Dressler v. McCaughtry

• Decision Date: 01 February 2001
• Docket Number: No. 99-2631,99-2631
• Citation: 238 F.3d 908
• Parties: (7th Cir. 2001) JOACHIM E. DRESSLER, Petitioner-Appellant, v. GARY R. MCCAUGHTRY, Respondent-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 908

238 F.3d 908 (7th Cir. 2001)

JOACHIM E. DRESSLER, Petitioner-Appellant, v. GARY R. MCCAUGHTRY, Respondent-Appellee.

No. 99-2631

In the United States Court of Appeals For the Seventh Circuit

Argued October 26, 2000

Decided February 1, 2001

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 97 C 431--William E. Callahan, Jr., Magistrate Judge.

Before EASTERBROOK, KANNE, and EVANS, Circuit Judges.

EVANS, Circuit Judge.

James Madden was last seen alive during the early evening hours of June 26, 1990, in the town of Raymond, Wisconsin. Two days later his legs and torso were found in yellow plastic bags in a farmer's field approximately 3 miles southwest of the site of his disappearance. Madden's skull and arms were discovered 2 weeks later--also enclosed in yellow plastic bags-- approximately 3 miles northeast of the disappearance site. Tests revealed that Madden was the victim of a vicious attack: his genitalia and several other organs were cut from his body; his ankles wrists, and neck exhibited ligature marks; and fragments, consistent with metal bullets, were embedded in his skull. Madden's wounds demonstrated that the mutilation occurred both before and after his death.

Prior to his disappearance, Madden was soliciting door-to-door for the Citizens for a Better Environment. Madden was last seen by the next-door neighbors of Joachim Dressler and his scheduled route would have made Dressler's home his next stop. Due to these circumstances, the fact that Dressler was home alone the night of Madden's disappearance, and Dressler's admission that he (at least at one time) owned yellow trash bags, the investigation focused on Dressler. Pursuant to a warrant, police searched Dressler's home, seizing a number of items including firearms, knives, saws, ropes, and bloodstain samples. In addition, the police seized a briefcase which contained videotapes, photographs, and magazines depicting murder and mutilation victims, as well as homosexual pornography. With these discoveries, Dressler became an even hotter suspect, but no arrest was made.

A major break in the investigation came several weeks later on August 8, when Sherwin Beyer, a neighbor of Dressler's, reported to the Racine County sheriff's department that Dressler admitted to him that he was responsible for Madden's death. Specifically, Dressler told Beyer that Madden was soliciting at Dressler's home when they discovered they had a mutual interest in guns. Dressler and Madden went to the back yard to do some practice shooting with a rifle. At some point, Dressler returned to the house to retrieve a handgun and, upon returning, accidentally shot Madden in the back of the head while clearing the gun. Dressler told Beyer he then cut out Madden's brain and put it down the garbage disposal. Shortly after this new information came to light, Dressler was arrested and charged with first degree intentional homicide.

Based on the materials found in Dressler's home, and the nature and extent of Madden's wounds, the State's theory of the offense was "homosexual overkill." Although the murder weapon was never specifically identified, the State introduced into evidence various weapons found at Dressler's home in order to demonstrate that he had the means to inflict the type of injuries Madden suffered. In addition, the videotapes and pictures seized from Dressler's home played a prominent role in the State's case. The trial court admitted, over Dressler's objections, these materials as "other acts" evidence under Wisconsin Statute sec. 904.04(2), holding that they were relevant to the State's theory of homosexual overkill because they were probative of Dressler's homosexuality and fascination with violence.

Dressler's defense centered on the lack of physical evidence linking him to Madden's murder and on demonstrating that others could have been responsible for the crime. The defense did not deny Dressler's statement to Beyer, but rather presented expert testimony on an alcohol-related phenomenon called confabulation. The defense expert testified that alcohol abusers, like Dressler, may invent stories based upon a combination of truth and imagination in order to explain alcohol-induced memory loss. Dressler argued that the story he told Beyer was confabulated from two separate incidents. First, he pointed to the testimony of Keith Erickson, who told the jury that he came to Dressler's home approximately 2 weeks after the Madden murder to inquire about a car Dressler was selling. After discovering that he and Dressler shared an interest in guns, they shot a rifle in Dressler's back yard, and at some point Dressler went back inside the house and returned with a handgun. When they were finished shooting, Dressler and Erickson engaged in homosexual sex. Second, Dressler flagged for the jury certain questions Racine County Sheriff Robert Rohner asked him during an August 1, 1990, interrogation. Specifically, Sheriff Rohner told Dressler that he believed Dressler shot Madden in the head, broke open his skull, and put his brain down the garbage disposal and into the septic system. Dressler argued that his "confession" to Beyer was a figment of his imagination which combined these two incidents. The jury didn't buy Dressler's confabulation theory and found him guilty of first degree intentional homicide.

