Rоbert J. DIETRICH, Petitioner-Appellant, v. Judy P. SMITH, Respondent-Appellee.
No. 12-1672.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 17, 2012. Decided Dec. 4, 2012.
702 F.3d 1192
Jeffrey W. Jensen, Sr. (argued), Attorney, Milwaukee, WI, for Petitioner-Appellant. Sarah Burgundy (argued), Attorney, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee.
Because Purnell‘s sentence remains within the amended guideline range, and because the district court‘s consideration of Purnell‘s repeated false statements was reasonable under section 3582(c)(2), the district court‘s denial of a sentence reduction is AFFIRMED.
Before EASTERBROOK, Chief Judge, and BAUER and WOOD, Circuit Judges.
BAUER, Circuit Judge.
Robert J. Dietrich pleaded guilty to first-degree sexual assault of a child in violation of
I. BACKGROUND
In 2006, B.T., then fourteen years old, was failing her freshman year of high school. She was also having trouble with her friends at school, who had accused her of making a bomb threat. In April 2006, she attempted suicide. In July 2006, B.T. told the police that Dietrich, a family friend, had sexually assaulted her between June and August 2004 when she was twelve years old.
Dietrich was charged in Milwaukee County Circuit Court with one count of repeated first-degree sexual assault of a child and two counts of intimidation of a child victim. The complaint alleged that during the summer of 2004, Dietrich had multiple sexual encounters with twelve-year-old B.T. Dietrich entered not guilty pleas on all counts.
In a pre-trial motion, Dietrich sought an in camera review of B.T.‘s counseling records. Dietrich believed the records would show that though the alleged sexual assaults occurred in 2004, B.T. did not tell
Dietrich subsequently reached a plea agreement with the district attorney and pleaded guilty to one count of first-degree sexual assault of a child. In exchange for Dietrich‘s guilty plea, the State agreed to move to dismiss counts two and three, and to recommend ten years of initial confinement in prison, with the amount of extended supervision left up to the court.
At the sentencing hearing, the State called several witnesses including B.T.‘s therapist, who was called to testify regarding how the sexual assaults had affected B.T.‘s life. Dietrich objected and argued that in light of the denial of his pre-trial motion for an in camera review of B.T.‘s records, it was “not fair” to allow her therapist to testify at sentencing because he had no way to challenge the therapist‘s statement. The State responded that the therapist was only providing the court with her opinion, and that the court could give whatever weight to her testimony that it deemed appropriate. The trial court agreed with the State and allоwed the therapist to testify.
B.T.‘s therapist testified that B.T. was diagnosed with Post Traumatic Stress Dis
After sentencing, Dietrich filed a post-conviction motion asking the trial court to vacate his sentence and order a re-sentencing. Dietrich asserted, among other things, that his due process rights were violated when he was denied an in camera reviеw of B.T.‘s counseling records before her therapist made a statement at his sentencing hearing. His motion was denied on all counts. Dietrich then filed a notice of appeal to the Wisconsin appellate court. The appellate court affirmed the trial court in all aspects. Dietrich petitioned the Wisconsin Supreme Court for review, and the petition was denied. Dietrich then petitionеd the district court for federal habeas corpus relief pursuant to
II. DISCUSSION
Dietrich acknowledges, as he must, that under the Antiterrorism and Effective Death Penalty Act (“AEDPA“), federal courts may only grant habeas relief if the state court‘s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law.”
Dietrich contends that he could not meaningfully question the validity of B.T.‘s therapist‘s testimony without first viewing B.T.‘s counseling records, or more precisely, without the trial court viewing B.T.‘s counseling records in camera. The district court concluded that this issue possibly implicated Dietrich‘s due process rights based on the Supreme Court precedent set forth in Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). Ultimately, the district court decided that Ritchie did not entitle Dietrich to relief, but granted a certificate of appealability on that issue. We agree that Ritchie is the relevant Supreme Court case that addresses the standard for an in camera review of otherwise privileged records; we will therefore examine Dietrich‘s claim under its precedent.1
In Ritchie, the defendant was accused of molesting his thirteen-yеar-old daughter. Ritchie sought discovery of the daughter‘s files held by Pennsylvania‘s Children and Youth Services (“CYS“) agency because he believed they might contain the names of favorable witnesses, a medical report from the CYS investigation, and other unspecified exculpatory evidence. Ritchie, 480 U.S. at 44, 107 S.Ct. 989. The State argued that the files were privileged and cited a Pennsylvania statute that forbade disclosure, short of a court order. Because the privileged CYS files at issue were in the custody of the agency, neither the government, the defense, or the court reviewed them in their entirety prior to trial. Id. at 44, 107 S.Ct. 989. Acknowledging he had not reviewed the file completely, the trial judge accepted CYS’ representation that the file did not contain a medical report, and denied discovery. Id. at 44, 107 S.Ct. 989.
