Anderson, Edward v. Tegels, Lizzie

Filing 32

Transmission of Notice of Appeal, Appeal Information Sheet, Docket Sheet, Orders and Judgment to Seventh Circuit Court of Appeals re 29 Notice of Appeal (Attachments: # 1 Info Sheet, # 2 August 12, 2014 Order, # 3 August 12, 2014 Judgment, # 4 September 8, 2014 Order, # 5 Docket Sheet) (elc),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
EDWARD D. ANDERSON,
Petitioner,

OPINION AND ORDER

v.

11-cv-584-wmc

LIZZIE TEGELS, Warden,
New Lisbon Correctional Institution,
Respondent.

Petitioner Edward D. Anderson seeks a writ of habeas corpus under 28 U.S.C.
§ 2254, challenging the validity of his state court convictions for sexual assault of a child.
After conducting a preliminary review of Anderson’s petition, this court directed
respondent to show cause why relief should not be granted. The respondent filed an
answer, along with records from the relevant state court proceedings, and both parties
subsequently submitted briefing. Because the record established that Anderson is not
entitled to the relief sought, his petition will now be denied.

BACKGROUND
Anderson was charged with two separate counts of first-degree sexual assault of a
child in Milwaukee County Case No. 01CF1783. In particular, Anderson was charged
with sexually assaulting his four-year-old niece by making “mouth-to-vagina” contact
(count one) and by making “penis-to-anus” contact (count two).

1

Anderson filed a pre-trial motion pursuant to State v. Pulizzano, 155 Wis. 2d 633,
456 N.W.2d 325 (1990), seeking to admit evidence of the four-year-old victim’s prior
sexual conduct. In particular, Anderson wanted to present testimony from Anderson’s
mother, who reportedly witnessed the victim, then approximately two years old, licking
the crotch of a Barbie doll. When Anderson’s mother inquired what she was doing, the
child reportedly said that her own mother had taught her to do that. The circuit court
denied Anderson’s motion without a hearing, concluding that the evidence was barred by
the Wisconsin rape-shield statute, Wis. Stat. § 972.11(2)(b).

Anderson was

subsequently convicted of reduced charges (two counts of third-degree sexual assault)
following a bench trial, which featured a videotaped interview of the victim made during
the criminal investigation. The circuit court sentenced Anderson to serve a total of eight
years’ confinement followed by eight years of extended supervision.
Anderson filed a motion for post-conviction relief, alleging that his trial attorneys
were deficient and that his sentence was unduly harsh. The circuit court disagreed on
both counts.
On direct appeal, Anderson argued that he was denied a speedy trial and also
denied his due process right to present a defense when the circuit court excluded
evidence of the victim’s prior sexual conduct, which he claimed would show an
alternative source of sexual knowledge.

The Wisconsin Court of Appeals rejected

Anderson’s speedy-trial claim, but remanded the case for a hearing on Anderson’s motion
to admit evidence under Pulizzano, noting that the conduct described by Anderson was

2

similar to one of the charged counts of sexual assault. See State v. Anderson, Appeal No.
2004AP2607-CR (Sept. 27, 2005).
On remand, the circuit court heard testimony from Anderson’s mother, Susan
King, and from the victim’s mother, Julie Wapp. King testified that she babysat for the
victim in 1998, and observed the child licking a Barbie doll between its legs. The child
then stated that “mommy” showed her this activity. King testified that she told Wapp
about the incident that same day. Wapp testified, however, that she had no recollection
of having this discussion with King or hearing anything about such an incident until after
criminal charges were initiated against Anderson. Wapp testified, moreover, that the
victim had never enjoyed playing with dolls. Based on this testimony, the circuit court
found that Anderson’s offer of proof failed to satisfy “the Pulizzano test” for admitting
evidence of a victim’s prior sexual contact.
Again on appeal before the Wisconsin Court of Appeals, this proposed evidence
was similarly deemed to have been properly excluded under the Pulizzano test:
¶ 12 To establish a constitutional right to present evidence that is
otherwise barred by Wis. Stat. § 972.11, a defendant must satisfy the test
developed in Pulizzano. First, the defendant must make an offer of proof
satisfying each of five criteria: (1) the prior act clearly occurred; (2) the act
closely resembles that in the present case; (3) the prior act is clearly
relevant to a material issue; (4) the evidence is necessary to the defendant’s
case; and (5) the probative value outweighs the prejudicial effect. Pulizzano,
155 Wis. 2d at 656, 456 N.W.2d at 335. A defendant’s offer of proof fails
the Pulizzano test if any of the five criteria are not met and the court need
not go further in applying the test. State v. Dunlap, 2002 WI 19, ¶ 29, 250
Wis. 2d 466, 484, 640 N.W.2d 112, 120. If the defendant does satisfy the
five Pulizzano criteria, the court must determine “whether the defendant’s
right to present the [] evidence is nonetheless outweighed by the State’s