On a motion for postconviction relief in the trial court, Dressler objected for the first time, on specific First Amendment grounds, to the introduction of his videotapes and pictures into evidence.¹ In opposing Dressler's motion the State did not argue that this objection was untimely or barred for any other procedural reason. The trial court denied Dressler's motion without setting forth its reasoning.

Dressler appealed to the Wisconsin Court of Appeals, asking that his conviction be reversed on numerous grounds, including (1) the trial court's refusal to strike certain prospective jurors for cause, (2) the admission of numerous pieces of evidence, including the videotapes and pictures found in his home, (3) the alleged insufficiency of the evidence, (4) the trial court's refusal to give his proposed jury instructions, and (5) alleged prosecutorial and judicial misconduct. The Court of Appeals addressed and rejected most of these alleged errors on the merits. With respect to Dressler's First Amendment objection to the videotapes and photographs depicting intentional violence and homosexual acts, however, the court held that "[t]his argument was not presented to the trial court and we will not consider it for the first time on appeal." State v. Dressler, 1993 WL 469759, at *6 (Wis. Ct. App. Nov. 17, 1993). Dressler's petition for review before the Wisconsin Supreme Court and his petition for certiorari to the United States Supreme Court were denied.

On April 22, 1997, Dressler petitioned the United States District Court for the Eastern District of Wisconsin for a writ of habeas corpus, setting forth eight grounds in support of his prayer for relief, which substantially mirror the arguments he presented to the Wisconsin Court of Appeals. Because Dressler's petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214, Magistrate Judge William E. Callahan, Jr. reviewed Dressler's claims that were adjudicated on the merits by the Wisconsin Court of Appeals (i.e., all but the First Amendment claim) under the standard set out in 28 U.S.C. sec. 2254(d). Finding that the state court had not made "a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[,] . . . or that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," 28 U.S.C. sec. 2254(d), the judge declined to issue a writ. The judge went on to reject Dressler's First Amendment argument on both procedural and substantive grounds, applying the de novo standard of review that prevailed prior to the Antiterrorism and Effective Death Penalty Act. See Milone v. Camp, 22 F.3d 693, 698 (7th Cir. 1994). First, in reliance on the Wisconsin Court of Appeals' opinion, the judge held that Dressler procedurally defaulted his First Amendment claim by failing to raise it, "in any form," before the trial court.² Second the judge held that the introduction of the videotapes and pictures found in Dressler's home did not implicate his First Amendment rights. He was not tried for possession of these materials, but for murder, and the fact that he was a homosexual with a peculiar interest in death and mutilation supported the State's theory of the case.

Unwilling to accept defeat, Dressler asked Judge Callahan to issue a certificate of appealability pursuant to 28 U.S.C. sec. 2253(c), a necessary prerequisite to this appeal.³ Citing the dissent in United States v. Giese, 597 F.2d 1170 (9th Cir. 1979), the judge found that Dressler's First Amendment argument "is debatable among jurists of reason or, at least, is one that is adequate to deserve encouragement to proceed further." Accordingly, he certified that issue. The judge refused to issue a certificate of appealability as to Dressler's other arguments, and we decline Dressler's invitation to expand the certificate to include them. We therefore address only Dressler's First Amendment argument, which is borderline frivolous at best.

The first step in our analysis is to determine whether Dressler gave the state court "a full and fair opportunity to review" his claims "through its own judicial processes before asserting federal review." Farrell v. Lane, 939 F.2d 409, 410 (7th Cir. 1991); see also 28 U.S.C. sec. 2254(b). If he either failed to exhaust all available state remedies or raise all claims before the state courts, his petition must be denied without considering its merits. See Thomas...