Case Information
*1 Before W ILLIAMS H AMILTON , Circuit Judges , C HANG District Judge . [*]
W ILLIAMS Circuit Judge
. Douglas admitted sex ually molesting victim, former step son, during rec orded phone call police station. During call, before confession, victim repeatedly threatened to harm Hicks and to tell Hicks’s other minor son abuse. Ultimately, Hicks was charged with sexually molesting victim tried jury. At trial, Hicks’s counsel played entire minute recorded conversation to jury. Later, during state’s rebuttal argument, prosecutor referred earlier case in which Hicks had pleaded guilty after be ing accused engaging similar conduct. He asked jury it “fair” that Hicks permitted “plea bar gain[]” down his felony charges misdemeanors receive probation punishment. And then, he asked jury, “Is what should happened here or should we deal case?” Hicks’s trial counsel did not object clearly im proper argument.
The jury returned verdict guilty Hicks sen tenced years’ imprisonment. After failed collateral challenge his conviction state court, he filed petition habeas relief pursuant U.S.C. § federal court. district denied relief, now appeals. On appeal he contends state erred when found counsel’s failure move suppress recorded conversa tions, confessed crime, did not constitute ineffective assistance counsel. While we find unreasonably determined counsel credible when testified told him did feel threatened during call, nonetheless find suffer prejudice tape’s admission, because other evidence guilt sufficient sustain conviction. ‐
Hicks also alleges unreasonable for state conclude counsel’s decision to object dur ‐ ing rebuttal a strategic decision. We agree with Hicks these were improper, are very troubled by court’s finding on issue. Nonetheless, because Hicks fairly present this claim Su preme petition review, we find he has procedurally defaulted on claim relief. As a conse quence, cannot reach merits affirm district court’s denial habeas relief.
I. BACKGROUND
In April 2005, year old man named E.J. reported police he sexually molested child former stepfather, Douglas Hicks (“Hicks”). E.J. stated sexual abuse began when he only years old continued until In total, there sepa rate incidents sexual abuse. Almost year after first report ing abuse police, E.J. worked with Investigator Dale Ja nus Oconto County Sheriff’s Department obtain confession from Hicks. At Investigator Janus’s suggestion, E.J. agreed one party consent taped phone call.
On February E.J. telephoned Oconto County Sheriff’s station. Before placing call, Inves tigator Janus provided E.J. with guidance on how get make incriminating statement. While Investigator Janus told take softer approach phone, stated “there wasn’t anything could really say wrong. Whatever [E.J.] felt needed say okay.” After providing these instructions, Investigator Ja ‐ nus both listened to and recorded conversation.
Hicks answered phone while he driving com pany car with new employee he training. call lasted minutes and first time E.J. con fronted Hicks about abuse. During call, E.J. made var ious attempts get Hicks admit to abuse. These tempts included making number threats including: threats death or bodily injury, general threats regarding negative consequences, threats go police, and threats continued harassment. While tried end call number times, never did. And, while he generally de nied abuse, asked they could discuss issue person, and made other suggested E.J.’s alle gations true.
Towards end call, E.J. changed approach and made reference Hicks’s minor son, A.H., who E.J.’s step brother—born and Wendy Lambert, E.J.’s mother. Although no longer married, and Lambert shared custody A.H. During call, E.J. threatened tell A.H. abuse endured hands. After mak ing threat, following exchange occurred: : All you need do say you’re sorry. Say
you’re sorry and can all go back being like normal you will never hear me again there’ll never be any more problems like this, I’ll play ball keep things way you want them whenever other investigation like pops up because I’m sure there’s you know more children you want molest.
Hicks : E.J., I am sorry.
E.J. : You’re sorry for what, come on, go forward, you’re sorry for what.
Hicks : Just, you just told me say it, I’m sorry. E.J. : No say I’m sorry for sexually molesting you. This isn’t going end until you reach point. We got sorry part out now just need end sexually molesting me part. Hicks : That’s going keep you uh, trying upend, upend [my son]. E.J. : Yes will if you want see your child again, you don’t want him ever know you’re going say it. You’re going say E.J. I’m sorry sexually molesting you.
