Socha v. Richardson, 16-2540.

• Citation: 874 F.3d 983
• Decision Date: 03 November 2017
• Docket Number: No. 16-2540.,16-2540.
• Parties: Thomas R. SOCHA, Petitioner-Appellant, v. Reed A. RICHARDSON, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

874 F.3d 983

Thomas R. SOCHA, Petitioner-Appellant,

v.Reed A. RICHARDSON, Respondent-Appellee.

No. 16-2540.

United States Court of Appeals, Seventh Circuit.

Argued September 6, 2017

Decided November 3, 2017

Rachel M. Blise, Attorney, Thomas L. Shriner, Jr., Attorney, FOLEY & LARDNER LLP, Milwaukee, WI, for Petitioner-Appellant.

Daniel J. O'Brien, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL, Madison, WI, for Respondent-Appellee.

Before Wood, Chief Judge, and Rovner and Sykes, Circuit Judges.

Wood, Chief Judge.

Thomas Socha has won two battles in his effort to obtain relief from his Wisconsin conviction for murder. See Socha v. Pollard , 621 F.3d 667 (7th Cir. 2010) ( Socha I ); Socha v. Boughton , 763 F.3d 674 (7th Cir. 2014) ( Socha II ). He is now hoping to win the war. Perhaps he would have been able to do so, if federal courts had plenary authority to review state-court criminal proceedings. But they do not. Especially since the enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA) in 1996, state prisoners seeking federal habeas corpus relief have been required to overcome a set of rules that, in the aggregate, require every benefit of the doubt to be given to the state courts. Socha would like us to find that the state prosecutor in his case violated the obligation recognized in Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), to disclose potentially exculpatory evidence to him. But even though the prosecutor indeed withheld potentially impeaching evidence from Socha, the state courts concluded that there was no reasonable probability that this evidence would have changed the verdict. Because this conclusion was not so outlandish as to be unreasonable, we must affirm the decision of the district court refusing to issue the writ. See 28 U.S.C. § 2254(d).

I

In November 2001, Socha and his acquaintances, Lance Leonard and Victor Holm, each forged a stolen check. On November 17, police officers began asking questions. They went to Holm's apartment, seeking Leonard, but Leonard was not there. Holm agreed to go with them to the station house, where he admitted his forgery and said that Leonard had also forged a check. Socha's name did not come up.

Accounts of what happened over the next few days differ. But it is clear that Leonard moved from place to place, avoiding contact with the police. On November 20, 2001, Holm and his friend, Dennis Drews, drove Leonard from Berlin, Wisconsin, 140 miles or so upstate to Crandon. They arrived at the house of Holm's brother, Vincent. Leaving Leonard behind and armed with a shotgun, Holm, Drews, and Vincent left the house and dug a grave. Back again at Vincent's house, Holm and Drews persuaded Leonard to go on an errand with them. The errand turned out to be a fateful one for Leonard. They drove him to the grave they had just dug, murdered him, and buried the body. Meanwhile, Socha was back in Berlin partying with Holm's girlfriend, Beth Mrazik, and making sure that the two were seen in several bars. That night and early morning, Holm and Mrazik (and possibly Socha) exchanged multiple phone calls.

In the days after November 20, news of the murder quickly spread. Drews bragged about it to Mrazik, who told a friend, who in turn informed the police. By December 6, Holm and Drews were arrested. No one had yet implicated Socha. That did not happen until a few months later when Mrazik, Drews, and Holm alleged that Socha was involved in the plan to kill Leonard. Eventually Mrazik, Drews, and Holm entered into plea agreements with the state.

In August 2002, Socha was tried for being a party to the crime of first-degree intentional homicide. See Wis. Stat. §§ 940.01, 939.05. The prosecution's theory of the case identified Socha as the mastermind, who wanted Leonard dead primarily to ensure that he did not reveal Socha's drug-dealing and only secondarily to keep him from telling the police about the check-forgery scheme. The state presented testimony from Holm and Drews that, with Socha, they decided that Leonard had to die. Others testified to seeing the three men in conversations in the days before the murder. There was also testimony that Socha behaved suspiciously once the police began investigating the murder. After a two-day bench trial, the judge found Socha guilty.

