Jardine v. Dittmann
| Decision Date | 14 October 2011 |
| Docket Number | No. 09–3929.,09–3929. |
| Citation | 658 F.3d 772 |
| Parties | Jamie J. JARDINE, Petitioner–Appellant,v.Mike DITTMANN, Respondent–Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
OPINION TEXT STARTS HERE
Robert J. Palmer, Attorney, May, Oberfell & Lorber, Bryan Mackenzie, Law Student, Mishawaka, IN, for Petitioner–Appellant.Warren D. Weinstein (argued), Assistant Attorney General, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Respondent–Appellee.Before POSNER, ROVNER, and WOOD, Circuit Judges.PER CURIAM.
Jamie Jardine, imprisoned in Wisconsin for sexual assault and attempted homicide, appeals the dismissal of his petition for a writ of habeas corpus. See 28 U.S.C. § 2254. Although the district court dismissed the petition summarily, it granted Jardine a certificate of appealability to pursue his claim that, at trial, Wisconsin officials withheld from him material, exculpatory evidence in violation of his Due Process rights. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We affirm. In doing so, we acknowledge that Jardine's criminal case featured police misconduct. But this appeal illustrates how the constitutional rule announced in Brady does not reach every instance of misconduct. Brady covers only material evidence, and in Jardine's case the materiality prong has real bite. At bottom, Jardine was doomed by his own testimony, and that fact prevents us from concluding that the state court was unreasonable in finding the missing evidence immaterial.
In 1994, a Wisconsin jury convicted Jardine of sexually assaulting and attempting to kill Laurie Grandhagen, a masseuse at Kady's Sauna and Massage Parlor in Superior. He was sentenced to 60 years' imprisonment. State-court opinions and the petition show that Grandhagen and Jardine told two very different stories at trial.
According to Grandhagen, Jardine got violent after a massage. He brandished a gun, handcuffed and sexually assaulted her, then asked about the parlor's money stash and led her down a hall at gunpoint. Before finding any money, however, he removed the handcuffs and forced Grandhagen to her knees. Fearing for her life, Grandhagen lunged for Jardine's gun when he displayed it a second time. From there her memory is blank, but the ensuing struggle left her with a crushed skull and a gunshot wound in her thigh. To explain the skull fracture and attendant brain trauma, a doctor testified that the features of the wound were consistent with pistol-whipping with the butt of a gun like Jardine's. The record does not reveal whether Jardine took any money.
Jardine's story had similar elements but a different bent. He testified that he usually carried a pistol and handcuffs for his work as a security guard, and that he had been driving around with the gun that day, contemplating suicide; he changed his mind and went for a massage instead. Jardine, a repeat customer at Kady's, had previously paid another masseuse there (not Grandhagen) for sexual favors in addition to run-of-the-mill massages. During this session, he inadvertently revealed his gun to Grandhagen, who then volunteered that the two could have sex; Jardine, confused, acquiesced. But he needed extra help getting aroused, so he and Grandhagen agreed to use the handcuffs; after sex, he removed them at her request, without ever seeking the parlor's money stash or holding her at gunpoint. And although Jardine admitted asking Grandhagen to kneel after having sex, he testified that he did so for “no real reason.” He then showed his gun to Grandhagen again, this time to demonstrate that it was harmless in his hands. But the demonstration went awry: Grandhagen inexplicably seized the gun, which went off, sending her to the floor. Jardine, seeing blood on Grandhagen's head and assuming that she had been shot there rather than her leg, panicked and fled. When police first questioned him, he denied that he had been at the massage parlor that night, but he later admitted he had been there. At no time could he explain how Grandhagen's head was injured.
Jardine was convicted, and he combined his direct appeal with an unsuccessful motion for a new trial based on a letter from another masseuse who somehow contradicted both Grandhagen's trial testimony and his. After Jardine lost on appeal, he petitioned the Supreme Court of Wisconsin for review. And while his petition was pending, the trial court received a new letter from a police detective who admitted doctoring the crime scene in some manner to hide evidence of prostitution at Kady's.
