Biskup v. McCaughtry

Decision Date23 March 1994
Docket NumberNo. 93-2895,93-2895
Citation20 F.3d 245
PartiesThomas A. BISKUP, Appellant, v. Gary McCAUGHTRY, Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Mark J. Rogers (argued), Angermeier & Rogers, Milwaukee, WI, for petitioner-appellant.

David J. Becker, Asst. Atty. Gen., Wisconsin Dept. of Justice, Madison, WI, for respondent-appellee.

Before CUDAHY and FLAUM, Circuit Judges, and SHARP, District Judge. *


ALLEN SHARP, District Judge.

The appellant, Thomas A. Biskup, was on March 17, 1988, charged in a multi-count criminal complaint with attempted first-degree murder, aggravated battery, injury by conduct regardless of life, attempted arson, attempted intimidation of a witness, two counts of theft of a firearm, and nine counts of burglary.

The case went through procedural preliminaries, including a three-day preliminary examination in April, 1988, in the state court for Walworth County, State of Wisconsin. At the preliminary examination, appellant was bound over on all counts except the attempted first-degree murder. A trial by jury was had in that Wisconsin state court in March, 1989, and it returned a verdict of guilty on seven of the twelve counts before it. Appellant was found guilty of injury by conduct regardless of life, intermediate battery, and five counts of burglary. He was sentenced to two years imprisonment on the intermediate battery conviction, and to 10 years imprisonment on both the injury by conduct regardless of life and burglary, party to crime conviction, all sentences to be served consecutively, for a total of 22 years. On the remaining four burglaries, he was sentenced to 10 years probation consecutive prison term and was ordered to pay restitution.

District 2 of the Wisconsin Court of Appeals affirmed the aforesaid convictions and sentences in an unpublished decision. The Wisconsin Supreme Court denied review. A petition for relief under 28 U.S.C. Sec. 2254 was filed in the United States District Court for the Eastern District of Wisconsin and denied. The district judge issued a certificate of probable cause, and this appeal followed.

The issues raised before the district court were that the state trial court erred when it refused to sever counts; it erred in admitting hypnotically refreshed testimony; prosecutorial delay; and insufficient evidence. 1 The district court denied relief on all of these assertions.

It is elementary that the district court, under Sec. 2254, must focus on alleged violations of the federal constitution, laws and treaties. See Bell v. Duckworth, 861 F.2d 169 (7th Cir.1988), cert. den., 489 U.S. 1088, 109 S.Ct. 1552, 103 L.Ed.2d 855 (1989). It is also elementary that the federal question jurisdiction of the district court under Sec. 2254 cannot be invoked simply to require state officials to comply with state law or to review alleged violations of state law. That concept was pointedly and recently made by Judge Bauer in Stephens v. Miller, 13 F.3d 998 (7th Cir.1994) en banc, as follows:

Stephens' first contention need not detain us long. He argues that we should grant his petition because the Indiana trial court and the Indiana Supreme Court misapplied the Indiana Rape Shield Statute under Indiana law. That may be, but whether the Indiana courts correctly applied their own law is, by itself, no concern of ours. Federal habeas actions do not lie for mere errors of state laws. We ask only whether Indiana denied Stephens his rights under the Constitution, laws or treaties of the United States. We therefore will not consider the merits of his claim that the Indiana courts misapplied their own law.

Stephens, 13 F.3d at 1001 (cites omitted). See also Jenkins v. Gramley, 8 F.3d 505 (7th Cir.1993).


The question with regard to the sufficiency of the evidence requires the district court to examine the evidence in the state record as to whether a reasonable trier of fact, in this case a state court jury, would find this petitioner guilty beyond a reasonable doubt of the various crimes of which he was convicted in the state trial court in Wisconsin. The relevant formulation is in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Justice Stewart, speaking for the Supreme Court of the United States in Jackson, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), stated:

A judgment by a state appellate court rejecting a challenge to evidentiary sufficiency is of course entitled to deference by the federal courts, as is any judgment affirming a criminal conviction. But Congress in Sec. 2254 has selected the federal district courts as precisely the forums that are responsible for determining whether state convictions have been secured in accord with federal constitutional law. The federal habeas corpus statute presumes the norm of a fair trial in the state court and adequate state postconviction remedies to redress possible error. See 28 U.S.C. Sec. 2254(b), (d). What it does not presume is that these state proceedings will always be without error in the constitutional sense. The duty of a federal habeas corpus court to appraise a claim that constitutional error did occur--reflecting as it does the belief that the "finality" of a deprivation of liberty through the invocation of the criminal sanction is simply not to be achieved at the expense of a constitutional right--is not one that can be so lightly abjured.