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compelling interest to exclude [it].” St. George, 2002 WI 50, ¶ 20, 252 Wis.
2d at 516, 643 N.W.2d at 783.
¶ 13 In assessing Anderson’s offer of proof, the circuit court accepted
Wapp’s testimony that A.P. simply did not play with dolls. It found that
A.P. was “not a doll kid” and discounted King’s recollection of observing
the victim with a doll at all. The court further found that King raised the
Barbie doll incident after her son was arrested and faced trial. It found that
no one else recalled the event.
¶ 14 We defer to the circuit court in both its express and its implicit
credibility determinations.[] See Jacobson v. American Tool Cos., 222 Wis. 2d
384, 390, 588 N.W.2d 67, 70 (Ct. App. 1998). Such deference is
appropriate because the circuit court can observe the witnesses’ demeanor
and gauge the persuasiveness of their testimony. Ibid. The court’s findings
reflect that it did not find King to be a credible witness. We defer to that
finding.
¶ 15 In considering the first Pulizzano criterion, the circuit court
found that the Barbie doll incident did not “clearly occur.” The issue was
one of credibility. King testified that she observed the incident and
reported it contemporaneously to Wapp; Wapp denied hearing of such an
incident prior to the inception of the criminal charges against Anderson.
We conclude that the circuit court did not believe King’s testimony
regarding her observations. Cf. State v. Hubanks, 173 Wis. 2d 1, 27, 496
N.W.2d 96, 105 (Ct. App. 1992) (reviewing court accepts implicit finding
that the circuit court believed one witness and disbelieved another).
Nothing suggests that the court’s determination was based on an erroneous
exercise of discretion or an error of law and accordingly we accept it. See
Board of Attorneys Prof'l Responsibility v. Lucareli, 2000 WI 55, ¶ 32, 235 Wis.
2d 557, 572-573, 611 N.W.2d 754, 762.
¶ 16 King provided the only evidence that the Barbie doll incident
took place. Because the circuit court found that King was not credible in
this regard, nothing supports a finding that the incident clearly occurred.
We agree with the circuit court's conclusion that Anderson therefore failed
to satisfy the first Pulizzano criterion.
¶ 17 We further concur in the circuit court’s assessment of the
second Pulizzano criterion and hold that the prior sexual conduct described
by King does not closely resemble the act in the present case. In
considering this factor, the court described A.P.’s accusation as acts “during
the same period of time . . . with the same victim and involving different
4