Meanwhile, on April 11, 2002, the police had interviewed Roy Swanson, Holm's cellmate. While the recording and transcript of the interview were turned over to Holm's counsel, a slip-up in the prosecution's office resulted in a failure to turn them over to Socha. Consequently, Socha was not aware of the Swanson interview until after his trial. In the interview, Swanson discussed his impressions of Holm. He commented that "[a] lot of times [Holm is] still lying." He recounted statements exhibiting Holm's lack of remorse about Leonard's death, saying at one point that he "should get a medal for killing [Leonard]." This was in marked contrast to the performance Holm gave at trial, where he was wiping away tears in supposed contrition. Swanson said that Holm had admitted that he and Lance "were the ones who stole the checks in the first place," and even that Holm confessed that he had "killed before in Arizona." Swanson got the impression that Holm's accusation of Socha was concocted: Holm, he said, "talked to his lawyer [who] said, well if you were coerced in any way, or forced to say something, you know what I'm saying, do something against your will, you know, that's a ... Oh, and then all of a sudden a big light bulb pops up on his head and says, ‘Oh, Mexican Mafia and Tom Socha....’ " Nonetheless, Swanson's story was not entirely helpful for Socha. At one point Swanson went so far as to say that "Tom's a major player in the murder."

Socha knew about the Swanson interview by the time he filed his direct appeal and post-conviction motions. Among other things, he argued that he was entitled to a new trial under Brady because the prosecutor failed to disclose the Swanson transcript and recording. The circuit court, presided over by the judge who had handled the trial, denied his post-conviction motions. On December 5, 2006, the Wisconsin Court of Appeals affirmed the denial of all relief. It dispatched Socha's Brady claim in one paragraph, which characterized the Swanson evidence as "inconsequential" and not "very exculpatory." The Wisconsin Supreme Court denied Socha's petition for review.

Socha then turned to the federal court for habeas corpus relief under 28 U.S.C. § 2254. The district court dismissed his petition twice on timeliness grounds, and we reversed twice. See Socha I , 621 F.3d at 673 ; Socha II , 763 F.3d at 688. At last reaching the merits, the district court found no grounds supporting issuance of the writ. We granted a certificate of appealability limited to the alleged Brady violation. See 28 U.S.C. § 2253(c).

II

Socha is entitled to habeas corpus relief under Brady only if he can show three things: first, that the evidence at issue was favorable; second, that the evidence was suppressed; and third, that it was material to his defense. United States v. Walker , 746 F.3d 300, 306 (7th Cir. 2014). And it is not really enough just to establish those points; instead, he must show that the decision of the state courts with respect to the Brady claim fails to meet the standards set out in AEDPA, 28 U.S.C. § 2254(d). AEDPA permits us to issue a writ of habeas corpus only if the last state court's decision on the merits (1) "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id. We do not lightly assume that the state court erred. Rhodes v. Dittmann , 783 F.3d 669, 674 (7th Cir. 2015). "[I]f we can posit arguments or theories that could have supported the state court's decision, and if fairminded jurists could disagree about whether those arguments or theories are inconsistent with Supreme Court holdings," we must deny the petition. Kidd v. Lemke , 734 F.3d 696, 703 (7th Cir. 2013).

Socha contends that we should review the decision of the Wisconsin Court of Appeals, the last state court to consider his Brady claim, de novo because it was not "on the merits." But this fails to give the state appellate court its due. Its Brady analysis addresses the prosecutor's failure to turn over "notes of a sheriff's deputy" who interviewed Swanson. Socha thinks that the "notes" to which it refers are not the same as the Swanson interview, but instead are notes that an officer took during Socha's trial. That dispute is immaterial, because the state appellate court's opinion also refers to "Swanson's interview" and contains a quote from the interview transcript. We grant that the court's Brady discussion was brief, but AEDPA does not require full-blown analysis. The state court did enough to earn the deference commanded by AEDPA. See Harrington v. Richter , 562 U.S. 86, 98–100, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).

A

With the proper perspective in mind, we turn to the merits. The first question is whether the Swanson interview was the type of favorable material that engages the prosecutor's duty to turn over evidence. The Wisconsin Court of Appeals disputed Socha's assertion that the Swanson interview was "very exculpatory." The court was right, if "exculpatory" means only something that suggests innocence. But the Brady duty reaches impeachment evidence as well. United States v. Bagley , 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) ; Holland v. City of Chicago , 643 F.3d 248, 255 (7th Cir. 2011). Indeed, a prosecutor must share impeachment evidence with the defense even if the evidence partly inculpates the defendant. As the Supreme Court put it in Strickler v. Greene , 527 U.S. 263, 282 n.21, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), " Brady...