CLYDE B. WILLIAMS, Petitioner-Appellant, v. BYRAN BARTOW, Respondent-Appellee.
No. 05-4736
United States Court of Appeals For the Seventh Circuit
Argued October 19, 2006—Decided March 20, 2007
RIPPLE, MANION and ROVNER, Circuit Judges.
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 05 C 89—William C. Griesbach, Judge.
RIPPLE, Circuit Judge. Petitioner Clyde Williams was convicted in the state courts of Wisconsin of three counts of first-degree sexual assault of a child. Following an unsuccessful motion for a new trial, he appealed his conviction to the Court of Appeals of Wisconsin. That court denied relief. See State v. Williams, 677 N.W.2d 691 (Wis. Ct. App. 2004), review denied, 679 N.W.2d 546 (Wis. 2004). He then filed a petition for habeas corpus in the United States District Court for the Eastern District of Wisconsin. See
I
BACKGROUND
A. Facts
In 1990, two sisters, Annitra J. and Okima J., then five and six years old, respectively, told police that Mr. Williams had sexually assaulted them in the restroom of a public park. After some investigation, the prosecutor decided not to proceed because, at the time, there was an inadequate evidentiary basis.
Six years later, in 1996, Tyfonia S., also six years old, alleged that Mr. Williams had fondled her. She was with him on a day when he was purchasing a car from her mother‘s boyfriend, Thomas White. White was caring for Tyfonia and her siblings. The children went with White and Mr. Williams to Mr. Williams’ mother‘s home to complete the transaction, and the assault apparently occurred in an elevator when Tyfonia was alone with Mr. Williams. Based on this incident, the State charged Mr. Williams with first-degree sexual assault of a child.
In 2001, after a series of trial-ending errors, a successful appeal, multiple re-trials and the addition of new
B. The Wisconsin Proceedings
1.
During pretrial proceedings for Mr. Williams’ first trial on a charge relating only to sexual assault of Tyfonia, the State sought a ruling allowing it to introduce the earlier incident involving Annitra and Okima as evidence of other crimes. The trial court declined to rule and, instead, instructed the State to raise the issue at trial, outside of the jury‘s presence. Mr. Williams’ counsel then sought to introduce evidence of “the prior sexual experience” of Tyfonia, the six-year-old victim, “that relate[d] to her . . . fabricating this incident.” Williams, 677 N.W.2d at 694 (quoting defense counsel) (omission in original). The court instructed counsel that a hearing would be necessary before any questions concerning the sexual history of any witness could be asked.
During the course of this first trial, the State called Angie R., Tyfonia‘s mother, who testified that Tyfonia said that Mr. Williams had penetrated her with his finger while they were in an elevator. On cross-examination, defense counsel asked Angie whether she was aware that her own boyfriend, White, with whom Tyfonia was sometimes left alone, “had sexually molested two children in the past.” R.18, Tr.1 at 90. The State objected and the court considered the issue outside the presence of the jury. In defense of his question, Mr. Williams’ attorney stated that he did not believe that he was bound by the court‘s earlier directive that a hearing would be necessary to resolve questions of admissibility relating to the sexual
2.
In July 1997, a second trial began, again limited to charges arising out of the assault on Tyfonia. In addition to Tyfonia‘s testimony, the State called both Annitra and Okima as part of its effort to establish motive. At the conclusion of this trial, Mr. Williams was convicted of one count of first-degree sexual assault of a child and sentenced to forty years’ imprisonment. Mr. Williams moved for a new trial on the basis of ineffective assistance of counsel. His motion was granted by the trial court. The State filed an untimely appeal, which was dismissed by the Court of Appeals of Wisconsin in August 1999.
3.
The pre-trial proceedings in Mr. Williams’ third trial for the sexual assault of Tyfonia then began. In October 1999, Mr. Williams orally and in writing demanded a speedy trial. His trial was set to commence on January 4, 2000, but was twice delayed because Tyfonia had moved out of state, and the prosecution had difficulty locating her. Trial was then set for June 14, 2000, but Mr. Williams requested a delay so that his new counsel could prepare. Trial was rescheduled for July 10, 2000; in an unrecorded pretrial
Shortly thereafter, the State did file an information that included additional charges based on the 1990 incident involving Annitra and Okima. These allegations were consolidated for trial with the allegations concerning Tyfonia. Mr. Williams requested that trial be postponed to allow him an opportunity to investigate the newly added charges. In November, the trial was again postponed with Mr. Williams’ consent and rescheduled to February 2001. However, due to ensuing court conflicts, Mr. Williams’ request for juvenile court records of Annitra and Okima and the scholastic schedules of the child witnesses, the trial was pushed back to June 18, 2001.