Hicks : E.J., I’m sorry molesting you. 20–21. Several weeks after recorded conversation, Hicks met with Investigator Janus. During meeting, denied ever sexually molesting E.J. When told recording, stated felt threatened E.J. only admitted abusing because felt threatened. In June charged repeated sexual assault E.J., viola tion Wis. Stat. § 948.025(1). 15 ‐ 3865
A. Pretrial Proceedings retained Attorneys K. Richard Wells and Gerald Boyle, members of the same firm, as counsel. Before trial, government asked the court hold Miranda ‐ Goodchild hearing determine admissibility Hicks’s recorded statements. Hicks’s counsel object hearing. Ra ther, Wells stated on record agreed proce dure “[a]lthough we’re really challenging and its (sic) voluntariness.” ‐ Nonetheless, Wells believed they “need[ed] make record about it.” Id.
The held Miranda Goodchild hearing. During hearing, Investigator Janus testified investigation and recording made and Hicks’s conversation. Wells neither offered evidence nor made any argument Hicks’s behalf. At end hearing, concluded under totality circumstances, Hicks’s ments were voluntary therefore, admissible trial.
B. Hicks’s Criminal Trial
In March Hicks, represented by Wells Boyle, tried before jury. At trial, government’s first two wit nesses brothers who molested children. admitted their testimony sole pur pose establishing motive. Each brother detailed *7 7 ‐ 3865 how the abuse occurred. Though Hicks was prosecuted on fel ‐ ony charges for these sexual assaults, resulted in a hung jury. Ultimately, Hicks entered an Alford plea to two re ‐ duced misdemeanor charges related to the charged conduct: the intent to contribute to the delinquency of a minor ex ‐ posing one’s genitals to child. As result, Hicks was sen ‐ tenced probation, which was eventually revoked rea sons in the record, served six months in jail. government also called E.J. testify. He gave the jury graphic account repeated abuse, providing vivid de tail about three specific incidents. These details included where house abuse occurred, who else was present home, what movies he watching prior abuse, nature sexual acts performed on him those he forced perform on Hicks. Although he only provided level detail with regards three inci dents, testified there approximately separate incidents abuse over three year period, occur ring on an almost weekly basis.
On direct examination, also testified rec orded telephone conversation Hicks. He acknowledged call angry one, thought best way get admit abuse “push him.” He acknowledged making threats call. Id. Before cross examination E.J., de fense played entirety minute recorded conversa tion purpose “completeness.” Later, prosecution called Investigator Janus, who testified about recounted portions recorded conversation stand.
Lambert, Hicks’s ex wife, also testified prosecution. She first learned abuse in April around time E.J. reported to police. Almost year later, in February she confronted Hicks as part Investigator Janus’s investigation. After she confronted him, Hicks admit ted to abusing E.J. But, he provided excuse: his actions were result sexual abuse he had both experienced witnessed as child. After conversation, Hicks called Lambert two more times apologize attempt to speak E.J. in hopes he might drop allegations.
After prosecution rested, testified his own de fense. He addressed brothers’ he had sex ually assaulted them when they were children. While he ad mitted he had charged two felonies result their allegations, he reiterated felony had ended hung jury. Because he wanted vindicate name, reluctantly entered into Alford plea. addressed recording he confessed sexually molesting E.J. He stated he found conversa tion “shocking,” but once threatened take allega tions son A.H., “that it. I told him what wanted hear. I asked him what wanted hear, I told him what wanted hear.” 172.
During closing arguments, Wells urged jury credit confession tape, arguing, “What you heard tape what went down. It threatening. It mean spirited. It horrible. And there multiple ‐ denials of anything by Mr. Hicks.” 89. He re minded the jury it could consider the testimony of the two brothers only for the purpose motive, as evidence Hicks’s guilt in the instant case.
However, during its rebuttal argument, the prosecution made very explicit reference previous charges faced. After referring Hicks’s Alford plea, prose cutor stated, “And was fair resolution what happened? Plea bargaining down couple misdemeanors. Is what should happened here or should deal case?” Id. The prosecutor concluded asking jury “judge [Hicks] on his words … [E.J.] I’m sorry for molesting you.” Id. 111–12.
During deliberations, jury submitted question, ask ing reveal why probation in previous case revoked. declined answer question, noting there no evidence placed rec ord why. Later day, jury found guilty repeated sexual assault He sentenced years prison, currently serving.