On the basis of the detective's letter, Jardine filed another new-trial motion, which the trial court ignored for years. Eventually, Jardine renewed his motion; the trial court cursorily dismissed it; and, later, the Court of Appeals remanded the case to the trial court for further consideration, “because the real controversy regarding the letter allegedly from the detective ha[d] not been heard.” Further, the court explained, the allegations went “to the crux of the State's case” and seemed “particularly relevant to the sexual assault charges and are too important to be left unresolved.” Yet, while the motion was again pending in the trial court, Jardine's counsel withdrew it; the record does not show precisely when. And later—again, the record does not say when—Jardine filed a new motion for DNA testing and related relief. His motion was granted, at least with respect to the DNA testing. Among the items tested were semen-stained sheets and towels from the massage parlor, apparently withheld by the detective in the run-up to trial, and Jardine's gun. At least three other men (and not Jardine) had ejaculated on the sheets and towels at some time, and the butt of the gun yielded no testable genetic material.
The trial court denied Jardine any relief on the basis of the test results, however, and the Court of Appeals upheld that determination in a written, unpublished decision. The Supreme Court of Wisconsin denied review.
Jardine then filed a petition under 28 U.S.C. § 2254, arguing, as relevant here, that the sheets and towels, together with the gun, were unconstitutionally suppressed before and at trial. The district court summarily dismissed the petition without requesting a response from the warden or additional state-court records, concluding that Jardine's claim about the DNA-tested evidence failed on the merits and any other claims were untimely. Days later, Jardine requested a certificate of appealability, which the district court granted. He moved simultaneously for reconsideration, and the district court ordered that motion administratively terminated.
Jardine argues that his gun and the stained sheets and towels from the massage parlor were exculpatory, material evidence suppressed by Wisconsin officials in violation of his Due Process rights as outlined in Brady. (The certificate of appealability suggested that Jardine could also argue ineffective assistance of counsel, but his briefs are silent on that issue.) The warden attacks the materiality of the evidence, but first questions whether the petition is timely—although he concedes that gaps in the record left the district court unable to answer that question. The warden also asserts that Jardine defaulted his claims by failing to apprise the Wisconsin courts of their federal nature. Jardine's state-court filings are mostly absent from the record, and their absence clouds any inquiry into timeliness or default. Because we can resolve the merits but not the procedural questions on the scant record, we turn directly to the substance of Jardine's claims.1
The parties dispute the exculpatory value of Jardine's gun, the butt of which—years after trial—contained no trace of Grandhagen's DNA. Jardine says this shows his gun was not used to bash her head in; the warden says otherwise, trading on the time Jardine had to wipe away any gore before he was caught. But in this fight the parties overlook a simpler problem: by Jardine's account, Wisconsin never suppressed the gun. Suppression, for Brady purposes, happens only when prosecutors and police fail to disclose evidence not otherwise available to a reasonably diligent defendant. United States v. Gray, 648 F.3d 562, 566–67 (7th Cir.2011); Harris v. Kuba, 486 F.3d 1010, 1015 (7th Cir.2007). Nothing in Jardine's petition suggests his defense team was unaware of his own gun's existence, the state's possession of it, or the prosecution's theory of its role in the crime. Nor does Jardine allege that he unsuccessfully requested access to the gun. Thus, Jardine's Brady claim about his gun never leaves the ground. See Harris, 486 F.3d at 1015 (); United States v. Lee, 399 F.3d 864, 865 (7th Cir.2005) ().2
At first blush, Jardine's argument about the semen-stained sheets and towels, which showed (after DNA testing) that other men had sexual encounters at the parlor, gets more traction. (Jardine also mentions a hair sample that turned out not to be his, but the hair could easily belong to the purchaser of a bona fide massage.) The evidence supports his contention that the parlor doubled as a brothel and, according to him, explains why Grandhagen might have offered him sex, reveals her motivation to cover up her prostitution career by lying, and contradicts the testimony of Denise McKay, another masseuse who denied generally that prostitution took place at the parlor and specifically that Jardine had once purchased her sexual services. Derivatively, Jardine argues that the evidence of prostitution could, by bolstering his testimony that Grandhagen consented, negate his motive to fatally silence a rape victim. What is more, the evidence seems to have actually been suppressed.
But not all suppressed evidence that has some...
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