Campbell v. Smith
| Decision Date | 20 October 2014 |
| Docket Number | No. 13–3780.,13–3780. |
| Citation | 770 F.3d 540 |
| Parties | Mark A. CAMPBELL, Petitioner–Appellant, v. Judy P. SMITH, Warden, Respondent–Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Steven Donald Phillips, Office of the State Public Defender, Madison, WI, for Petitioner–Appellant.
Daniel J. O'Brien, Assistant Attorney General, Office of the Attorney General Wisconsin Department of Justice, Madison, WI, for Respondent–Appellee.
Before EASTERBROOK, SYKES, and TINDER, Circuit Judges.
Mark A. Campbell appeals from the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. He claims that the prosecutor's comments at his resentencing hearing violated his due process rights and breached his plea agreement and that his counsel rendered ineffective assistance in failing to object. Campbell argues that the Wisconsin Court of Appeals unreasonably applied Supreme Court precedent when it decided that he could not establish that counsel was ineffective in failing to object because the prosecutor had not materially and substantially breached the plea agreement. For the reasons that follow, we affirm.
Campbell pleaded guilty in Wisconsin state court to one count of first degree sexual assault of a child. The victim was his then ten-year-old daughter. At the time of the offense, the maximum sentence was sixty years. Pursuant to the plea agreement, the State agreed to dismiss three other counts and recommend a sentence of no more than twenty years, with no more than five to seven years' initial confinement and the balance as extended supervision.
The presentence investigation report recommended twenty to forty years' initial confinement and seven to ten years' extended supervision. At sentencing, the State recommended a sentence in accordance with the plea agreement. The court sentenced Campbell to a bifurcated sentence of forty years, with thirty years' initial confinement and ten years' extended supervision. Campbell appealed, arguing that the trial court failed to consider the state sentencing guidelines. The Wisconsin Court of Appeals vacated the sentence and remanded for resentencing. State v. Campbell, No. 2008AP2065–CR, 2009 WL 1191945 .
Campbell was resentenced before a different judge. A second presentence investigation report, prepared after the remand, also recommended twenty to forty years' initial confinement and seven to ten years' extended supervision. At the sentencing hearing, the prosecutor presented arguments as to the sentencing factors to be considered by the court: the gravity of the offense, Campbell's character, and the need to protect the public. Starting with the gravity of the offense, he referred to “additional information in terms of the impact” on the victim, Sentencing Tr. 18 Aug. 25, 2009, and “the devastating impact” on the victim, id. at 19. The prosecutor said, “I can't think of a more, short of a homicide or physically injuring a child, a more horrific offense and more damaging offense committed against one's own child.” Id.
Addressing Campbell's character, the prosecutor referred to letters that Campbell had written to his daughter's therapist, describing them as “threat[s] and ultimatum[s]” as well as manipulative and devious in tone. Id. at 20. He also mentioned Campbell's claim that his sister had coached the victim into saying what she had said and a letter of Campbell's seeking to lift the no-contact order against him. According to the prosecutor, Id. The prosecutor noted that the presentence report indicated Campbell had been diagnosed with “a personality disorder, gender identity disorder” and argued that he had “some very serious sexuality issues, very serious boundary issues.” Id. at 22.
Turning to the need to protect the public, the prosecutor argued that the need “is extremely high,” and asserted that Campbell “takes no responsibility for his behavior or his actions,” and that “[h]is daughter needs to be protected from him for as long as can be humanly possible.” Id. Then the prosecutor advised the court that Id. Campbell's counsel did not object to any part of the prosecutor's argument.
The prosecutor did not advise the court of the State's recommendation of no more than five to seven years' initial confinement. Campbell's counsel did not object to that omission either. Instead, during his argument, defense counsel informed the court that “the plea bargain in this case was five to seven years in and the balance of 20 on extended supervision.” Id. at 25. Counsel argued that based on Campbell's history, “that's probably where this should fall.” Id.