Shortly before trial, Mr. Williams moved to dismiss based on prosecutorial vindictiveness. He argued that the additional charges were in retaliation for his earlier successful appeal. The court denied his motion; it concluded that the testimony of Annitra and Okima in the second trial provided an adequate basis to explain the prosecutor‘s decision to pursue charges that were previously thought
The third trial eventually began July 16, 2001. It ended in an unopposed mistrial because of an improper remark by the prosecution in the presence of the jury. R.20, Tr.30 at 55.
4.
The fourth trial began on July 17, 2001. Mr. Williams was convicted of all three counts of first-degree sexual assault of a child. He then filed a motion for a new trial. The trial court denied the motion with respect to all counts, but determined that the sentence was in excess of the statutory maximum in effect at the time in Wisconsin.
Mr. Williams took an appeal to the Court of Appeals of Wisconsin. That court, reaching the merits of his submissions, affirmed the judgment of the trial court. See Williams, 677 N.W.2d 691. A petition for review was denied in the Supreme Court of Wisconsin. See Williams, 679 N.W.2d 546. We shall set forth the pertinent parts of the holding of the Court of Appeals in the discussion that follows.
C. Habeas Corpus Proceedings in the District Court
Mr. Williams then filed this habeas petition in the Eastern District of Wisconsin. Undertaking the screening function under Rule 4 of the Rules Governing Section 2254 Proceedings in the United States District Courts, the district court allowed him to proceed on six claims, including that his prosecution was vindictive and violated the Double Jeopardy Clause and that he was denied his right to a speedy trial. The court examined the claims under the standard of
II
DISCUSSION
A. Standard of Review
In this federal habeas corpus case, alleging constitutional error in a state court criminal conviction, we review de novo the district court‘s decision denying the writ. Burgess v. Watters, 467 F.3d 676, 681 (7th Cir. 2006), cert. denied, 75 U.S.L.W. 3438 (U.S. Feb. 20, 2007) (No. 06-8943). We review issues of fact resolved by the district court for clear error. Adams v. Bertrand, 453 F.3d 428, 432 (7th Cir. 2006). In doing so, we, like the district court, must evaluate the decision of the last state court to have adjudicated the petitioner‘s claim on the merits, according to the standards set forth in AEDPA,
In this deferential and limited review, state court factual findings are presumed correct. A habeas petitioner bears the burden of rebutting that presumption by clear and convincing evidence.
B. Double Jeopardy
Mr. Williams contends that the declaration of a mistrial in his first trial was inappropriate under the circumstances and saved the prosecution from the “disastrous” first trial. Appellant‘s Br. at 11. The result, he claims, was that he was placed twice in jeopardy for offenses arising out of the 1996 assault on Tyfonia.
1.
The Court of Appeals of Wisconsin held that the trial judge was correct in concluding that manifest necessity supported the mistrial. Williams, 677 N.W.2d at 697-700. The court‘s decision carefully traced the basic principles of double jeopardy established by the holdings of the Supreme Court of the United States. It noted that the state has the burden of establishing “manifest necessity” for any mistrial ordered over the objection of a defendant. Id. at 697. It recognized as well that, in assessing the “necessity” of granting a mistrial in the face of a prejudicial statement of counsel, great respect was owed to the estimation of the
The record, therefore, persuades us that the trial judge acted responsibly and deliberately and accorded careful consideration to Williams’ interest in having the trial concluded in a single proceeding. Since the trial judge exercised “sound discretion” in handling the sensitive problem of possible juror bias created by the improper question by Williams’ counsel, the mistrial order is supported by the “high degree” of necessity that is required in a case of this kind.
Id.
2.
The district court considered this contention in adjudicating the present
3.
The Fifth Amendment‘s Double Jeopardy Clause, applied to the states by the Fourteenth Amendment, guarantees that no one shall “be subject for the same offence to be twice put in jeopardy of life or limb.”
At times, this right is “subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury.” Id. at 505. Generally, “the prosecutor must shoulder the burden of justifying the mistrial if he is to avoid the double jeopardy bar. His burden is a heavy one. The prosecutor must demonstrate ‘manifest necessity’ for any mistrial declared over the objection of the defendant.” Id. The Supreme Court has noted that it is not a literal necessity that must be shown, but necessity of a “high degree.” Id. at 506.
