Maier v. Smith

• Decision Date: 11 January 2019
• Docket Number: No. 18-2151,18-2151
• Citation: 912 F.3d 1064
• Parties: Donald MAIER, Petitioner-Appellant, v. Judy P. SMITH, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

912 F.3d 1064

Donald MAIER, Petitioner-Appellant,

v.Judy P. SMITH, Respondent-Appellee.

No. 18-2151

United States Court of Appeals, Seventh Circuit.

Argued September 25, 2018

Decided January 11, 2019

Rehearing Denied February 14, 2019

Thomas Brady Aquino, Attorney, WISCONSIN STATE PUBLIC DEFENDER, Appellate Division, Madison, WI, for Petitioner-Appellant.

Kevin Michael LeRoy, Attorney, Amy Catherine Miller, Attorney, OFFICE OF THE SOLICITOR GENERAL, Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee.

Before Kanne, Rovner, and Barrett, Circuit Judges.

Kanne, Circuit Judge.

Donald Maier appeals the district court’s denial of his petition for habeas corpus relief from his conviction under Wisconsin’s stalking statute.Five years after a jury convicted Maier of threatening two Wisconsin state court judges, Maier sent two sets of letters to the former jurors—ostensibly seeking their help in his effort to obtain a governor’s pardon.Several of the jurors found the letters threatening or disturbing.Maier was charged and convicted under Wisconsin’s stalking statute.After appealing his conviction in the Wisconsin state courts, Maier brought this petition.Because the Wisconsin Court of Appeals’ decision was not objectively unreasonable, we affirm the district court’s denial of Maier’s petition.

I.BACKGROUND

A jury convicted Donald Maier of threatening two Wisconsin state court judges in 2006.In November 2011, Maier mailed a handwritten letter to the men and women who served as jurors in that case.Due to a clerical error, Maier obtained the names and addresses of the jurors in his case.The jurors were not expecting his correspondence.The letter’s opening line announced, "Jury Duty is Not Over."(all quotations include the letters’ original spelling, capitalization, and punctuation).The letter informed the jurors that after being "skrewed" and serving two years in prison, Maier was "going for a Pardon with the Governor’s office."The letter included a handwritten questionnaire inviting the jurors to respond to a series of "yes" or "no" questions.The first question asked the jurors if they believed that Wood County"did a Professional Job?Such as keeping your Name’s and addresses from someone like [Maier]?"Maier reminded the jurors that they helped put him in prison, and observed, "Real good people in there."Maier’s next question asked the jurors whether he could give the list of their names and addresses to the "people[Maier] had to live with?"Maier’s questionnaire then addressed a litany of injustices he believed he suffered during his prosecution, trial, and incarceration for the 2006 charges.Maier emphasized his mistreatment and mentioned his placement in mental institutions.

After airing his grievances, Maier finally asked the jurors whether they believed they did the right thing in sending him to prison.Maier advised the jurors, "My story will be heard nation wide soon.Your names could be too.Because you helped in the Judge Zappen conspiracy[.]"He closed the letter by encouraging the jurors to "do the right thing" and to mail their questionnaires to the governor’s Pardon Advisory Board and a copy to Maier, himself.He assured the jurors, "The sooner I get justice will be when everybody in the Wisconsin Rapids police cover-up and the Judge Zappen conspiracy will get peace ‘No more letters’[.]"

Maier mailed his missive, questionnaire, and pardon application to all 13 jurors.Three letters were returned as undeliverable.Upon receipt, several of the former jurors immediately called the police.One of the former jurors and her husband, a police officer, contacted the Wood County Sheriff’s Department to complain about the letter.She feared that Maier might retaliate against her for her role in his conviction.Sheriff's Deputy Scott Goldberg drafted a report documenting the complaint and in his report stated, "[a]fter reading through the questions, none of the questions are actually threatening but Officer Machon said he and his wife were extremely concerned about the questions that were asked and just the fact that they were being contacted by this subject."

A local newspaper later ran a one-sentence bulletin noting that a female juror received a threatening letter from a man on whose trial she served.The newspaper account caught Maier’s attention.He clipped the item and included it in a second letter to the jurors, dated November 14, 2011.The second letter opened, "I read the paper too.My letter was not threatening in anyway.I just want to let you see what kind of Idiots you helped put me in prison."Maier then criticized the judges involved in the 2006 affair and wrote, "’You have Nothing to fear from me’[.]"He closed his second letter by encouraging the jurors to contact his state representative or the governor’s office, and signed off as "Your friend from Planet of the Apes Courthouse In downtown Zappenville[.]"

