state court
decision is “so erroneous that ‘there is no possibility fairminded jurists
could disagree that the state court’s decision conflicts with [the Supreme]
Court’s precedents.’” Nevada v. Jackson, 569 U.S. 505, 508–09 (2013) (quoting
Harrington, 562 U.S. at 102). The state court decisions must “be given the
benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002); Hartjes v.
Endicott, 456 F.3d 786, 792 (7th Cir. 2006). As the Supreme Court has
explained, “[i]f this standard is difficult to meet, that is because it was
meant to be.” Harrington, 562 U.S. at 102. Indeed, Section 2254(d) stops just
short of “imposing a complete bar on federal-court relitigation of claims
already rejected in state proceedings.” See id. This is so because “habeas
corpus is a ‘guard against extreme malfunctions in the state criminal justice
systems,’ not a substitute for ordinary error correction through appeal.” Id.
at 102–03 (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens,
J., concurring)).
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4.

ANALYSIS
The Court concludes that Campbell is not entitled to relief on any of

his claims in light of this demanding standard of review. The Court will
address each claim in turn.
4.1

Ineffective Assistance of Counsel Claims

The Seventh Circuit’s Blake opinion neatly summarizes the standards
applicable to Campbell’s ineffective assistance claims:
A party asserting ineffective assistance of counsel
bears the burden of establishing two elements: (1) that his trial
counsel’s performance fell below objective standards for
reasonably effective representation, and (2) that counsel’s
deficiency prejudiced the defense. Strickland v. Washington,
466 U.S. 668, 687–88 . . . (1984)[.]
To satisfy the first element of the Strickland test,
appellant must direct the Court to specific acts or omissions
by his counsel. In that context, the Court considers whether in
light of all the circumstances counsel’s performance was
outside the wide range of professionally competent
assistance. The Court’s assessment of counsel’s performance
is “highly deferential[,] . . . indulg[ing] a strong presumption
that counsel’s conduct falls within the wide range of
reasonable professional assistance[.]” [Id. at 689.]
...
To satisfy the second Strickland element, appellant
must show that there is a reasonable probability that, but for
counsel’s errors, the result of the proceedings would have
been different, such that the proceedings were fundamentally
unfair or unreliable. A reasonable probability is defined as
one that is sufficient to undermine confidence in an outcome.
Blake v. United States, 723 F.3d 870, 878–79 (7th Cir. 2013) (citations and
quotations omitted).
The Strickland test, layered underneath the above-described
standard of review, produces the following question for the Court to

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answer: whether the Wisconsin Court of Appeals’ rulings on Campbell’s
claims represents an unreasonable application of the Strickland standard.
Harrington, 562 U.S. at 101. As Blake explains, claims of ineffective assistance
are already assessed with deference to trial counsel. Presenting such claims
in the context of a habeas proceeding means that Campbell must not only
prove that the Court of Appeals’ analysis was wrong, but additionally that
it was “so lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for fairminded
disagreement.” Id. at 103; id. at 105 (“The standards created by Strickland
and § 2254(d) are both highly deferential, and when the two apply in
tandem, review is doubly so[.]”) (citations and quotations omitted).
4.1.1

Ground One: K.A.’s Testimony

Campbell argues that the Wisconsin Court of Appeals unreasonably
applied clearly established federal law when it determined that his trial
lawyer was not ineffective for not objecting to or moving to strike K.A.’s
testimony. (Docket #17 at 5–11.) He maintains that the appellate court
erroneously believed that K.A. retained her Fifth Amendment privilege
despite voluntarily testifying on direct-examination. Campbell further
maintains that counsel’s ability to continue cross-examination of K.A. is
immaterial to his ineffective assistance claim because, if counsel had moved
to strike K.A.’s testimony as soon as she refused to answer further
questions, the motion would have been granted, and “the trial would have
ended in his favor.” (Id. at 11.) According to Campbell, his trial lawyer
admitted at the post-conviction hearing that he did not know of a basis to

