Mark Jensen v. William Pollard, 924 F.3d 451

Background

Mark Jensen was convicted in Wisconsin state court for the 1998 murder of his wife; key evidence was a letter Julie wrote before her death expressing fear that Jensen would kill her and similar pre-death statements to police.
Trial and state-court proceedings: trial court admitted the letter under Wisconsin’s forfeiture-by-wrongdoing rule; the conviction was affirmed by state courts under varying rationales, including harmless error and the forfeiture exception.
On federal habeas review, the district court found the admission of Julie’s statements violated the Confrontation Clause and issued a conditional writ: release unless the State initiated retrial proceedings within 90 days; the Seventh Circuit affirmed the writ.
The State timely initiated retrial proceedings; before retrial, the state trial judge (relying on later Supreme Court decisions) ruled Julie’s statements were non-testimonial and reinstated Jensen’s original conviction instead of conducting a new trial.
Jensen sought enforcement of the writ in federal court, arguing the State failed to provide the retrial he believed the writ guaranteed; the district court held the writ required only initiation of retrial proceedings and that the State complied; the Seventh Circuit affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
What did the conditional writ require?	Jensen argued the writ guaranteed a retrial without Julie’s letter/statements.	State argued the writ required only that it initiate retrial proceedings within 90 days.	The court held the writ’s plain language required only initiation of retrial proceedings; State complied.
Could the district court scrutinize the State’s good-faith compliance beyond the writ’s terms?	Jensen urged federal review of whether the State’s post-writ proceedings were a sham circumventing the writ.	State argued the district court’s role was limited to checking compliance with the writ’s terms.	The court held the district court abused none of its discretion in outcome review but cautioned § 2254 does not compel probing the State’s good faith; federal review is constrained by the writ’s terms and comity.
Does reinstatement of the original judgment after initiation of retrial proceedings keep federal jurisdiction?	Jensen contended reinstatement circumvented the writ so federal jurisdiction should continue.	State maintained that initiating retrial proceedings satisfied the writ and state judgment is subject to state appeal.	The court held jurisdiction ended once the State initiated proceedings; federal court lacks jurisdiction to adjudicate the new state judgment.
Can Jensen raise unexhausted claims (judicial-bias) in the enforcement phase?	Jensen asked the district court to adjudicate his judicial-bias claim.	State argued those claims must be exhausted in state court first.	The court held it lacked jurisdiction to consider the unexhausted judicial-bias claim.

Key Cases Cited

Crawford v. Washington, 541 U.S. 36 (Confrontation Clause testimonial-hearsay framework)
Giles v. California, 554 U.S. 353 (forfeiture-by-wrongdoing requires intent to prevent testimony)
Michigan v. Bryant, 562 U.S. 344 (factors for determining whether statements are testimonial)
Ohio v. Clark, 135 S. Ct. 2173 (statements to third parties may be non-testimonial depending on context)
Jennings v. Stephens, 135 S. Ct. 793 (limits on reading conditions into conditional writs and scope of federal supervisory power)
Hudson v. Lashbrook, 863 F.3d 652 (district court retains jurisdiction to determine compliance with conditional writ)
Jenkins v. Bowling, 691 F.2d 1225 (presumption that state will comply in good faith; presumption rebuttable)
Jensen v. Clements, 800 F.3d 892 (Seventh Circuit decision affirming issuance of the conditional writ)
Coulter v. McCann, 484 F.3d 459 (state post-writ proceedings can resolve underlying constitutional questions)