Bintz v. Bertrand

• Decision Date: 07 April 2005
• Docket Number: No. 04-2682.,04-2682.
• Citation: 403 F.3d 859
• Court: U.S. Court of Appeals — Seventh Circuit
• Parties: Robert BINTZ, Petitioner-Appellant, v. Daniel BERTRAND, Respondent-Appellee.

403 F.3d 859

Robert BINTZ, Petitioner-Appellant, v. Daniel BERTRAND, Respondent-Appellee.

No. 04-2682.

United States Court of Appeals, Seventh Circuit.

Argued January 11, 2005.

Decided April 7, 2005.

COPYRIGHT MATERIAL OMITTED

Peter M. Wolff (argued), Oakton Ave. Law Offices, Pewaukee, WI, for Petitioner-Appellant.

Marguerite M. Moeller (argued), Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee.

Before POSNER, MANION, and ROVNER, Circuit Judges.

MANION, Circuit Judge.

Robert Bintz and his brother, David Bintz, were convicted, in separate Wisconsin state court proceedings, of murdering a bartender, Sandra Lison. After failing in his state appellate challenge to his conviction, Robert sought habeas corpus relief in the United States District Court for the Eastern District of Wisconsin, asserting that the state courts improperly allowed hearsay statements to be used against him at trial. The Eastern District denied the petition for writ of habeas corpus, and Robert appeals. We affirm.

I

Sandra Lison was last seen alive tending bar at the Good Times bar ("Good Times") in Green Bay, Wisconsin on August 3, 1987. Her body was later discovered in a forest.

As part of the initial investigation into Lison's murder in 1987, Green Bay Police Detective Lawrence Pamperin took a statement from David Bintz (the "Pamperin Statement") in which David admitted that he and his brother Robert Bintz had visited Good Times the day of Lison's disappearance. David stated that he had driven Robert and a friend to Good Times to buy a case of beer that evening. David waited in the car while they went inside. After they returned home, David became upset with the price charged for the beer and called Good Times, threatening to blow it up. David told Pamperin that he subsequently passed out. No one was charged at that time with Lison's murder.

Over ten years later, in 1998, David was in prison at the Oshkosh Correctional Institution for an unrelated crime. His cellmate, Gary Swendby, heard David talk in his sleep about killing someone. In particular, David shouted "make sure she's dead." Swendby asked David about the nocturnal shouts, and David responded that he had been involved in Lison's murder. David told Swendby that he and Robert had decided to rob Good Times for overcharging them on beer, then decided to kill Lison after realizing that she could identify them. David further stated that he repeatedly commanded his brother to make sure that Lison was dead, confiding to Swendby that they disposed of the body "up north."

After hearing David's story, Swendby went to prison officials with news of David's involvement in Lison's murder. Prison officials contacted the Green Bay Police Department, which interviewed Swendby and other inmates regarding David's comments about the murder. Eventually, Green Bay Police Detective Robert Haglund confronted David with Swendby's statement, and David confirmed that it was true (the "Haglund Admission"). David also supplied Haglund with additional facts about Robert beating and strangling Lison. David, however, said that he (David) did not kill anyone.

Both brothers were charged with the murder of Lison. A joint preliminary hearing was held, though David and Robert were then tried separately. In May 2000, David went to trial, and Swendby testified against him. David was convicted of first-degree murder.

At Robert's trial in July 2000, David was called to testify, but invoked his Fifth Amendment right against self-incrimination. The court concluded that David was unavailable because of his assertion of the Fifth Amendment, and allowed David's statements to Swendby, Haglund, and Pamperin into evidence as "statement against penal interest" exceptions to the hearsay rule. Swendby had been killed in an automobile accident between the trials. The court concluded that Swendby, like David, was an unavailable witness and admitted his testimony from David's trial and the joint preliminary hearing. Other inmates from Oshkosh also testified that David had made comments to them about the murder (the "Oshkosh Testimony"). The court decided that none of this evidence impinged upon Robert's rights under the Confrontation Clause of the Sixth Amendment to the Constitution ("Confrontation Clause"). In addition, at trial the prosecution offered evidence from Joan Andrews, a former girlfriend who testified that Robert spontaneously spoke to her about the murder. During a car ride with Andrews, Robert recounted that he and his brother felt Lison move in the back of the car while David was driving. Like his brother, Robert was convicted of murder.