As a general rule, a reviewing court is charged with determining whether the trial court‘s decision that a
We turn, therefore, to the decision of the Court of Appeals of Wisconsin to determine whether its evaluation of Mr. Williams’ double jeopardy claim is contrary to or an unreasonable application of the above standard. In Mr. Williams’ case, a mistrial was declared following his counsel‘s question to a State witness regarding potential criminal sexual misconduct of another witness. Williams, 677 N.W.2d at 694. In evaluating Mr. Williams’ claim, the State applied the standards set forth in Washington. Because
We therefore must consider whether the Wisconsin appellate court‘s application of the law to facts of the instant case was unreasonable. In concluding that the mistrial was within the discretion of the trial court, the Wisconsin appellate court focused on the improper nature of the question, given the trial court‘s earlier instruction that evidentiary questions involving the sexual history of any witness were to be aired outside the hearing of the jury, the general irrelevance of the question posed to the case and its lack of a firm basis in fact. Williams, 677 N.W.2d at 699. The court also weighed the interest of the defendant in enduring retrial against the highly prejudicial effect of the question. The court noted that the parties had a “full opportunity to explain their positions,” id. at 699-700, and that the trial judge acted “responsibly and deliberately,” id. at 700, in concluding that the prejudice could not be overcome.
We conclude that the decision of the Court of Appeals of Wisconsin was not an unreasonable application of clearly established Supreme Court law. It recognized that Washington requires that an appellate tribunal give a broad range of discretion to a trial judge in estimating the degree of juror bias precipitated by the remark of counsel. The Wisconsin appellate tribunal reasonably decided that there was no material distinction between the situation confronted in Washington, in which a prejudicial remark was made by the defense attorney in opening arguments, and the situation here, in which a question of similar prejudicial effect is improperly put to a witness.
C. Vindictive Prosecution
Mr. Williams next submits that the addition of charges relating to the 1990 incident involving Annitra and Okima, after he had gained a new trial on the original charge and declined to enter into a plea agreement relating to the originally charged 1996 offenses, amounts to vindictive prosecution.
1.
The Court of Appeals of Wisconsin began its analysis of this issue by acknowledging that the Supreme Court of the United States had recognized in Blackledge v. Perry, 417 U.S. 21, 25-29 (1974), and Thigpen v. Roberts, 468 U.S. 27, 30-33 (1984), that a presumption of vindictiveness arises when, following a defendant‘s successful appeal, greater punishment is sought by a prosecutor. The state appellate court was quick to point out, however, that, in both of those cases, the prosecutor had increased the gravity of the charge faced by the defendant for the same conduct as alleged in the original charge. By contrast, in this case, the prosecutor had decided to charge Mr. Williams with an entirely different crime, based on entirely different facts, against an entirely different victim, and having occurred in an entirely different time period six years earlier. Relying on a decision of the United States Court of Appeals for the Eleventh Circuit in Humphrey v. United States, 888 F.2d 1546, 1549 (11th Cir. 1989), the Wisconsin court took the view that this distinction is a valid one. Williams, 677 N.W.2d at 703.
On habeas review, the district court held that the Wisconsin court had interpreted reasonably the case law of the Supreme Court of the United States. The district court concluded that the state court had read correctly Supreme Court precedent to find a presumption of vindictiveness when a prosecutor brings more serious charges against a defendant based on the same underlying conduct. The district court also agreed that these cases were inapplicable where, as here, the new charges related to different underlying conduct. R.34 at 5-6 (citing Humphrey, 888 F.2d at 1549).
3.
a.
The Due Process Clause of the Fourteenth Amendment has been interpreted to prohibit prosecutions under circumstances suggesting a “realistic likelihood of ‘vindictiveness’ ” on the part of the prosecutor. Blackledge, 417 U.S. at 27. In Blackledge, and again in Thigpen, the Supreme Court established that a presumption of vindictiveness follows certain prosecutorial decisions.4 The factual circumstances of both of these cases involved a defendant who had been convicted on various misdemeanor counts, succeeded in appealing his conviction, and, on retrial, the state prosecutor in each chose to prosecute the same under-
Neither the Supreme Court nor this court has addressed directly the applicability of Thigpen and Blackledge to situations where the defendant is charged, post-appeal, on the basis of different criminal conduct, as opposed to a heightened charge on the basis of the same underlying conduct. As both the state court of appeals and the district court noted, the Eleventh Circuit has ruled that, because Blackledge and Thigpen do not address prosecutorial action involving other criminal conduct, the presumption of vindictiveness invoked by the Supreme Court in those cases is not applicable. Therefore, when the prosecutorial conduct involves other criminal conduct, the defendant must demonstrate actual vindictiveness rather than relying on the presumption recognized in Blackledge and Thigpen. See Humphrey, 888 F.2d at 1549.5 The Ninth Circuit has reached the same conclusion. In United States v. Martinez, 785 F.2d 663 (9th Cir. 1986), that court said:
If the additional charge “aris[es] out of the same nucleus of operative facts as the original charge,” a
presumption of vindictiveness is raised. If, however, the second charge is unrelated to the first, the presumption does not arise. . . .