The judge said that he had “listened very carefully” to the comments of the prosecutor, defense counsel, and Campbell. Id. at 28. The judge also stated that he considered the presentence investigation report's recommendation of twenty-seven to fifty years, with twenty to forty years' initial confinement, as well as the attorneys' recommendations, the sentencing guidelines, and the aggravating factors that the offense was “ongoing in nature, and that [Campbell] had a position of authority and trust with the victim.” Id. at 34. The judge sentenced Campbell to a bifurcated sentence of forty-four years, consisting of thirty-four years' initial confinement and ten years' extended supervision.
Campbell filed a petition for postconviction relief in state court, alleging ineffective assistance of counsel in failing to object to the prosecutor's remarks at the sentencing hearing and in failing to object to the prosecutor's omission of the initial confinement recommendation of no more than five to seven years. The state court held an evidentiary hearing at which it heard testimony from Campbell, the counsel who represented him at the first sentencing, and counsel who represented him at the resentencing. The court found that there had been no breach of the plea agreement and alternatively that, if there was a breach, it was a technical breach, not a material and substantial breach. The court denied the petition for relief, concluding that Campbell could not establish that counsel was ineffective in failing to object because the prosecutor had not materially breached the plea agreement. Campbell appealed.
Regarding the State's failure to recommend five to seven years' initial confinement, the Wisconsin Court of Appeals concluded that “Campbell has failed to prove that the State's conduct materially and substantially breached the plea agreement.” State v. Campbell, 331 Wis.2d 91, 794 N.W.2d 276, 279 ¶ 9 (Wis.Ct.App.2010). The court gave four reasons for that conclusion: (1) the prosecutor merely omitted one of the plea agreement's terms and “did not affirmatively contradict a term of the plea agreement,” id. ¶ 10; (2) “Campbell's counsel clarified the prosecutor's omission,” stating that “the plea bargain ... was five to seven years in and the balance of twenty on extended supervision,” id. ¶ 11; (3) “the prosecutor did not dispute Campbell's counsel's clarification of the plea agreement,” id. ¶ 12, and if the prosecutor had disagreed with the defense's statement, one would expect him to have objected; and (4) the court was aware of the plea agreement's terms before sentencing, id. ¶ 13.
As for the prosecutor's remarks at the resentencing hearing, the court of appeals agreed with the circuit court that the “remarks did not undermine the State's sentence recommendation.” Id. at 281 ¶ 18. While the prosecutor implicitly had argued “for a significant sentence,” the court concluded that “a twenty-year sentence is just that.” Id. The Wisconsin Court of Appeals determined that Campbell had failed to show a material and substantial breach of the plea agreement and therefore could not establish ineffective assistance of counsel in failing to object to the State's conduct; the court accordingly affirmed the trial court. Id. ¶ 19. Campbell filed a writ of certiorari with the Wisconsin Supreme Court, which denied his petition without addressing the merits. State v. Campbell, 332 Wis.2d 281, 797 N.W.2d 525 (2011).
Campbell then filed a § 2254 petition, claiming that his counsel rendered ineffective assistance in failing to object to the State's breach of the plea agreement. Although the petition asserted only that the Wisconsin Court of Appeals' decision was contrary to or unreasonably applied Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), the district court interpreted the petition as claiming that the appellate court unreasonably applied Santobello and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The district court rejected both claims and denied the petition. Campbell v. Tegels, No. 12 CV 225, 2013 WL 6044406 (W.D.Wis. Nov. 14, 2013). Campbell sought a certificate of appealability in this court, and one was granted on (1) whether Campbell's due process rights were violated and his plea agreement breached by the prosecutor's arguments at his resentencing hearing, and (2) whether Campbell received ineffective assistance of counsel because his lawyer failed to object to the prosecutor's alleged breach.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), we may grant a writ of habeas corpus on a claim that a state court has adjudicated on the merits if the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1) ; Lopez v. Smith, No....
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