C. Post Conviction Hearing Wisconsin Trial moved for post conviction relief Wisconsin trial court. He challenged admissibility recorded conversation alleged counsel ineffective for failing object to: (1) admission recorded ment; (2) prosecutor’s closing argument regarding Alford plea. Wells testified at post conviction hearing held pursuant State Machner N.W.2d (Wis. App. Ct. 1979) (holding that, prerequisite ineffective assistance trial counsel, subsequent counsel must require trial counsel ʹ s presence and testimony at the hearing or her conduct challenged). Although Wells testified that E.J. made approximately threats Hicks re cording, he believed that telephone conversation “to tally voluntary” and that could ended call at any time. Wells also testified that told him that despite threats, he did not feel coerced, pressured, or intimidated any way.
Yet, Wells’s memory facts trial contra dicted by record. The record reflected that Wells delivered both opening and closing and examinations witnesses, but he testified Machner hearing he and Boyle shared witnesses. He testified Boyle delivered both opening closing statements. testified Machner hearing denied ever tell ing trial counsel he feel threatened by E.J. Ra ther, testified he explicitly told trial counsel felt threatened E.J. E.J.’s threats tell A.H. were what ultimately caused him give apology demanded.
After hearing, concluded ments made recording voluntary Wells’s decision object prosecutor’s closing argument reasonable strategic decision. court, therefore, de nied request new trial.
D. Hicks’s First State Appeal ( Hicks I ) appealed two ineffective assistance of counsel claims to the of Appeals. While the appellate court found that the prosecutor’s statements about Hicks’s Al ‐ ford plea were improper it agreed with the trial court that Wells’s decision object a reasonable strategic deci ‐ sion.
However, appellate court disagreed the trial court’s determination statements phone call were admissible its conclusion Wells’s failure object their admissibility constitute ineffective assistance of counsel. Rather, appellate court determined E.J. acting as police agent during call. As po lice agent, E.J. made “impermissible threats physical harm psychological intimidation … threats no police ficer would be allowed make order secure incriminat ing statements.” R. 4. Therefore, appellate re manded case trial determine whether statements were voluntary pursuant State Clappes N.W.2d (Wis. 1987) (applying totality circum stances analysis determine whether confession volun tary).
On remand, trial held hearing determine whether statements were made voluntarily. At hear ing, testified specific incidents harassment job loss experienced result previous case. Based upon experience, testified knew could “lose all again” simply took claims police. Nonetheless, court, determined under totality circumstances, Hicks’ “product free unconstrained will, reflecting deliberateness choice” were, therefore, voluntary admissible at trial.
E. Hicks’s Second State Appeal ( II) once more appealed the trial court’s determination the statements were voluntary the Wisconsin Court Appeals, which affirmed. The appellate court found be cause not know was police agent, there was “simply no pressure comply with police authority.” 9. Further, the appellate court concluded E.J.’s threat tell A.H. the abuse was not coercive. In fact, court viewed specific threat as “least problem atic.” Id. 10. If allegations were false, appellate court concluded they carried no coercive weight. But they true, then threat report was “impermissibly coercive constitutional sense.” Id. To reach these conclu sions, appellate credited Wells’s testimony over Hicks.
Lastly, appellate addressed Hicks’s law new warranted “interest justice” because prosecutor’s improper closing argument. troubling comprised only three sentences page closing argument, jury instructed could consider evidence. Therefore, based upon totality evidence, appellate “satisfied real controversy—assessing credibility accuser accused—was fully tried case.” Id.
F. Petition Review with Wisconsin Su preme
In January Hicks, who represented counsel, filed petition review Court. ‐ He listed four issues. The first two related appellate court’s determination voluntary and, therefore, admissible at trial. The third issue asked address his state law claim he entitled new because prosecutor’s improper comments prevented real controversy being tried.
In fourth issue, raised his ineffective assistance counsel claim based upon Wells’s failure object prosecutor’s improper argument. On issue, he asked determine whether “trial counsel’s failure object prosecutor’s improper closing arguments constitute[d] ‐ effective assistance counsel.” 5. While pro vided no argument, after discussing prosecutor’s im proper argument section petition entitled, “Rea sons for Granting Review,” stated: petitioner recognizes legal standards issue are clearly developed, therefore, issue would likely not justify review inde
pendently absent other issue raised, pursu ant standards set Wis. Stat. § 809.62. must nonetheless raise these claims here preserve them federal habeas review. See O’Sullivan Boerckel (1999).
Id. 7. He seemingly mentioned claim last sen tence argument addressing law based upon prosecution’s closing arguments. There stated, “[l]ikewise, counsel’s decision object reason able strategic decision.” Id.