types of sexual assault conduct . . . . The acts in the present case are
multiple, and the act reported by King is singular and they are substantially
different.” The court compared the details of A.P.’s accusation to the
Barbie doll incident: “the licking is substantially different than the assault
that A.[P.] reported on her butt . . . . [S]he told her mother that he stuck
her in the butt with his potty. That was hard and it hurt a lot.”
¶ 18 Our review is limited because the record does not contain either
the videotape of the victim’s testimony or a transcript of that videotape.
When the record is incomplete, we will assume that the missing material
supports the ruling under attack. See Fiumefreddo v. McLean, 174 Wis. 2d
10, 26-27, 496 N.W.2d 226, 232 (Ct. App. 1993). We therefore take the
facts to be as the court described them: a sequence of assaultive behaviors
upon A.P., including intrusion into her “butt.”
¶ 19 King’s description of A.P. licking the crotch of a Barbie doll is
not sufficiently like A.P.’s accusation against Anderson as to satisfy the
second Pulizzano criterion. The behavior with the doll does not resemble a
sequence of behaviors encompassing hard and painful anal intrusion. Cf.
Dunlap, 2002 WI 19, ¶ 27, 250 Wis. 2d at 483-484, 640 N.W.2d at 120
(complainant touching men in the genital area, among other behaviors, not
similar to finger-to-vagina contact with possible digital penetration).
Therefore, Anderson did not satisfy the second Pulizzano factor, requiring
the prior conduct to closely resemble that in the instant case. See Pulizzano,
155 Wis.2d at 656, 456 N.W.2d at 335.
¶ 20 We part company with the circuit court in its determination
that the probative value of the prior sexual conduct evidence outweighs any
prejudicial effect. We cannot agree with the court’s assessment of this final
Pulizzano factor.
¶ 21 Probative value is a facet of relevance, specifically, whether the
proffered evidence has a tendency to make the consequential fact or
proposition more or less probable than it would be without the evidence.
See State v. Sullivan, 216 Wis. 2d 768, 772, 576 N.W.2d 30, 32-33 (1998).
Anderson offered the Barbie doll incident to show an alternative source for
A.P.’s sexual knowledge.
¶ 22 The circuit court determined that A.P.’s accusation involved
conduct encompassing different kinds of sexual assaults; the probative
value of an alternative source for A.P.’s knowledge of just one kind of
assault is therefore minimal. Any such value does not outweigh the
possibility of trauma from questioning A.P. regarding the incident. See
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Pulizzano, 155 Wis.2d at 653, 456 N.W.2d at 333 (recognizing trauma as a
“principal danger” from exploring prior conduct). Nor does it outweigh the
prejudice that can arise from “improperly focus[ing] attention on the
complainant’s character and past actions, rather than on the circumstances
of the alleged assault.” See Dunlap, 2002 WI 19, ¶ 19, 250 Wis. 2d at 480,
640 N.W.2d at 118.
¶ 23 A defendant must satisfy all of the Pulizzano criteria to
overcome the bar to presenting evidence of prior sexual conduct imposed
by Wis. Stat. § 972.11. Because Anderson has failed to do so, we go no
further in applying Pulizzano. See Dunlap, 2002 WI 19, ¶ 29, 250 Wis. 2d at
484, 640 N.W.2d at 120. The proffered evidence of A.P.’s prior sexual
conduct with a Barbie doll was not admissible.
State v. Anderson, 2008 WI App 1, ¶¶ 12-23, 306 Wis. 2d 848, 743 N.W.2d 166 (Nov. 6,
2007).

The Wisconsin Supreme Court denied Anderson’s petition for review of this

decision on March 18, 2008.
In October 2008, Anderson filed a motion for post-conviction relief, raising five
issues. First, he claimed that the State committed a discovery violation by failing to
disclose that his victim received compensation in the form of “a large back-pack filled
with toys and arts-supplies” in purported exchange for her making a videotaped
statement that constituted the key evidence against Anderson. Second, Anderson alleged
that the State violated his right to a prompt disposition under Wis. Stat. § 971.11, the
Intrastate Detainer Act, and violated his constitutional right to a speedy trial. Third, he
claimed that the failure of some of his attorneys to properly investigate witnesses with
allegedly relevant testimony about the victim’s post-assault behavior constituted
ineffective assistance. Fourth, Anderson alleged that he was denied effective assistance of
counsel on remand because his attorney failed to present testimony of fifteen other

6

witnesses at the Pulizzano hearing. Fifth, Anderson claimed that counsel was ineffective
on remand because he failed to object to the State’s suborning perjury.
The circuit court determined that Anderson’s motion was governed by Wis. Stat.
§ 974.06 and State ex rel. Rothering v. McCaughtry, 205 Wis. 2d 675, 556 N.W.2d 136
(Ct. App. 1996), and denied relief in a written order.1 (Dkt. # 8, Exh. Q). The circuit
court ruled that counsel was not ineffective on remand because none of the witnesses had
any relevant evidence to explain how the victim would have precocious awareness of
sodomy; therefore, Anderson suffered no prejudice from counsel’s failure to call these
witnesses. The court also rejected the speedy trial claim because it had been previously
decided, and concluded all other issues were barred because they had not previously been
raised. See Wis. Stat. § 974.06(4); State v. Escalona-Naranjo, 185 Wis. 2d 168, 185, 517
N.W.2d 157 (1994).
While Anderson once again challenged the circuit court’s decision on appeal, the
Wisconsin Court of Appeals affirmed. See State v. Anderson, 2011 WI App 1, 330 Wis.
2d 833, 794 N.W.2d 296 (Nov. 23, 2010). The Wisconsin Supreme Court similarly
denied Anderson’s petition for review. Anderson now seeks relief in this court from his
conviction in Milwaukee County Case No. 2001CF1783 pursuant to 28 U.S.C. § 2254.