Page 12 of 21

strike K.A.’s testimony, so his failure to so move cannot be considered
strategy.
The Wisconsin Court of Appeals reasonably determined that there
was no basis to strike K.A.’s testimony. The court accurately noted that
striking a witness’s testimony after she invokes her right against selfincrimination is generally available only when that invocation denies the
defendant’s right to confrontation. Indeed, several of the cases Campbell
cites in support of his argument—e.g., United States v. Cardillo, 316 F.2d 606
(2d Cir. 1963) and Klein v. Harris, 667 F.2d 274 (2d Cir. 1981)—analyze a
potential motion to strike in the context of a defendant’s Sixth Amendment
right to confront witnesses. Here, the Court of Appeals did not
unreasonably apply clearly established federal law when it held that K.A.’s
invocation of her Fifth Amendment rights did not deny Campbell his right
to confrontation, as K.A. was granted immunity, and Campbell’s trial
lawyer was able to thoroughly cross-examine her about her inconsistent
answers.
The Supreme Court cases cited by Campbell, see (Docket #17 at 7–8),
are easily distinguishable from this case. Those cases do not, as Campbell
suggests, mandate finding that a witness has waived her Fifth Amendment
rights by voluntarily testifying. Rather, they hold that a witness cannot
improperly use her Fifth Amendment rights to shield testimony from crossexamination. See, e.g., Mitchell v. United States, 526 U.S. 314, 321 (1999) (“It is
well established that a witness, in a single proceeding, may not testify
voluntarily about a subject and then invoke the privilege against selfincrimination when questioned about the details.”). That uncontroversial
rule is not implicated here. K.A. was granted immunity to ensure that she
continued to testify, including during cross-examination by Campbell’s
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trial lawyer. In essence, the circuit court replaced K.A.’s shield against
further questioning with a shield of immunity for her answers.
Campbell’s attempt to freeze the analysis at the precise moment K.A.
invoked her right against self-incrimination is unavailing. The parties had
already explained to K.A. that she would be granted use and derivative
immunity if she continued to testify after invoking her Fifth Amendment
rights. Thus, trial counsel never had a basis to argue that he was prevented
from questioning K.A. about the details of her direct-examination
testimony.
Because the Wisconsin Court of Appeals reasonably determined that
there was no basis to strike K.A.’s testimony, the Court does not need to
address whether trial counsel had a strategic reason for not moving to strike
the testimony or whether Campbell was prejudiced by his lawyer’s alleged
error. Ground One is without merit.
4.1.2

Ground Two: Ambien Defense

Campbell also argues that the Wisconsin Court of Appeals
unreasonably applied clearly established federal law when it determined
that he was not prejudiced by his trial lawyer’s failure to consult or retain
an expert on the effects of Ambien CR. (Docket #17 at 12–17). He maintains
that the appellate court erred in applying this argument to only Count Two,
the computer crime. According to Campbell, an expert would have
corroborated his testimony concerning the side effects of Ambien CR,
thereby showing that he lacked intent to have sexual contact with K.A.
Expert testimony, in Campbell’s view, also would have significantly
increased the likelihood that the jury would have believed his testimony
that he was not aware of K.A.’s age, that he did not masturbate in front of
K.A., and that he did not sexually assault K.A.
Page 14 of 21

The Wisconsin Court of Appeals reasonably determined that
Campbell’s Ambien defense argument did not appear to apply his
convictions for second-degree sexual assault of a child and causing a child
under eighteen years of age to view sexual activity. In his state appellate
briefs, Campbell limited his Ambien argument primarily to his “chat room
behavior.” (Docket #14-2 at 38–41 and Docket #14-4 at 10–12). Moreover, at
trial, Campbell testified that he remembered being at K.A.’s house, and he
provided extensive details about what happened while he was there.
(Docket #14-22 at 110–14, 117–42). Thus, the appellate court had no reason
to believe that Campbell was alleging that trial counsel’s failure to consult
or retain an Ambien expert affected his convictions on Count One or Count
Three.
The Wisconsin Court of Appeals also reasonably determined that,
had Campbell’s trial lawyer further developed an Ambien defense, there
was not a reasonable probability that the jury would have acquitted
Campbell of using a computer to facilitate a child sex crime. The appellate
court indicated that the State had to
present evidence establishing beyond a reasonable doubt that
Campbell: used a computer to communicate with [K.A];
believed or had reason to believe that [K.A.] was under the
age of sixteen years old; had the intent to have sexual contact
with [K.A.]; and did an act, in addition to using the computer,
to carry out the intent to have sexual contact with [K.A.].
(Docket #14-5 at 14).
The court noted that the first element was undisputed. As to the
second element, the court pointed to Campbell’s trial testimony that it was
“highly likely” he viewed an online profile where K.A. listed her age as
thirteen and appeared to be under sixteen years old. Also, in the online