On March denied petition review. No. 3865 G. Federal § Petition filed pro se petition for writ of habeas corpus
November 22, United States District Court of Eastern District of Wisconsin. In his petition, raised two grounds for relief. First, contended his trial counsel rendered ineffective assistance of counsel by failing chal lenge pre trial, admissibility recorded conversation. Second, asserted counsel ineffective failing object prosecutor’s improper dur ing closing.
While district concluded Wisconsin Appeals made unreasonable determination fact when it concluded Wells’s testimony more credible than Hicks’s, nonetheless denied writ, finding prejudiced by Wells’s failure move suppress statements. The district held because adequately presented second ineffective assistance counsel petition Court, doctrine procedural default barred its review. district issued certificate appealability both issues appeal followed.
II. ANALYSIS
Our review governed (and greatly limited) by Anti terrorism Effective Death Penalty Act (“AEDPA”). See, e.g. Harper Brown, WL *2 *15 15 15 3865 (7th Cir. July 31, 2017) (noting AEDPA provides a “de manding standard” must be met before a petitioner may receive relief). In enacting AEDPA, Congress modified a fed eral court’s role reviewing state court convictions “pre vent federal habeas ‘retrials’ ensure state court convictions are given effect extent possible under law.” Bell v. Cone , 535 U.S. 685, 693 (2002). Therefore, AEDPA estab lishes a deferential standard, see, e.g., Stechauner v. Smith , 852 F.3d 708, (7th Cir. 2017), will lightly conclude habeas relief is necessary. Burt v. Titlow , S. Ct. 10, (2013); see Harrington v. Richter , U.S. 86, 102–03 (2011) (“If standard difficult meet, because it meant be.”).
Pursuant statute, when a state court has adjudicated merits, AEDPA permits a federal court issue writ habeas corpus only two situations. See U.S.C. § 2254(d). First, writ may issue if petitioner establishes state decision “contrary or involved an unreasonable application of, clearly established Federal law, determined Supreme Court United States … .” § 2254(d)(1). A decision “contradicts clearly established law if it applies legal standard inconsistent governing Su preme precedent or contradicts Court ʹ s treatment materially identical set facts.” Rodriguez v. Gossett F.3d (7th Cir. 2016) (citing Bell , U.S. 694).
Unreasonable application clearly established law occurs state identifies correct legal rule, yet applies objectively unreasonable manner. Id. (citing Yarborough Gentry (2003)). This requires *16 16 15 3865 do more than just get wrong; “even clear error will suf fice.” White v. Woodall , 134 S. Ct. 1697, 1702 (2014) (quoting Lockyer v. Andrade , 538 U.S. 63, 75–76 (2014)) (internal quota tion marks omitted). This is a high burden and a petitioner must “show state court ʹ s ruling on being presented federal court so lacking in justification there an error well understood and comprehended ex isting law beyond any possibility fairminded disagree ment.” Id. (quoting Harrington v. Richter , 131 S. Ct. 770, 786–87 (2011)) (internal quotation mark omitted).
Second, writ may issue petitioner establishes state court decision “based on unreasonable deter mination facts light evidence State proceeding.” § 2254(d)(2). A finding fact, however, unreasonable simply because federal habeas would reached different conclusion. Burt , 134 S. Ct. 15 (quoting Wood v. Allen , 290, 301 (2010)). Rather, pe titioner must rebut state court’s factual findings “clear convincing evidence.” Id. (quoting § 2254(e)(1)); see Pole v. Randolph , F.3d 922, (7th Cir. 2009) (noting state court’s factual findings are presumed be correct, unless petitioner “rebuts them clear convincing evidence.”).
We review district court’s denial habeas relief de novo , its factual findings clear error. Barrow Uchtman , F.3d (7th Cir. 2005). Additionally, our review decisions highest address claims their merits, Stechauner F.3d (quoting Harris v Thompson F.3d (7th Cir. 2012)), here I II. *17 17 15 3865
A. Hicks’s Ineffective Assistance of Counsel Claims Hicks’s petition advances two ineffective assistance of counsel claims. [6] claims are governed by well established principles articulated Strickland v. Washington , 466 U.S. 668 (1984). Under Strickland ’s two prong standard, assert successful of ineffective assistance of counsel, petitioner must first demonstrate counsel’s performance deficient. Smith v. Brown , 764 F.3d 790, 795 (7th Cir. 2014). This requires petitioner demonstrate counsel’s representation fell below an objective standard reasonableness. See Barrow , 398 F.3d at (noting petitioner “must show performance counsel fell outside range competence demanded attorneys criminal cases—i.e., fell below objective standard reasonableness.”) (quoting Strickland , U.S. at 687–88) (internal quotation marks omitted).