A post-conviction motion under Wis. Stat. § 974.06 is equivalent to a petition for a writ of
habeas corpus. See Morales v. Boatwright, 580 F.3d 653, 656-57 (7th Cir. 2009).
1

7

OPINION
I.

Habeas Corpus Standard of Review
In his petition for relief pursuant to 28 U.S.C. § 2254, Anderson raises the same

three claims adjudicated by the circuit court, the Wisconsin Court of Appeals and the
Wisconsin Supreme Court.

First, Anderson contends that he was denied effective

assistance of counsel in connection with the Pulizzano hearing held on remand. Second,
Anderson contends that his trial attorneys were deficient for failing to investigate
alternative sources of the victim’s sexual knowledge or interview the witnesses who later
testified at the Pulizzano hearing on remand. Third, he contends that the state failed to
disclose evidence favorable to the defense, including that the victim was compensated for
making her videotaped statement. The court will address each issue in turn.
When a state system issues multiple decisions, a federal habeas corpus court
typically considers “the last reasoned opinion on the claim.” Ylst v. Nunnemaker, 501 U.S.
797, 803 (1991); see also Woolley v. Rednour, 702 F.3d 411, 421 (7th Cir. 2012) (unless a
state court adopts or incorporates the reasoning of a prior opinion, 28 U.S.C. § 2254
requires federal courts to review one state decision) (citation omitted). To the extent
that the Wisconsin Court of Appeals addressed petitioner’s claims on the merits, he must
show that its adjudication “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.” 28 U.S.C. § 2254(d)(1).

8

The standard outlined in § 2254(d)(1) is exacting and “highly deferential,” Burt v.
Titlow, — U.S. —, 134 S. Ct. 10, 15 (2013), demanding that state courts be given “the
benefit of the doubt.” Harrington v. Richter, — U.S. —, 131 S. Ct. 770, 786 (2011). To
prevail, “a state prisoner must show that 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.” Id. at 786-87.

A state court’s decision is deemed contrary to clearly

established federal law if it reaches a legal conclusion in direct conflict with a prior
decision of the Supreme Court or reaches a different conclusion than the Supreme Court
based on materially indistinguishable facts. See Williams v. Taylor, 529 U.S. 362, 404-08
(2000). A state court unreasonably applies clearly established precedent if it identifies
the correct governing legal principle but unreasonably applies that principle to the facts
of the case. See Brown v. Payton, 544 U.S. 133, 141 (2005). Beyond the “formidable
barrier” posed by this standard, Titlow, 134 S. Ct. at 16, the petitioner bears the
additional burden of rebutting the state court’s factual findings “by clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1).

II.

Ineffective Assistance of Counsel on Remand
Anderson contends that he was denied effective assistance of counsel on remand

because his attorney did not present fifteen witnesses at the evidentiary hearing held
pursuant to Pulizzano. Claims for ineffective assistance of counsel are analyzed under the

9

general standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail
under the Strickland standard, a defendant must demonstrate both constitutionally
deficient performance by counsel and actual prejudice as a result of the alleged
deficiency. See Williams v. Taylor, 529 U.S. 390, 390-91 (2000). “Unless a defendant
makes both showings, it cannot be said that the conviction . . . resulted from a
breakdown in the adversary process that rendered the result unreliable.” Strickland, 466
U.S. at 687.
The petitioner’s ineffective-assistance claim regarding his remand counsel was
raised in a post-conviction motion pursuant to Wis. Stat. § 974.06 and adjudicated on
the merits by the circuit court, which rejected that claim in a written order.

The

Wisconsin Court of Appeals affirmed that result, finding no violation of the Strickland
standard.
The central question here is not whether this court “‘believes the state court’s
determination’

under

the

Strickland

standard

‘was

incorrect

but

whether

the

determination was unreasonable C a substantially higher threshold.’” Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 478
(2007)). In addition, “because the Strickland standard is a general standard, a state court
has even more latitude to reasonably determine that a defendant has not satisfied that
standard.” Id. (citing Youngblood v. Alvarado, 541 U.S. 652, 664 (2004)). Thus, this
standard is “doubly deferential” on habeas corpus review. Id.; see also Richter, 131 S. Ct.
at 788 (emphasizing that the standards created by Strickland and § 2254(d) are “highly

