227 F.3d 908 (7th Cir. 2000), 00-1096, Braun v Powell

Docket Nº:00-1096
Citation:227 F.3d 908
Party Name:KATHLEEN A. BRAUN, Petitioner-Appellee, v. BARBARA POWELL, Respondent-Appellant.
Case Date:September 18, 2000
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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227 F.3d 908 (7th Cir. 2000)

KATHLEEN A. BRAUN, Petitioner-Appellee,


BARBARA POWELL, Respondent-Appellant.

No. 00-1096

In the United States Court of Appeals, For the Seventh Circuit

September 18, 2000

Argued June 7, 2000

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 97 C 423--Lynn Adelman, Judge.

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[Copyrighted Material Omitted]

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Before POSNER, COFFEY and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Kathleen Braun was convicted of murder in 1976. While her motion for a new trial was pending, she escaped from prison. After her return to custody in 1984, she filed a motion in Wisconsin state court to vacate the judgment of conviction. The Wisconsin circuit court denied her motion. The Court of Appeals of Wisconsin affirmed; the Supreme Court of Wisconsin then granted review and affirmed. Ms. Braun later filed a petition for federal habeas corpus relief; the district court granted the petition. For the reasons set forth in the following opinion, we reverse the judgment of the district court.



Kathleen Braun was arrested in 1975 and charged with the murder of William Weber. The primary witness against Ms. Braun was Earl Jeffrey Seymour. Seymour also had been arrested for Weber's murder; he testified against Ms. Braun pursuant to a plea agreement. A jury convicted Ms. Braun in December 1976 after a six-week trial, and she was sentenced to life imprisonment.

During the trial, the trial judge excluded from the courtroom a man named Mr. Mane. Mane had been a member of the jury venire panel but had been excused because he had said that he was friendly to the defense. After he had been excused, he returned to the courtroom to watch the trial. The trial court then excluded Mane from the courtroom, stating that it had a policy of excluding all former members of the venire panel from remaining in the courtroom during the trial.

In August 1977, Ms. Braun filed a post- conviction motion under Wisconsin Statutes sec. 974.02.1 In December, before the trial court could rule on the sec. 974.02 motion, Ms. Braun escaped from prison. In May 1978, the trial court dismissed Ms. Braun's motion on the ground that she had escaped from prison.

Ms. Braun was involuntarily returned to custody in 1984. In 1988, she filed a Motion to Vacate Judgment pursuant to Wisconsin Statutes sec. 974.06.2 Ms. Braun argued

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that the trial court had violated her Sixth Amendment right to a public trial by excluding Mane. She also contended that the prosecutor had committed misconduct by not disclosing fully the terms of the plea agreement under which Seymour testified and, further, that the failure to disclose the full terms of the plea agreement infringed on her constitutional right to cross-examine witnesses.

The trial court denied her motion. The Court of Appeals of Wisconsin affirmed. See State v. Braun, 504 N.W.2d 118 (Wis. Ct. App. 1993). The Supreme Court of Wisconsin granted review in the case and also affirmed. See State v. Braun, 516 N.W.2d 740 (Wis. 1994). The Supreme Court of Wisconsin did not reach the merits of Ms. Braun's Sixth Amendment and prosecutorial misconduct claims. Instead, it held that she was precluded from bringing a motion under sec. 974.06 because, by her escape, she had "forfeited all claims she either raised or could have raised" in the earlier post-conviction motion under sec. 974.02. Id. at 745.

Subsequently, Ms. Braun brought a petition for habeas corpus in the district court. The court granted the petition. See Braun v. Powell, 77 F. Supp.2d 973 (E.D. Wis. 1999). The court first held that Ms. Braun's escape had not caused an abandonment of her constitutional claims. Addressing the merits of those claims, the court held that the exclusion of Mane had violated Ms. Braun's right to a public trial and that such a violation required the issuance of the writ of habeas corpus. The court also determined that prosecutorial misconduct had occurred in violation of the Constitution, but that the violation was harmless; similarly, it found harmless any unconstitutional restriction on Ms. Braun's ability to cross-examine witnesses.



A. Procedural Default

We review de novo the district court's holding that Ms. Braun did not

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commit procedural default during the state court proceedings. See Franklin v. Gilmore, 188 F.3d 877, 882 (7th Cir. 1999), cert. denied, 120 S.Ct. 1535 (2000); Fields v. Calderon, 125 F.3d 757, 759-60 (9th Cir. 1997); Couch v. Jabe, 951 F.2d 94, 96 (6th Cir. 1991) (per curiam). In a federal habeas corpus proceeding, we look to state law to determine whether a claim has been defaulted. See Thomas v. McCaughtry, 201 F.3d 995, 1000 (7th Cir. 2000); Turentine v. Miller, 80 F.3d 222, 224 (7th Cir. 1996). If the state court declined to reach the merits of the petitioner's claim because of a procedural default, that default must constitute an independent and adequate state-law ground in order to be a bar to federal habeas relief. See Coleman v. Thompson, 501 U.S. 722, 729-30 (1991); Schaff v. Snyder, 190 F.3d 513, 524 (7th Cir. 1999).