In 2001, Robert appealed his conviction to the Wisconsin Court of Appeals, claiming that the introduction of the Pamperin Statement and Swendby's testimony, particularly comments from David to Swendby, violated Robert's Confrontation Clause rights because he had no opportunity to cross-examine David or Swendby. The Court of Appeals disagreed and affirmed the conviction in 2002, analyzing the challenge under the framework provided by the United States Supreme Court in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), and Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) (plurality opinion). Robert then appealed to the Wisconsin Supreme Court. In his petition to the Wisconsin Supreme Court, Robert only argued two violations of the Confrontation Clause: (1) the Pamperin Statement; and (2) David's statements to Swendby introduced through Swendby at David's trial. The Wisconsin Supreme Court declined review.

In June 2003, Robert filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of Wisconsin, pursuant to 28 U.S.C. § 2254. Before the district court, Robert challenged the Oshkosh Testimony, as well as the previously challenged statements of David and Swendby. After the initial briefs were filed, the United States Supreme Court issued its decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which addressed the continuing validity of the Roberts/Lilly framework for Confrontation Clause analysis. Robert then filed a supplemental brief in the district court regarding the applicability of Crawford. The district court denied the habeas petition. It first found that Robert had procedurally defaulted on his challenge to the Oshkosh Testimony. The district court further concluded that Crawford did not apply at the time of the state court rulings and that the introduction of the statements from David and Swendby did not violate the then-applicable Supreme Court precedent regarding the Confrontation Clause. Robert appeals.

II

A

Before addressing Robert's Confrontation Clause argument, we must first determine what statements are actually at issue. In his brief before this court, Robert objects to four pieces of evidence offered at trial: (1) the Pamperin Statement; (2) Swendby's previous testimony concerning statements from David to Swendby about the murder; (3) the Haglund Admission; and (4) the Oshkosh Testimony.¹ The State of Wisconsin contends that Robert has procedurally defaulted on any challenges to the latter two statements by failing to raise these objections at every level of the state court proceedings.

According to 28 U.S.C. § 2254(b)(1)(A), a habeas petition shall not be granted unless the petitioner "has exhausted the remedies available in the courts of the State." The petitioner must establish that he fully and fairly presented his claims to the state appellate courts, thus giving the state courts a meaningful opportunity to consider the substance of the claims that he later presents in his federal challenge. See, e.g., Harris v. McAdory, 334 F.3d 665, 668 (7th Cir.2003). Fair presentment requires that the petitioner assert his claims through one complete round of state court review. See, e.g., Lewis v. Sternes, 390 F.3d 1019, 1025-26 (7th Cir.2004). In the state courts, the petitioner must present both the operative facts and legal principles that control each of his claims. See Rittenhouse v. Battles, 263 F.3d 689, 695-96 (7th Cir.2001). "A habeas petitioner who has exhausted his state court remedies without properly asserting his federal claim at each level of state court review has procedurally defaulted that claim." Lewis, 390 F.3d at 1026. If a petitioner has procedurally defaulted his claim,

he may obtain federal habeas relief only upon a showing of cause and prejudice for the default or upon a showing that a failure to grant him relief would work a fundamental miscarriage of justice. A fundamental miscarriage of justice occurs when "a constitutional violation has probably resulted in the conviction of one who is actually innocent."

Moore v. Casperson, 345 F.3d 474, 484 (7th Cir.2003) (quoting Thomas v. McCaughtry, 201 F.3d 995, 999 (7th Cir.2000)). Cause for a default is ordinarily established by showing that some external obstacle prevented the petitioner from presenting his claim to the state courts. See Lewis, 390 F.3d at 1026.

Against this backdrop, we consider whether Robert defaulted on his Confrontation Clause challenges related to the Haglund Admission and the Oshkosh Testimony. In Robert's initial brief on direct appeal to the Wisconsin Court of Appeals, he only referenced the Haglund Admission once and did not present any argument regarding its admissibility. In its response brief in the direct appeal, Wisconsin specifically pointed out that Robert did not challenge the Haglund Admission. Robert neither challenged this characterization nor introduced this issue in his reply brief in the state appellate court. Likewise, he did not address the Haglund Admission in his petition for review to the Wisconsin Supreme Court. Accordingly, Robert failed to fully and fairly present this issue to the Wisconsin courts, and so procedurally defaulted on any claim relating to the...