10

deferential,” and “‘doubly’ so” when applied in tandem) (citations and quotations
omitted).
The circuit court summarized the proposed evidence that Anderson would have
presented at the Pulizzano hearing and concluded that he was not prejudiced by his
attorney’s purported failure to call additional witnesses:
Mr. Anderson alleges that his attorney, Scott Anderson, was
ineffective at the Pulizzano hearing held in April, 2006. He contends that
Mr. Anderson should have called fifteen other witnesses who would have
testified that:


The victim told a police officer that she liked to play with Barbie
dolls, which contradicts a statement the victim’s mother made
during the Pulizzano hearing, to the effect that the victim did not
enjoy playing with dolls;



The victim could have seen Mr. Anderson in the midst of, or in the
aftermath of, or discussing, sexual intercourse (the particular mode
of which is not described by Mr. Anderson);



The victim was sexually precocious, that she was seen “humping” the
family dog and fondling its testicles and also lying on top of another
cousin inserting sticks into her vagina, that she accused a cousin of
showing her his penis, and that she may have seen pornographic
magazines (although what she may have learned from them is not
detailed);



No one saw corroborating evidence of an assault, such as bodily
fluids, stains, or unusual behavior; and



The victim was unable to differentiate between her buttocks and her
vagina, both of which she referred [to] as her “potty.”

This claim fails for two separate reasons. First, none of the
additional evidence Mr. Anderson wishes the court had at the Pulizzano
hearing bears on the question how the victim’s alleged precocious sexual
awareness explains an assault[] from the rear. Whether or not Mr.

11

Anderson’s additional evidence suggests a possible prior awareness of
cunnilingus, it has nothing to do with sodomy. Thus, even if Mr.
Anderson’s additional evidence raises doubts about the court’s first
conclusion — that the Barbie doll incident did not clearly occur — the
evidence does not make a dent in the court’s second conclusion, that the
alleged prior sexual experience does not closely resemble the alleged assault.
In other words, even if I were to order a second Pulizzano hearing, this
second conclusion, untouched by Mr. Anderson’s attack, would compel the
same result that Judge Kahn reached previously. Because Mr. Anderson
has not shown that the additional evidence would produce a different
outcome, he cannot demonstrate the prejudice necessary to prevail on a
claim of ineffective assistance of counsel.
The second reason I reject Mr. Anderson’s claim is that by and large
the evidence he wished to have presented at the Pulizzano hearing was
irrelevant. The two critical questions before the court were (1) whether the
Barbie incident clearly occurred and (2) whether there was evidence of
precocious sexual experience that closely resembled the assaults alleged
against Mr. Anderson, such that the victim’s allegations against him might
be explained by, or might have been suggested by, such experience. With
these narrow issues in view, it is clear that his additional evidence is
irrelevant: whether the assaults were corroborated or not, whether the
victim had prior sexual experience involving cunnilingus, whether the
victim had a sufficient command of anatomical nomenclature.
State v. Anderson, Case No. 01CF1783 (May 27, 2009) (Dkt. # 8, Exh. M).
The Wisconsin Court of Appeals agreed that Anderson was not prejudiced by his
attorney’s failure to call additional witnesses because the proposed evidence was largely
irrelevant and did not otherwise satisfy the Pulizzano test:
¶ 10 Anderson claims Attorney Scott Anderson was ineffective for
failing to call fifteen witnesses on remand. The circuit court rejected this
claim on its merits,[] noting that the proposed testimony of these witnesses
was largely irrelevant to the two key questions on remand: Whether the
doll incident occurred, and whether it “closely resemble[d]” the alleged
assaults. See Pulizzano, 155 Wis.2d at 651, 456 N.W.2d 325. In addition,
the court noted that even if the proposed testimony made it more likely

12

that the doll incident occurred, none of it was sufficient to establish how
the victim obtained an alternate source of knowledge about sodomy.
¶ 11 We agree with the circuit court’s analysis on the proposed
testimony; it was irrelevant. Because the evidence was irrelevant, it was
inadmissible. Because it was inadmissible, Anderson suffered no prejudice
from counsel’s failure to pursue it. Because there was no prejudice, counsel
was not ineffective. See Strickland v. Washington, 466 U.S. 668, 697, 104 S.
Ct. 2052, 80 L.Ed.2d 674 (1984).
Anderson, 2011 WI App. 1, ¶¶ 10-11, 330 Wis. 2d 833, 794 N.W.2d 926.
As both the circuit court and the court of appeals noted, Anderson does not
demonstrate how any of the proposed testimony would establish that the victim had an
alternative source of knowledge about sodomy. Because the proposed evidence was not
clearly relevant to that issue, Anderson was not prejudiced by the failure of his attorney
on remand to present additional witnesses at the Pulizzano hearing. Absent a showing of
actual prejudice, the state court’s decision was not an unreasonable application of
Strickland. It follows that Anderson is not entitled to relief under 28 U.S.C. § 2254 on
this claim.