What is objectively reasonable is determined pre vailing professional norms. Pole , F.3d At same time, there is “significant latitude permissible attorney conduct,” Mosley v. Atchison , F.3d 847–48 (7th Cir. 2012), we presume, “under circumstances, chal lenged action might be considered sound strategy.” Id . (quoting Strickland , 689) (internal quotation mark omitted). This highly deferential inquiry; “counsel is strongly presumed have rendered adequate assistance made all significant decisions exercise reasonable *18 18 15 3865 professional judgment.” Strickland , 466 U.S. at 690; see Mosley , 689 F.3d . at 848 (“To avoid inevitable temptation evaluate a lawyer ʹ s performance through distorting lens hindsight, Strickland establishes a deferential presumption strategic judgments made defense counsel are reason able.”).
Second, a petitioner must demonstrate counsel’s defi cient performance prejudiced defense. Stitts v. Wilson , F.3d 887, (7th Cir. 2013). This requires petitioner demonstrate “reasonable probability that, but counsel’s unprofessional errors,” outcome would differ ent. Knowles v. Mirzayance , U.S. (2009) (citation omitted). If error no effect on final judgment, then relief warranted, as Sixth Amendment’s “guarantee counsel ensure defendant has assistance nec essary justify reliance outcome proceeding.” Strickland , U.S. 691–92.
A petitioner who seeks habeas relief due ineffective assistance counsel faces high hurdle. has instructed under these circumstances, must em ploy “doubly deferential” standard, one “gives both state defense attorney benefit doubt.” Burt S. Ct. (quoting Cullen Pinholster , S. Ct. (2011)). And, Strickland provides “a general standard, has even more latitude reasonably determine defendant has satisfied standard.” Knowles Failure to File Motion to Suppress Recorded
Conversation asserts that Wells rendered ineffective assistance counsel by failing move to suppress recorded conver sation confessed molesting State urges us conclude assert this claim peti tion before Court, therefore, doctrine procedural default precludes us reaching its merits. But, defending claim on merits dis trict court, while simultaneously arguing district procedurally defaulted on second claim, State implicitly waived defense procedural default. See Perruquet v. Briley , F.3d 505, (7th Cir. 2004) (“where State has responded one habeas claim on its merits while asserting another is procedurally barred, has im plicitly waived any contention first claim also pro cedurally defaulted.”). Therefore, we will address claim on merits.
To successfully advance a claim ineffective assistance counsel based upon failure file motion suppress, petitioner must demonstrate “there both reasona ble probability would have prevailed on motion suppress reasonable probability that, confessions suppressed, would have acquitted.” Bynum v. Lemmon F.3d (7th Cir. 2009) (citing Strickland , 694); see United States Cieslowski F.3d (7th Cir. 2005) (“When ineffective assistance based counsel’s failure present motion suppress, required defendant prove motion meritorious.”).
20 15 3865
a. State Unreasonably Determined There No Impermissible Coercion “A foundational principle of due process of law is the cannot procure criminal conviction through the use of involuntary confession.” Carrion v. Butler , 835 F.3d 764, 775 (7th Cir. 2016) (citing Schneckloth v. Bustamonte , 412 U.S. 218, 223–26 (1973)); see also United States v. Vallar , 635 F.3d 271, 282 (7th Cir. 2011). A confession is voluntary “it is the product of rational intellect free will the result of phys ‐ ical abuse, psychological intimidation, or deceptive interroga ‐ tion tactics overcome defendant’s free will.” Val lar , F.3d 282 (quoting United States v. Gillaum , 372 F.3d 848, 856–57 (7th Cir. 2004)) (internal quotation marks omit ted). To determine whether confession is voluntary, must analyze “the totality of all surrounding cir cumstances—both characteristics of accused details interrogation.” Schneckloth , U.S. 226; see Murdock v. Dorethy , F.3d 203, (7th Cir. 2017). Fur ther, “coercive police activity necessary predicate finding confession voluntary within meaning Due Process Clause Fourteenth Amendment.” United States v. Sturdivant , F.3d 690, (7th Cir. 2015) (quoting Colorado v. Connelly (1986)) (inter nal quotation marks omitted).