After Maier sent the second letter, the state charged him with ten counts of stalking in violation of Wisconsin Statute § 940.32 —one count for each of the jurors who received his letters.

A new jury convicted Maier on six of the ten counts and acquitted him on four counts.Maier was sentenced to fifteen years in prison and twelve years of extended supervision.

Maier moved the trial court for post-conviction relief.His motion raised a litany of arguments, including the same four arguments he brings in this petition.The trial court held a hearing and denied Maier’s motion.He then appealed both the trial court’s denial of his motion and his conviction to the Wisconsin Court of Appeals.State v. Maier , No. 2013AP1391-CR, 354 Wis.2d 623, 2014 WL 1810151 *1(Ct. App.May 8, 2014).It affirmed Maier’s conviction.Maier then appealed to the Wisconsin Supreme Court, which denied review of his case.Maier unsuccessfully petitioned the United States Supreme Court for a writ of certiorari.Maier v. Wisconsin , ––– U.S. ––––, 136 S.Ct. 2011, 195 L.Ed.2d 215(2016).Maier then petitioned for federal post-conviction review under 28 U.S.C. § 2254.The district court denied his petition and issued a certificate of appealability on May 2, 2018.Maier v. Tegels , No. 17-CV-365-BBC, 2018 WL 2049824, at *8(W.D. Wis.May 2, 2018).This appeal followed.

II.ANALYSIS

We review a district court's denial of a habeas petition de novo .Saxon v. Lashbrook , 873 F.3d 982, 987(7th Cir.2017).We review issues of fact for clear error.Adams v. Bertrand , 453 F.3d 428, 432(7th Cir.2006).Maier’s petition for habeas corpus relief is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).AEDPA provides that habeas petitions shall not be granted unless the adjudication of the claim resulted in a decision that was 1) contrary to, or 2) involved an unreasonable application of Federal law clearly established in the holdings of the Supreme Court, or 3) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.See28 U.S.C. § 2254;Harrington v. Richter , 562 U.S. 86, 100, 131 S.Ct. 770, 178 L.Ed.2d 624(2011).

We review the Wisconsin Court of Appeals’ opinion, which was the last reasoned state-court decision on the merits.Wilson v. Sellers , ––– U.S. ––––, 138 S.Ct. 1188, 1192, 200 L.Ed.2d 530(2018)."[O]n habeas review, federal courts are usually limited to a deferential review of the reasonableness, rather than the absolute correctness, of a state court decision."Mosley v. Atchison , 689 F.3d 838, 844(7th Cir.2012)(citingRichter , 562 U.S. at 101–102, 131 S.Ct. 770(2011) )."For purposes of reasonableness review, ‘a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.’ "Id.(quotingRichter , 562 U.S. at 103, 131 S.Ct. 770 ).

Wisconsin’s stalking statute prohibits,

intentionally engag[ing] in a course of conduct directed at a specific person that would cause a reasonable person under the same circumstances to suffer serious emotional distress or to fear bodily injury to or the death of himself or herself or a member of his or her family or household.

Wis. Stat. § 940.32(2)(a).The state must prove the defendant knew or should have known that one of his or her acts would likely cause the victim serious emotional distress.Id. at § 940.32(2)(b).The acts must have also actually caused the victim serious emotional distress.Id. at § 940.32(2)(c).

Maier challenges his conviction in four ways.First, Maier claims he received ineffective assistance of counsel because his trial counsel failed to introduce evidence that Maier believes would have negated crucial elements of the Wisconsin stalking statute.Second, he argues that the Wisconsin stalking statute—as it was applied to him—violated the First Amendment.Third, Maier contends that the jury instructions given by the trial court misstated Wisconsin law with respect to the "true threats" test.According to Maier, the erroneous jury instructions failed to hold the state to its burden of proof and deprived him of his Fourteenth Amendment right to due process of law.Lastly, he claims the state presented insufficient evidence to support his conviction.We review each argument in turn under AEDPA’s deferential standard of review.

A. Maier Received Effective Assistance of Counsel

Maier argues he received ineffective assistance of counsel because his trial attorney failed to introduce evidence that Maier believes would have aided his defense.Specifically, Maier claims that his trial counsel should have introduced evidence showing that he was genuinely applying for a pardon and evidence that a few people—including law enforcement officials—did not find the first letter threatening.

"To establish ineffective assistance of trial counsel, a...