. . . . Nothing in Blackledge [v. Perry] presumed to give the defendant a free ride for separate crimes he may have committed, or to prevent a prosecutor from bringing new charges as a result of changed or altered circumstances which properly bear on prosecutorial discretion.
Id. at 669 (internal citations omitted) (bracketed alterations in original) (finding a presumption of vindictiveness inappropriate when Arizona authorities filed charges against the defendant only after he was acquitted on unrelated charges in Colorado).
Our task in evaluating Mr. Williams’ contention is to determine whether the resolution of the vindictive prosecution issue by the Court of Appeals of Wisconsin was contrary to, or involved an unreasonable application of, clearly established federal law, or was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.
The Wisconsin appellate court interpreted Thigpen and Blackledge in accord with the Eleventh Circuit‘s decision in Humphrey and the Ninth Circuit‘s decision in Martinez. We cannot conclude that Blackledge and Thigpen clearly establish a different rule than that applied by the Wisconsin court. Nor can we say that the facts of those cases are materially indistinguishable from this case such that we might deem the decision of the Wisconsin court “contrary to” Supreme Court precedent. See Williams v. Taylor, 529 U.S. at 405-06. Moreover, we cannot say that the Wisconsin court‘s decision involved an “unreasonable
Here, by contrast, it is not evident that the state court “responded” to a successful appeal with more significant charges; instead, it brought those additional charges while in the course of pursuing a retrial on the same charge related to the 1996 event. Moreover, as the Wisconsin court emphasized, the prosecutor now had the trial testimony of the two victims, given under oath and subjected to cross-examination. Previously, he had only the police report statements of two very young children. These circumstances were therefore vastly different from those confronted by the original prosecutor in the 1990 incident, when Annitra and Okima were the five and six year-old victims (who were, presumably, incapable of substantial testimony, even assuming, for the sake of argument, that they were able to take and understand the oath). As fifteen and sixteen year-olds, they were better suited to offer testimony, and the trial court found that this change alone established “abundant reason, other than vindictiveness which would explain the conduct of the district attorney.” R.20, Tr.27 at 16. In affirming that ruling, the state appellate court stated, “[a]rmed with the knowledge [on the basis of their testimony in an earlier trial] that the
Given both that two Courts of Appeals have held that the bringing of unrelated charges stands outside the Blackledge-Thigpen presumption and that the factual circumstances of this case indicate legitimate reasons for adding charges related to separate incidents involving trial witnesses, we certainly cannot say that this decision of the Court of Appeals of Wisconsin lies so far outside the bounds of permissible interpretations of Supreme Court precedent to qualify as objectively unreasonable under Williams v. Taylor.
b.
Likewise, we must conclude that the Court of Appeals of Wisconsin did not apply clearly established federal law unreasonably in holding that the decision to add further charges following an unsuccessful attempt to obtain a plea also did not give rise to a presumption of vindictiveness. In Bordenkircher v. Hayes, 434 U.S. 357 (1978), the Supreme Court held that a prosecutor‘s addition of charges following unsuccessful plea negotiations did not violate due process when the prosecutor fully disclosed the alternatives and the defendant was plainly subject to prosecution on the additional charges. The Court acknowl-
Accordingly, we affirm the district court‘s denial of habeas relief to Mr. Williams on his claim of vindictive prosecution.
D. Speedy Trial
Finally, Mr. Williams contends that his right to a speedy trial was violated by the substantial delays involved in his final trial.