We evaluate coercion perspective reasonable person suspect’s position. United States Huerta F.3d (7th Cir. 2001). In doing so, consider “the de fendant ʹ s age, education, intelligence level, mental state; length defendant ʹ s detention; nature terrogations; inclusion advice constitutional *21 21 15 3865 rights; use of physical punishment, including depri vation of food or sleep.” Sturdivant , 796 F.3d at 695 (quoting Huerta , 239 F.3d at 871) (internal quotation marks omitted). argues that state court erred when it determined that feel threatened by E.J. during call. The Wis consin Appellate Court cited only state decisions when it evaluated whether confession voluntary. See R. 8–9. But, no impact our reasoning because, doing so, Wisconsin Appellate Court applied same totality circumstances test that applies when evaluating whether Due Process Clause violation occurred. See, e.g., State v. Clappes , N.W.2d 759, (Wis. 1987) (not ing must evaluate totality circum stances determine whether confession voluntary by “balanc[ing] personal characteristics defendant against pressures imposed upon him police order induce him respond questioning.”). In I , state appellate noted “applied impermissible threats physical harm psychological intimidation. He made threats no police officer would be allowed make order secure incriminating statements.” petitioner argues length Court Appeals erred II when it determined E.J.’s threat take allegations A.H. impermissibly coercive. “[T]hreats suspect’s family or children, even implicit, certainly may render confessions involuntary,” Sorn berger v. City Knoxville, Ill. , F.3d (7th Cir. 2006) (citing Lynumn Illinois (1963)). In Lynumn found defendant’s confession involuntary when made “only after police told her financial aid her infant children would be cut off, her children taken from her, she did not ‘cooper ‐ ate.’” Lynumn at 534. While we agree with Hicks that the appellate court seemingly ignored prior experience with law enforcement when he faced the earlier charges, we are not persuaded that the court unreasonably applied federal law when it concluded these threats were not impermissibly coercive. But, as will discuss below, does foreclose our finding that Hicks has established the first Strickland prong.
In Hicks II appellate court concluded that Hicks’s state ‐ ments were made voluntarily. See To do so, appellate court accepted Wells’s testimony over Hicks’s testi mony regarding whether he felt threatened by It further noted that “[i]f trial concluded that actu ally felt threatened by numerous threats physical vio lence, it would compelled conclude Hicks’s state ments involuntary.” Id. n.2. We find appellate court’s conclusion II Wells’s testimony more credible than problematic, as it rebutted clear convincing evidence: transcript trial.
Wells testified Machner hearing role during trial somewhat limited. He stated delivered nei ther opening statement nor closing argument. He testified split witnesses Boyle. But, record reflects opposite. Instead, what transcript reveals Wells delivered both opening closing state ments handled all witnesses. In light patently false testimony Wells provided readily verifiable facts, unreasonable credit tes timony over Hicks. Moreover, district noted, Wells’s testimony told him feel threatened by E.J. stands contradiction to actions at trial. If he knew that Hicks did not feel threatened by E.J., then Wells allowed Hicks perjure himself on stand when he testified contrary. See 165–66 (asking Hicks if he heard E.J. threatening him whether he felt threatened, Hicks responded, “Yes.”). Additionally, he knew that feel threatened, soliciting information stand would flown face Wells’s theory case trial—that a threatening call elicited a false confession.
Wells’s testimony only direct evidence contra dicted testimony others how he felt during call. When initially interviewed, told Investigator Janus felt threatened by E.J. dur ing call. He testified felt threatened by E.J., assertion later repeated pre sentence vestigator assigned case.
The Court clear: a credible threat physical violence government agent sufficient establish coer cion. Arizona Fulminante , U.S. (1991). State does dispute, agree, E.J. acting as police agent during recorded conversation. If not, our inquiry here would end, Due Process Clause prohibits only state actors using coercion elicit confession. See Col orado v Connelly (1986) (“Absent police con duct casually related confession, there simply no ba sis concluding any actor has deprived criminal defendant due process law.”).
