Eckstein v. Kingston

• Decision Date: 16 August 2006
• Docket Number: No. 05-2929.,05-2929.
• Citation: 460 F.3d 844
• Parties: Joseph ECKSTEIN, Petitioner-Appellant, v. Phil KINGSTON,<SMALL><SUP>1</SUP></SMALL> Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

460 F.3d 844

Joseph ECKSTEIN, Petitioner-Appellant, v. Phil KINGSTON,¹ Respondent-Appellee.

No. 05-2929.

United States Court of Appeals, Seventh Circuit.

Argued January 6, 2006.

Decided August 16, 2006.

Robert R. Henak (argued), Milwaukee, WI, for Petitioner-Appellant.

Daniel J. O'Brien (argued), Office of the Attorney General Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee.

Before EASTERBROOK, MANION, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

Joseph Eckstein solicited a woman to murder his wife, and he taped two of the conversations in which he did so. As did the police. Unsurprisingly, after a bench trial in Brown County Circuit Court in Wisconsin, Eckstein was convicted of conspiracy to commit first-degree homicide and solicitation to commit first-degree homicide. He was sentenced to 40 years in prison on the conspiracy charge and to 10 years for the solicitation charge, to be served concurrently.

In a federal habeas corpus petition, Eckstein is now trying to convince us that the Wisconsin Court of Appeals was unreasonable in its determination that he did not receive constitutionally ineffective assistance of counsel, as defined by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because the Wisconsin Court of Appeals' decision was reasonable (maybe even inevitable), we affirm the magistrate judge's judgment dismissing Eckstein's petition.

I

Eckstein was convicted of conspiring to kill his wife, Annamaria, who had filed for divorce, and soliciting a woman named Crystal Graham to do the dirty work. Unfortunately for Eckstein, though thankfully for Annamaria, Graham lost her nerve and decided to cooperate with the police. Even more unfortunate for Eckstein was the fact that both he and the police, using a wire with Graham's consent, taped the final two planning conversations between Eckstein and Graham. Eckstein was arrested after the second taped meeting on September 3, 1998; his own tape of the two conversations was seized from his truck later that day.

During Eckstein's trial, Graham was the key witness. According to Graham, she met with Eckstein several times in the spring and summer of 1998 for the purpose of arranging for her to kill his wife. She testified that the subject first arose in April 1998 when Eckstein told her that "he wished he knew someone who could get rid of" his wife or "bump her off." Graham responded that her son could find someone to do it. At their second meeting, they negotiated a price of $10,000. Eckstein also provided Graham with information about his wife, including the type of car she drove. At their third meeting, Eckstein told Graham that he wanted his wife "bumped off" while he was out of town for a wedding, but Graham told Eckstein that they were going to plant drugs on Annamaria and send her to prison rather than kill her because Graham's son deemed the latter plan too risky. In preparation, Eckstein gave Graham keys to Annamaria's car, a business card with her photograph, and information about her, including her work and home addresses and the identities of her friends. He also gave Graham $1,000 to procure the necessary drugs; the plan foundered, however, when Graham could not obtain the drugs. At that point, she returned the $1,000 as well as Annamaria's car keys to Eckstein. Graham left town for a month, but when she returned she talked again with Eckstein and indicated she was still on board with the plan to "get rid of" Annamaria. In fact, this was not true. On August 31, 1998, Graham went to the police, told them about the plan, and agreed to wear a wire at her next meeting with Eckstein.

When the two met again on September 2, 1998, both the police and Eckstein taped the encounter. Eckstein told Graham that he "would need a[n] exact plan and time first . . . because . . . the last time I don't feel you had a plan." Graham suggested using a Molotov cocktail, as Eckstein had suggested at an earlier meeting, but Eckstein was concerned about her lack of experience. Graham responded, "Well i[f] I lose my life, I lose it," to which Eckstein replied:

No, no, no. There's a chance of . . . the bottle not hitting hard enough, not breaking or whatever . . . . Of course[,] there's other things to do. . . . [Y]ou know the other thing is what that one lady does with that cleaner, oven cleaner. I mean, if somebody I think got that all over their body and in their mouth and in their lungs or knocked out and . . . virtually I mean sprayed their mouth and lungs full of that as well as the whole body . . . I think they're gonna be gone.