III.

Ineffective Assistance of Counsel at Trial - - Procedural Default
Anderson contends further that his trial attorneys were deficient for failing to (1)

investigate alternative sources of the victim’s sexual knowledge or (2) interview the
witnesses who later testified at the Pulizzano hearing on remand. The circuit court did
not consider the merits of the ineffective-assistance claim against his trial attorneys
because Anderson did not raise it properly in a post-conviction motion or appeal

13

following the trial. State v. Anderson, Case No. 01CF1783 (May 27, 2009) (Dkt. # 8,
Exh. M). In particular, the circuit court found that the claim was barred by a procedural
rule found in Wis. Stat. § 974.06(4) and interpreted by State v Escalona-Naranjo, 185
Wis. 2d 168 (1994), requiring a petitioner to raise all grounds for relief available in his or
her original, supplemental or amended motion.

Noting that Anderson’s failure-to-

investigate claim “could have been raised previously, in prior postconviction or appellate
proceedings,” the Wisconsin Court of Appeals also concluded that the claim was “barred
by Escalona-Naranjo.”
The record confirms that Anderson did not raise an ineffective-assistance claim
based on his trial attorneys’ failure to investigate his initial motion for post-conviction
relief or the ensuing direct appeal.2 Reasoning that the last state court to consider the
claim rejected it based on well-established procedural grounds, the respondent maintains
that Anderson’s ineffective-assistance claim against his trial attorneys is barred from
federal review by the doctrine of procedural default.
A procedural default precludes a federal court from reaching the merits of a habeas
petition when either: (1) the claim was not fairly presented to the state courts and the
opportunity to raise that claim now has passed; or (2) the claim was presented to the
state courts and was denied on the basis of an adequate and independent state law
procedural ground. Coleman v. Thompson, 501 U.S. 722, 735 (1991). A habeas petitioner

Anderson’s appellate brief raised an ineffective assistance claim alleging that trial counsel
was deficient for engaging in delay that violated his right to a speedy trial. (Dkt. # 8, Exh. B).
2

14

may overcome procedural default by demonstrating cause for the default and actual
prejudice by showing the court’s failure to consider the claim would result in a
fundamental miscarriage of justice. See id. at 750.
As cause for this default, Anderson blames his appointed post-conviction and
appellate attorneys for refusing to raise a failure-to-investigate claim properly in his initial
post-conviction motion or direct appeal.

Ineffective assistance of counsel may, in some

circumstances, constitute cause for a procedural default. See Edwards v. Carpenter, 529
U.S. 446, 451 (2000). “Not just any deficiency will do, however; the assistance must
have been so ineffective as to violate the Federal Constitution.” Id. “In other words,
ineffective assistance adequate to establish cause for the procedural default of some other
constitutional claim is itself an independent constitutional claim.”

Id. (emphasis in

original). Anderson raises no independent ineffective-assistance claim where his postconviction or appellate counsel are concerned. Accordingly, his allegation of ineffective
assistance does not establish cause for his procedural default. Absent a valid showing of
cause, this claim is procedurally barred.
Even if not barred, Anderson cannot establish that he was prejudiced by his trial
attorneys’ failure to investigate or locate the witnesses who eventually testified at the
Pulizzano hearing for the same reasons outlined above. The evidence presented at that
hearing was insufficient to meet the Pulizzano test. Anderson does not propose, much less
prove, that, but for his trial attorneys’ failure to conduct an adequate investigation, the
result of his proceeding would have been different.

15

Because he establishes neither

deficient performance nor actual prejudice, Anderson has no viable ineffective-assistance
claim where his trial attorneys’ investigation is concerned. Therefore, he is not entitled
to relief on this claim.

IV.