As Appeals noted I E.J. made threats during call police officer would never be permitted make elicit confession. For example, 15 ‐ 3865 stated, “you’re going to f***ing talk to me right now, or you (sic) going to have like maybe days to live, alright.” R. 4. He stated knew ex KGB agents that might harm Hicks, id. , implied child molester like Hicks would not fare well prison. Id. 11. It was objectively unreasonable for state to conclude these threats not coercive based upon Wells’s testimony Hicks did not feel threatened. Likewise, it unreasonable state therefore conclude Wells’s decision not challenge admissibility recorded permissible strategy. Therefore, Hicks has established state court’s factual basis its conclusion regarding first prong Strickland analysis unreasonable.
b. No Prejudice Failing File Motion Suppress
Because not address whether Wells’s failure object admission recorded statement prejudicial Hicks, review prong Strick land analysis de novo. See Porter v. McCollum U.S. (2009) (citing Rompilla Beard (2005)). maintains confession played an outsized role trial, it had not been admitted into evidence jury would have returned verdict guilty. We disagree.
As threshold matter, clear entire tran script tape would have been suppressed had Wells filed such motion. Before made any threats, asked why had sexually molested him child. made inaudible response then stated, “Um, can I uh, talk you later?” This statement could still been pre sented jury motion suppress successful. jury could infer guilt failure immediately deny E.J.’s allegation, one was surely inflammatory would have invoked visceral response untrue.
And, while we do not doubt the prejudicial nature Hicks’s confession, the record overwhelmingly supports the jury’s guilty verdict. His confession was only portion the evidence offered against him trial. E.J. testified vivid detail abuse he endured. His testimony graphic. He detailed jury nature sexual acts, where home when they occurred provided other details that supported veracity his testimony. There also motive testimony provided two prior victims, who testified they both abused similar manner Lambert, testified when she confronted Hicks E.J.’s allegations, Hicks admitted abuse, even providing justification actions. Despite Hicks’s claims contrary, evidence simply cannot be consid ered “weak.” We cannot say there reasonable prob ability jury would have found not guilty recorded conversation suppressed. Therefore, reject Hicks’s ineffective assistance counsel based upon Wells’s failure move suppress recorded conversation find habeas relief warranted claim. Failure Object Prosecutor’s Improper
Statements asserts entitled habeas relief be cause Wells’s failure object prosecutor’s improper closing argument constituted ineffective assistance coun sel. During rebuttal closing argument, prosecutor ref erenced Alford plea, stating wanted jury believe “really criminal record.” ‐ ‐ 108. And then asked jury, “And was fair resolution for what happened? Plea bargaining it down couple misdemeanors. Is what should happened here or should we deal with this case?” Id. While deliberating, jury submitted question pro ‐ bation revocation in earlier case. The responded there no record evidence on why probation was re ‐ voked, jury returned later day with guilty ver ‐ dict.
Like Wisconsin Court Appeals, we are very troubled by these comments. See The prosecutor’s ments were improper: prosecutor invited jury con vict current case because not appro priately punished earlier case. And, because there no objection, jury left these questions posed just before it went deliberate.
Furthermore, it is clear jury least contem plated—if not wholly accepted—the prosecutor’s suggestion, as evidenced by question submitted during delibera tions. We are not convinced by State’s position these merely three sentences page closing argument. The length what matters. The issue their impact, we are hard pressed say there none. But, because, we discuss further below, fairly present this its con sideration petition review, are barred doc trine procedural default providing him relief.
a. Procedural Default Bars Review Claim district concluded has procedurally defaulted claim. We review ruling de novo . *27 27 No. 15 3865 McDowell v. Lemke , 737 F.3d 476, 482 (7th Cir. 2013). A peti ‐ tioner challenging state conviction must “exhaust availa ‐ ble state remedies before presenting claim a federal ha ‐ beas court.” Davila v. Davis , 137 S. Ct. 2058, 2064 (2017) (citing §2254(b)); see also § 2254(b)(1)(A) (stating a writ of habeas corpus “shall be granted unless it appears the appli ‐ cant has exhausted remedies available in courts of State.”). The exhaustion requirement “grounded in princi ‐ ples comity; in a federal system, States should first opportunity address correct alleged violations state prisoner ʹ s federal rights.” Coleman v. Thompson , 501 U.S. 722, 731 (1991) holding modified Martinez v. Ryan , 566 U.S. 1 (2012); see also Rose v. Lundy , U.S. 509, 518 (1982) (“The ex ‐ haustion doctrine principally designed protect state courts ʹ role enforcement federal law prevent dis ruption state judicial proceedings.”).