In his state appeal, Mr. Williams claimed that, of the delay of nearly three years, just over one year was fairly attributable to the prosecution. The Court of Appeals of Wisconsin disagreed; it regarded this characterization of the delay as too generous to Mr. Williams. In reaching this conclusion, the state appellate court undertook a detailed examination of each delay, and concluded that no more than four months of delay were attributable to the State. At the beginning of its analysis, the court set forth its approach. First, it would identify the delays attributable to the defendant because those periods cannot be considered in determining whether the defendant was denied a speedy trial. Williams, 677 N.W.2d at 700. Second, it would identify the delay caused by the State.6 Third, it would require an explanation by the State for all such periods. To be a valid reason, continued the appellate court, the delay must be one intrinsic to the case itself.
Having set forth its methodology, the court then engaged in a fact-specific and detailed examination of the delays in this case. In the course of that examination, the appellate court held that adjournments requested by the State as it
2.
The district court found that Mr. Williams’ speedy trial claim properly was denied under Barker v. Wingo, 407 U.S. 514 (1972). Although several years passed between the bringing of charges and the commencement of Mr. Williams’ trial, the court noted that the state court had found that most of the delay was either due to Mr. Williams’ “own affirmative conduct . . . or was not fairly attributable to any actions of the prosecutor.” R.34 at 6-7. Given the relative shortness of the delay attributable to the State, and that Mr. Williams himself had not consistently demanded a speedy trial, the district court found that the state court‘s resolution of the issue was “not erroneous, much less unreasonable,” and denied the petition on this ground as well. Id. at 7.
3.
The Sixth Amendment guarantees that a criminal defendant enjoys “the right to a speedy and public trial.”
The length of the delay serves as a “triggering mechanism,” id.; without some presumptively prejudicial lapse of time, there is no need to examine the rest of the factors, id. In this case, the State conceded, and the Court of Appeals of Wisconsin agreed, that the period of two years and eleven months, following the defendant‘s successful appeal of his first conviction and the commencement of his third trial, was presumptively prejudicial and triggers the analysis set forth in Barker. See Williams, 677 N.W.2d at 700.
United States v. Loud Hawk, 474 U.S. 302, 315 (1986), characterizes the second Barker factor, the reason for the delay, as “[t]he flag all litigants seek to capture.” The Court of Appeals of Wisconsin was therefore correct in treating as a critical factor the comparative fault of the parties in causing the resulting delays. Mr. Williams does not challenge this general proposition. Indeed, in challenging the appellate court‘s apportionment of fault in the delays, Mr. Williams points to no precedent of the Supreme Court that requires an opposite conclusion with respect to any particular instance of delay. Instead, he principally seeks to charge the State with delays resulting from its inability to secure witnesses.7 In evaluating this claim, we note that Barker explicitly noted that the location of a missing witness is a valid reason for delay. 407 U.S. at 531. In our own interpretation of Barker, we have suggested that, in the absence of some showing by the defendant that “the
In evaluating Mr. Williams’ assertion of the right to a speedy trial, the third Barker factor, the Court of Appeals of Wisconsin noted that Mr. Williams had been inconsistent in his assertion of his speedy trial right, either by causing certain delays himself or by consenting to delays requested by the State. Before this court, Mr. Williams points to instances in which he asserted his right or objected to the State‘s request for an adjournment. The Court of Appeals did not dispute that Mr. Williams had raised the speedy trial issue; instead, it concluded that the fact that he did not uniformly assert his right “significantly diminish[ed] the weight of his demand.” Williams, 677 N.W.2d at 702. Mr. Williams cites no authority that contradicts this approach; indeed, our own precedent could be read to support the methodology of the Court of Appeals of Wisconsin, see United States v. Taylor, 196 F.3d 854, 862 (7th Cir. 1999) (concluding, when a defendant had raised his speedy trial right simultaneously with his own request for delay, the inconsistency makes his “demand” “entitled to little, if any, weight“).
The Court of Appeals of Wisconsin did not consider extensively the issue of actual prejudice to the defendant. It simply remarked, in conclusory fashion, that the delays were not prejudicial. We must conclude, however, that Mr. Williams has made no persuasive showing that
We must conclude that on his speedy trial claim, like the others raised in this proceeding, Mr. Williams has failed to demonstrate that the decision of the Court of Appeals of Wisconsin is contrary to, or involves an unreasonable application of, clearly established law as articulated by the Supreme Court. See
Conclusion
For the reasons stated above, we affirm the district court‘s denial of Mr. Williams’ petition.
AFFIRMED
Teste:
_____________________________
Clerk of the United States Court of Appeals for the Seventh Circuit
USCA-02-C-0072—3-20-07