To conclude that the procedural default constitutes an independent basis for the state court's ruling, we must be convinced that the last state court to consider the question actually relied on procedural default as the basis for its decision. See Willis v. Aiken, 8 F.3d 556, 561 (7th Cir. 1993); Prihoda v. McCaughtry, 910 F.2d 1379, 1382 (7th Cir. 1990). The state court therefore must have "clearly and expressly" relied on procedural default as the basis of its ruling. Harris v. Reed, 489 U.S. 255, 263 (1989) (quotation marks omitted); Jenkins v. Nelson, 157 F.3d 485, 491 (7th Cir. 1998), cert. denied, 119 S.Ct. 2402 (1999); Rose v. Lane, 910 F.2d 400, 402 (7th Cir. 1990). The independence of the ground of procedural default is not at issue in this case. The Supreme Court of Wisconsin unambiguously based its holding on its view that Ms. Braun's escape constituted an abandonment of her right to bring an appeal. Ms. Braun does not argue that procedural default was not an independent basis for the state court's ruling.


To be an adequate ground of decision, the state's procedural rule must be both "firmly established and regularly followed." Ford v. Georgia, 498 U.S. 411, 423-24 (1991) (quoting James v. Kentucky, 466 U.S. 341, 348 (1984)); Franklin, 188 F.3d at 882; Rosa v. Peters, 36 F.3d 625, 633 (7th Cir. 1993). A procedural ground is not adequate, however, unless it is applied in a "consistent and principled way"; it cannot be employed "infrequently, unexpectedly, or freakishly." Thomas, 201 F.3d at 1000; Bobo v. Kolb, 969 F.2d 391, 399 (7th Cir. 1992) (quotation marks omitted); Prihoda, 910 F.2d at 1383. A state procedural rule is not an adequate ground for finding default if the prisoner "could not fairly be deemed to have been apprised of its existence" at the time she acted. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 457 (1958); Moore, 148 F.3d at 709 (quoting NAACP).

We must now consider whether procedural default was an adequate basis for the state court's ruling in this case. This task is complicated significantly by changes in the jurisprudence of Wisconsin. The earlier precedent of this court also must guide our inquiry.

After her conviction, Ms. Braun moved for post- conviction relief under sec. 974.02, but the trial court dismissed the motion because of her escape while the motion was pending. She did not appeal that dismissal. We must consider the effect of Ms. Braun's failure to appeal under Wisconsin law as it existed at the time of Ms. Braun's escape. Specifically, we must determine whether her failure to appeal that dismissal automatically foreclosed a later collateral attack under sec. 974.06 raising her constitutional claims. As we shall discuss more fully in the paragraphs that

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follow, we must conclude that the ruling of the Supreme Court of Wisconsin is not an adequate ground upon which to preclude federal habeas review.


Initially, we examine the procedure that a prisoner normally would have followed, at the time of Ms. Braun's conviction, in order to challenge her conviction in the Wisconsin state courts. After conviction, the prisoner's first challenge would have been a motion under sec. 974.02. The sec. 974.02 motion would have been considered by the state trial court. If the trial court denied the motion, the prisoner could have appealed to the Court of Appeals of Wisconsin and, if necessary, to the Supreme Court of Wisconsin. These appeals would have constituted the prisoner's direct appeal. After the completion of the direct appeal, the prisoner then could have filed a collateral challenge under sec. 974.06. The prisoner first would have filed a sec. 974.06 motion in the trial court. If relief was denied in that court, the prisoner would, once again, have the opportunity to appeal to the Court of Appeals of Wisconsin and then the Supreme Court of Wisconsin.

Ms. Braun, because of her escape, did not follow this procedure. She escaped while her sec. 974.02 motion was pending in the state trial court. When that motion was dismissed, Ms. Braun, still an escapee, did not appeal to the Court of Appeals. Following her recapture, she filed a sec. 974.06 motion with the trial court. After that sec. 974.06 motion was denied, she appealed to the Court of Appeals of Wisconsin and then to the Supreme Court of Wisconsin. As we have noted, the Supreme Court of Wisconsin held that Ms. Braun could not bring these post-conviction claims because her escape from prison and subsequent fugitive status had constituted a forfeiture of relief. When those challenges were unsuccessful, she...

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