Brady Disclosure
Finally, Anderson contends that the state withheld evidence favorable to the

defense in violation of Brady v. Maryland, 373 U.S. 83 (1963), by not disclosing that the
victim received “compensation” for making the videotaped statement that was admitted
at his trial. As noted above, Anderson claims that the victim received compensation in
the form of a backpack containing toys and art supplies from social workers at the Child
Protection Center after making the videotaped statement that was admitted at his trial.
Observing that this evidence could have been used to impeach the victim at trial,
Anderson maintains that the state breached its affirmative duty to disclose this
information in discovery.
The respondent argues that Anderson did not fairly present a Brady claim in state
court because it was cast as a statutory discovery violation of Wis. Stat. § 971.23. The
Wisconsin Court of Appeals agreed with that assessment and concluded that the claim
was procedurally barred because statutory violations are not cognizable in a postconviction motion under Wis. Stat. § 974.06:
Anderson alleges the State failed to disclose, under Wis. Stat.
§ 971.23, that it had “paid” his victim with toys and art supplies for her
videotaped statement. Assuming without deciding that the State was

16

obligated to disclose that information, Anderson argued that the State had
committed a statutory violation, for which his remedy should have been
suppression. Although the circuit court ruled this matter was procedurally
barred because it had not been previously raised, this claim is barred
because Wis. Stat. § 974.06 claims are generally limited to constitutional
and jurisdiction issues. See Wis. Stat. § 974.06(1); State ex rel. Panama v.
Hepp, 2008 WI App 146, ¶ 19, 314 Wis.2d 112, 758 N.W.2d 806. The
State’s alleged discovery violation does not fall within the scope of a
§ 974.06 motion and was appropriately rejected by the circuit court.
Anderson, 2011 WI App. 1, ¶ 7, 330 Wis. 2d 833, 794 N.S.2d 926.
Anderson insists, nevertheless, that he raised a Brady claim in his post-conviction
motion under Wis. Stat. § 974.06, noting that his brief contains more than one reference
to that decision. The relevant portion of Anderson’s brief confirms that he attempted to
raise a Brady claim regarding the victim’s purported compensation, arguing as follows:
A prosecutor . . . has an affirmative duty to make reasonable inquiry
and may not assert that he or she did not know of those things within the
ambit of § 971.23 that could have been reasonably discovered. State v.
White, 271 Wis. 2d 742, 757, 680 N.W. 2d 362 (Ct. App. 2004)[.] See
Wold v. State, 57 Wis. 2d 344, 349, 204 N.W.2d 482 (1973) (The
prosecutor’s duty to disclose encompasses a duty to obtain all evidence in
the possession of investigative agencies of the state.) Non-disclosure of
evidence favorable to a defendant violates due process irrespective of the
good faith or bad faith of the prosecution. Id. Brady, 373 U.S. at 87. See
also United States v Bagley, 473 U.S. 667, 87 L. Ed.2d 481, 105 S. Ct. 3375
(1985).
(Dkt. # 8, Exh. N, at 41).
After the state ignored Anderson’s Brady argument in its response brief, Anderson
clarified his claim further in his reply brief, explaining as follows:
His discovery claim regarding the alleged victim’s compensation for
participating in the production of a videotape that was used as the sole
piece of evidence to convict him is not merely a statutory claim as argued

17

by the state, but a constitutional one. A prosecutor’s duty to disclose
encompasses a duty to obtain all evidence in the possession of investigative
agencies of the state and their failure to disclose evidence favorable to a
defendant violates the Fourteenth Amendment to the United States
Constitution. See Brady v. Maryland, 373 U.S. 83, 10 L. Ed.2d 215, 83 S.
Ct. 1994 (1963).
(Dkt. # 8, Exh. P, at 6). Thus, contrary to respondent’s contention, it appears that
Anderson attempted to present a Brady claim in state court or at least he did so before
the Wisconsin Court of Appeals.
After the Wisconsin Court of Appeals held that his discovery violation was barred
from collateral review under 974.06, Anderson did not object or raise an issue regarding
the misinterpretation of his alleged Brady violation in his petition for review by the
Wisconsin Supreme Court. (Dkt. # 8, Exh. R). Because Anderson did not properly raise
a Brady claim before the state supreme court, he cannot be said to have fully presented
this issue for purposes of exhausting all available state court remedies. See 28 U.S.C.
§ 2254(b).
Even assuming that this claim was both fairly and fully presented in state court,
and not procedurally barred, Anderson does not demonstrate that a violation of the rule
in Brady occurred.