On appeal, Ritchie argued that the trial сourt‘s denial of a review of the unseen, privileged CYS files prevented him from learning the names of the “witnesses in his favor,” as well as other evidence that might be contained in the file. Ritchie, 480 U.S. at 55, 107 S.Ct. 989. Ritchie argued that this denial implicated his Compulsory Due Process rights. The Sixth Amendment of the United States Constitution protects both the right of confrontation and the right of compulsory process by requiring that “[i]n all criminal prosecutions, the aсcused shall enjoy the right ... to be confronted with the witnesses against him; [and] to have compulsory process for obtaining witnesses in his favor.”
The Supreme Court ultimately remаnded, finding that Ritchie was entitled to have the CYS file reviewed by the trial court to determine whether it contained information that probably would have changed the outcome of his trial. In reaching this conclusion, the Court addressed the burden that a defendant must meet, in order to obtain an in camera review of privileged records, in a footnote as follows:
The Commonwealth also argues that Ritchie is not entitled to disclosure because he did not make a particularized showing of what information he was seeking or how it would be material. See Brief for Petitioner 18 (quoting United States v. Agurs, 427 U.S. 97, 109-110, 96 S.Ct. 2392, 2400-01, 49 L.Ed.2d 342 (1976) (“The mere possibility that an item of undisclosed information might have helped the defense ... does not establish ‘materiality’ in the constitutional sense“)) Ritchie, of course, may not require the trial court to search through the CYS file without first establishing that it contains matеrial evidence. See United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982) (“He must at least make some plausible showing of how their testimony would have been both material and favorable to his defense“). Although the obligation to disclose exculpatory material does not depend on the presence of a specific request, we note that the degree of specificity of Ritchie‘s request may have bearing on the trial court‘s assessment оn remand of the materiality of the nondisclosure. See United States v. Bagley, 473 U.S. 667, 682-683, 105 S.Ct. 3375, 3383-3384, 87 L.Ed.2d 481 (1985) (opinion of BLACKMUN, J.). Ritchie, 480 U.S. at 58 n. 15, 107 S.Ct. 989.
It is clear from this footnote, that although the Court ultimately concluded Ritchie was entitled to an in camera review, the Court intended to require a defendant to first make a plausible showing that the privileged record at issue contained material evidence, rather than for an in camera review of confidential files to be an automatic еntitlement owed to the defendant. That is, the Court stated that a defendant cannot obtain an in camera review without “first establishing a basis for his claim that it contains material evidence.” Id.
We addressed this requirement in Davis v. Litscher, 290 F.3d 943, 945 (7th Cir.2002). In Davis the petitioner was convicted of sexually assaulting and beating his girlfriend and sought habeas relief, asserting that his constitutional rights were violated when the trial court denied his motion for an in camera inspection of the victim‘s mentаl health records. The petitioner contended that the Wisconsin appellate court violated his due process rights by requiring him to make a greater showing than necessary under Ritchie for an in camera review. Id. We found that the files the petitioner sought would not have shed any additional light on the victim‘s mental state on the night of the attack, as he suggested. Id. at 948. Rather, any evidence as to the victim‘s drug habit would be cumulative considering the victim admitted shе was using drugs on the night in question during a preliminary hearing. Id. Affirming the district court, we held that the defendant failed to make a “plausible showing” that the evidence he sought would be material and helpful to the defense. Id.