Therefore, petitioner must “fairly present” constitu tional claims through at least one complete round state’s established appellate review process before presenting claims federal court habeas review. O’Sullivan v. Boerckel , U.S. 838, (1999); see Lombardo v. United States , F.3d 547, (7th Cir. 2017). This includes present ing claims state’s highest petition dis cretionary review. Boerckel , For claim be “fairly presented,” petitioner must place before state both controlling law operative facts manner such “the sufficiently alerted federal constitutional nature issue permit re solve issue basis.” McDowell F.3d (inter nal quotation marks citations omitted). failure ex haust or set claims, results procedural default, Oaks Pfister WL *2 (7th Cir. 15 3865 July 14, 2017) (citing O’Sullivan , U.S. 845), we will not consider procedurally defaulted claim on merits. Lombardo , F.3d (citing Martinez , U.S. 9–10).
There are limited exceptions this rule that would allow us reach merits procedurally defaulted claim. The first exists where “the petitioner can demonstrate both cause for prejudice stemming [the] default.” Lewis v. Sternes , F.3d 1019, (7th Cir. 2004). Alternatively, may reach procedurally defaulted claim if peti tioner can demonstrate that “a miscarriage justice would result habeas relief foreclosed.” Id. This requires petitioner demonstrate he “actually innocent fenses for he convicted, i.e., no reasonable ju ror would have found him guilty crime but for er ror(s) he attributes court.” Id. (citing Schlup v. Delo 327–29 (1995)). petitioner, however, has advanced any argument these exceptions should apply here. Therefore, any argument these exceptions apply has forfeited will endeavor construct legal argument behalf. See Nelson Napolitano F.3d (7th Cir. 2011) (“Neither district nor are obliged research construct legal arguments for parties, especially when they are represented coun sel.”).
While concedes could done more elaborate upon claim, nonetheless argues claim fairly presented for two main reasons. First, because listed its own stand alone issue “Issues Presented Review” section petition. Second, argues passing references both section entitled “Reasons Granting ‐ Review,” end his state law claim related to the closing argument were sufficient present claim. We dis ‐ agree.
Whether claim has fairly presented a state is evaluated using four factors:
1) whether petitioner relied on federal cases engage in constitutional analysis; 2) whether petitioner relied on state cases apply constitutional analysis similar facts; 3) whether petitioner framed claim in terms so particular as call mind specific constitutional right; 4) whether peti ‐ tioner alleged pattern facts well within mainstream constitutional litiga tion.
Ellsworth v. Levenhagen F.3d (7th Cir. 2001). While we use these factors as guide, our overall “task deter mine practical terms whether state courts were suffi ciently alerted nature [the petitioner’s] federal con stitutional claim.” White Gaetz F.3d (7th Cir. 2009). Here, find has met burden.
While does identify claim its own stand alone issue his petition review, his petition contains no argument whatsoever support it. Further, vague sparse references claim page petition, sufficient alert either operative facts claim or controlling federal law. For example, final page petition where addresses law based upon prosecutor’s closing argu ment, states “[l]ikewise, counsel’s decision object not reasonable strategic decision.” But, does not explain why this true or cite any decisions— federal or state—to support assertion. This enough meet burden fairly presenting Wisconsin Supreme Court. Because petition allow opportunity ad dress federal constitutional claim, doctrine proce dural default precludes our review issue merits.
III. CONCLUSION
For foregoing reasons, AFFIRM district court’s denial habeas relief.
[*] Of Northern District Illinois, sitting designation.
[1] All record citations are record United States District Eastern District Wisconsin.
[2] A Miranda Goodchild hearing conducted determine admissi bility confessions, see State v. Jiles N.W.2d 806–07 (Wis. 2003) (discussing purpose Miranda Goodchild hearing), named af ter Miranda Arizona (1966) State ex rel. Goodchild v. Burke N.W.2d (Wis. 1965).
[3] An Alford plea allows criminal defendant enter guilty plea while maintaining innocence, approved North Carolina Alford (1970).
[4] law requires defendant pursue ʺ motion post conviction or postdisposition relief ʺ before filing di rect appeal basis relief previously raised. Wis. Stat. § 809.30(h).
[5] Both parties consented magistrate jurisdiction pursuant U.S.C. § 636(c) case assigned decided Magistrate Judge William E. Duffin.
[6] Although articulated two separate claims, will address turn, “ineffective assistance counsel single ground relief no matter how many failings lawyer may displayed.” Pole F.3d (quoting Peoples United States F.3d (7th Cir. 2005)) (internal quotation marks omitted).