In Brady, the Supreme Court held “that the suppression by the

prosecution of evidence favorable to an accused upon request violates due process where
the evidence is material either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.” 373 U.S. 83, 87 (1963). To establish a Brady violation, a
defendant must demonstrate (1) that the prosecutor willfully or inadvertently suppressed

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evidence; (2) that the evidence was favorable to the defendant, either because it was
exculpatory or because it has impeachment value; and (3) the evidence material such that
prejudice ensued. Strickler v. Greene, 527 U.S. 263, 281-82 (1999); Kyles v. Whitley, 514
U.S. 419, 432-33 (1995). “When the ‘reliability of a given witness may be determinative
of guilt or innocence’ nondisclosure of evidence affecting credibility falls within [the
Brady] rule.” Giglio v. United States, 405 U.S. 150, 154 (1972).
Evidence is “material” if there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been different.
United States v. Bagley, 473 U.S. 667, 682 (1985). To establish materiality, the “question
is not whether the defendant would more likely than not have received a different verdict
with the evidence, but whether in its absence he received a fair trial.” Kyles v. Whitley,
514 U.S. 419, 434 (1995). “A ‘reasonable probability’ of a different result is [] shown
when the government's evidentiary suppression ‘undermines confidence in the outcome
of trial.’” Id.
Anderson cannot meet the first requirement for a claim under Brady. Notably,
Anderson reportedly discovered the fact that the victim received compensation from the
Child Protection Center’s social workers after he received his “case file” from
postconviction/appellate counsel. (Dkt. # 8, Exh. N, at 41). Because it is apparent that
Anderson’s counsel had access to the evidence in dispute, Anderson does not
demonstrate a violation of the duty to disclose. See Ienco v. Angarone, 429 F.3d 680, 683
(7th Cir. 2005) (evidence is not suppressed for purposes of a Brady claim if the evidence

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“was otherwise available to the defendant through the exercise of reasonable diligence”)
(citations omitted); see also United States v. Infante, 404 F.3d 376, 386 (5th Cir. 2005)
(“Brady rights are not denied where the information was fully available to the defendant
and his reason for not obtaining and presenting such information was his lack of
reasonable diligence.”).
Moreover, Anderson does not meet the other requirements for a Brady claim
because he does not establish that the evidence could have been used to impeach the
victim.3 In that respect, Anderson does not otherwise allege facts showing that the victim
was promised the backpack in exchange for making her statement. Therefore, he does
not demonstrate that the backpack was material or that it influenced her statement in
any way.

Under these circumstances, Anderson does not demonstrate that the state

suppressed material evidence or that his conviction was tainted by a Brady violation in
any way. Accordingly, he is not entitled to relief on this issue.

V.

Certificate of Appealability
Under Rule 11 of the Rules Governing Section 2254 Cases, the court must issue

or deny a certificate of appealability when entering a final order adverse to petitioner. A
certificate of appealability will not issue unless the petitioner makes “a substantial

3

The victim’s videotaped statement was admitted during a stipulated bench trial. Anderson
reportedly agreed to a bench trial on stipulated facts to spare the victim from crossexamination. Anderson does not allege that he would have insisted on a jury trial with live
testimony from the victim for the purpose of evaluating her credibility.
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showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), which requires a
petitioner to demonstrate “that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Tennard v. Dretke, 542 U.S.
274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Under the
controlling standard, this requires a petitioner to show “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.’” Miller-El, 537 U.S. at 336. Where denial of relief is based on
procedural grounds, the petitioner must show not only that “jurists of reason would find
it debatable whether the petition states a valid claim of the denial of a constitutional
right,” but also that they “would find it debatable whether the district court was correct
in its procedural ruling.” Slack, 529 U.S. at 484.
Although the rule allows a court to ask the parties to submit arguments on
whether a certificate should issue, it is not necessary to do so in this case.

For the

reasons already stated, the court concludes that petitioner has not made a showing,
substantial or otherwise, that his conviction was obtained in violation of clearly
established federal law as decided by the Supreme Court.

Because reasonable jurists

would not otherwise debate whether a different result was required, no certificate of
appealability will issue.

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ORDER
IT IS ORDERED THAT:
1. The petition filed by Edward D. Anderson for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 is DENIED and this case is DISMISSED
with prejudice.

The clerk of court is directed to enter judgment for

respondent and close this case.
2. A certificate of appealability is DENIED. If petitioner wishes he may seek
a certificate from the court of appeals under Fed. R. App. 22.
Entered this 12th day of August, 2014.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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