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communications between Campbell and K.A., Campbell commented that
K.A. was “so young” and “expressed fear of criminal consequences if the
two had sexual contact.” Id. Regarding intent, the court concluded that the
chat logs—wherein Campbell described in graphic detail the sexual contact
he wanted to engage in with K.A.—showed that Campbell had an intent to
have sexual contact with K.A. Id. at 14–15. Finally, the court found that
Campbell’s meeting K.A. at her home and following her into her bedroom
was sufficient to satisfy “the additional act” element. Id. at 15.
Campbell has not demonstrated that the Wisconsin Court of
Appeals’ Strickland analysis was “so lacking in justification that there was
an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Harrington, 562 U.S. at 103.
Campbell testified that he first encountered K.A. online on December 27,
2007, while he was searching for people in Waupun. (Docket #14-22 at 84–
86). According to Campbell, he and his wife were hoping to invest in real
estate, and he wanted “to see what kind of people live in Waupun.” Id. at
85. He chatted with K.A. for about ten to fifteen minutes; the conversation
ended shortly after K.A. asked him to come over, which he thought was
“kind of bizarre.” Id. at 88–89.
Later that day, Campbell obtained a new prescription for Ambien
CR. Id. at 96–98. At night he took one of his new pills. Id. at 98. Campbell
claimed that he did not recall a conversation from that night wherein he
discussed having sexual contact with K.A. Id. at 150–53. Campbell testified
that he woke up the next morning at about 7:00 or 8:00 a.m., id. at 98,
dropped his kids off at their childcare center, and took two more Ambien
CRs, id. at 101. He remembered being at Radio Shack but did not recall
going to Wal-Mart or driving to K.A.’s house. Id. at 101–06. Nor did he
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remember engaging in a highly graphic sexual conversation with K.A. that
morning. Id. at 106–07, 109. As the jury verdict reveals, Campbell’s
testimony supporting his Ambien defense—that he lacked intent to have
sexual contact with K.A.—was not credible. Neither the Wisconsin Court of
Appeals, nor this Court, can second guess the jury’s credibility
determinations. The Court finds that Ground Two is also without merit.
4.2

Ground Three: Due Process Claim

Finally, Campbell argues that the Wisconsin Court of Appeals
unreasonably applied clearly established federal law and based its decision
on an unreasonable determination of the facts when it affirmed the order
denying his due process claim. (Docket #17 at 18–30). He maintains that the
use of Byars’s expert trial testimony violated his rights to due process and
fundamental fairness because the testimony misled the jury into believing
that the State’s timestamp evidence conclusively showed that a human user
was on K.A.’s computer at the time she claimed Campbell grabbed her
breast. In his post-conviction motion, Campbell presented an affidavit from
a forensic expert who opined that timestamps can result from an automated
computer process. This affidavit, in Campbell’s view, demonstrated that
Byars’s testimony was faulty and unreliable.
Campbell argues that his due process claim should be reviewed
under Napue v. Illinois, 360 U.S. 264 (1959) and Giglio v. United States, 405
U.S. 150 (1972). In Napue, the Supreme Court held that “a State may not
knowingly use false evidence, including false testimony, to obtain a tainted
conviction” and that a new trial is required if “the false testimony could
. . . in any reasonable likelihood have affected the judgment of the jury.
Napue, 360 U.S. at 269, 271. The Court reaffirmed these principles in Giglio,
holding that “deliberate deception of a court and jurors by the presentation
Page 17 of 21