The Sixth Circuit has also addressed the burden a defendant must reach under Ritchie in Renusch v. Berghuis, 75 Fed.Appx.
Applying Ritchie to the instant case, the Wisconsin appellate court found that Dietrich‘s due process claim was insufficient because he failed to make a plausible showing that the victim‘s counseling records would produce material evidence. We find this to be a reasonable application of Ritchie. The Supreme Court did not intend to require the trial court to undertake a blind fishing expedition through a victim‘s mental health records for the sole purpose of possibly uncovering additional evidence that may aid in cross-examination, which the defendant has independently and speculatively determined would probably be most effective. In fact, the Ritchie plurality flatly rejected the argument that a defendant is entitled to access confidential records simply to aid in cross-examination: “[T]he Confrontation Clause only guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent the defense might wish.” Ritchie, 480 U.S. at 53, 107 S.Ct. 989 (citing Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985)). The Court specifically noted that the ability to question adverse witnesses does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony. Ritchie, 480 U.S. at 53, 107 S.Ct. 989.
Here, Dietrich sоught B.T.‘s counseling records in the hopes of finding evidence that would allow him to more effectively rebut B.T.‘s therapist‘s conclusion that the sexual assaults were the cause of B.T.‘s psychological problems. Dietrich argues that had he been able to see B.T.‘s counseling records, he believed those records would show that B.T. herself had attributed her suicide attempt to troubles she was having with her school friends, rathеr than Dietrich‘s sexual assault. Nonetheless, Dietrich had already offered this evidence to the court through a report by the St. Francis Police Department that stated that B.T. told the officers that she attempted suicide because her friends at school were being mean to her and accused her of making a bomb threat. Therefore, the trial court rightly concluded that no in camera review of B.T.‘s counseling records was necessary because even if the files contained the exact information Dietrich speculated existed, that information was first and foremost immaterial and cumulative at best.
The heart of the matter in Ritchie was whether a statutorily mandated privilege trumped a defendant‘s due process right to potentially exculpatory evidence. Because the subject statute in Ritchie allowed for disclosure of the privileged file, via a court order, the Supreme Court held that the legislature did not intend this privilege to be absolute and remanded the case for the trial court to conduct an in camera review of the file. The difference between the facts in Ritchie, that required a remand for an in camera review, and the facts in this case, is that in Ritchie the defendant sought undisputedly material evidence (namely favorable witnesses) from his daughter‘s file that, if found, possibly could have changed the outcome of his trial.
In fact, the trial court made no mention of B.T.‘s therapist‘s opinion during sentencing. Rather, the trial court specifically noted that the pivotal issue for the court was Dietrich‘s attempt to shift the blame for the sexual offense to the twelve-year-old victim. The court cited Dietrich‘s therapist‘s report that indicаted that Dietrich believed that the “offense would not have happened had the child not been overly affectionate.” The court took great issue with Dietrich‘s failure to take complete responsibility for his actions.
The sentencing court explained how it wrestled with the two factual scenarios it was presented as to what occurred in this case.
I have [Dietrich‘s] version that talks about, if you will, an аffectionate, promiscuous, encouraging, curious and interested twelve-year-old who initiated sexual contact because of a crush towards you, who then after engaging in this behavior undertook a course of self-destruction wherein she mutilated herself, tried to kill herself, and generally allowed her life to spiral out of control. Conversely, I have a twelve-year-old who reports inappropriate sexual contact that ultimately culminated in sexual intercourse in various forms as defined by the law over a two-and-a-half month period of time, not just reflecting one moment or instant in time.... Accordingly, you have and haven‘t accepted responsibility.
There is nothing in the record to indicate that the court placed any material weight on B.T.‘s therapist‘s testimony. The sentencing court, instead, took umbragе with Dietrich‘s failure to take full responsibility for his crime. Therefore, there is nothing to suggest that Dietrich‘s sentencing hearing would have had a different outcome had the court conducted an in camera review of B.T.‘s counseling records, and Dietrich found the exact evidence he speculated might exist in those records. We therefore find that the Wisconsin appellate court reasonably appliеd Ritchie in this case, as Dietrich failed to make a plausible showing that the victim‘s counseling records contained evidence material to his defense.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.