Id. at 323, 99 S.Ct. at 2791. The Supreme Court in Jackson held:

We hold that in a challenge to a conviction brought under 28 U.S.C. Sec. 2254--if the settled procedural prerequisites for such a claim have otherwise been satisfied--the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at trial no rational trier of fact could have found proof beyond a reasonable doubt.

Id. (footnote omitted). See also Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); Dooley v. Duckworth, 832 F.2d 445 (7th Cir.1987), cert. den., 485 U.S. 967, 108 S.Ct. 1239, 99 L.Ed.2d 438 (1988); United States ex rel. Haywood v. O'Leary, 827 F.2d 52 (7th Cir.1987); Bryan v. Warden, Indiana State Reformatory, 820 F.2d 217 (7th Cir.1987), cert. den., 484 U.S. 867, 108 S.Ct. 190, 98 L.Ed.2d 142 (1987); Shepard v. Lane, 818 F.2d 615 (7th Cir.), cert. den., 484 U.S. 929, 108 S.Ct. 296, 98 L.Ed.2d 256 (1987); and Perri v. Director, Department of Corrections, 817 F.2d 448 (7th Cir.), cert. den., 484 U.S. 843, 108 S.Ct. 135, 98 L.Ed.2d 92 (1987).

A review of the record in the light favorable to the prosecution convinces the court that a rational trier of fact could readily have found the petitioner guilty beyond a reasonable doubt of the crimes for which he there stands convicted.

Following Jackson, supra, there is an increasingly long line of cases in this circuit which suggest that the facts found by the state courts are presumed correct. See Andersen v. Thieret, 903 F.2d 526, 531 (7th Cir.1990). The statement of facts found in the unpublished opinion in District 2 of the Court of Appeals of Wisconsin are as follows:

On the evening of April 7, 1984, Biskup's wife, Suzanne, was rendered a permanent paraplegic by a hit-and-run driver as she was walking on the shoulder of County Trunk H with Biskup. On March 17, 1988, the state issued a criminal complaint charging Biskup with party to the crimes of attempted first-degree murder, aggravated battery, and injury by conduct regardless of life in connection with this incident. The state alleged that Biskup had conspired with his friend Craig Kolz to "scare" Suzanne into keeping quiet about several burglaries Biskup had committed prior to 1984. The alleged plan called for Biskup to arrange for Suzanne to walk along the edge of the highway while Kolz would drive by and "nick" or "brush" her.

The same criminal complaint also charged Biskup with attempted arson, attempted intimidation of a witness, two counts of theft of a firearm, and nine counts of burglary. Following a preliminary examination, Biskup was bound over for trial on all counts except attempted first-degree murder. Biskup then moved to sever the property counts from the other charges, to suppress Suzanne's hypnotically refreshed recollection, to dismiss the property crimes due to prosecutorial delay, and to dismiss the injury by conduct regardless of life and battery charges due to multiplicity. The trial court denied the motions.

The case was tried to a jury. Suzanne testified that on the morning of April 7, 1984, she told Biskup she wanted a divorce and custody of their only child; when Biskup refused, she threatened to turn him in for several burglaries he had committed. Biskup testified that this conversation never took place and that he and Suzanne were not contemplating divorce.

That afternoon, Kolz visited the Biskup house, Kolz testified that at this meeting Biskup asked him to carry out the plan to "scare" Suzanne. Biskup denied the existence of any such plan.

Around 9:30 that evening, Suzanne and Biskup went to get hamburgers. The restaurant was under construction, with nails and boards on the ground. Suzanne testified that on the way home, Biskup pulled off the road twice because he thought there was something wrong with the truck; when Biskup returned to the truck the second time Suzanne heard a hissing sound; they proceeded a short distance, but the truck started shaking and they had to stop a third time. The truck had a flat tire. Suzanne and Biskup were walking along the shoulder of the highway to find a telephone when Kolz drove by and struck Suzanne with this car. Suzanne's hypnotically-affected testimony was admitted into evidence, wherein she stated that Biskup pushed her immediately before she was hit by the car.

Under 28 U.S.C. Sec. 2254(d), the district court exercising jurisdiction under Sec. 2254 may presume the facts as found by the second highest court in Wisconsin as correct.


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