of known false evidence is incompatible with ‘rudimentary demands of
justice.’” Giglio, 405 U.S. at 153 (quoting Mooney v. Holohan, 294 U.S. 103, 112
(1935)).
Campbell has failed to demonstrate that the Wisconsin Court of
Appeals unreasonably applied Napue or Giglio to his case. The appellate
court reasonably determined that Byars’s testimony was not false (or, to use
Campbell’s preferred term, faulty). Byars testified that a human user
accessing a web page would create a last accessed timestamp. (Docket #1422 at 54–56, 72). She did not claim, or even imply, that human activity was
the only way a last accessed timestamp could be created. Indeed, Meinke’s
affidavit states that a last accessed timestamp is “not necessarily” the result
of human interaction, meaning it could have been created by a human user,
or it could have been created by the computer’s automated processes.
The appellate court also reasonably determined that it was not
reasonably probable that Meinke’s affidavit would have led to a different
result at a new trial because the other available evidence was so strong. For
example, the court noted that the sexually explicit chat logs between
Campbell and K.A. tended to show Campbell’s guilt. Also, when Campbell
was arrested immediately following the incident, he was not wearing any
underwear. This undisputed fact was consistent with K.A.’s claim that
Campbell was nude at one point, quickly dressed himself, and forgot to put
on his underwear. In other words, the timestamp evidence was not
necessary to convict Campbell.
For similar reasons, Campbell has failed to demonstrate that the
Wisconsin Court of Appeals’ factual determinations were unreasonable. He
argues that Byars’s testimony was presented as a scientific fact—that is, it
did not leave open the possibility of non-human causes of the last accessed
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timestamp. The Wisconsin Court of Appeals disagreed. An independent
review of the testimony reveals that the appellate court’s finding was a
reasonable determination of the facts. Byars presented one possible
explanation (i.e., a human user) for the last accessed timestamp on K.A.’s
computer. She did not, as Campbell suggests, claim that the existence of the
timestamp showed that someone was on the computer at that time. Though,
as the State argued in closings, it could fairly be inferred from the evidence
that K.A. was on her computer while Campbell was in her bedroom. The
jury apparently agreed with this reasonable inference and convicted
Campbell.
As with Campbell’s other claims, Ground Three is without merit.
5.

CONCLUSION
Campbell has not shown that the Wisconsin Court of Appeals

unreasonably applied Supreme Court precedent in rejecting his ineffective
assistance of counsel and due process claims. Likewise, Campbell has not
shown that the Wisconsin Court of Appeals’ decision rejecting his due
process claim was based on an unreasonable determination of the facts in
light of the evidence presented in state court. Campbell’s petition must,
therefore, be dismissed with prejudice.
Under Rule 11(a) of the Rules Governing Section 2254 Cases, “[t]he
district court must issue or deny a certificate of appealability when it enters
a final order adverse to the [habeas] applicant.” To obtain a certificate of
appealability, Campbell must make a “substantial showing of the denial of
a constitutional right,” 28 U.S.C. § 2253(c)(2), by establishing that
“reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further,”
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Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal citations omitted). For
the reasons discussed above, no reasonable jurists could debate whether
Campbell’s claims have merit. The Court will, therefore, deny Campbell a
certificate of appealability.
Finally, the Court closes with some information about the actions
that Campbell may take if he wishes to challenge the Court’s resolution of
this case. This order and the judgment to follow are final. A dissatisfied
party may appeal this Court’s decision to the Court of Appeals for the
Seventh Circuit by filing in this Court a notice of appeal within 30 days of
the entry of judgment. See Fed. R. App. P. 3, 4. This Court may extend this
deadline if a party timely requests an extension and shows good cause or
excusable neglect for not being able to meet the 30-day deadline. See Fed. R.
App. P. 4(a)(5)(A). Moreover, under certain circumstances, a party may ask
this Court to alter or amend its judgment under Federal Rule of Civil
Procedure 59(e) or ask for relief from judgment under Federal Rule of Civil
Procedure 60(b). Any motion under Federal Rule of Civil Procedure 59(e)
must be filed within 28 days of the entry of judgment. The Court cannot
extend this deadline. See Fed. R. Civ. P. 6(b)(2). Any motion under Federal
Rule of Civil Procedure 60(b) must be filed within a reasonable time,
generally no more than one year after the entry of the judgment. The court
cannot extend this deadline. See id. A party is expected to closely review all
applicable rules and determine what, if any, further action is appropriate in
a case.
Accordingly,
IT IS ORDERED that Petitioner Matthew D. Campbell’s petition for
a writ of habeas corpus (Docket #1) be and the same is hereby DENIED;

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IT IS FURTHER ORDERED that a certificate of appealability as to
Petitioner Matthew D. Campbell’s petition be and the same is hereby
DENIED; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 29th day of January, 2020.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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