When Graham responded that she would do whatever Eckstein wanted, he replied, "[I]t's up to you. . . . [W]hat I want to do is know nothing about it. . . . And I want to be gone." Eckstein repeated that he could pay $500 immediately, $500 immediately after the "job," and $10,000 as soon as he was cleared. He worried that he would be blamed and then repeated,

I wanna be gone so if somebody asks me if I know, I might say something that would, ya know, conflict or affect you . . . . Cause if, ya know, I know you're gonna shoot her, I might goof up. . . . [I]f they question me about the shooting, question you about the shooting, ah, we're not gonna say the same thing. . . . If I don't know anything about something and something happens and I'm gone someplace else, I have an alibi.

Eckstein also expressed concern that the last plan he and Graham had made had failed, and then he asked how and when Graham would act. Graham indicated that she "plan[ned] on doing it hopefully this weekend if it looks good." Later, Graham said she "can hit her one way or the other," and Eckstein responded, "one of the best ways, ya know if I was gonna do it, I'd go for her garage." At the same meeting, in addition to suggesting the use of oven cleaner, Eckstein also indicated by hand gestures that Graham should slash Annamaria's throat or stab her in the stomach. The two agreed that the event would occur the next weekend while Eckstein was out of town.

The next day, on September 3, 1998, the two met again, and again both Eckstein and the police recorded their conversation. Eckstein gave Graham $500, a business card with Annamaria's photo, keys to her car, and information about where to find her. According to the transcript of the police tape, Eckstein said,

You do this right, ya know, like say in the garage or something. Ya know, murder her in the garage or do it in the garage or something. Load her in the car. Bury her in the cornfield or something . . . between the rows of corn. Nobody will ever know it.

Eckstein then suggested that Graham should steal Annamaria's car and alter the VIN number to disguise the theft, before continuing, "Put the person in the car, take the car and the person, get rid of the person, get rid of the license plate." Once again, Eckstein reassured Graham that he didn't "care what you wanna do [to] keep track of me, be with me all the time or whatever you want to do . . . [until] the smoke clears and then you get the ten grand." Eckstein then told Graham that he wanted "a guarantee" that the job would be done by October 15. Graham responded, "You'll either get the money or you'll get the job and . . . I'm planning on killing Annamaria this weekend." Eckstein signed off with a "Yeah. Okay."

At trial, the prosecution played the police recording of the September 2, 1998, conversation and submitted a transcript of it. The September 3, 1998, conversation was handled differently. Unaware that he had been successful at recording the September 3, 1998, conversation, Eckstein initially planned to attempt to keep the police recording out on the grounds of poor quality, thereby eliminating any record of that conversation. But when the police discovered Eckstein's recording of the September 3, 1998, conversation on the flip side of the tape from the day before, Eckstein waived his objection because he believed that his recording would be admitted anyway. In the end, the court admitted both recordings for that day, but only Eckstein's was played at trial. The transcript for September 3 that was admitted, however, was from the police recording, which Eckstein now claims inaccurately reflects his use of the word "murder." The magistrate judge presiding over the habeas corpus proceeding rejected Eckstein's motion seeking to supplement the record in the district court with the tapes themselves.

Eckstein testified at trial and offered an account of the events that was different, although not entirely exculpatory. He stated that it was Graham who initially came up with the idea of "tak[ing] care" of his problems with Annamaria, that Graham suggested three options — plant drugs on Annamaria, take her out of the country, or kill her — and that he only agreed to pay $10,000 to plant drugs. Eckstein admitted paying Graham $1,000 to obtain the drugs and demanding the money's return when the plan stalled. The next time Graham told him that she was "working on a plan for Annamaria," Eckstein testified, he did not believe her because he "knew better from all the experience and the stories [he] heard before." He testified that he called Graham then because he wanted her to serve as a witness in his divorce, and that he taped their conversations to protect himself because he thought Graham was acting strangely. Eckstein claimed that he believed that Graham was still talking about a plan to plant drugs on Annamaria. He nixed the Molotov cocktail idea, he said, because he did not want Annamaria to get hurt. It was Graham, not he, who had first suggested oven cleaner at an earlier (unrecorded) meeting as a means of self-protection. He testified that he was just being agreeable when he said "Yeah. Okay." to her statement about killing Annamaria that weekend because "[w]hatever she would say, I wouldn't believe anyway." He also testified that it was his understanding that references...